I first met Eric Holder during the Clinton years when he was serving as deputy attorney general. Back then, the Arab-American community was deeply troubled by FBI harassment, the government’s use of “secret evidence” to detain individuals, and racial profiling at airports around the country.
Working with then assistant attorney general for civil rights, Bill Lann Lee, the Department of Justice (DOJ) convened a series of meetings, some chaired by the then attorney general Janet Reno, others by Mr Holder. The meetings provided us with the chance to address our concerns. Mr Holder seemed responsive.
When George W Bush ran for president in 2000, he tried to exploit the Arab-American community’s lingering bitterness with profiling and “secret evidence” to court their vote in Michigan. Once elected, he proved to be a disappointment. These practices stayed in place. After 9/11, Mr Bush and his attorney general, John Ashcroft, threw caution (and the constitution) to the winds with an unprecedented assault on civil liberties. Thousands of individuals of Arab descent were targeted.
More than 1,200 people were rounded up and deported – we will never know the exact figure because the DOJ stopped releasing numbers. This was followed by “call ups”, or orders to recent arrivals from Arab and Muslim countries to report to immigration officials for registration. This programme was so poorly conceived, badly executed and arbitrarily administered that there was panic within the affected communities.
Airport profiling resurfaced, with individuals being ordered off planes simply because they were “Arab-looking” and other passengers felt uncomfortable.
The DOJ issued “profiling guidelines”, which claimed to ban the practice but instead provided the loophole that justified it. Following those nightmare years of civil liberties violations, we were relieved that a constitutional lawyer, Barack Obama, was elected president and were further heartened by Mr Holder becoming the attorney general.
The new attorney general indicated that changing the “profiling guidelines” was one of his priorities. Years went by with no action and just a few months ago, he told a group of civil liberties advocates the issue remained a personal priority and he was close to a decision.
The new guidance has just been issued. It was an outrage. Instead of ending Ashcroft-era profiling, it provided new loopholes. It begins by declaring that “biased practices ... are unfair, promote mistrust of law enforcement, and perpetuate negative and harmful stereotypes”.
It adds that biased practices are ineffective and goes on to list the criteria that law enforcement agencies must not use for profiling. These include race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity. But then it allows these characteristics to be considered in cases of national security, immigration enforcement, or “authorised intelligence activity”.
The new guidance cites the following example to explain when profiling is permitted: “A terrorist organisation that is made up of members of a particular ethnicity sets off a bomb in a foreign country. There is no information that the organisation is currently a threat to the United States. To gain intelligence on the evolving threat posed by the organisation and to gain into its intentions regarding the US homeland and US interests, the FBI may properly consider ethnicity when developing sources with information that could assist the FBI in mitigating any potential threat from the organisation.”
In other words, if you are Lebanese, Palestinian, Syrian or Iraqi, you would be fair game.
The new guidance also allows for mapping, which is to create community profiles of areas where persons of Arab descent live, shop, pray and gather. In some ways, the new guidance is worse than the Ashcroft loopholes because they were issued by an administration we hoped would bring about real change.
The only part of the guidance with which I can agree is the opening line. This makes it clear that profiling is bad law enforcement and wastes resources and destroys community trust.
As senator Richard Durbin, a long-time critic of profiling, noted: “The Justice Department pledged to right this wrong, but this new guidance falls short ... I’ve pushed the administration to put an end to racial profiling for over a decade, and after reviewing these new rules this fight will continue.”
We have just been shocked by the senate report on torture, which established that the US received no useful information as a result of these methods. The same can be said for profiling. The DOJ and Department of Homeland Security have been asked for cases when mapping, call-up or airport profiling either stopped a terror attack or yielded useful information that improved national security. They haven’t answered, because they can’t.
Dr James Zogby is the president of the Arab American Institute
On Twitter: @aaiusa