October 2, 2014

Eric Holder, the nation’s first African American attorney general (AG) has announced his resignation from the post following a turbulent five-and-a-half year tenure focusing on civil rights, national security and quelling racial tensions. A number of unanswered questions remain for the next AG.

One such question is whether the long awaited reformed policy banning religious and other forms of profiling by federal law enforcement will be released. Currently, the profiling guidelines, established in 2003, do not ban profiling based on religion, national origin or sexual orientation. The new policy, surprisingly, would have some teeth to the guidelines should they be passed. Although national security officials lobbied for a national security loophole for the guidelines, this policy would not include the exemption.

The new guidelines would prohibit federal agents from conducting undercover surveillance of mosques, or other sites, without information that criminal activity is underway. Aside from being the right thing to do, tightening the guidelines on profiling will make our country safer. Focusing on behavior and criminal activity, rather than religious affiliation allows law enforcement to focus on individuals who pose actual threats. This is important in ensuring we utilize our limited resources effectively.

The policy will not, however, ban heavy-handed tactics like recruiting and using informants from a particular religious group. The new guidelines will also most likely not extend to local law enforcement agents; something Sen. Ben Cardin (D-MD) had been advocating for on Capitol Hill especially for those agencies that receive federal funding. Not extending the guidelines to local law enforcement would be counter to having the guidelines in the first place. For example, the New York Police Department (NYPD) continues to run amok with their Stop and Frisk policy, a form of institutional racial profiling, which was ruled unconstitutional last year but still continues to be employed by officers in a revised manner. In fact, last summer Holder filed a brief in the Center for Constitutional Rights’ lawsuit against the NYPD policy in which he recommended that the NYPD be put under federal monitoring. We hope local and state law enforcement follows suit soon after the federal guidelines are implemented.

The next attorney general should also continue pushing for reform within the justice system to ensure the preservation of civil rights and liberties. The AG should also work to ensure that the profiling guidelines are implemented at the state and local level as well -- even if it only initially applies to agencies receiving federal funding or who work in partnership with federal agencies.

In a nation that so clearly still grapples with racial tensions, federal law enforcement tactics like the use of informants and ongoing challenges to ensuring our national security, the next attorney general will be assuming a full agenda. We look forward to continuing our work with the Justice Department and expect that the next attorney general will be someone who understands the nuances and needs of communities that are directly impacted by post-9/11 national security policies.