Posted by on December 08, 2014 in Blog

Today, Attorney General Eric Holder and the White House unveiled much anticipated revisions to 2003 Department of Justice Guidance on the Use of Race by Federal Law Enforcement Agencies (“Guidance”). The DOJ has finally expanded the definition of profiling to prohibit to the use of gender, national origin, sexual orientation and gender identity in addition to race and ethnicity. While this is a small sign of progress, the Guidance fails to address homeland security and border integrity loopholes as well FBI mapping practices that have created space for routine and egregious constitutional and civil liberties violations.

Holder’s new guidelines arrive during a time where law enforcement activities are under intense scrutiny. Conversations regarding immigration reform, border security, and recent events in Ferguson, MO., New York City, and Cleveland not only emphasize the need to address such activities, but also highlight how little these new guidelines will address the real issues at stake. For one thing, the changes will only apply to federal law enforcement agencies, and will not extend to local and state law enforcement officers, which have been the source of a number of related controversies. The Obama Administration hopes that the new guidelines will serve as a possible roadmap for local police to reform their own practices regarding profiling, but this does not ultimately guarantee change on behalf of local police forces that work closely with particularly vulnerable communities.

The new guidance will limit instances in which law enforcement agencies may profile for the sake of national security and goes as far as eliminating a 2003 exemption that permitted officers to use race when seeking out individuals in such cases.

But profiling will by and large continue to be permitted in cases where national security and border protection are concerned. For example, federal agents are not obligated to abide by the Guidance’s prohibitions within 100-miles of national borders, which includes nearly one-third of the country and places 197.4 million people under potentially arbitrary investigation. TSA officers will also be allowed to stop passengers at airports based on prohibited qualities. The national security exception will also allow for the FBI to continue “mapping” specific communities on the basis of race, religion, and ethnicity, which has been of particular concern to Arab American and American Muslim communities nationwide. Because the guidance is confined to federal law enforcement practices, this does nothing to address the types of discriminatory targeting and surveillance programs that local agencies, such as the New York Police Department, conduct in contravention to numerous constitutionally protected freedoms.  

For nearly five years, Arab American Institute (AAI) has worked with a broad coalition of organizations to call on the DOJ to address these loopholes that directly impact our community and other minorities, including Latinos and African Americans. In late May, this coalition briefed Congressional staff on revising DOJ guidance to eliminate the deplorable violations of various civil liberties caused by the national security and border integrity loopholes. This included limiting discretion for profiling by border protection and TSA officers and local law enforcement agencies conducting surveillance programs on the basis of race, religion, or national origin within the parameters of the old DOJ guidance.

In a phone call with various civil rights groups and organizations Monday afternoon, the Attorney General stated that while the new guidance is by no means comprehensive, it is a strong first step in improving law enforcement practices that have negatively impacted millions of Americans. The expansion on prohibited criteria for profiling is in fact strong progress in the right direction, but it’s simply not enough. As Laura Murphy of ACLU’s Washington Office stated, “this is not an adequate response to the crisis of racial profiling in America.” The exemptions, in her view, “are so loosely drafted that its exceptions risk swallowing any rule and permit some of the worst law enforcement policies and practices that have victimized and alienated American Muslim and other minority communities.”

The new DOJ guidance is an effort to build strong policies against arbitrary and illegitimate racial profiling.  Upon closer examination, however, the new expanded criteria and limitations do little to address critical areas where most of these profiling incidents are occurring—at the local levels and at the border. Without holding several federal agencies accountable to the new criteria and applying the same to state and local law enforcement, the practical impact of this guidance does much less than we need it to.