Eric Holder: Profiling Continues

I first met Eric Holder during the Clinton years when he was serving as Deputy Attorney General. Back then, my community was deeply troubled by FBI harassment, the government’s use of “secret evidence” to detain individuals, and profiling of Muslim or Arab-looking individuals at airports around the country.

Working with then Assistant Attorney General for Civil Rights, Bill Lann Lee, the Department of Justice convened a series of meetings, some chaired by Attorney General Janet Reno, others by Holder, that provided us with the opportunity to address each of these concerns. Holder was responsive. Subjective airport profiling diminished, meetings were organized between FBI field offices and leaders of the Arab American community, and, after a case-by-case review, most of the 23 Arabs who had been held on “secret evidence” were released.

When he ran for president in 2000, George W. Bush tried to exploit lingering bitterness with profiling and “secret evidence” in an effort to court the Arab American vote in Michigan. Once elected, Bush proved to be a disappointment. These practices stayed in place and then, following the terror attacks on 9/11, Bush and his Attorney General, John Ashcroft, threw caution (and the Constitution) to the wind, unleashing an unprecedented assault on civil liberties. The Patriot Act gave law enforcement expanded authority, as did a series of executive actions that resulted in massive profiling campaigns in which thousands of individuals of Arab descent were targeted.

Initially, there were round ups and deportations of over 1200 (we will never know the exact figure because after reaching 1200, the DOJ stopped releasing numbers). This was followed by a series of “call ups” in which recent arrivals from Arab and Muslim countries were ordered to report to immigration officials to be registered and questioned. This program was so poorly conceived, badly executed, and arbitrarily administered that, within the affected communities, panic was widespread. In the end, thousands were ordered deported—in many cases despite the fact that they had complied with immigration requirements, were married with children, or were students in degree programs. Arbitrary use of airport profiling resurfaced, with individuals actually being ordered off of planes simply because they were “Arab-looking” and their presence had caused other passengers to feel uncomfortable.

It was during this period that the DOJ under Ashcroft issued “profiling guidelines,” cynically claiming to ban the use of this practice but doing so with a national security loophole that provided justification for the continued use of profiling against Arabs and Muslims.

Following those nightmare years of civil liberties violations at the hands of the Bush Administration, we were relieved when Constitutional lawyer Barack Obama was elected president. Obama promised a government that would be guided by transparency and accountability, due process, and respect for constitutionally protected rights. We were further heartened by the appointment of Eric Holder as Attorney General.

From his earliest days in office, Holder indicated that changing the “profiling guidelines” was one of his priorities. Years dragged on with no action and just a few months ago, Holder met with a group of civil liberties advocates, telling us that this issue remained a personal priority, that he was close to a decision, and that he saw action on this matter as an important part of his legacy.

This week, the new guidance was finally issued. It was more than a disappointment; it was an outrage. Instead of ending Ashcroft-era profiling, the new guidance opened new loopholes.

Reading through the new guidelines, one detects a note of misdirection. It begins by declaring that “Biased practices…are unfair, promote mistrust of law enforcement, and perpetuate negative and harmful stereotypes. Moreover—and vitally important—biased practices are ineffective…[and] simply not good law enforcement.”

The new guidance then expands the characteristics that law enforcement cannot use for profiling in “traditional law enforcement” to include: race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity. It then immediately pivots, allowing law enforcement to “consider” these same characteristics to be used in cases of national security, immigration enforcement, or “authorized intelligence activity”. Unlike the old guidance, the new guidance explicitly exempts “interdiction activities in the vicinity of the border” and “protective, inspection, or screening activities.”

Just look at this one example cited in the guidance that defines when profiling is permitted:

“A terrorist organization that is made up of members of a particular ethnicity sets off a bomb in a foreign country. There is no information that the organization is currently a threat to the United States. To gain intelligence on the evolving threat posed by the organization and to gain into its intentions regarding the US homeland and US interests, the FBI may properly consider ethnicity when developing sources with information that could assist the FBI in mitigating any potential threat from the organization”.

In other words, if you are Lebanese, Palestinian, Syrian, Iraqi, (I could go on, but you get the picture) you can be fair game for law enforcement.

The guidance also explicitly allows for “mapping”—that is creating community profiles of where persons of Arab descent live, shop, pray, and gather. This “mapping” program recalls and, therefore, legitimates the even more shocking practices instituted by the NYPD.

As FBI Director Comey noted this week, the new guidance “will have no effect” on his agents’ behavior. It might even be argued that they make it worse, not only because the new guidance is in some ways worse than the Ashcroft loopholes, but because they were issued by an Administration which we had hoped would make real change.

Rereading the entire guidance, the only part with which I can agree is the opening line which makes it clear that profiling is bad law enforcement that wastes resources, destroys trust with important communities, and is, at best, ineffective.

We have just been shocked by the report on torture which established that by engaging in this practice, the US received no useful information that contributed to national security. The same can be said for profiling. The DOJ and DHS have been challenged to provide one example where the “mapping,” “call ups”, or airport profiling either stopped a terror attack or yielded useful information that improved national security. They haven’t answered, because they can’t.

As Senator Richard Durbin, a long-time critic of profiling, noted, “The Justice Department pledged to right this wrong, but this new guidance falls short… I’ve pushed the Administration to put an end to racial profiling for over a decade, and after reviewing these new rules this fight will continue.”