The Power of Knowing Your Rights

In 2006 Ahmadullah Niazi, a 34-year-old regular at the Islamic Center of Irvine (ICOI), befriended Craig Morteilh, who presented himself as a recent immigrant who was interested in converting to Islam. Their conversations began around spirituality, but quickly Morteilh began discussing “operations” against the U.S., bragging about his access to illegal weapons, and trying to recruit community members to join him in a terrorist plot. The mosque obtained a restraining order against Morteilh, and Niazi reported him to the FBI. Officials offered Niazi a job as a paid informant for the FBI, and when he declined the offer they threatened to make his life, “a living hell.” Within months Niazi was arrested on trumped up charges of ties to terrorism.

There’s an old saying amongst political activists. If you want to know who the undercover agent is, it’s the guy advocating violence. This is a lesson American Muslims must learn. Craig Morteilh, as it turns out, was not as he presented himself, but was in fact an agent provocateur sent by the FBI to incite a terrorist scheme, not thwart one.

Whether its watch lists, databases, or agent provocateurs one thing is clear. The American Muslim community, especially Yemeni and Pakistani Americans, are the target of an ongoing FBI fishing expedition. What’s less obvious is that the far reaching powers that have been granted to America’s security agencies will inevitably impact the general population. It’s called, “mission creep” when the role of an agency or project expands beyond its original goals to include new ever expanding goals. The tendency of all government programs is to grow, for public employee unions to secure their positions after their usefulness has expired, and for budget committees to find new creative reasons to demand more tax dollars. As a policy established to target a small segment of the population creeps beyond its original mission the inevitable result is that the target must expand.

Every American has the constitutional right to be politically active. But more and more, these are the Americans being targeted by the programs put in place to survey Muslims. Whether it’s the Tea Party, or the ANSWER Coalition, activists on both sides of the aisle are finding themselves the subject of inquiry. So, it’s important for Muslims, but also all Americans, to know what they can do to protect themselves when stopped, searched or arrested by any law enforcement officer or federal agent.

To be clear from the outset, what follows does not constitute legal advice. I am not a lawyer. However, this is consistent with the advice of attorneys working for the American Civil Liberties Union (ACLU), the Asian Law Caucus (ALC) and the Council on American Islamic Relations (CAIR), who should be consulted to clarify any misunderstanding.

The Fifth Amendment of the U.S. Constitution reads, “No person shall… be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.”

This amendment is the single most important thing to keep in mind when visited by any officer or agent. The best thing you can do, even if you are a law abiding citizen, is keep your mouth shut and demand legal counsel. You are not obligated to answer any questions with two important exceptions. In most states you obligated to identify yourself by name if asked, and obligated to present your papers if stopped while driving.

Under current law, you have the legal right to have a lawyer present whenever speaking with law enforcement, whether you are a citizen or not. Refusing to answer questions cannot be held against you, but answering incorrectly, even by accident, could be construed as a serious crime. Even if your intention is to help law enforcement to the best of your ability you are safer, and your rights more secure, with a lawyer present.

Many people choose to cooperate without legal counsel imagining that officers will go easy on them if they have nothing to hide. Instead, what we have seen is that one interview leads to others as agents try to establish permanent informants in the community, or agents use minor discrepancies in someone’s recollection to threaten them with prosecution and coerce further cooperation. Always remember, lying to an agent, even by accident is a crime, but they can legally lie to you. What we have seen is that agents make promises, such as offering to resolve someone’s immigration issues, in exchange for help in an investigation, when in reality they never actually help the person, and likely don’t have the power to do what they promised anyway.

Remaining silent does not make you look guilty, and cooperating does not make things easier. The very best thing you can do when approached by a law enforcement officer is get their business card and tell them you will have your lawyer call them. Practice saying, “I will have my attorney call you” because it can be very nerve wracking the first time you have to say it to a man with a badge and a gun. Even if you don’t have a lawyer, this should buy you the time to find one. The ACLU, ALC and CAIR all offer free legal services, and the ALC has Arabic speakers on hand if needed. Their contact information is provided bellow.

If you decide to speak with an officer it’s very important to stay calm. Expressing frustration or appearing aggressive will escalate hostility. If they can reasonably claim that they felt intimidated or threatened by you they can hurt you. Understand that officers are trained to use deceptive and intimidating language to trick you. When they say "I'm going to have to ask you..." this is likely a request not an order. When in doubt remember even if you have already engaged in conversation you can choose to remain silent at any time. You can choose which questions you are comfortable answering and which you are not. Once you say you want a lawyer they officer should stop asking questions. If he does not, you can still remain silent.

If an officer comes to your door you do not have to let them in your home or office if they do not have a valid warrant. If they claim to have a warrant, you may ask to see it before allowing them in. If they do not have a warrant and you decide to speak to them it is best to step outside and close the door behind you. People have been arrested for making minor mistakes in conversations with law enforcement and if they decide to arrest you they can search the immediate area without a warrant. If you are standing in the door way they may search the room. So, it’s best to speak to them outside just in case.

If they have a warrant you should be polite, so as not to escalate tension, but you may still remain silent. It is a good idea to state, for the record, that you do not consent to the search so that they may not search beyond what is specified in the warrant.

In any interaction it is a good idea to get the names, badge numbers and business cards of all agents and officers involved. If you have a cell phone a good trick is to record the conversation by calling yourself and leaving a message. You’ll get 10-15 minutes of recording time that they cannot delete if they confiscate your phone.

Afterwards you should report the incident to the ACLU, ALC or CAIR. Reports are completely confidential and their legal services are free. These organizations document incidents on an ongoing basis and collaborate to identify patterns of rights violations. Even if you have been questioned in the past, reporting the encounter can help these organizations better protect the rights of all Americans in the future.

American Civil Liberties Union
125 Broad Street, 18th Floor, New York NY 10004
(212) 549-2500

The Asian Law Caucus:
55 Columbus Avenue, San Francisco, CA 94111
(415) 896-1701

453 New Jersey Avenue, S.E. Washington, DC 20003
Tel: 202.488.8787