Mephisto: Oregon's not backing down:
Police insist interviews illegal
11/28/01
MAXINE BERNSTEIN
and MARK LARABEE
The Portland Police Bureau, thrust into the national spotlight for its refusal to assist in a federal anti-terrorism investigation, relied on a city attorney's opinion issued before the city ever reviewed the U.S. Department of Justice's interview questions.
Portland City Attorney Jeffrey Rogers said he only obtained the questions Monday, after the state attorney general's office faxed them to him. They were made available to members of Oregon's Anti-Terrorism Task Force a week ago.
And despite a ruling Tuesday by the state's top lawyer, Attorney General Hardy Myers, that Oregon law does not prohibit law enforcement agencies from conducting the interviews, Portland is sticking to its attorney's advice and not participating.
"The city attorney stands by his opinion that some of the questions violate Oregon state law," Portland Police Chief Mark Kroeker said Tuesday evening after conferring with the mayor and city attorney. "We're not doing this to make a point. We're doing it to follow the law. I have an attorney, and it's the city attorney."
Meanwhile, Oregon State Police and investigators in the Oregon Department of Justice were gearing up to help with about 200 interviews statewide.
Rogers' assertions Tuesday morning that the federal government had "modified" and narrowed its list of questions in the past few days continued to confound federal, state and county law enforcement in Portland who said nothing had been altered and that the city attorney was misinformed.
In fact, the city attorney's office last week failed to review the list of questions, titled "Anti-Terrorism Task Force Suggested Topics for Interview," instead basing its opinion solely on a narrative set of interview guidelines distributed by the U.S. Department of Justice.
In Myers' ruling Tuesday, he reviewed the questions and included a footnote to indicate that Portland's legal advice was not based on the "actual interview questions" but the narrative description. And, in a terse statement, U.S. Attorney for Oregon Michael Mosman said, "Contrary to recent reports, that questionnaire has not been changed."
Authorities tried to downplay the legal confusion and miscommunication but acknowledged their surprise about the immense attention the matter has garnered.
"This one little slice of the investigation has become a tempest in a teapot," said Assistant U.S. Attorney Kent Robinson.
Kroeker later quipped, "It's a rather big teapot."
In the end, Mayor Vera Katz, Kroeker and Rogers continued to assert that the city thoroughly analyzed both the federal questions and the guidelines, in light of the differing opinions.
"The fact that there's not a consensus among them has pushed us to check and recheck our analysis," Katz said.
But the city found that the questions still conflicted with state law and would not alter its position.
The issue arose after U.S. Attorney General John Ashcroft issued a directive Nov. 9 to have state and local law enforcement assist federal authorities in interviewing 5,000 foreign visitors to the United States about their knowledge of potential terrorist attacks.
Visitors not considered suspects The U.S. attorney's office in Portland received a list of 200 people to be interviewed in the state, 23 in Portland. Police and city officials initially said 200 people in the Portland area were to be questioned.
The people on the list hold student, work or tourist visas and have come to the United States in the past two years from countries known to harbor terrorists. Federal authorities have said the interviews are voluntary and the people identified are not criminal suspects.
On Nov. 15, the U.S. attorney's office faxed Portland police copies of Ashcroft's directive and an eight-page memo from Deputy Attorney General Larry Thompson.
The memo included guidelines outlining 24 topics to cover during the interview. For example, the guidelines direct interviewers to get telephone numbers of individuals, their family members or close associates and the dates they visited foreign countries and why, and ask whether they had ever traveled to Afghanistan or whether they shared the sympathies of the Sept. 11 hijackers.
Kroeker and his assistant chiefs were troubled by some of the recommended areas of questioning. Kroeker suggested that Lt. Randy Kane, head of the bureau's criminal intelligence division and assigned to the anti-terrorism task force, seek the city attorney's advice.
After reviewing the guidelines, Deputy City Attorney David Lesh advised the Police Bureau on Nov. 19 that state law restricts police from asking people about some of the broad topics outlined.
In his opinion, Lesh cited state law that prevents law enforcement from collecting or maintaining information on any individual or group unless the information relates to criminal activity and there are reasonable grounds to suspect that the subject is or might be involved in criminal conduct. The names on the Portland list were not those of criminal suspects, and therefore some of the questions were illegal, he deduced.
Task force gets questions Kroeker said the bureau did not have the actual questions when it sought the city attorney's legal advice, saying they "were still in flux."
The next day, Nov. 20, the U.S. attorney's office in Portland distributed a federal questionnaire to members of the Oregon Anti-Terrorism Task Force. It listed specific interview questions for local, state and federal authorities. Portland police were present at the meeting. Why police or others did not share those questions with the city attorney's office is unclear.
Rogers said he did not see the questionnaire until nearly a week later, the following Monday, when Myers' office faxed it to him. Rogers characterized it as a "new" and "modified" narrower list of questions that seemed more acceptable.
Yet Kroeker said the questions "were in tandem" with the guidelines. "There's not a big difference between the two," he said.
The U.S. attorney's office has refused to release the questions to the public, saying it never releases questions in a criminal investigation before they're asked.
Mosman on Tuesday praised Myers for "quickly and appropriately addressing all potential legal concerns" and advising state police and the criminal investigators in the Oregon Department of Justice to assist federal authorities.
Three state statutes scrutinized In his ruling, Myers said he tested the federal questions against three state statutes that deal with detention, immigration and data collection on criminal suspects.
The state detention statute, ORS 131.615, requires investigators to have suspicion that a crime was committed or that the person to be detained committed the offense. Because the people identified for questions are not suspects, they can end the interviews voluntarily and no detention is involved, Myers determined.
The immigration statute, ORS 181.850, prohibits law enforcement from using its resources to detect or apprehend people whose only violation of law is that they are foreign citizens in the United States in violation of immigration law. But because the apprehension of such people is not the purpose of the federal questioning, Myers ruled that the interviews are permitted.
The data collection statute, ORS 181.575, prohibits law enforcement from collecting or maintaining information about the "political, religious or social views, associations or activities" of any person or group unless that information directly relates to a criminal investigation, and there are grounds to suspect the subject might be involved in criminal conduct.
Myers identified the criminal investigation as the federal government's ongoing investigation of the Sept. 11 terrorist attacks and conspiracies to commit future crimes. And, he said, the limitation on collecting information restricts only information about "political, religious, or social" views.
By day's end, Portland officials found themselves struggling to explain Portland's legal analysis, which stood out starkly from those of Myers, Mosman and Multnomah County District Attorney Michael Schrunk.
"The point is, our reliance has to be on our local city attorney," Kroeker said. "He's our lawyer. I'm his client. I listen, he advises. The other opinions are advisory."
But, he added, "I have a feeling if all the attorneys got together in the same room and talked about it, they would come closer in their opinions."
You can reach Maxine Bernstein at 503-221-8212 or by e-mail at Maxinebernstein@news.oregonian.com. You can reach Mark Larabee at 503-294-7664 or by e-mail at MarkLarabee@news.oregonian.com. |
