The first major revisions of US racial profiling rules in over a decade required the African-American men who steer the United States government to check their own civil rights ideals against the demands of national defense.
Coming amidst stormy protests over police profiling in dramatic and deadly use-of-force incidents in New York, Missouri, and Phoenix, the release of the new rules, expected Monday, is significant.
The new guidelines expand the definition of racial profiling to include religion, national origin, gender, sexual orientation, and gender identity. Most federal agents can’t consider any of those factors, as well as race, during criminal investigations or routine immigration cases away from the border.
But as federal officials prepared the new guidelines, three men steeped in civil rights history and tribulations – Attorney General Eric Holder, Department of Homeland Security Secretary Jeh Johnson, and President Obama – clashed over its breadth and impact.
Consequently, the rules, to be released only weeks before Holder leaves office, exempt large agencies, including the Transportation Safety Administration, which secures airports, and the Border Patrol, which secures the border, from having to ignore visual traits as objects of suspicion.
According to published reports, Mr. Johnson worried that eliminating profiling altogether could hurt national defense by handcuffing agents trying to infiltrate ethnic populations, including Hispanic and Islamic neighborhoods, more likely to include individuals threatening national security.
As a result, “disappointment is already growing among some lawmakers and civil rights groups who say that the new policy – expected to be announced as soon as Monday – doesn't go far enough,” write Brian Bennett and Timothy Phelps in the Los Angeles Times.
To be sure, Attorney General Eric Holder has long seen racial profiling as a civil rights issue.
In comments during a visit to Ferguson, Mo., amid Michael Brown protests, Holder told residents, “I am the attorney general of the United States. But I am also a black man. I can remember being stopped on the New Jersey turnpike on two occasions and accused of speeding. Pulled over… ‘Let me search your car’…Go through the trunk of my car, look under the seats and all this kind of stuff. I remember how humiliating that was and how angry I was and the impact it had on me.”
Mr. Johnson, too, has a history of interest in civil rights. His Tuskegee Airman uncle was once arrested for trying to integrate an officers club, and Martin Luther King, Jr., once praised an essay by Johnson’s grandfather about being black in the Deep South. Johnson is also a graduate of Atlanta’s historically black Morehouse College, where he once helped plan student marches at the home of King’s widow, Coretta Scott King.
Obama has waded into a variety of civil rights related cases, from the scholar Henry Louis Gates, Jr., being arrested for trying to break into his own Cambridge, Mass., home, to Obama noting that, “If I had a son, he’d look like Trayvon,” in reference to the death of Trayvon Martin in Sanford, Fla., at the hands of an overly-suspicious neighborhood watch captain.
Moreover, even before the new racial profiling rules, the Obama presidency has stood out as a unique arbiter on racial rights – as well as a time of, perhaps, lost opportunity for black Americans. It’s during Obama’s tenure that long-standing frustrations about “stop-and-frisk” and “broken windows” policing have erupted into major demonstrations around the country in the wake of police killings of unarmed black men.
At the same time, Holder’s Justice Department has investigated 20 local police departments – twice the number of the prior five years – and has come back with tough findings regarding police brutality and wrongful use of force, most recently in Cleveland.
But the core issue of profiling, so personally familiar to the three history-making men, proved troublesome to reconcile with national security.
According to the Times, Holder believed border agents had no reason to consider race or ethnicity, but Johnson’s DHS pushed back against factors that could impede investigations involving illegal immigrants. DHS officials said, bottom line, that it was impractical to ignore people’s ethnicity while trying to do work at the border.
The exemptions are broad, since US border agents can operate as far as 100 miles away from the border and still claim jurisdiction. Notably, the new rules don’t apply to local police departments, unless they’re assisting with a federal investigation.
That stark fact means that many constituencies are dissatisfied with the new policy.
"There is a need for a uniform national standard against profiling," Farhana Khera, president of Muslim Advocates, a legal advocacy group in Washington, told the Los Angeles Times. "You can't totally disassociate federal law enforcement from state and local. Having a federal agency using one standard and their colleagues another is very dangerous."
Holder, however, seemed satisfied with the changes as he discussed the new guidelines in Atlanta this week.
“This new guidance will codify our commitment to the very highest standards of fair and effective policing,” he said.