Posted by Kristin Mccarthy on June 05, 2014 in Blog

When Rep. Conyers (D-MI) introduced the End Racial Profiling Act (ERPA) in June 2001, no one could predict what was to come a few short months later. The events of 9/11 have affected American life in tremendous and frequently underestimated ways; the fate of ERPA was bound to be tied up in the national debate about striking the right balance between civil rights and civil liberties.

We’ve frequently lamented the demise of bipartisan support for ERPA as well as for its underlying premise that all Americans must be afforded their constitutional rights including due process, privacy and equal protection under the law. We’ve long advocated for key revisions to the 2003 Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies (“Guidance”), a document that was introduced at the insistence of President Bush in 2003, just two years after 9/11 and the ever expanding legislation permitting profiling in law enforcement practices.

Earlier this year, the New York Times leaked a story that Attorney General Eric Holder will be making changes to the DOJ’s Guidance. The speculated changes will expand the definition of profiling to prohibit federal agencies from considering not just race but “national origin and/or religion” in their work.  This much anticipated change addresses a core concern of a coalition of organizations that the previous language did not adequately protect Arab Americans, American Muslims, and many other minority groups from being profiled based on stereotypes of skin color or dress.

More good news came last week in the House of Representatives when Congressman Keith Ellison (MN – 5)introduced and passed an amendment to HR 4660, an appropriations bill, that stipulated none of the funds may be used by the “Department of Justice, the FBI and local law enforcement from using money in the Commerce, Justice, Science and Related Agencies Appropriations bill to engage in profiling based on race, religion, ethnicity, national origin, gender and sexual orientation”.

While we will welcome as important changes both Rep. Ellison’s amendment and the promise of a revised DOJ definition of profiling (if and when they are implemented), there are important loopholes in the Guidance that need to be addressed immediately. Last week, AAI partnered with a diverse group of minority advocacy groups (including Latino, African American, and Muslim) to brief Congressional staff on three key revisions that must be made to end profiling of minority communities:

1. The national security loophole whereby cases involving national security are not subject to the DOJ’s Guidance, and cannot be contested in a court of law. Of primary concern for Arab Americans, this loophole has led to gross transgressions including:

a. Unjust profiling by Customs Border Protection (CBP) officers and Transportation and Security (TSA) agents at airports and borders with no federal oversight of their practices. TSA’s program “Screening Passengers by Observation Techniques” (SPOT) is particularly problematic as it relies heavily on appearances and arbitrary judgments rather than objective criteria, and results in unfair suspicion cast on Arab Americans, American Muslims and, any other minorities. SPOT is used for all forms of mass transit including local and national train systems;

b. Surveillance programs singling out Arab American and American Muslim communities. Because the DOJ’s Guidance only requires federal agencies to comply with its parameters, local law enforcement agencies and their surveillance operations are not governed by the same restrictions and principles. As a result, the NYPD surveillance program is permitted to profile and map Arab American and American Muslim communities. The widely covered scandal was revealed in 2011 when AP unveiled how the NYPD had infiltrated Muslim and Arab-owned businesses, restaurants, and mosques in violation of the 1st and 14th amendment to the Constitution. Not only does the Guidance need to include a ban on profiling in local law enforcement agencies like the NYPD, it needs to reign in outrageous profiling local surveillance operations have employed to target Arab Muslim communities. These programs are not only illegal under the Constitution they are ineffective and highly consequential. Not a single lead on terrorist operations has resulted from NYPD’s spying activities, and the erosion of trust between Arab Americans/American Muslims and the NYPD is undermining the greater safety of New York as well trust within the community itself.  

2. The “border integrity” carve out nullifies the Guidance within 100 miles of U.S. borders, creating a zone that encompasses 9 out of 10 of the largest U.S. metropolitan cities and the entire states of Michigan, Arizona, and New York to name a few. Based on 2006 figures, this affects 197.4 million American citizens. This loophole authorizes CBP officers to conduct searches on individuals and cars even if he/she has not been seen crossing a U.S. border, and to demand documentation verifying his/her immigration status.

The combined effect of these loopholes all but disenfranchises millions of Americans of their constitutional rights. The fact is that profiling is both unconstitutional and ineffective. Attorney General Holder’s legacy will be defined by his ability and success in ending profiling as an acceptable practice for federal agencies and organization receiving government funding.



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