Wanted: FBI Transparency about Racial Profiling in Arab and Muslim Communities

By Fancher, Mark P. | The Journal of Law in Society, Fall 2013 | Go to article overview

Wanted: FBI Transparency about Racial Profiling in Arab and Muslim Communities


Fancher, Mark P., The Journal of Law in Society


Table of Contents  I.   ORIGINS AND DEVELOPMENT OF RACIAL PROFILING II.  THE LEGAL FRAMEWORK FOR FBI INVESTIGATIONS III. GUIDELINES FOR THE USE OF RACE IN FBI INVESTIGATIONS IV.  THE ACLU'S FREEDOM OF INFORMATION ACT REQUEST V.   THE ACLU SUES FOR ACCESS TO RECORDS VI.  THE FBI'S CREDIBILITY DEFICIT AND THE NEED FOR      TRANSPARENCY VII. CONCLUSION 

Shoshana Hebshi, the daughter of a Saudi father and Jewish mother, endured hours of interrogation and confinement after being forced from a plane, apparently because of her Middle Eastern physical characteristics and the proximity of her seat to South Asian men she did not know. (2) She was able to seek relief in the courts with the assistance of the American Civil Liberties Union of Michigan, (3) but it is likely that many Arabs and Muslims who have become post-September 11th racial profiling targets have neither reported nor challenged the unconstitutional treatment they have endured. (4)

I. ORIGINS AND DEVELOPMENT OF RACIAL PROFILING

Racial profiling in Arab and Muslim communities may be a relatively recent phenomenon, but it occurs on a long historical continuum that has its origins in early American history. The rebellions and resistance of enslaved Africans prompted the enactment of "slave codes" that were designed to deny access to weapons and otherwise suppress insurrection through the careful monitoring and regulation of Africans' movements. (5)

A 1680 Virginia slave law stated, "[N]o Negro or slave may carry arms, such as any club, staff, gun, sword or other weapon, nor go from his owner's plantation without a certificate and then only on necessary occasions; the punishment twenty lashes on the bare back, well laid on." (6) Laws called black codes that were intended to accomplish much the same were enacted after slavery was abolished and racial profiling ultimately became a routine practice within many law enforcement agencies. (7)

Under the leadership of J. Edgar Hoover, the Federal Bureau of Investigation (FBI) elevated racial profiling to new heights. (8) Its "Counter-Intelligence Program" (COINTELPRO) involved not only surveillance of groups organized by race, but also surreptitious opening of mail, illegal break-ins, framed prosecutions and harassment. (9) There have even been allegations that the FBI engaged in assassination. (10) The FBI publicly claimed that it discontinued COINTELPRO in 1971, (11) however, there were reports of comparable conduct by FBI agents and field offices well into the 1980s and 1990s. (12)

II. THE LEGAL FRAMEWORK, FOR FBI INVESTIGATIONS

The dawn of the 21st century brought with it a terrorist attack on September 11, 2001 that prompted the initiation of federal anti-terrorism measures. (13) The tone set by such legislation carried over into laws and policies that now give the FBI opportunities to engage in practices that have racial implications.

The FBI's investigations are governed by guidelines established by the U.S. Attorney General. (14) In 2008, the Attorney General approved use of the "Domestic Intelligence Operations Guide (DIOG)." (15) While the stated purpose of this document is "... to standardize policy so that criminal, national security, and foreign intelligence investigative activities are consistently and uniformly accomplished whenever possible ...[,]" (16) it can also serve as a handbook of sorts for FBI agents who require information about how the Attorney General's guidelines affect their work.

While "information or an allegation indicating the existence" of a federal crime or threat to national security has been the required basis for "preliminary inquiries" or "preliminary investigations," in 2008, the Attorney General Guidelines authorized investigations called "assessments" that have more lenient requirements. (17) Assessments "require an authorized purpose but not any particular factual predication." (18) A New York Times report showed that the FBI conducted 82,325 assessments between 2009 and 2011, and only 3,315 resulted in sufficient information to open preliminary or full investigations. …

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