Justice for Some, But Not All: New Anti-Profiling Rules are Civil Rights Setback

In the midst of our current national discourse to end the dehumanizing treatment of Black communities by law enforcement, the Department of Justice (DOJ) has a prime opening to send a clear message that profiling is not an effective or fair policing strategy. Instead, the DOJ's new anti-profiling guidance issued this week to federal law enforcement agencies misses this opportunity. By exempting certain agencies and activities from the overall ban on profiling - including border and airport enforcement, and mapping activities by the Federal Bureau of Investigation (FBI) - the new DOJ guidance effectively sets up a system in which civil rights against profiling are granted to some, and denied to others

The new federal guidance expands existing rules (first issued by the Bush Administration in 2003) to ban the use of profiling by federal law enforcement in routine activities, including traffic stops, on the basis of a range of factors such as race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity. While the expansion of prohibited factors is an important improvement from the 2003 version of the guidance, what is deeply problematic is the exemption of particular agencies and activities. The profiling ban will not apply to particular activities of specific agencies - including data-gathering activities of the Federal Bureau of Investigation, border and port-of-entry enforcement by the Customs and Border Patrol, and airport security by the Transportation Security Administration. Given these exemptions, federal agents from these agencies would likely have the leeway to stop, interrogate, gather intelligence, detain and search people on the basis of factors such as race, religion, or national origin.

Who are the communities that will likely be affected by this incomplete ban on profiling? Sikhs, Muslims, South Asians and Arab Americans comprise one segment. We already know that these communities are profiled routinely at airports, and that that their neighborhoods, restaurants, mosques and student associations are routinely mapped by the FBI to gather information and conduct surveillance. Another group of people will include immigrants, mainly Latinos, stopping at borders and immigration checkpoints where there is rampant profiling by Border Patrol Agents.

Take the issue of racial and ethnic mapping and surveillance by the FBI, a practice that has historically targeted African American, Asian American, and Muslim, South Asian and Arab American communities. The new DOJ guidance states with respect to this type of demographic mapping:

An FBI field office attempts to map out the features of the city within its area of responsibility in order to gain a better understanding of potential liaison contacts and outreach opportunities. In doing so, the office acquires information from public sources regarding population demographics, including concentrations of ethnic groups. This activity is permissible if it is undertaken pursuant to an authorized intelligence or investigative purpose.

The terms "authorized intelligence or investigative purpose" are broad and vague, and effectively give the FBI permission to map communities of particular races, faiths and ethnicities. We know, for example, that the FBI has been engaging in surveillance of Muslim communities since September 11th under the guise of building partnerships. However, the outcomes look entirely different on the ground. FBI agents gather data and engage in surveillance at mosques, restaurants and community events without suspicion of criminal activity or wrongdoing with the help of spies and informants. This type of unchecked and biased activity fosters community distrust of law enforcement, and forces many Muslims to censor their everyday activities.

The approach taken by the new federal guidance is nothing short of a serious setback in advancing towards what is a universal goal: protecting the basic civil rights of all communities. Instead, the guidance creates a group of individuals who will have a different set of rights than others, resulting in a second-class citizenship of sorts. And the new guidance practically ensures that certain communities will continue to engage with law enforcement agents, state or federal, with trepidation and fear. The guidance is not solid civil rights policy, but a slippery slope for discriminatory activity, according to groups like South Asian Americans Leading Together, the National Network for Arab American Communities and The Sikh Coalition.

The Department of Justice must do better. In this significant national moment, as communities around the country raise their voices to demand accountability and humane treatment by those that serve and protect us, the federal government is sending the opposite message. Muslims, Sikhs, South Asians, Arab Americans and immigrants entering the country should not have to forego their basic civil rights. Justice for all means just that - not for some, not in some cases, but always and for everyone.