Seating was scarce at the April 17 Senate hearing on Ending Racial Profiling in America. Those left outside were directed to an overflow room. But there was one empty seat. Sen. Dick Durbin (D-Ill.), chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, who was presiding over the hearing, said that he had invited the Justice Department to testify, but “they declined.”
The absence was puzzling. Attorney General Eric Holder has talked about ending racial profiling and revamping his agency’s outdated guidance on the use of race by federal law enforcement agencies. As a senator, Barack Obama (D-Ill.) repeatedly co-sponsored the End Racial Profiling Act. The Justice Department could have at least used the hearing to reiterate these commitments. But its absence was a harbinger.
Only three days later, John Brennan, Obama’s chief counterterrorism adviser, gave a public stamp of approval to the New York Police Department’s surveillance of Muslims across the nation. At a conference at NYPD headquarters, Brennan said that he had “full confidence that the NYPD is doing things within the law.”
The NYPD has, according to The Associated Press’s Pulitzer Prize-winning investigative series: 1) sent an undercover police officer to report on a Muslim student group’s rafting trip — the officer observed that the Muslim student group prayed several times a day; 2) collected information about Muslim student groups everywhere from Syracuse to Yale; and 3) compiled reports on area mosques, supermarkets and cafes frequented by Muslims.
The NYPD’s sole justification for this surveillance: religion. It has not even tried to claim some reasonable suspicion, as expected of a law enforcement agency. “Some of the most dangerous Western Al Qaeda-linked/inspired terrorists since 9/11,” a NYPD spokesperson said, “were radicalized and/or recruited at universities at Muslim Student Associations.”
So whether the NYPD is targeting student groups, houses of worship, supermarkets or cafes, it does so only because the people inside are Muslim.
Brennan’s statement was later “clarified” by an unnamed White House official quoted by The Record. But that only muddied the waters. The unnamed official stated that Brennan was not referring to the NYPD surveillance reported by the AP but just affirming that law enforcement officials must operate within the law. A true statement — but it says nothing about whether the NYPD was following the law.
The NYPD surveillance policy is based almost entirely on investigative practices used by the FBI. These FBI “assessments,” which are preliminary investigations, require no suspicion of wrongdoing.
Under guidance issued by then-Attorney General Michael Mukasey in 2008, assessments allow for the FBI, without a court order, to recruit informants to attend meetings or events surreptitiously and for agents to carry out surveillance on homes, churches and meeting places. The rules are supplemented by the FBI’s Domestic Investigative Operational Guidelines, which embrace the idea of mapping community demographics.
The NYPD is now clearly playing by the FBI handbook. Federal linkages to the NYPD monitoring of Muslims also include the long-running assignment of a CIA officer to NYPD headquarters and the NYPD’s use of federal money for the monitoring.
Human Rights Watch in March asked the Justice Department to investigate NYPD surveillance to determine whether its actions violated U.S. law and international human rights obligations related to freedom of religion.
Given NYPD links to one federal agency, it is perhaps not surprising that another agency, the Justice Department, has so far taken little action, though it did respond saying it would “carefully consider” these concerns.
The Obama administration, however, has displayed a lack of interest in changing Justice Department rules on religious profiling or in supporting legislation like ERPA, which would impede the government’s ability to monitor Muslim communities without cause.
What started with the puzzle of an empty chair on Tuesday ended with a vocal embrace of profiling Friday.
When Holder testified in 2009 before the Senate Judiciary Committee about his commitment to ending racial profiling, he stated that federal law enforcement should be able to perform its “core law enforcement and national security responsibilities with legitimacy, accountability and transparency.”
But the Obama administration’s support for profiling is becoming transparent. Now, its illegitimate policy should be held accountable.
Antonio Ginatta is advocacy director for the U.S. program at Human Rights Watch
