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

There's always a catch, isn't there?

Protest, February 2002
(Image credit: (Spencer Platt/Getty Images))

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:

A federal law enforcement agent may use race or ethnicity only in extremely narrow circumstances — when there is trustworthy information, relevant to the locality or time frame at issue, that links persons of a particular race or ethnicity to an identified criminal incident, scheme or organization...

Terrorist identification is an essential component of the nation's security and requires heightened vigilance which, under the appropriate circumstances, may include consideration of factors such as travel patterns, visits to countries known to harbor or support terrorist operations, suspicious identity documents, the country that issued the person a passport, sources of support, and other probative factors. The racial profiling guidance, therefore, recognizes that race and ethnicity may be used in terrorist identification, but only to the extent permitted by the nation's laws and the Constitution. [DOJ]

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.

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Jon Terbush

Jon Terbush is an associate editor at covering politics, sports, and other things he finds interesting. He has previously written for Talking Points Memo, Raw Story, and Business Insider.