U.S. to Expand Rules Limiting Use of Profiling by Federal Agents

The Justice Department will significantly expand its definition of racial profiling to prohibit federal agents from considering religion, national origin, gender and sexual orientation in their investigations, a government official said Wednesday.

The move addresses a decade of criticism from civil rights groups that say federal authorities have in particular singled out Muslims in counterterrorism investigations and Latinos for immigration investigations.

The Bush administration banned profiling in 2003, but with two caveats: It did not apply to national security cases, and it covered only race, not religion, ancestry or other factors.

Since taking office, Attorney General Eric H. Holder Jr. has been under pressure from Democrats in Congress to eliminate those provisions. “These exceptions are a license to profile American Muslims and Hispanic-Americans,” Senator Richard J. Durbin, Democrat of Illinois, said in 2012.

President George W. Bush said in 2001 that racial profiling was wrong and promised “to end it in America.” But that was before the terrorist attacks of Sept. 11. After those attacks, federal agents arrested and detained dozens of Muslim men who had no ties to terrorism. The government also began a program known as special registration, which required tens of thousands of Arab and Muslim men to register with the authorities because of their nationalities.

“Aside from being the right thing to do, tightening the guidelines on profiling will make our country safer,” said Hoda Elshishtawy, National Policy Analyst for the Muslim Public Affairs Council. “Focusing on behavior instead of religion allows law enforcement agents to focus on individuals who pose actual threats. This is important in ensuring we use our limited resources effectively.”

While President George W. Bush publicly opposed racial profiling in early 2001, that changed after 9/11. As a result, countless Muslims and people of Arab descent were subjected to questioning, arrest and/or being required to register with what was then the Immigration and Naturalization Service (INS). In 2003, the current profiling rules were created by a Bush administration directive, which stated race may not be used in investigations except for national security matters.

The DOJ’s anticipated rule change comes following pressure from Democrats and civil liberties groups who have long argued that excluding religion, sexual orientation and national origin from the guidelines is not only unconstitutional but ineffective. Attorney General Eric Holder has been an outspoken critic of racial profiling and has reportedly been working on changing the rules for the past few years.

Earlier this week, Holder discussed the policy change during a meeting with New York Mayor Bill de Blasio, who is a fierce opponent of the New York Police Department’s (NYPD) stop-and-frisk policy. Last summer, Holder filed a brief in the Center for Constitutional Rights’ lawsuit against the NYPD policy, in which he suggested that it be put under federal monitoring. The New York Police Department also used religious profiling in its mass surveillance of Muslim communities in and around New York City. In August 2013, a federal judge ruled that the stop-and-frisk policy unconstitutionally targeted minorities.

What remains to be seen is a timeline for implementation and clarification as to whether the current loophole allowing the use of racial profiling in counterterrorism investigations will remain. Though the DOJ’s new rule change would only apply to federal law enforcement agents, we hope the change will send an important signal to local and state law enforcement to follow suit.