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What Exempting Homeland Security Agencies from New Racial Profiling Rules Means for Millions of Americans

Key security agencies in the United States are expected to be exempted from new Justice Department rules announced by President Barack Obama’s administration to reduce racial profiling by federal law enforcement. The exemptions will permit Homeland Security agencies, including the Transportation Security Administration (TSA), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), to continue to use racial profiling, according to The Washington Post.

With the militarization and expansion of the region, which the US government considers the “border,” this means, as journalist Todd Miller has highlighted, 197 million Americans or 66 percent of Americans, who live “within the jurisdiction of US Customs and Border Patrol,” will not be protected from racial profiling.

The Washington Post granted one federal official involved in immigration enforcement anonymity to speak frankly about why racial profiling should not be banned. The official said, “We tend to have a very specific clientele that we look for,” and, “If you look at numbers, the vast majority of people we deal with are Hispanic. Is that profiling, or just the fact that most of the people who come into the country happen to be Hispanic?”

The American Civil Liberties Union (ACLU) expressed concern that federal authorities will still be “permitted to target individuals at airports and in the vast 100-mile border zone not because they’ve done anything wrong, but because of their skin color or First Amendment-protected beliefs.”

“The TSA and CBP exemptions are distressing, particularly because Latinos and religious minorities are disproportionately affected,” the ACLU added. “DHS wants to racially profile at the border because, as an anonymous immigration enforcement official said today, ‘There’s a very specific clientele that we look for.’ That’s code for Latinos and other people of color who look to DHS police like they don’t ‘belong.'”

Homeland Security Secretary Jeh Johnson reportedly pushed for immigration and customs agents and airport screeners to be exempted. As a result, border agents will still be able to employ racial profiling when “conducting inspections at the country’s ‘ports of entry’ and interdictions of travelers.”

Additionally, TSA officials maintained that since TSA is “not a law enforcement agency” it should not have to follow the rules.

The exemptions mean racial profiling will be allowed to factor into decisions by border agents to search and seize laptops and other electronics without suspicion. From October 2008 to June 2010, “over 6,500 people traveling to and from the United States had their electronic devices searched at the border. Nearly half of these people were US citizens,” according to documents the ACLU obtained.

Miller explained in his article on these largely constitution-free zones, “In these vast domains, Homeland Security authorities can institute roving patrols with broad, extra-constitutional powers backed by national security, immigration enforcement and drug interdiction mandates.”

“The Border Patrol can set up traffic checkpoints and fly surveillance drones overhead with high-powered cameras and radar that can track your movements. Within twenty-five miles of the international boundary, CBP agents can enter a person’s private property without a warrant. In these areas, the Homeland Security state is anything but abstract. On any given day, it can stand between you and the grocery store,” Miller added.

Last month, UN Committee Against Torture Deputy Chairman Giorgi Tugushi asked a delegation of US officials if the country had taken any steps to “strengthen protections against racial and ethnic profiling in the context of immigration and border enforcement” and questioned the US’s broad claims of authority to conduct “warrantless searches” in the 100-mile zone of US borders. In other words, the pervasiveness has UN officials concerned that it might violate the Convention Against Torture.

Revisions to Justice Department rules, which will likely be announced by Attorney General Eric Holder next week, are expected to “ban” racial profiling from national security cases. The definition of profiling is also expected to expand in order to dissuade FBI agents from relying on religion and national origin when opening cases.

However, racial mapping by FBI analysts will not be prohibited by the new rules. Analysts will be able to continue the policy, as the ACLU has suggested, of making “judgments based on crude stereotypes about the types of crimes different racial and ethnic groups commit” in order to “justify collecting demographic data to map where people with that racial or ethnic makeup live.”

The ACLU highlighted one particular example in a report [PDF] on the FBI that it released in 2013:

…[A] Detroit FBI field office memorandum entitled “Detroit Domain Management” asserts that “[b]ecause Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment” by State Department-designated terrorist groups that originate in the Middle East and Southeast Asia. 92 Based on this unsubstantiated assertion of a potential threat of recruitment by terrorist groups on the other side of the world, the Detroit FBI opened a “domain assessment” to collect and map information on all Muslims and people of Middle-Eastern descent in Michigan, treating all of them as suspect based on nothing more than their race, religion, and national origin…

This mapping provides the FBI with targeting grounds for recruiting or coercing vulnerable individuals into becoming informants, who will be asked to spy on their community. It even, to a certain extent, enables FBI agents who choose to threaten American Muslims with being placed on the No Fly List if they do not become spies for undercover operations.

Rules intended to “ban” racial profiling were released in 2003 by President George W. Bush except none of them applied to national security investigations or religion, national origin or sexual orientation. That will change, and the Drug Enforcement Administration (DEA) and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will be covered too.

Racial profiling rules, which do not apply to all agencies engaged in any form of national security, are a failure on the part of the Obama administration.

The main reason new rules were to be developed was because of a gaping national security loophole, which Bush created with his “ban” in 2003. Not covering all Homeland Security agencies entrenches an extralegal privilege enabling further violations of rights by agents, which have been responsible for some of the more pernicious acts of racial profiling.

Like, for example, the case of Shoshana Hebshi, who has sued officials from TSA, the FBI, ICE and CBP for being racially profiled:

Hebshi was traveling to Detroit Metro Airport after visiting her sister in California, and was seated next to two men of South Asian descent who she did not know. When the plane landed, armed agents boarded the flight and Hebshi and the two men were handcuffed and ordered off the flight at gunpoint. Officers refused to explain the arrest and Hebshi did not know when she would be able to call her family. She was placed in a 6’ by 10’ cell with a metal cot and a video camera above the open toilet. While in the cell, a crying Hebshi was ordered to strip naked and squat and cough as an officer looked on. The officer then looked in Hebshi’s mouth, lifted her eyelids and searched her hair. She was released four hours later after being interrogated.

Through public records, the ACLU discovered that Hebshi was removed from the flight because she was seated next to the men and because of her ethnic name. A small number of passengers noticed the two men go to the bathroom in succession and complained to the flight crew. The two men were cleared of any wrongdoing and were also released from custody later that evening.

The Ohio mother of two has said she was “frightened and humiliated” by agents who “clearly violated” her rights because of her ethnicity.

“As an American citizen and a mom, I’m really concerned about my children growing up in a country where your skin color and name can put your freedom and liberty at risk at any time. This kind of discrimination should not be tolerated.”

Exempting all or some of the Homeland Security agencies, however, means this type of discrimination will continue to be tolerated by the government.

Photo from the US Army Corps of Engineers Los Angeles District and in the public domain.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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