Posted by Nisreen Eadeh on November 04, 2015 in Blog

In June 2003, Attorney General Ashcroft issued the Department of Justice's Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, which said that federal "law enforcement ought not to profile when engaging in their duties." As AAI Executive Director Maya Berry said at the briefing last week, "this makes sense," but there were too many loopholes exempting certain law enforcement from adhering to the guidance. As a result, The Department of Justice, under Attorney General Eric Holder, updated the Guidance in December 2014 to include not only racial profiling, but profiling based on ethnicity, gender, national origin, religion, sexual orientation, or gender identity. However, "in October 2015 we are nowhere further than we were on that day in December 2014," Berry stated.  


Sakira Cook, a Counsel at The Leadership Conference on Civil and Human Rights, asserted that profiling continues to exist despite the DOJ's Guidance because it "does not extend to both state and local law enforcement... and does not cover loopholes for national security and border integrity." Along with state and local law enforcement, the Guidance does not extend to the Transportation Security Administration (TSA) or the Custom and Border Patrol (CBP) – by far the largest agency whose authority to conduct searches in vehicles and detain and question individuals extends 100 miles from all borders, enveloping entire states in some cases.

The loopholes in the DOJ Guidance allow for initiatives that target Arab Americans and American Muslims to exist. For example, the use of informants to penetrate civilian groups and buildings, such as Students for Justice in Palestine chapters, mosques, and cafes, can all be drawn back to the loopholes.  Berry added, “if your government holds you as suspect… perhaps your fellow Americans should be, as well” causing those around you to believe that you "have engaged in some unfortunate stereotype,” thus enforcing a cycle of profiling that goes unquestioned.

The Guidance also lacks an enforcement mechanism, nor is there a "safety net of state laws that ban any type of profiling" for the Guidance to fall on and gain substance from, according to Jennifer Bellamy of the American Civil Liberties Union (ACLU). Bellamy went on to explain the effects of unchecked profiling by saying that "even though white Americans are more likely to be carrying around illegal contraband," seeing minorities being targeted "creates this perception of criminality" that perpetuates these invasive searches, Bellamy said. 

Arjun Singh, Director of Law and Policy at The Sikh Coalition, brought up the "human cost" of the Guidance loopholes. One way that profiling affects a community is by “chilling the First Amendment,” causing people to choose not to participate in religious settings, join an advocacy group, or speak up against a U.S. ally in a classroom for fear of being wrongfully profiled. Additionally, Singh said there is a “deeper cost” on children who see their parents pulled aside for wearing a turban or a hijab who aren’t sure what to think.

Profiling can have a generational effect, which is why these civil rights experts were brought together to call for a better law enforcement training and a shift of civilian perceptions in order to combat the issue in the future. The lack of Guidance enforcement for the past thirteen years has, as Singh mentioned, “emboldened other communities who were not being profiled or targeted to engage in additional bad behavior because they realized they were more likely to get away with it.” With so many Guidance flaws, it leads us to wonder who exactly are prevented from engaging in racial profiling? The only federal law enforcement agencies left are U.S. marshals, federal prison guards, and Alcohol, Tobacco, and Firearms (ATF) agents. Although it makes sense to not profile, the Guidance seems to only be a set of admirable words, as opposed to real action that can prevent minority groups from the degrading process of being detained, searched, and questioned by law enforcement for no reason other than perceived religion, race, or ethnicity.

Nisreen Eadeh is an intern with the Arab American Institute