New guidelines aimed at stamping out racial profiling in federal law enforcement contain key exclusions, and stop well short of demands for reform made by lawmakers earlier in the year.
The rules released Monday by the Department of Justice prohibit certain federal agents from using “race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree” while conducting routine or spontaneous law enforcement activities.
But a footnote buried on the second page of the directive renders it narrow in scope and legally toothless.
“This Guidance does not apply to Federal non-law enforcement personnel, including US military, intelligence, or diplomatic personnel, and their activities,” the footnote reads. “In addition, this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.”
It also states that the guidance “is not intended to, and does not, create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States” and that it does not “create any right of review in an administrative, judicial, or any other proceeding.” It mainly serves “to improve the internal management of the executive branch,” the footnote states.
In May, the Congressional Progressive Caucus, the Congressional Black Caucus, the Congressional Hispanic Caucus and the Congressional Asian Pacific American Caucus wrote a letter to Attorney General Eric Holder asking for new federal guidelines to prohibit profiling. The lawmakers specifically asked for the new rules to “eliminate loopholes for border [security].”
Lawmakers also asked for the new rules to “apply to state and local law enforcement agencies that partner with the federal government or receive federal funding” and “cover surveillance activities.” Attorney General Holder’s actions don’t apply to any of those areas of concerns.
Reacting on Tuesday, those lawmakers issued a joint statement. “Unfortunately, loopholes in this rule that allow profiling to continue under certain circumstances only perpetuate a flawed policy, sowing distrust within targeted communities and leaving the American people less safe,” they said.
Rep. Keith Ellison (D-Minn.), the co-chair of the progressive caucus, said the DOJ’s new rules earn “a grade of C for protecting the civil liberties of all Americans.”
The American Civil Liberties Union has referred to areas around the border as “Constitution-free zones.”
“Federal border agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing, and often in ways that our Constitution does not permit,” the ACLU has stated.
Reacting to the new guidelines on Monday, the group had both praise and criticism.
“The same administration rightly trumpeting progress in the DOJ guidance is at the same time giving a green light for TSA and CBP to racially profile at and near our borders – a vast zone because CBP claims authority up to 100 miles in from any border,” the ACLU said in a blog post.
A 2003 guidance issued by the Bush Administration prohibited federal agents from engaging in openly racial profiling, but contained an exemption for cases of “national security.” While the issuance by Attorney General Eric Holder carves out scenarios in which profiling is permissible, it eliminates the national security provision.
“This new Guidance reflects the Federal government’s ongoing commitment to keeping the Nation safe while upholding our dedication to the ideal of equal justice under the law,” it reads.
*This post was updated to include Tuesday’s statement by lawmakers with the CPC, CBC, CHC, and the CAPA.
