Religious and Racial Profiling Justified in McCarthy Era Inspired Investigations and Tactics

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The September 11, 2001 Al-Qaeda attacks on the Twin Towers in New York City, and the reaction to those terrorist attacks by President George Bush’s administration, left this nation with a tragic and despicable legacy that has tarnished our great Country’s reputation and image worldwide. One part of this legacy was the government’s voluntary interview program that used race and religion as the primary factors for initiating contact with individuals which continues to be fueled by the faulty premise that these two factors create “suspect communities” from which real and suspected “terrorists” could be found.

The ACLU and The Rights Working Group’s 2009 follow-up report to the United Nation’s Committee on the Elimination of Racial Discrimination titled “The Persistence of Racial and Ethnic Profiling in the United States” (“ACLU Report”) specifically pointed that, while initially part of President Bush’s declared “war on terror,” the FBI “has continued to undertake problematic inquiries and investigations of members of the Muslim communities, Muslim religious organizations (including mosques), and even Muslim charities.” 1/

The “targets” of these investigations, more commonly called “assessments,” quickly learn that FBI agents will visit their places of employment, worship, and community centers where they pressure and harass employers, co-workers, religious leaders, neighbors, friends, and even family members to provide the smallest kernel of evidence that would implicate the targets, or someone else, in some kind of activity that can classified as a “threat to national security” or be charged as some form of terrorist activity. 2/


The ACLU Report pointed out that in December 2008 the U.S. Department of Justice, under the direction of former Attorney General Michael MuKasey, established “The Attorney General’s Guidelines for Domestic FBI Operations.” These Guidelines, however, have a number of significant problems, according to the ACLU Report: “Most notably, they [Guidelines] open the door to abuse of power and racial profiling by allowing the FBI to open ‘assessments’ without any factual predicate. By calling their investigations ‘assessments,’ FBI agents can investigate any person they choose, provided it is done with the goal of preventing crime, protecting national security, or collecting foreign intelligence. There is no requirement of a factual connection between the agent’s authorizing purpose and the actual conduct of the individuals who are being investigated. FBI agents can initiate ‘assessments’ without any supervisory approval and without reporting to FBI headquarters or to the Department of Justice.” 3/

These assessments have not only had a “chilling effect” on participation in religious and social activities in Muslim communities but have led to civil rights abuses against Muslims by FBI agents. For example, these agents have used the lure of money to recruit Muslims as informants against fellow Muslims, and when the temptation of money does not work, they use threats and retaliation to pressure Muslims into being snitches. The ACLU Report listed several examples of Muslims being recruited or coerced into working as informants, entering and recording conversations at their mosques.

Jim Lafferty, Executive Director of the National Lawyers Guild in Los Angeles, recently told The Final Call that the FBI’s use of these “agent provocateurs” to infiltrate mosques is a disgraceful violation of the First Amendment’s Free Exercise of Religion Clause.


“It is exactly what the FBI did in the ‘60s and ‘70s under its discredited and outlawed COINTELPRO policy,” Lafferty added. “It seeks to disrupt, discredit and criminalize the Muslim community. And as is now clear from the testimony of the agent provocateur used by the FBI in Southern California to infiltrate mosques, it is designed to provide the FBI with an excuse to prosecute those who are guilty of no crime, based upon the perjured testimony of the agent provocateur … who in this case was, himself, a convicted criminal with a long criminal record! And it serves to further spread the false idea among the American population as a whole that Muslims are not to be trusted.”


In addition to having to endure the harassment and embarrassment of the FBI “assessments” and having to cope with the pressures and threats associated with the agency’s recruitment of informants, Muslims, citizens and non-citizens alike, have to continually face horrific instances of racial and ethnic profiling at airports as they try to re-enter or enter the United States. These individuals are routinely pulled aside by Customs and Border Patrol (CBP) agents and subjected to long hours of questioning about their faith, friends, family, and political beliefs. The ACLU Report said their papers, cell phones, laptops, and books are confiscated and copied by CBP agents; and that U.S. Muslim citizens who complained are frequently threatened with referral to Homeland Security’s Immigration and Customs Enforcement (ICE). 4/ The ACLU Report discussed the basis for these airport detentions and interrogations:


“This unjust treatment is caused, in part, by a problematic CBP guidance. Released in July 2008, the CBP guidance on border searches of information contained in papers and electronic devices states, in part, that ‘[i]n the course of a border search, and absent individualized suspicion, officers can review and analyze the information transported by any individual who attempts to enter, reenter, depart, pass through, or reside in the United States …’ The guidance followed on the heels of the 2007 CBP decision to lower the basis for copying documents from a ‘probable cause’ standard to a ‘reasonable suspicion’ standard.” 5/


The overly broad “reasonable suspicion” standard gives CBP agents a license to single out, to specifically “target” a given group of people based solely on race, ethnicity, and religion. The standard also allows CBP agents, as the ACLU Report noted, to raise the bar for U.S. citizens reentering country after visiting Arab or Muslim countries for personal or business reasons by subjecting them to “lengthy and humiliating searches” that includes scrutiny of their personal and business documents. This kind of intrusive treatment raises serious questions about the citizens’ First Amendment rights of privacy and free exercise of religion being violated.


To date, the only way for Muslim citizens to fight this kind of systematic governmental violation of their civil and constitutional rights has been through lawsuits. In 2007 the American Civil Liberties Union and the New York Civil Liberties Union filed a lawsuit against JetBlue Airways and two Transportation Security Administration officials on behalf of Raed Jarrar who was told that he would not be allowed to board a JetBlue flight at the John F. Kennedy Airport so long as he wore a t-shirt that read, “We Will Not Be Silent.” The Muslim citizen removed the t-shirt but was again singled out by JetBlue flight attendants who moved him from his seat in the third row to a seat in the back of the plane. Before the case could reach a jury, JetBlue and the two TSA officials agreed to settle the lawsuit by paying Jarrar $240,000 for violating his constitutional and civil rights, according to the ACLU Report.


Then there was the “AirTran Airways 9” incident this past January when nine members of a large Muslim family were removed from a flight from Washington, D.C. to Orlando, Florida after another passenger reported to flight attendants that two members in the Muslim group made “suspicious” comments. The FBI was called to the scene, and after questioning the group, agents cleared the group to travel. AirTran, however, refused to book the group on a later flight. The ACLU Report described the incident as follows:


“On January 1, 2009, brothers Kashif Irfan (an anesthesiologist) and Atif Irfan (a tax attorney) sought to travel with their sister and families from Washington, D.C. to Orlando, Fl. on AirTran Flight 175. Their friend, Abdul Aziz, a United States Library of Congress attorney, was also on the flight. Five of the six adults in the group were of South Asian descent. The women wore Islamic headscarves and the men were bearded.


“While boarding the plane, two members of the Irfan family had been casually speaking about the ‘safest place to sit on an airplane,’ discussing whether it was safer to sit close to the wings, the engine, the front or the back of the plane. Another passenger overheard the conversation and reported it as ‘suspicious’ to crew members, who notified federal marshals on board the aircraft, who then required all passengers and crew to disembark and all luggage to be removed.


“While all the other passengers were permitted to re-board the aircraft, the Irfan family (including their young children) was detained in the jet bridge, which connected the aircraft to the airport. Aziz was also detained because he had been seen speaking to the Irfan family in the gate area. The flight departed two hours behind schedule without the Irfan family or Aziz.

“After interviewing the Muslim passengers, the FBI determined that none of the members of the group posed a security threat. However, when the Irfan family and Aziz attempted to rebook onto a later AirTran flight, they were refused. Even after an FBI agent spoke directly to AirTran staff and communicated that the nine Muslim passengers had been officially cleared, AirTran refused to rebook any members of the group. All nine passengers, including the children, were forced to purchase new round-trip tickets on another airline in order to complete their trip to Orlando.”


AirTran issued an immediate press release after the incident trying to justify its actions based on “security concerns” and because one member of the group had “become irate and made inappropriate comments.” Three hours later the airline softened its position, expressing “regret” over the incident and refunded the fares to the nine passengers. AirTran, however, maintained that its actions were “necessary” because of the need to recognize “that the security and the safety of our passengers is paramount and cannot be compromised.”


Of course, this position raises the question about whether AirTran would have taken the same actions had a passenger expressed concern about a group of evangelical Christians talking about the safest place to sit on an airplane. We think not. AirTran’s action was taken for no other reason than the group of people was obviously Muslim, and no consideration was given to whether they were a law-abiding group or not.


Although severely inconvenienced, the “AirTran 9” were able to navigate through the controversy because they were U.S. citizens and two in the group were attorneys. Non-citizens entering the country do not enjoy the same legal and constitutional standing. They do not possess the same civil rights and constitutional protections status enjoyed by citizens. CBP agents can turn them away and refuse to admit them into the country for any trumped up “national security” reason. Non-citizen Muslims entering the country must do so in a quiet, low-profile manner lest they become “targets” who are then subjected to harsh interrogations and prolonged searches.


However, any citizen or non-citizen Muslim reentering or entering the U.S. for the first time who feel they have been targeted and harassment for racial, ethnic, or religious reasons at airports should file a complaint with the Department of Transportation’s Aviation Consumer Protection Division, 400th Street. S.W. Washington, D.C. 20590. They should also report these incidents to Muslim rights organizations such as the Council on American-Islamic Relations (CAIR) and the Arab Anti-Discrimination Committee (ADC); and consult with an attorney about possible civil rights violations and remedies.

Muslims, citizens and non-citizens, must be aggressive in protecting themselves from governmental discrimination and harassment. While it is tragic that many non-Muslim Americans believe Muslims should be targeted for special scrutiny by the government at airports, this reality should not be used as an excuse to allow government agents, regardless of whether they are FBI or CBP, to trample on their fundamental human rights. We do not suggest immediate confrontation with the agents at the scene of harassment but we do recommend aggressive follow-up legal action to address the wrongs.


Cooperation and understanding is a two-way street, one that demands reciprocity, but since 9/11 the American Muslim community has been essentially traveling the street of cooperation and understanding alone and with diminishing returns.

Attorney Jim Lafferty put it this way in The Final Call interview: “If the general public does not speak up against [this kind of] repression, one day we can wake up to find the repression is complete and that none of us are safe to pray in our churches, or assemble in our union halls, or express our opposition to government policy when we disagree with what our government is doing. So we must come to the defense of our Muslim sisters and brothers now, for their sake and for our own sake, as well.”




1/ Rajah, et al. v. MuKasey, 544 F.3d 427 (2nd Cir. 2007)
2/ Eric Lichblan, Inquiry Targeted 2,000 Foreign Muslims in 2004, N.Y. Times, Oct. 31, 2008, at A17, available at
3/ Office of the Att’y General, U.S. Dept. of Justice, The Attorney General Guidelines for Domestic Operations 17 (2008), available at
4/ Muslim Advocates, Unreasonable Intrusions: Investigating the Politics, Faith & Finance of Americans Returning Home (2009).
5/ U.S. Customs and Border Protection, Dep’t of Homeland Security, Policy Regarding Border Search of Information 1 (2008) available at

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair