Holder’s New Rules Aren’t Enough—It’s Time for an End to Profiling

The attorney general’s new rules cleared the way for more inequity, including tracking whole communities based on ethnicity and religion.

04.11.14 9:45 AM ET

When will the FBI finally stop using religion and ethnicity as a reason to investigate Americans? Well, not any time soon if the New York Times report on Thursday is correct regarding the new rules proposed by Attorney General Eric Holder

It’s astounding that while this week we celebrate the 50th anniversary of the passage of the Civil Rights Act, the Department of Justice still operates under rules that treat people differently based on their ethnicity or religion. 

By way of a brief background, after the 9/11 attacks, federal agents were apparently racially profiling so many people that even the Bush administration became uncomfortable with it. So in 2003, President George W. Bush banned racial profiling unless the cases involved “national security.”  However, the Bush administration expressly did not extend the definition of “racial profiling” to include religion, ethnicity, or national origin. 

This gave rise to the FBI “mapping” communities as part of its “Domain Management” program. This program directed FBI agents to collect and track information about ethnic communities if they are ”reasonably associated with a particular criminal or terrorist element of an ethnic community.

The result was wholesale surveillance of various communities simply because of their ethnic background or religion, not because they were suspected of a crime.

These federal guidelines were also mimicked by the NYPD, which engaged in secret surveillance of Muslim Americans at schools, places of worship, and even where they ate dinner.  In fact, one of the places on the NYPD surveillance list was a Middle Eastern restaurant I frequented, so it’s likely my name is in a file simply because I’m of Arab heritage and enjoy chicken shish kabob.

However, after five years (yes, five years!) of pressure from civil-rights groups and some congressional Democrats, Holder finally announced this past January that he would be unveiling new rules for the FBI to follow that would address the issue of profiling. 

That brings us to the proposed rules. Did these new regulations address the issue? Well, the Times reported, “these new rules would allow the FBI to continue many, if not all, of the tactics opposed by civil-rights groups, such as mapping ethnic populations.” 

This sparked an immediate outcry from a coalition of nine civil- and human-rights groups, including the NAACP, ACLU, Muslims Advocates, and the National Gay and Lesbian Task Force. In a statement Thursday evening, they  objected to the continuing “mapping” of ethnic and religious communities because it “sends the ill-conceived message that our government views prejudice as acceptable.” 

Farhana Khera, president of Muslim Advocates, a national legal advocacy and educational organization, explained to me that, “the FBI should focus on pursuing legitimate leads and actual threats” and not “target Americans based on generalized characteristics… shared by members of the same racial, ethnic, or religious group.”

Plus, there are concerns that the “national security” exemption may still be intact, allowing the FBI to simply invoke that and still engage in widespread profiling. As Linda Sarsour, advocacy director for the National Network for Arab American Communities, said: “We welcome the addition of national origin and religion as protected categories, but if FBI and local law-enforcement agencies can jump through loopholes by invoking national security, then the additional categories are meaningless and leaves the door of profiling wide open.”

Her sentiments were echoed by Jim Zogby, president of the Arab-American Institute, who noted that it is meaningless to say we are closing that exception but enacting others. Zogby and Khera both noted that racial profiling doesn’t keep us safe. It simply is a waste of assets and counterproductively strains relations between law enforcement and these communities. 

It would be especially fitting to end these practices now as we celebrate the 50th anniversary of the Civil Rights Act. On Thursday, President Obama offered us the words of Lyndon Johnson at a ceremony commemorating the passage of that landmark legislation: “We have proved that great progress is possible… if our will is strong, and if our hearts are right, and if courage remains our constant companion, then, my fellow Americans, I am confident we shall overcome.”

Perhaps even more persuasive of a reason to end these practices are Eric Holder’s own words. Holder has spoken out forcefully against racial profiling in the past, saying it is “wrong” and “it can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing—whatever city, whatever state.”

And so is ethnic and religious profiling. Hopefully before the final DOJ rules are implemented, Attorney General Holder will consider his very words as a reason why we must not only stop racial profiling in our country, but ethnic and religious as well. It is time we overcome these vestiges of discrimination.