Houston Criminal Attorney John Floyd Discusses FBI’s Push to Legitimize Racial Profiling

On July 3, 2008 the Associated Press reported that the United States Justice Department was considering adoption of new rules that would allow the FBI to investigate persons without any probable cause of wrongdoing. FBI officials said that being able to target for selective investigation Muslims, Arabs and other racial and ethnic groups that fit a “terrorist profile” would enable the agency to fulfill a post 9/11 Congressional mandate to “root out” terrorists before they strike.


The Bush administration has consistently issued statements that it does not support the targeting of racial or ethnic groups for selective investigation. The proposed new Justice Department rules, however, would allow the FBI to consider both race and ethnicity among the factors that, according to AP, “could trigger a national security investigation.”


The FBI informed AP that under its existing rules the agency must have either specific evidence or probable cause to believe a crime has been committed before it can initiate an investigation against United States citizens or legal residents. The new rules under consideration would greatly expand the agency’s police powers allowing FBI agents to begin preliminary terrorism investigations based on mined public records or general intelligence data to put together individual behavioral profiles deemed suspicious. Some of the factors the FBI would consider in developing these profiles would include but not be limited to:


  • Individuals traveling to regions known for terrorist activity;
  • Access to weapons or military training; and
  • The individual’s race or ethnicity.


“We don’t know what we don’t know, and the object is to cut down on that,” one anonymous FBI official told the AP in defense of the proposed rule changes.


The proposed FBI rule changes are part of an updating of U.S. Justice Department policies officially known as “Attorney General Guidelines.” Senior FBI, Justice Department, and U.S. intelligence officials believe the new FBI rules would assist the FBI’s transition from what AP called a “traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.”


Criticism of the proposed rule changes was swift. The ACLU said it would destroy the traditional “presumption of innocence” doctrine. ACLU spokesperson Caroline Fredrickson said the FBI would be able to initiate criminal investigations “by assuming that everyone’s a suspect, and then … weed out the innocent.”


“Terrorism profiling” is a euphemism for “racial profiling.” Racial profiling has long been a fixture in American law enforcement. In 1901 Secret Service agents charged with protecting President William McKinley allowed a white assassin to pass through their security at the Pan-American Exposition in New York without being searched because they had locked their attention on an African-American former constable standing behind the assassin. The white assassin shot and killed the president after which the African-American disarmed and held him until the Secret Service was able to take the assassin into custody.


In December 2001 President George W. Bush had harsh criticism for an airline that refused to let one of his Secret Service agents board a commercial flight. The agent was an Arab-American. “If he was treated that way because of his ethnicity, that will make me madder than heck,” the president said.


Amnesty International USA (“AIUSA”) defines racial profiling as “the targeting of individuals and groups by law enforcement officials, even partially, on the basis of race, ethnicity, national origin, or religion, except where there is trustworthy information, relevant to the locality and timeframe, that links persons belonging to one of the aforementioned groups to an identified criminal incident or scheme.”


In a 2004 report entitled “Threat and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States,” the Domestic Human Rights Program of AIUSA reported that approximately 32 million Americans – the equivalent of the entire population of Canada – have been targets of racial profiling. The human rights watchdog group said that “racial profiling is a serious human rights problem” that impacts millions of innocent, ordinary people in their daily lives. The 2004 AIUSA report made the following key findings:


  • Approximately 87 million Americans are at “high risk” of being subjected to racial profiling during their lifetime.
  • Racial profiling directly impacts Native Americans, Asian Americans, Hispanic Americans, African Americans, Arab Americans, Persian Americans, American Muslims, immigrants and visitors, and, under certain circumstances, white Americans.
  • Racial profiling affects both men and women of all age groups and is used against all socio-economic classes in rural, suburban, and urban America.
  • Since 9/11, there has been an increase of racial profiling against citizens and visitors of Middle Eastern and South Asian descent, including others who appear to be from the areas or who are members of the Muslim and Sikh faiths.
  • Racial profiling occurs in almost every facet of American life: driving, walking, traveling through airports, shopping, home, and traveling to and from places of worship.
  • Despite the fact that 29 states have enacted laws against racial profiling, state and federal protection against this human rights violation have been woefully inadequate.
  • Forty-six states do not ban racial profiling based on religion or religious appearance.
  • Thirty-five states do not ban racial profiling of pedestrians – and of the fifteen states that do, a majority uses a definition so imprecise as to be unenforceable.
  • When law enforcement agencies focus on what people look like, what religion they worship, or what clothing they wear, it puts the rest of Americans at risk. In support of this conclusion, the report said that law enforcement officials initially suspected that the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City was carried out by “Arab terrorists.” And in 2002 two African-American male snipers were able to evade capture and terrorize thousands in Washington, D.C., Maryland and Virginia because law enforcement relied upon racially-based profiles of serial killers to conclude the terrorists were antisocial white males.


Despite these devastating consequences associated with racial profiling, Attorney General Michael Mukasey said of the proposed new FBI rules: “It’s necessary to put in place regulations that will allow the FBI to transform itself … into an intelligence-gathering organization in addition to just a crime-solving organization.”

This new “intelligence-gathering” approach would permit FBI agents to ask “open-ended questions” about the activities of Muslim or Arab Americans, including placing them under the harsh eye of investigation if their jobs and backgrounds match “trends” the agency deems “suspect.” If these preliminary investigations develop the slightest incriminating evidence, the FBI could then eavesdrop on telephone calls or dig into personal data such as email records and bank statements to fulfill their mission to “root out” terrorists before they strike.


This is the same mindset former FBI Director J. Edgar Hoover had in the 1950s and 1060s when he waged a domestic spying campaign against communism, communist sympathizers (especially those who supported Fidel Castro), civil rights leaders like Martin Luther King, black militants like Malcolm X and the Black Panther Party, cultural revolutionaries like John Lennon, anti-war activist like the Chicago Seven, and race-hate groups like the Ku Klux Klan. Any individual or group different from mainstream society became a target of Hoover’s obsession to “root out” threats to the “American way of life.”

Bill Mefford, the Director of Civil and Human Rights for the General Board of Church and Society of the United Methodist Church, recently said that “racial profiling by law enforcement agencies is all too common a practice. It prevents effective enforcement of our laws and alienates people of color in local communities. [It] frequently criminalizes innocent people and diverts law enforcement officials from finding those truly responsible for committing crimes. As a result, it erodes the effectiveness of our criminal justice system.”


Senior international security experts agree with Mefford. According to Amnesty International, these experts say that had law enforcement officials focused on actual criminal behavior rather than characteristics such as race, religion, ethnicity, or nationality, they would have increased their chances of apprehending suspected shoe-bomber Richard Reid before he successfully boarded an airliner with means to blow it up. In a 2001 report entitled “Racism and the Administration of Justice,” Amnesty International listed “five facts” about racial profiling:


  • Racial Profiling Undermines Enforcement Efforts: Amnesty pointed to two cases – the Oklahoma City bombing and D.C. sniper cases – where law enforcement pursued the wrong type of suspects based on “profiling” strategies.
  • Racial Profiling Makes Us Less Safe. Amnesty concluded that history had consistently proven that “race-based policies” do not make society safer. They pointed to the cases of John Walker Lindh (a white, middle-class male) and Richard Reid (a British citizen of West Indian and European ancestry) that illustrate the law enforcement need to rely solely on behavior and not race or nationality to protect national security. Amnesty also cited the 2003 case in which a white college student from Maryland smuggled box cutters, bleach, matches, and an item consistent with a plastic explosive onto six airplanes as an act of civil disobedience. He easily passed through multiple security checkpoints because he did “fit the [terrorist] profile.”
  • Racial Profiling Is A Proven Failure In The “War On Drugs”. Amnesty points to statistics that show racial profiling to interdict highway-bound drug couriers is not only wrong but ineffective. A 1999 U.S. Justice Department study disclosed that while law enforcement disproportionately focused on African American and Hispanic drivers, they found drugs more often when they searched whites (17%) than when they searched African Americans (8%). A New Jersey survey produced similar results: while vehicles driven by African Americans were searched more frequently, drugs were found more often in vehicles driven by whites (25%) than African Americans (13%) and Hispanics (5%). Finally, a Lamberth Consulting study revealed that after the U.S. Customs Service stopped using racial profiling and started using race-neutral factors such as behavior to target potential smugglers, the agency increased its rate of productive searches by more than 300 percent.
  • Racial Profiling Encourages Hate and Undermines National Unity. Civil rights and human rights organizations say that the expansion of racial profiling after 9/11 contributed to a climate that encouraged hate crimes against certain minority groups and people who look like them. Further, Arab and Muslim leaders say that the racial profiling tactics of the U.S. Justice Department and INS’s Special Registration program have reduced the willingness of its community members to assist or cooperate with anti-terrorism efforts.
  • The Bush Administration Has Not Kept Its Promise To End Racial Profiling. Both President George W. Bush and former U.S. Attorney General John Ashcroft went on record before and after 9/11 opposing racial profiling. Yet the administration had allowed important legislation to languish, such as the End Racial Profiling Act of 2004 and the End Racial Profiling Act of 2007, and has implemented official and quasi-official policies that actually expanded the use of racial profiling.


The State of Texas is ahead of the federal government when it comes to racial profiling. The State in 2001 enacted a law that strictly prohibits a law enforcement officer from engaging “in racial profiling.” See: Tex. Code of Crim. Proc. Arts. 2.131 and 2.132. These statutes have been upheld by the State’s appeals courts. In Pruneda v. State, 104 S.W.3d 302 (Tex.App.-Texarkana 2003) the appeals court said that “under Texas law, a peace officer may not engage in racial profiling” and defined racial profiling as “a law enforcement-initiated action … based on an individual’s race, ethnicity, or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in criminal activity.” Id., at 306. The appeals court added that any evidence obtained through racial profiling cannot be used against a person in a criminal trial. Id. See also: Tex. Code of Crim. Proc. art. 38.23(a) [No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case].


Further, racial profiling can create a cause of action in a federal civil rights lawsuit filed under 42 U.S. § 1983. See: Whren v. United States, 517 U.S. 806, 813 (1996) [holding that claims asserting selective enforcement of a law on the basis of race are properly brought under the Equal Protection Clause and that the right to equal protection can be violated even if the actions of law enforcement are acceptable under the Fourth Amendment]. See also: United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) [the Equal Protection Clause of the Fourteenth Amendment provides citizens with a degree of protection that is independent of the Fourth Amendment protection against unreasonable searches and seizures].


Currently before Congress are two pieces of proposed legislation – the End Racial Profiling Act of 2004 and the End Racial Profiling Act of 2007. The nation’s lawmakers cannot come to terms on how to end this insidious law enforcement practice of targeting persons for criminal or terrorism investigatory scrutiny based on race, ethnicity, religion, and national origin. Study after study have clearly demonstrated that racial profiling actually undermines national security because it adversely impacts the racial or ethnic communities whose cooperation is needed most in the intelligence-gathering process about either crime or terrorism.


Thus, the proposed new FBI rules will not make America safer. The expansion of police power rules will serve only to fuel greater distrust of government in the very communities where trust is so desperately needed to combat crime and terrorism. These rules will go beyond what the ACLU calls an attack on the “presumption of innocence” doctrine. They will actually be a severe attack on the civil liberties of citizens presumed to be law-abiding but who are cast under a cloud of law enforcement suspicion and scrutiny not for anything they may have done wrong but rather for fitting a particular profile. These rules are not as much about protecting “national security” as they are about expanding the FBI’s police powers in a manner that would draw the admiration of the agency’s late godfather, J. Edgar Hoover, who found the American bedroom more suspicious than the Sicilian Mafia.