In Post 911 America
By The National Lawyers Guild
Counterpunch Magazine
2-25-2
What rights do I have?
Whether or not you're a citizen, you have these constitutional
rights: The Right to Remain Silent. The Fifth Amendment to the
U.S. Constitution gives every person the right to remain silent
in the face of questions posed by any police officer or government
agent. The Right to be Free from "Unreasonable Searches and
Seizures".
The Fourth Amendment is supposed to protect your privacy. Without
a warrant, police or government agents are not allowed to search
your home or office and you can refuse to let them in. Know,
however, that it is easy for the government to monitor your
e-mail, telephone calls, and conversations in your home, office,
car or meeting place. The Right to Advocate for Change.
The First Amendment to the U.S. Constitution protects the rights
of groups and individuals who advocate changes in laws, government
practices, and even the form of government. However, the INS can
target non-citizens for deportation because of their First
Amendment activities, as long as it could deport them for other
reasons.
CONSTITUTIONAL RIGHTS CANNOT BE SUSPENDED- EVEN DURING A STATE
OF EMERGENCY OR WARTIME.
What should I do if agents come to question me?
1. YOU DO NOT HAVE TO TALK TO THE POLICE, FBI, INS, OR ANY OTHER
LAW ENFORCEMENT AGENT OR INVESTIGATOR.
You are not legally obligated to talk to anyone: on the street,
at your home or office, if you've been arrested, or even if
you're in jail. If you are driving a motor vehicle, you are
required to show your license and registration. Only a judge
has the legal authority to order you to answer questions. If
you are contacted, tell the agent you want to consult an
attorney. They should stop trying to question you once you say
this. You do not have to already have a lawyer. Remember to get
the name, agency, and telephone number of any investigator who
calls or visits you, and call the NLG, or a criminal or
immigration lawyer, before deciding whether to answer questions.
2. YOU CAN SAY NO!
If the police, FBI, INS or anyone else tries to enter your home
without a warrant, say, "I will not talk to you until I consult
an attorney." Many people are afraid that if they refuse to
cooperate, it will appear as if they have something to hide, or
think that they can educate the police. Don't be fooled. Talking
to the FBI can be very dangerous. You can never tell how a
seemingly harmless bit of information might be used to hurt you
or someone else. The FBI is not just trying to find
"terrorists", but is gathering information on immigrants and
activists who have done nothing wrong. And keep in mind that
even though they are allowed to and do lie to you, lying to a
federal agent is a crime. The safest things to say are "I am
going to remain silent", "I want to speak to my lawyer", and "I
do not consent to a search."
3. YOU DO NOT HAVE TO LET POLICE OR OTHER LAW ENFORCEMENT AGENTS
INTO YOUR HOME OR OFFICE UNLESS THEY HAVE A WARRANT.
Demand to see the warrant. If they have a search warrant, you
cannot stop them from entering and searching, but you should
still tell them that you do not consent to a search. This will
limit the search to what is specified in the warrant. If they
ask you to give them documents, your computer, or anything else,
look to see if the item is listed in the warrant. If it is not,
do not consent to them taking it without talking to a lawyer.
An arrest warrant does not allow them to search your home or
office unless you consent to that. Say "I do not consent to a
search." Do not answer any questions. Call the NLG or a
criminal lawyer.
4. IF YOU ARE STOPPED ON THE STREET, ASK IF YOU ARE FREE TO GO.
If you are stopped by the police, ask them why. Remember, they
are allowed to lie to you. Ask "Am I free to go?" If they say
yes, walk away. Legally, you do not have to give your name
unless they suspect you of a crime, but it may be expedient to
do so-- however, be aware that police/ agents may be carrying a
list of deportable aliens, and that giving a false name could be
a crime. If you are not free to go, you are being detained, but
this does not necessarily mean you will be arrested. They are
entitled to frisk you.
A frisk is a pat down on the outside of your clothing. Do not
consent to any further search. But if they continue, or in some
other way violate your rights, stay calm and don't physically
resist police or agents. You will only be hurt and arrested.
Stick to "I don't consent, I want to speak to my lawyer." and
call a lawyer at your first opportunity. You do not have to
answer questions if you are detained or even if you are
arrested.
;
5. ANYTHING YOU SAY TO THE POLICE, FBI, INS, ETC. CAN BE USED
AGAINST YOU AND OTHERS.
They may pressure you by saying it's unpatriotic not to answer,
or that people with nothing to hide would talk. Remember,
however, that even innocent people who have done nothing wrong
may say things that the government will use against them or
others. That is why the right not to talk is a fundamental right
under our Constitution. Repeat "I want to talk to my lawyer" to
any officer who questions you. What if the FBI threatens me with
a grand jury subpoena? It is common for the FBI to threaten you
with a subpoena to get you to talk to them. Don't be
intimidated. This is frequently an empty threat, and if they are
going to subpoena you, they will do so anyway. Receiving a
subpoena to testify before a grand jury doesn't mean that you
are suspected of a crime. And you may have legal grounds to
quash the subpoena or to refuse to answer questions before the
grand jury. If you do receive a subpoena, call the NLG or a
criminal lawyer.
How should I respond to threatening letters or calls? If your
home or office is broken into, or threats have been made against
you, your organization, or someone you work with, share this
information with everyone affected. Take immediate steps to
increase personal and office security. You should discuss with
your group and with a lawyer whether and how to report such
incidents to the police and the advisability of taking other
legal action. If you decide to make a police report, do not do
so without a lawyer present. See the contact information on the
front for numbers you can call if you receive threats. If you
suspect government agents are monitoring you, or are harassing
you, report this to the NLG.
What if I'm under 18?
Minors too have the right to remain silent; you do not have to
talk to the police, probation officers, or school officials. If
you are detained at a community detention facility or Juvenile
Hall, you normally must be released to a parent or guardian. If
charges are filed against you, you have the right to have a
lawyer appointed to represent you at no cost. Your rights at
school: Public school students have the First Amendment right
to politically organize at school by passing out leaflets,
holding meetings, publishing independent newspapers, etc., just
so long as those activities do not disrupt classes. Students can
be suspended or expelled from school only if they violate the
law or disrupt school activities. You have the right to a
hearing, with your parents and an attorney present, before being
suspended or expelled.
Students can have their backpacks and lockers searched by school
officials at school if they have "reasonable suspicion" that you
are involved in criminal activity, carrying drugs, weapons, etc.
Reasonable suspicion means they have to have a specific reason,
but in reality, doesn't give you much protection. Do not consent
to the police or school officials searching your property, but
do not physically resist or you may face criminal charges.
Students can now be stopped and questioned by school officials
at school even without reasonable suspicion. If you are not in
class you can be stopped and questioned as to where you are
going and why, but they should not stop and question you for
engaging in legally protected political activity or because of
your ethnicity or religion.
What if I am not a citizen?
1. CARRY WITH YOU THE NAME AND NUMBER OF AN IMMIGRATION ATTORNEY
WHO WILL TAKE YOUR CALLS.
If you are a legal permanent resident, you should carry your
green card as well. Navigating the immigration system by
yourself is extremely difficult. INS will not explain your
options to you. You do not have to reveal your immigration
status or answer any other questions. As soon as you encounter
an INS agent, call your attorney. If you can't do it right away,
keep trying.
2. KNOW AND ASSERT YOUR RIGHTS!
INS will not do it for you. Currently, all non-citizens have
the following rights, regardless of your immigration status:
a. You have the right to speak to an attorney before answering
any questions or signing any documents. You have the right
to call an attorney or your family if you are detained and
you have the right to be visited by an attorney in detention.
You have the right to have your attorney with you at
immigration hearings with INS. You do not, however, have the
right to a government-appointed attorney, so you must hire
one or find someone who will represent you for free. Call
the numbers listed on this pamphlet for help.
b. If you are arrested or detained, the INS must decide in 48
hours whether to put you into immigration proceedings and
whether to keep you in custody or to release you on bond.
Under a new regulation issued on September 17, the INS has
an "additional reasonable period of time" in the event of
"an emergency or other extraordinary circumstance" to make
the decisions whether to keep you or release you. Make sure
your attorney talks to national immigration rights
organizations if this is the reason INS is keeping you in
detention (see the contact numbers on the front.)
c. You have the right to request release from detention even if
INS hasn't said why it wants to deport you. In most cases you
have the right to request release from detention by paying
bond if necessary, or to request a bond hearing before an
immigration judge.
d. In most cases, you have the right to a hearing before an
immigration judge to determine whether you have violated the
immigration laws. If you have criminal convictions, were
picked up by INS when you came into the U.S., or have been
ordered deported in the past, you must talk to an attorney
about whether you have this right and what other legal
alternatives you might have.
IF YOU DO NOT DEMAND THESE RIGHTS OR IF YOU SIGN DOCUMENTS
WAIVING YOUR RIGHTS, THE INS MAY DEPORT YOU BEFORE YOU SEE
EITHER AN ATTORNEY OR A JUDGE.
Leaving the U.S. in this way may have serious consequences for your abilty to enter
in the U.S. However, the immigration laws are complex and many
changes are being proposed in response to September 11, so the
above information may change. You must consult an immigration
specialist attorney to know your rights.
3. TALK TO AN IMMIGRATION LAWYER BEFORE LEAVING THE U.S.
Some non-citizens may be barred from coming back to the U.S.,
perhaps permanently. This includes some lawful permanent
residents and applicants for green cards.
4. IF YOU ARE A FOREIGN NATIONAL ARRESTED IN THE U.S., YOU HAVE
THE RIGHT TO CALL YOUR CONSULATE or to have the police inform
the consulate of your arrest. The police must allow your consul
to visit or speak with you. Your consul might assist you in
finding a lawyer or offer other help, such as contacting your
family. You also have the right to refuse help from your
consulate.
The rights outlined above apply to non-citizens who are inside
the United States. Foreign nationals at the border (air or land)
who are seeking to enter the United States are subject to
additional restrictions and do not have all the same rights.
This legal handbook was prepared by National Lawyers' Guild's Post
9-11 Project: http://www.nlg.org/post911 They can be reached at
(212) 505-9119. NLG National Immigration Project:
Help for attorneys and help finding immigration attorneys
(617) 227-9727.
http://www.counterpunch.org/ First Published 1-25-02
No comments:
Post a Comment