On July 3, 2008 the Associated Press reported that the United States Justice Department was considering adoption of new rules that would allow the FBI to investigate persons without any probable cause of wrongdoing. FBI officials said that being able to target for selective investigation Muslims, Arabs and other racial and ethnic groups that fit a “terrorist profile” would enable the agency to fulfill a post 9/11 Congressional mandate to “root out” terrorists before they strike.
The Bush administration has consistently issued statements that it does not support the targeting of racial or ethnic groups for selective investigation. The proposed new Justice Department rules, however, would allow the FBI to consider both race and ethnicity among the factors that, according to AP, “could trigger a national security investigation.”
The FBI informed AP that under its existing rules the agency must have either specific evidence or probable cause to believe a crime has been committed before it can initiate an investigation against United States citizens or legal residents. The new rules under consideration would greatly expand the agency’s police powers allowing FBI agents to begin preliminary terrorism investigations based on mined public records or general intelligence data to put together individual behavioral profiles deemed suspicious. Some of the factors the FBI would consider in developing these profiles would include but not be limited to:
“We don’t know what we don’t know, and the object is to cut down on that,” one anonymous FBI official told the AP in defense of the proposed rule changes.
The proposed FBI rule changes are part of an updating of U.S. Justice Department policies officially known as “Attorney General Guidelines.” Senior FBI, Justice Department, and U.S. intelligence officials believe the new FBI rules would assist the FBI’s transition from what AP called a “traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.”
Criticism of the proposed rule changes was swift. The ACLU said it would destroy the traditional “presumption of innocence” doctrine. ACLU spokesperson Caroline Fredrickson said the FBI would be able to initiate criminal investigations “by assuming that everyone’s a suspect, and then … weed out the innocent.”
“Terrorism profiling” is a euphemism for “racial profiling.” Racial profiling has long been a fixture in American law enforcement. In 1901 Secret Service agents charged with protecting President William McKinley allowed a white assassin to pass through their security at the Pan-American Exposition in New York without being searched because they had locked their attention on an African-American former constable standing behind the assassin. The white assassin shot and killed the president after which the African-American disarmed and held him until the Secret Service was able to take the assassin into custody.
In December 2001 President George W. Bush had harsh criticism for an airline that refused to let one of his Secret Service agents board a commercial flight. The agent was an Arab-American. “If he was treated that way because of his ethnicity, that will make me madder than heck,” the president said.
Amnesty International USA (“AIUSA”) defines racial profiling as “the targeting of individuals and groups by law enforcement officials, even partially, on the basis of race, ethnicity, national origin, or religion, except where there is trustworthy information, relevant to the locality and timeframe, that links persons belonging to one of the aforementioned groups to an identified criminal incident or scheme.”
In a 2004 report entitled “Threat and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States,” the Domestic Human Rights Program of AIUSA reported that approximately 32 million Americans – the equivalent of the entire population of Canada – have been targets of racial profiling. The human rights watchdog group said that “racial profiling is a serious human rights problem” that impacts millions of innocent, ordinary people in their daily lives. The 2004 AIUSA report made the following key findings:
Despite these devastating consequences associated with racial profiling, Attorney General Michael Mukasey said of the proposed new FBI rules: “It’s necessary to put in place regulations that will allow the FBI to transform itself … into an intelligence-gathering organization in addition to just a crime-solving organization.”
This new “intelligence-gathering” approach would permit FBI agents to ask “open-ended questions” about the activities of Muslim or Arab Americans, including placing them under the harsh eye of investigation if their jobs and backgrounds match “trends” the agency deems “suspect.” If these preliminary investigations develop the slightest incriminating evidence, the FBI could then eavesdrop on telephone calls or dig into personal data such as email records and bank statements to fulfill their mission to “root out” terrorists before they strike.
This is the same mindset former FBI Director J. Edgar Hoover had in the 1950s and 1060s when he waged a domestic spying campaign against communism, communist sympathizers (especially those who supported Fidel Castro), civil rights leaders like Martin Luther King, black militants like Malcolm X and the Black Panther Party, cultural revolutionaries like John Lennon, anti-war activist like the Chicago Seven, and race-hate groups like the Ku Klux Klan. Any individual or group different from mainstream society became a target of Hoover’s obsession to “root out” threats to the “American way of life.”
Bill Mefford, the Director of Civil and Human Rights for the General Board of Church and Society of the United Methodist Church, recently said that “racial profiling by law enforcement agencies is all too common a practice. It prevents effective enforcement of our laws and alienates people of color in local communities. [It] frequently criminalizes innocent people and diverts law enforcement officials from finding those truly responsible for committing crimes. As a result, it erodes the effectiveness of our criminal justice system.”
Senior international security experts agree with Mefford. According to Amnesty International, these experts say that had law enforcement officials focused on actual criminal behavior rather than characteristics such as race, religion, ethnicity, or nationality, they would have increased their chances of apprehending suspected shoe-bomber Richard Reid before he successfully boarded an airliner with means to blow it up. In a 2001 report entitled “Racism and the Administration of Justice,” Amnesty International listed “five facts” about racial profiling:
The State of Texas is ahead of the federal government when it comes to racial profiling. The State in 2001 enacted a law that strictly prohibits a law enforcement officer from engaging “in racial profiling.” See: Tex. Code of Crim. Proc. Arts. 2.131 and 2.132. These statutes have been upheld by the State’s appeals courts. In Pruneda v. State, 104 S.W.3d 302 (Tex.App.-Texarkana 2003) the appeals court said that “under Texas law, a peace officer may not engage in racial profiling” and defined racial profiling as “a law enforcement-initiated action … based on an individual’s race, ethnicity, or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in criminal activity.” Id., at 306. The appeals court added that any evidence obtained through racial profiling cannot be used against a person in a criminal trial. Id. See also: Tex. Code of Crim. Proc. art. 38.23(a) [No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case].
Further, racial profiling can create a cause of action in a federal civil rights lawsuit filed under 42 U.S. § 1983. See: Whren v. United States, 517 U.S. 806, 813 (1996) [holding that claims asserting selective enforcement of a law on the basis of race are properly brought under the Equal Protection Clause and that the right to equal protection can be violated even if the actions of law enforcement are acceptable under the Fourth Amendment]. See also: United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) [the Equal Protection Clause of the Fourteenth Amendment provides citizens with a degree of protection that is independent of the Fourth Amendment protection against unreasonable searches and seizures].
Currently before Congress are two pieces of proposed legislation – the End Racial Profiling Act of 2004 and the End Racial Profiling Act of 2007. The nation’s lawmakers cannot come to terms on how to end this insidious law enforcement practice of targeting persons for criminal or terrorism investigatory scrutiny based on race, ethnicity, religion, and national origin. Study after study have clearly demonstrated that racial profiling actually undermines national security because it adversely impacts the racial or ethnic communities whose cooperation is needed most in the intelligence-gathering process about either crime or terrorism.
Thus, the proposed new FBI rules will not make America safer. The expansion of police power rules will serve only to fuel greater distrust of government in the very communities where trust is so desperately needed to combat crime and terrorism. These rules will go beyond what the ACLU calls an attack on the “presumption of innocence” doctrine. They will actually be a severe attack on the civil liberties of citizens presumed to be law-abiding but who are cast under a cloud of law enforcement suspicion and scrutiny not for anything they may have done wrong but rather for fitting a particular profile. These rules are not as much about protecting “national security” as they are about expanding the FBI’s police powers in a manner that would draw the admiration of the agency’s late godfather, J. Edgar Hoover, who found the American bedroom more suspicious than the Sicilian Mafia.
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