Our nation has been struggling for the past decade because federal guidance made it possible for law enforcement to profile individuals on the basis of national origin and religion. More specifically, the 2003 directive known as “The Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” empowered federal law enforcement agencies to profile American Muslims, Sikhs, as well as other marginalized groups. As predicted by the affected communities, this profiling resulted in unlawful surveillance, arrests, detainment and other civil rights violations. The 2003 Guidance also perpetuated biased law enforcement trainings. These trainings are at the root of the problem. They inform the work of the officers on the ground. For the past several years, KARAMAH has been advocating at the Department of Justice (“DoJ”) for reforming the 2003 Guidance. KARAMAH has pursued this advocacy repeatedly in partnership with other civil rights organizations.
On December 8, 2014, DoJ released a revised Guidance (“Revised Guidance”) to supersede the 2003 version. KARAMAH recognizes the efforts of DoJ to revise the previous version. The Revised Guidance contains some positive elements. For example, it expands protected classes to include national origin and religion, among others. The Revised Guidance also prohibits profiling in routine or spontaneous law enforcement decisions based on the aforementioned categories. Unfortunately, however the Revised Guidance continues to allow for profiling in all activities other than routine or spontaneous law enforcement activities. It provides very limited safe guards and it does not extend to local and state level law enforcement.
In issuing this Revised Guidance, DoJ preserves significant exemptions without counterbalancing them with civil rights protections and due process controls. As such, these exemptions remain subject to abuse. For example, while the Revised Guidance applies to some federal law enforcement agencies, it does not apply to all. The critical agencies that are exempt, and thereby allowed to continue to profile in the interest of national security, are: Customs and Border Protection (CBP), the Transportation Security Administration (TSA), and the Federal Bureau of Investigation (FBI). Many of the profiling complaints in the past have arisen from experiences with these exempt agencies.
The largest gap, however, results from insufficient attention given by the Revised Guidance to the perspective of the affected groups. For example, while it promises to provide training to law enforcement agencies and officers, it does not take sufficiently into consideration the fact that our society suffers from deep and multifaceted bias against the affected communities. Law enforcement agencies are no exception. They are charged, however, with solemn responsibilities, and hence require heightened training. Affected communities must be afforded a major role in formulating and conducting this substantive training. Only this way, will a bridge of confidence and respect be built between the two groups.
More clearly, the affected communities and their concerns should influence the training curriculum. Furthermore, the trainings should examine not only how to move forward on the Revised Guidance but also aim to rectify some of the damage caused by past biased trainings. To do this, KARAMAH is willing to work with DoJ to craft trainings that are representative of and responsive to the community’s needs.
Our legal system is steeped in the value of due process. Due process demands accountability and fairness. Let us honor these requirements as we move forward to bring our nation together.
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