Federal law enforcement agents will be prohibited from considering a suspect’s nationality or ethnicity in criminal investigations when the Justice Department announces updates to its anti-discrimination guidelines.
The pending move raises concerns about tying investigators’ hands, particularly in terrorism cases.
The rules are expected to be released around the anniversary of the death of George Floyd on May 25. A draft of the guidelines, viewed by The Washington Times, shows that the administration would add nationality as a “protected characteristic” that investigators cannot consider while conducting most investigations.
The Justice Department would bar law enforcement agents, including the FBI and the Department of Homeland Security, from considering the race and ethnicity of suspects. Homeland Security is responsible for border security.
The guidelines were last updated in 2014. President Biden issued an executive order last year directing the department to update the rules. Nationality was not a “protected characteristic” in the 2014 guidelines.
The proposed guidance “reaffirms the federal government’s deep commitment to ensuring that law enforcement and national and homeland security agencies conduct their activities in an unbiased manner,” according to the draft.
“Biased practices are ineffective,” the document states.
The pending guidance would expand restrictions against using protected characteristics in law enforcement to identify a suspect, the documents state.
Officers would be barred from considering “actual or perceived race, ethnicity, gender, nationality, national origin, religion, sexual orientation, sex characteristics, disability status, or gender identity,” it said.
A person familiar with the internal discussions, who asked for anonymity because of concerns of retaliation, said the proposed guidance is a woke policy that would compromise federal agents’ intelligence-gathering capabilities, especially in counterterrorism work.
“The new version is a clear sign of their politicization of federal agencies,” the source said of the administration. “This so-called ‘anti-discrimination’ guidance would significantly impact how law enforcement and intelligence work. It means that the FBI can no longer consider where the suspects/targets come from while conducting investigations.”
The Justice Department did not respond to a request for comment.
The draft indicated that officials had not settled on the precise list of investigative activities affected, but it says the new rules wouldn’t apply in “limited circumstances.”
Mr. Biden’s executive order directed the Justice Department to “assess the implementation and effects of the DOJ’s December 2014 Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity; consider whether this guidance should be updated; and report to the President within 180 days of the date of this order as to any changes to this guidance that have been made.”
The draft guidance said using “protected characteristics as a predictive factor to identify individuals or a class of people as potential suspects reflects and invites bias and is therefore prohibited.” Law enforcement officers may rely only on “specific characteristic-based information.”
The document gives the example of an FBI agent receiving a “specific, credible” tip that a person intends to detonate a homemade bomb in a train station during rush hour, but the tip offers no more information.
“The officer harbors stereotypical views about religion and therefore decides that investigators should focus on individuals of a particular faith,” the document states. “Doing so would be impermissible because it relies on generalized stereotypes, not specific facts.”
The source said the changes are intended to protect foreigners, especially of Arab descent, from “institutional discrimination.”
“But in my view, it’s an act of condoning potential terrorists, leaving our homeland security at risk,” the source said.
Thomas J. Baker, who spent 33 years as an agent and served as an instructor at the FBI’s training academy in Quantico, Virginia, called the pending guidelines “absurd.”
“This is an example of the woke attitude or playing to the woke crowd that is causing the DOJ and FBI to do some ridiculous things,” he said.
“The first thing in a typical criminal investigation when you are looking for a fugitive or a witness is the ‘bolo’ [Be on the Lookout], they say they are looking for a White male or a Black female. Identifying someone by their ethnicity is an investigative aid. It has nothing to do with discrimination or prejudice; it’s basic police work used to identify people.”
He added, “It’s not just with criminals, but this information is used to identify victims. That needs to be emphasized. It will hurt in aiding the victims of crimes.”
FBI whistleblower Stephen Friend, who is not privy to the details of the administration’s internal discussions, said the guidance would likely hamper counterterrorism investigations.
“I don’t see how it couldn’t,” he said. “Geography plays into it. I’m more just confused by how they’re going to interpret this, with the focus on ethnic extremism, radical extremism, but they can’t take nationality into account.”
The draft also offers the example of a foreign terrorist organization that has never attacked the U.S. but sets off a bomb in a foreign country. “To gain intelligence on the evolving threat posed by the organization, and to gain insight into its intentions regarding the U.S. homeland and U.S. interests, the FBI may not consider ethnicity when developing human sources with information about the organization,” the documents state.
Mark Corallo, a Republican strategist who was the chief spokesman for the Justice Department during the George W. Bush administration, agreed that the move could make investigations more difficult for federal agents.
“We shouldn’t take tools out of the toolbox,” he said.
• Jeff Mordock contributed to this report.
• Dave Boyer can be reached at dboyer@washingtontimes.com.
Please read our comment policy before commenting.