The Austin Police Department is helping John Ashcroft's dragnet; critics say they may be violating state and city law in doing so.
The Dec. 8 edition of the Austin American-Statesman presented the APD's assistance as benevolent and high-minded: "Officers will accompany federal agents ... to make sure no civil rights are violated during the questioning," the daily wrote, attributing the claim to APD Chief of Staff Michael McDonald. On Monday, when asked by the Chronicle if skeptics might doubt whether one law-enforcement agency would protect interviewees from another law enforcement agency, APD spokesperson Paul Flaningan responded, "I don't think we're there to monitor any other law enforcement agency's handling of this. We are there to offer assistance to the U.S. attorney's office in their interviews. One of the conditions that we put on those interviews is that [they] must be consensual."
APD officers would not be involved in detaining interviewees, Flaningan added, a condition the department negotiated with the U.S. attorney's office. What if an officer perceived federal agents had violated an interviewee's rights or pressured him to answer questions? "The police officer who would be present there, if they were present, would notify the chief's office and let him know what transpired," Flaningan said. "The chief's office had a dialogue with the U.S. attorney's office, and [they] are very aware of our stand."
Neither APD nor the Justice Dept. would affirm names or numbers indicating how many men -- including those who live in Travis County -- had been interviewed. Meanwhile, Monday's The Daily Texan and Tuesday's Statesman featured interviews with UT student Mohamed Adlouni, who said he had been questioned by a Dept. of Public Safety investigator and two other unidentified officers. Adlouni had been tracked down through his girlfriend -- who, it turns out, is a News 8 Austin producer (surely giving the questioners reason to not get too aggressive).
On Friday, two people who had been "invited" to an interview or already interviewed contacted the Texas Civil Rights Project, said TCRP Executive Director Jim Harrington. "A friend that we have in the Arab community had heard that there were as many as 500 [in Austin] now that had been questioned," Harrington said. "Apparently, the activity is much greater than anyone thought." The TCRP has offered legal representation to interviewees, he added, "but we really haven't had anybody call us ahead of time. That's the problem."
APD's participation in the interviews raises both state and local legal questions. Racial profiling was banned during the last legislative session, yet all of the men the Justice Dept. wants to question are from Arabic or Muslim countries. Flaningan has said that the interviews don't violate the racial profiling statutes because the interviews are voluntary, and no one is being forcibly detained.
Harrington said he is more concerned that APD might be violating the Texas Equal Rights Amendment, "which demands equality of treatment," and that UT administrators might give student records to the Justice Dept. without following established legal procedures. As Monday's Daily Texan reported, UT is refusing to hand over records without a subpoena or court order.
Will Harrell, executive director of the American Civil Liberties Union of Texas, was more direct than Harrington about whether the interviews constituted racial profiling. "No doubt about it," he said. "The definition of [racial profiling] is any law enforcement-initiated contact based on a person's race [or] national origin, rather than that person's behavior or information leading to that person. This is a law-enforcement-initiated action."
Pointing to Adlouni's experience, Harrell rebuts Flaningan's assertion that the interviews are voluntary and don't constitute detainment. "The determination of detention is whether a reasonable person would feel they had the liberty to move. [Adlouni] did not. When three big ol' law enforcement officials are standing in your door, it's rare the person who would feel they were free to go."
Another legal matter of note is the Justice Dept.'s demand that any interviewees who may be violating immigration laws should be reported to the Immigration and Naturalization Service. The city of Austin has a specific ordinance forbidding APD cooperation with INS. Last week, Texas ACLU's Police Accountability Project director Scott Henson wrote a letter to Mayor Gus Garcia pointing out that APD participation may violate that ordinance, which Garcia sponsored when he was a city council member. "Even if your city ordinance weren't in place, that approach is counterproductive to any request that people cooperate with the investigation," Henson wrote. "The DoJ dragnet strategy, if followed, is bound to generate resentment against law enforcement rather than cooperation, just as racial profiling has always done in the past." As of press time, Garcia had not returned calls from the Chronicle.