Posted on May 16, 2015 in Arab American Institute

Background

Civil liberties are personal freedoms granted to all United States citizens by the U.S. Constitution; these include freedoms of speech, assembly, religion, right to privacy, right to a fair trial, and equal protection under the law. Unfortunately, these rights are not always applied equally and consistently. This is especially the case with minority and immigrant communities. Individuals within these population subsets are subject to arbitrary pro ling and unlawful surveillance on the basis of race, ethnicity, religion, or national origin.

In June 2001, Rep. John Conyers (D-MI) and Sen. Cardin (D-MD), introduced the End Racial Pro ling Act (ERPA), which received strong bipartisan support. After the September 11th attacks, however, the legislation quickly died, and a number of initiatives linked to our national security emerged. Many of the post 9/11 initiatives brought about an increase in the pro ling of Arab Americans and American Muslims. Both the communities at large and their members individually have been subject to heightened scrutiny from law enforcement officials. These practices and policies violate the civil liberties of American citizens and perpetuate the institutionalization of pro ling based on race, ethnicity, national origin, and religion. They also misallocate resources on ineffective strategies which we fear may result in a failure to identify genuine threats to homeland security.

In December 2014, the Department of Justice released long-awaited revisions to its original 2003 Guidance on the use of racial pro ling by federal law enforcement officials. The “Guidance” spells out considerations the federal law enforcement agencies are both prohibited from using for pro ling practices, and circumstances in which they are permitted to use certain considerations. The 2014 revisions expanded the considerations law enforcement officers are prohibited from using. Beyond race and ethnicity, the considerations now include gender, religion, and national origin.

These revisions were a step in the right direction, but the 2014 updates failed to close critical national and border security loopholes. The Guidance continues to permit federal law enforcement agencies to gather vast amounts of data on individuals and to map communities based on race, ethnicity or religion. It continues to permit agencies to recruit informants based on race, religion or national origin without any known connection to criminal activity. It does not end the FBI’s permission to spy on Americans and intrude on their houses of worship. Furthermore, the Guidance fails to compel state and local law enforcement to follow federal standards, and the guidelines do not apply to any operation or officers working within 100 miles of any U.S. border. Referred to as the “border security carve out,” this one stipulation alone permits the arbitrary investigation of the nearly one-third of the country’s population that lives within 100 miles of the border.

The Guidance is only one example of numerous executive policies and legislative actions taken since 9/11 that have undermined the rights and liberties of Arab Americans, American Muslims, and other minorities in an effort to expand the scope of law enforcement. 

The Problem

A wave of legislation following the September 11th attacks ushered in a new culture of government secrecy with the simultaneous abandonment of several core constitutional guarantees, including due process, privacy, and equal protection. This includes the original 2003 Department of Justice’s guidance on the use of race in pro ling. Many of the post-9/11 laws and programs targeted the Arab American and American Muslim communities, who have been subject to widespread surveillance, detention, and in some cases, deportation.

• In 2011, the White House launched its multi-million dollar Countering Violent Extremism (CVE) initiative. CVE programs rest on the government’s ability to predict who is vulnerable to resorting to violence – a theory which is notoriously unsophisticated, inexact, and lacks reliable indicators. The Obama Administration initially claimed that CVE would not exclusively focus on Arab Americans and American Muslims, yet evidence, including testimony from Department of Homeland Security (DHS) Secretary Jeh Johnson, indicates otherwise. Despite abundant skepticism from civil rights leaders and advocacy organizations, the administration has continued expanding CVE efforts in response to the terrorist attacks in Paris and San Bernardino in 2015. Recent measures include the creation of a Deputy Assistant Secretary for Countering Violent Extremism in the DHS and the rollout of the FBI’s “Don’t be a Puppet” campaign for use in schools. For more information on CVE and its complications, please refer to AAI’s Issue Brief on Countering Violent Extremism.

• The USA PATRIOT Act, which passed in October 2001 and renewed in 2006 and 2011, expanded the federal government’s ability to conduct surveillance with little oversight.
With the expiration of section 215, the passage of the USA FREEDOM Act, and the upcoming expiration of Section 702 of the FISA Amendment Act in 2017, now is the time to reform the government’s mass and targeted surveillance programs. For more information on surveillance issues, please refer to AAI’s Issue Brief on Surveillance.

• In 2014, leaked details about U.S. government watch listing practices and policies revealed numerous disturbing revelations. We learned that Dearborn, Michigan – a city with less than 100,000 residents that is home to a large Arab American community – has more watch listed individuals than any other city in the United States other than New York City. According to the U.S. Census Bureau, 40 percent of Dearborn’s population is of Arab descent, demonstrating that the watch listing program is based off of racial, ethnic, national origin and religious pro ling.

• Federal intelligence agencies including the Federal Bureau of Investigation (FBI) utilized blatantly anti-Arab and anti-Muslim training materials, employed crude stereotypes of Arabs and Islam and made fallacious assertions about the threat of “Sharia Law.” As a result, the pivotal relationship between the intelligence community and the communities they aim to protect was soured. Further, agents and officers who underwent training programs that included offensive and crude stereotypes must be retrained. 

• In November 2001, Congress passed the Aviation and Transportation Security Act, tasking the newly established Transportation Security Administration (TSA) with all airport security measures and screenings. TSA’s methods and efficacy have been questioned, with numerous claims against the agency for unreasonable search, seizure and pro ling travelers. For more information on the TSA, please refer to AAI’s Issue Brief on TSA Pro ling and the SPOT Program)

•While the Federal National Security Entry-Exit Registration System (NSEERS) was suspended in 2011, as both discriminatory and largely ineffective, its potential reimplementation remains a looming threat against immigrants and foreign visitors. Policymakers should consider more permanent measures to dismantle NSEERS and provide discretion for those facing legal action due to NSEERS violations. For more information on the threat the NSEERS program continues to pose, please refer to AAI’s Issue Brief on NSEERS. 

Moving Forward

• Congress must act on the End Racial Pro ling Act (H.R. 1933), banning ethnic, religious, national origin, gender, and racial pro ling by law enforcement at the federal, state, and local levels, and providing legal recourse for victims of such pro ling.

• Pressure the Department of Justice to issue a second revision of the 2003 “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.” The 2014 revisions failed to close the national security and border security loopholes, and failed to eliminate provisions that permit discriminatory pro ling on the basis of ethnicity, religion, race or national origin. The Guidance also fails to apply to local law enforcement.

• Legislative action needs to be taken to improve the process by which individuals who have been put on the DHS’s “Watch List” or “Selectee List” are able to contest that designation. While the DOJ announced in early 2015 that they are making improvements to the redress process for the Watch List, there continues to be fundamental issues of transparency regarding the criteria by which people are put on either list. Individuals on the Selectee List continue to be denied due process and must endure enhanced screening and questioning at airports.

• Congress must implement increased oversight, accountability and transparency over the DHS, TSA, and CBP. Officers and agents need to be provided the proper training, support, and oversight needed to ensure that they and the communities they serve are safer.

• Congress must act to ensure appropriate oversight mechanisms are in place for existing CVE programs to ensure transparency, and that civil rights and civil liberties protections are in place for communities targeted by CVE programming. Furthermore, investigations must be conducted into the effectiveness of CVE programming and their impact on communities. 

 

Download AAI Issue Briefs: 

 

AAI Issue Brief: Post 9/11 Civil Rights and Civil Liberties (2016)

AAI Issue Brief: Civil Rights and Civil Liberties

AAI Issue Brief: TSA SPOT Program 

AAI Issue Brief: NSEERS 

AAI Issue Brief: Domestic Implications of the Israeli-Palestinian Conflict

 

 

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