[News] FBI Uses Race and ethnicity to drive investigations

Anti-Imperialist News news at freedomarchives.org
Wed Nov 26 15:08:08 EST 2008

profiling: new commentary

Date: Tue, Nov 25, 2008 at 8:27 AM

When the FBI Sees Danger Race and ethnicity should never be the driving
force behind investigations.

By Bennie G. Thompson

Legal Times

November 24, 2008

Should the FBI be allowed to use race or 
ethnicity as a factor in opening an 
investigation—or what the bureau calls an assessment—of American citizens?
The attorney general has apparently said yes.

Attorney General Michael Mukasey on Sept. 29 
issued new guidelines governing domestic investigations undertaken by the FBI.

The main purpose of these
guidelines, which go into effect on Dec. 1, is to consolidate a range of
existing guidance for various types of investigations, including criminal
cases, national security matters, foreign intelligence collection, civil
disorders, and demonstrations. But they also lower barriers to FBI agents
building an investigation based, in part, on the race or ethnicity of the
people being looked at.

While the Supreme Court has repeatedly stated that laws using race as a
predicate are almost always suspect, the attorney general has seemingly
concluded that this long-established proscription is no longer applicable.

That's just wrong.


Ironically, the Justice Department is now of two minds on allowing the use
of race and ethnicity in launching investigations. While imposing these new
guidelines, the department has not changed an older policy against racial
and ethnic profiling.

In 2003, the Justice Department implemented a race neutrality policy titled
"Guidance Regarding the Use of Race by Federal Law Enforcement Agencies."

Pursuant to this policy, the department mandated that all federal law
enforcement authorities, including those not under the Justice Department's
direct jurisdiction, absolutely prohibit the use of "generalized
stereotypes" about race or ethnicity as a factor in their investigative

Additionally, if race or ethnicity were to be considered, the 2003 policy
required some sort of trustworthy corroborating 
evidence linking individuals of a particular race 
or ethnicity to "an identified criminal incident,
scheme, or organization."

Now, the new guidelines for domestic investigations eliminate this
requirement for corroborating evidence, allowing the FBI to open an
investigation based on nothing more than a general suspicion.

Add the new standard in which race or ethnicity 
can be a key factor in starting an investigation, 
and it grows much too easy to bring the 
investigative might of the federal government to 
bear on the life of an ordinary American.

These lower standards are not necessary to protect our natural security.

The 2003 policy takes into consideration both the intricacies and urgency of
preventing threats to national security, enforcing laws protecting the
nation's borders, and shielding the nation from catastrophic loss of life.

The policy states that federal law enforcement officers may not consider
race or ethnicity "except to the extent permitted by the Constitution and
the laws of the United States."

Both the policy's explanation and the examples 
given illustrate the use of race or ethnicity in 
circumstances where there is corroborating 
evidence, including reliable information or 
intelligence sources that indicate that race or 
ethnicity is a relevant factor in identifying potentially harmful individuals.

But the new guidelines for domestic operations issued by the attorney
general disregard this careful balancing act between national security and
individual liberty. They essentially give the FBI a license to profile
members of certain racial and ethnic groups without cause.

Mukasey is sending mixed signals to law enforcement officers. On the one
hand, the new guidelines allow racial profiling without any suspicion of
wrongdoing or corroborating evidence. On the other hand, the old policy
forbids it. What is a responsible FBI agent to do?


The confusion doesn't end there.

Will law enforcement agents from other offices of 
the Justice Department and from other agencies 
that engage in national security investigations 
be informed that a FBI investigation in which 
they might participate was predicated upon the use of race or ethnicity?

Will those other offices or agencies be forced to 
alter their policies in order to work with an 
agency that is often the lead investigator in critical situations?

If other agencies retain their race neutrality policies—and I certainly hope
that is the case—whose policy will prevail on joint investigations? The
FBI's new guidelines could let other agencies 
continue to formally recognize that race- or 
ethnicity-based investigations are misguided 
while improperly gathering race- or 
ethnicity-based information through a back door.

Consider the Department of Home­land Security. In 2004, then-Secretary Tom
Ridge explicitly adopted the Justice Department's 
race neutrality policy for his department. That 
policy has remained in effect throughout Secretary
Michael Chertoff's tenure.

Of course, the Department of Home­land Security 
and the FBI often cooperate with each other in 
national security matters. How will they 
reconcile their newly conflicting mandates on 
race and ethnicity? Where one's race neutrality 
policy conflicts with the other's racial predicate policy, which will prevail?

As chairman of the House Com­mittee on Homeland Security, I have been an
ardent supporter of information sharing among law 
enforcement agencies and have repeatedly 
emphasized the importance of agencies coming together to "connect the dots."

Those "dots" are supposed to be the national 
security and foreign intelligence that different 
agencies have gathered reliably and legally. The 
new FBI guidelines put the intelligence gleaned 
by one agency in a whole different light.

Since the terrorist attacks of Sept. 11, 2001, citizens of all races and
ethnicities have worked with and provided information to law enforcement to
ensure that this country does not suffer another devastating attack. They
have not differentiated among their fellow Americans based on race and
ethnicity. They should be able to rest assured that their government does
not and will not do that either.

Any less of a guarantee casts doubt on the ability of the Justice
Depart­ment to truly live up to its name. It is my sincere hope that
Mukasey's actions will not be considered as a model for a government-wide
shift in policy under this administration or the next.

*Rep. Bennie G. Thompson (D-Miss.) is the 
chairman of the House Committee on Homeland Security.*


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