New York Times January 15, 2014
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 counter terrorism 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.
“Putting an end to this practice not only comports with the Constitution, it would put real teeth to the F.B.I.’s claims that it wants better relationships with religious minorities,” said Hina Shamsi, a national security lawyer with the American Civil Liberties Union.
It is not clear whether Mr. Holder also intends to make the rules apply to national security investigations, which would further respond to complaints from Muslim groups.
“Adding religion and national origin is huge,” said Linda Sarsour, advocacy director for the National Network for Arab American Communities. “But if they don’t close the national security loophole, then it’s really irrelevant.”
Ms. Sarsour said she also hoped that Mr. Holder would declare that surveillance, not just traffic stops and arrests, was prohibited based on religion.
The Justice Department has been reviewing the rules for several years and has not publicly signaled how it might change them. Mr. Holder disclosed his plans in a meeting on Wednesday with Mayor Bill de Blasio of New York, according to an official briefed on the meeting who spoke on the condition of anonymity because the conversation was private.
Mr. de Blasio was elected in November after running a campaign in which he heavily criticized the Police Department’s stop-and-frisk tactic, which overwhelmingly targets minorities and which a federal judge declared unconstitutional. The mayor and attorney general did not discuss when the rule change would be announced, the official said.
A senior Democratic congressional aide, however, said the Obama administration had indicated an announcement was “imminent.”
The Justice Department would not confirm the new rules on Wednesday night but released a short statement saying that the mayor and the attorney general discussed “preventing crime while protecting civil rights and civil liberties.”
In the past, Mr. Holder has spoken out forcefully against profiling. “Racial profiling is wrong,” he said in a 2010 speech. “It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing — whatever city, whatever state.”
Officials in the Bush administration made similar statements, however, which is why civil rights groups have eagerly waited to hear not just Mr. Holder’s opinion, but also the rules he plans to enact.
As written, the Justice Department’s rules prohibit federal agents from using race as a factor in their investigations unless there is specific, credible information that makes race relevant to a case.