January 18, 2014

MPAC welcomed the Department of Justice’s (DOJ) decision to expand its definition of profiling to include religion. Under the new guidelines, federal law enforcement agents will be prohibited from using religion, sexual orientation or national origin as considerations in their investigations.

SEE: “U.S. to Expand Rules Limiting Use of Profiling by Federal Agents” (New York Times)

“Aside from being the right thing to do, tightening the guidelines on profiling will make our country safer,” said Hoda Elshishtawy, MPAC’s National Policy Analyst. “Focusing on behavior instead of religion allows law enforcement agents to focus on individuals who pose actual threats. This is important in ensuring we use our limited resources effectively.”

While President George W. Bush publicly opposed racial profiling in early 2001, that changed after 9/11. As a result, countless Muslims and people of Arab descent were subjected to questioning, arrest and/or being required to register with what was then the Immigration and Naturalization Service (INS). In 2003, the current profiling rules were created by a Bush administration directive, which stated race may not be used in investigations except for national security matters.

The DOJ’s anticipated rule change comes following pressure from Democrats and civil liberties groups who have long argued that excluding religion, sexual orientation and national origin from the guidelines is not only unconstitutional but ineffective. Attorney General Eric Holder has been an outspoken critic of racial profiling and has reportedly been working on changing the rules for the past few years.

Earlier this week, Holder discussed the policy change during a meeting with New York Mayor Bill de Blasio, who is a fierce opponent of the New York Police Department’s (NYPD) stop-and-frisk policy. Last summer, Holder filed a brief in the Center for Constitutional Rights’ lawsuit against the NYPD policy, in which he suggested that it be put under federal monitoring. The New York Police Department also used religious profiling in its mass surveillance of Muslim communities in and around New York City. In August 2013, a federal judge ruled that the stop-and-frisk policy unconstitutionally targeted minorities.

What remains to be seen is a timeline for implementation and clarification as to whether the current loophole allowing the use of racial profiling in counterterrorism investigations will remain. Though the DOJ’s new rule change would only apply to federal law enforcement agents, we hope the change will send an important signal to local and state law enforcement to follow suit.