Profiling Rules Said to Give F.B.I. Tactical Leeway

Matt Apuzzo, New York Times, April 9, 2014

Attorney General Eric H. Holder Jr.’s long-awaited revisions to the Justice Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open investigations.

The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race, but religion, national origin, gender and sexual orientation. And they increase the standards that agents must meet before considering those factors. But they do not change the way the F.B.I. uses nationality to map neighborhoods, recruit informants, or look for foreign spies, according to several current and former United States officials either involved in the policy revisions or briefed on them.

While the draft rules allow F.B.I. mapping to continue, they would eliminate the broad national security exemption that former Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil rights a central issue of his five years in office, the draft rules represent a compromise between his desire to protect the rights of minorities and the concern of career national security officials that they would be hindered in their efforts to combat terrorism.

The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it will curtail some of the authority granted to the F.B.I. in the aftermath of the 9/11 terrorist attacks. Muslims, in particular, say federal agents have unfairly singled them out for investigation. The officials who described the draft rules did so on the condition of anonymity because they were not authorized to discuss them.

Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of racial profiling on Wednesday before the National Action Network, the civil rights group founded by the Rev. Al Sharpton.

“Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was unwarranted,” he said.

Throughout the review process, however, the attorney general and his civil rights lawyers ran up against a reality: Making the F.B.I. entirely blind to nationality would fundamentally change the government’s approach to national security.

The Bush administration banned racial profiling in 2003, but that did not apply to national security investigations. Since then, the F.B.I. adopted internal rules that prohibited agents from making race or religion and nationality the “sole factor” for its investigative decisions.

Civil rights groups see that as a loophole that allows the government to collect information about Muslims without evidence of wrongdoing.

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The Justice Department rules would also apply to the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, but it is the F.B.I. that takes the lead on most national security investigations.

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Before federal agents could consider religion or other factors in their investigations under the new rules, they would need to justify it based on the urgency and totality of the threat and “the nature of the harm to be averted,” according to an official who has seen the draft.

That would not prevent agents from considering religion or nationality, but officials said the goal was to establish clear rules that made doing so rare.

Department officials were prepared to announce the new rules soon and had told Congress to expect them imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of racial profiling that includes the Department of Homeland Security, officials said.

That is significant because the Bush-era racial profiling rules also contained an exception for border investigations, which are overseen by the department. Hispanic advocacy groups are as opposed to that caveat as Muslims are to the exception for national security investigations.

Mr. Holder cannot tell Homeland Security what rules to follow. But he has told colleagues that he believes border agents can conduct their investigations without profiling and by following the same rules as the Justice Department, one law enforcement official said.

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