The Justice Department on Monday announced new “stricter policies” forbidding the use of profiling by federal law enforcement officers, but the guidelines — which don’t apply to local police departments — were immediately criticized by civil rights advocates as being overly broad and riddled with loopholes.
The long-awaited policy states, in general, that federal officers and agents may not consider “race, ethnicity, gender, national origin, religion, sexual orientation or gender identity” unless it is specific to an investigation. Prompted by a 2009 review, it was drafted independently of recent incidents in Ferguson, Missouri, and New York City in which black men were killed under questionable circumstances during confrontations with police.
But the timing of the release, amid heightened racial tensions and national protests seeking reform of police practices, was hard to miss. Attorney General Eric H. Holder Jr. announced during a forum at a Baptist church in Atlanta last week that the policy change was imminent and alluded to the recent controversies in a statement that accompanied the 12-page guidance.
“I have repeatedly made clear that profiling by law enforcement is not only wrong, it is profoundly misguided and ineffective,” Mr. Holder said. “Particularly in light of certain recent incidents we’ve seen at the local level, and the widespread concerns about trust in the criminal justice process, it’s imperative that we take every possible action to institute strong and sound policing practices.”
But the policy, which only affects federal organizations such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, will do little to change the practices of state and local law enforcement agencies that have been at the center of the recent controversies. And they do not apply to several agencies regularly accused of engaging in profiling.
Laura Murphy, director of the American Civil Liberties Union’s Washington Legislative Office, said the new policy has large loopholes built in, including allowing profiling in certain cases in airports by the Transportation Security Administration or along the U.S.-Mexican border by the Customs and Border Protection agency.
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“It’s baffling that even as the government recognizes that bias-based policing is patently unacceptable, it gives a green light for the FBI, TSA and CBP to profile racial, religious and other minorities at or in the vicinity of the border and in certain national security contexts,” Ms. Murphy said. “It’s 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.”
Both the TSA and CBP fall under the jurisdiction of the Department of Homeland Security, which has often been the target of more civil rights complaints than the Justice Department. Indeed, some of the more controversial profiling cases — including surveillance by the National Security Agency — fall under the jurisdiction of Homeland Security and won’t be affected by the new policy.
Instead, the guidelines issued Monday contain a series of examples that includes the selection of violators for traffic stops and the appropriateness of increased enforcement of drug or gang activity in the community based on data rather than generalized stereotypes about the community’s residents.
Federal officials said the policy is intended to serve as guidance for local police departments, who can only be held to the standard when they work in conjunction with federal officers or agents.
White House spokesman Josh Earnest said Monday that the administration would like to hear any decisions by “local law enforcement to apply these policies at the state and local level as well.”
The anti-profiling policy, which built upon a review initiated in 2003 under then-President George W. Bush, was originally started not to address racial policing tensions but to prevent discriminations against Muslims during counterterrorism investigations.
Advocacy group Muslim Advocates, however, said that while the DOJ’s announcement was “welcome,” it would be difficult to see what impact new guidelines could have.
“The guidance still allows law enforcement to engage in massive data gathering to map communities based on race, ethnicity or religion; recruit informants based on race, religion or other protected characteristics without any known connection to criminal activity; and spy on Americans and infiltrate their houses of worship also without any evidence of wrongdoing,” the organization said.
⦁ This article is based in part on wire service reports.
• Phillip Swarts can be reached at pswarts@washingtontimes.com.
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