The U.S. Department of Justice is considering expanding its rules against racial profiling in order to protect more Americans from having their civil rights violated, an unnamed government official said Wednesday.
Encouraged by civil rights groups who say that law enforcement unfairly targeted Latinos when it came to immigration cases and American Muslims for terrorism-related investigations, the new DOJ racial profiling guidelines would prohibit federal agents from launching an investigation on a person or group of people solely based on their religion, ancestry, sexual orientation or gender.
The key word is “federal agents,” since the DOJ’s rules only apply to federal law enforcement agencies such as the FBI, Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives — not local or state police departments.
Though racial profiling was banned by the George W. Bush administration in 2003, the ban did not include protection for those who were profiled based on their religion, national origin, or if it was a matter of national security.
So after the 9/11 attacks, federal agents were legally allowed to arrest and detain individuals simply because they were Muslim. And the government also created a special registration program, in which Arab and Muslim men were required to register with local law enforcement authorities.
Although the expanded definition of what constitutes as racial profiling has been largely applauded, it’s still not clear whether the new rules would apply to counterrorism investigations. If that loophole remains wide-open, Linda Sarsour, advocacy director for the National Network for Arab American Communities, says the expansion is “irrelevant.”
Sarsour added that she hopes that the racial profiling ban would apply to surveillance investigations as well as traffic stops and arrests.
Other than the additional descriptors that would be considered racial profiling, little is known about the revamped policy, since the bulk of the information was supplied by an anonymous government official to the New York Times.
The anonymous official who spoke to the Times was allegedly briefed about a private meeting between New York City Mayor Bill de Blasio and Attorney General Eric Holder on Wednesday, in which the two were allegedly set to discuss the topic. Based on the information presented to the Times, it appears the official was also present during the meeting itself.
The Justice Department has yet to confirm whether the rumors about the new rules are true, but the federal agency did release a statement confirming that the attorney general and the mayor were discussing how to prevent crime while protecting civil rights and civil liberties.
The new racial profiling rules could be announced by the end of the month, but the DOJ has yet to confirm anything.
Civil rights groups and Democratic lawmakers say they are waiting until they can read the language of the new policy for themselves before they endorse the measure. But some such as Hina Shamsi, a national security lawyer with the American Civil Liberties Union, say that if the policy isn’t riddled with loopholes, “Putting an end to [racial profiling] not only comports with the Constitution, it would put real teeth to the FBI’s claims that it wants better relationships with religious minorities.”
Finding support
The current racial profiling policy adopted by the DOJ was created in 2003. Once the policy was enacted, the DOJ released a fact sheet that cited then-President George W. Bush saying “It’s wrong, and we will end it in America,” without hindering the “work of our nation’s brave police officers.”
The document also cited then-Attorney General John Ashcroft, who said that “Using race … as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement.”
Although it may seem odd for the attorney general to be meeting with a mayor, Holder may have wanted to meet with de Blasio since de Blasio campaigned for mayor on a platform of ending the racial profiling police tactic known as stop-and-frisk, and won.
Since he took office in 2009, Holder has been pressured by many Democrats in Congress to expand the definition of what the government deemed racial profiling. Even Holder himself has pledged to modify what the DOJ considered racial profiling, saying that it is wrong and “can leave a lasting scar on communities and individuals.
“And it is, quite simply, bad policing — whatever city, whatever state.”
According to the New York Times, the DOJ has considered revamping the policy for several years and has reviewed the policy several times, but has yet to indicate to the media or the public how exactly it would change.
New York Police Department Commissioner William J. Bratton, who is credited with the creation of stop-and-frisk in the early 1990s and has now been hired by de Blasio to end use of the practice, was also reportedly in attendance at the meeting, and told Holder he would review the new DOJ policy.
Although technically the NYPD wouldn’t have to abide by the DOJ’s racial profiling policy, Bratton’s willingness to incorporate it into the NYPD is viewed as a positive sign.
Even if the rules are technically only related to federal law enforcement activities, Fahd Ahmed, legal director of the Queens-based South Asian immigrant advocacy group Desis Rising Up and Moving, said that they will indirectly affect local policing.
Talking to the New York Times, Ahmed said that civil rights groups can use federal policies to make changes on a local level.
“Local organizers can say, ‘These policies are not in line with what’s coming from the federal level,’” Ahmed said.