The DOJ's new racial profiling policy has a potentially huge loophole

Since 2003, federal agents have been barred from conducting investigations based on a suspect's race. And now, the definition of prohibited "racial profiling" is reportedly set to expand to include religion, nationality, gender, and sexual orientation as well, according to The New York Times.

That would mark a significant change that has long been sought by critics who say the original guidance did not go far enough to prevent federal agents from launching investigations based on discriminatory criteria.

There's one big catch though: It's unclear whether the rules would apply to counterterror investigations.

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President George W. Bush said in his 2001 State of the Union address that racial profiling was "wrong," and vowed to "end it in America." Then 9/11 happened, and when the administration announced the first-ever racial profiling guidelines in June 2003, they notably included a caveat that federal agents could still use profiling on a "narrow" basis.

From the guidelines:

Civil rights organizations took issue with that loophole, saying it essentially made the guidelines very easy to skirt.

"This policy acknowledges racial profiling as a national concern, but it does nothing to stop it,'' an American Civil Liberties Union official told the Times in 2003. "It's largely a rhetorical statement. The administration is trying to soften its image, but it's smoke and mirrors.''

The ACLU and others have since fought to change the rules, spotlighting alleged instances where the FBI targeted mosques or profiled Muslims for no other reason than their faith. In other instances, critics have accused federal agents of profiling Latinos in immigration cases under the guise of national security.

"Adding religion and national origin is huge," Linda Sarsour, advocacy director for the National Network for Arab American Communities, now tells the Times. "But if they don't close the national security loophole, then it's really irrelevant."

The DOJ could alleviate that tension by simply applying the new policy to all investigations. We'll know whether they'll go that far once the guidelines are officially announced in the near future.