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Bush bans using race federal investigations { June 18 2003 }

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June 18, 2003
Bush Issues Federal Ban on Racial Profiling

WASHINGTON, June 17 President Bush issued guidelines today barring federal agents from using race or ethnicity in their routine investigations, but the policy carves out clear exemptions for investigations involving terrorism and national security matters.

The new policy, representing the first time that the federal government has imposed across the board guidelines on racial profiling, governs the conduct of 70 federal law enforcement agencies. A narcotics agent, for instance, cannot focus on a specific neighborhood simply because of its racial makeup, the policy states.

In national security operations, however, the policy allows agents to use race and ethnicity in "narrow" circumstances to help "identify terrorist threats and stop potential catastrophic attacks," officials said.

Immigration officials, for instance, will continue to be able to require visitors from largely Middle Eastern countries to register with the government.

And if intelligence officials had information indicating that terrorists of a certain ethnic group planned to hijack a plane next week in California, the authorities could impose "heightened scrutiny" on men of that ethnicity who boarded planes in that area, officials said.

Arab-American and civil rights groups said the exemptions in the White House policy would give the authorities legal justification to single out Middle Easterners and others who may fall under suspicion, and they questioned whether the new policy issued as "guidance" would be aggressively enforced.

"This policy acknowledges racial profiling as a national concern, but it does nothing to stop it," Laura Murphy, director of the Washington office of the American Civil Liberties Union, said in an interview. "It's largely a rhetorical statement. The administration is trying to soften its image, but it's smoke and mirrors."

The policy is more than two years in the making. It grows out of a commitment Mr. Bush made on the campaign trail in 2000 and again in February 2001, in a State of the Union-style address, when he said of racial profiling: "It's wrong, and we will end it in America."

At that time, profiling had become a growing concern to many blacks and Hispanics, who said that they were being disproportionately subjected to traffic stops, searches and other law enforcement tactics. Civil rights leaders coined a derisive name for the practice "Driving While Black" and the Clinton administration intervened in New Jersey to prevent racial profiling by state highway patrols.

Weeks after taking office, Mr. Bush ordered the Justice Department to conduct a review of racial profiling. Officials said the study was delayed by the terrorist attacks of Sept. 11, 2001, even as civil rights groups complained that the government's expanded terrorism investigations had made Middle Eastern men the target of racial profiling more than ever before.

The final report from the Justice Department and the policy recommendations were delivered last week to Mr. Bush, who ordered the restrictions adopted across the federal government, the White House said.

The Justice Department, in a survey of federal operations, concluded in its report that profiling did not appear to be "a systemic problem."

"The way the president looks at it," a White House spokesman, Scott McClellan, said, "this is about stopping the abuses of a few, and today's action should only strengthen the public's confidence that the vast majority of law enforcement officials have earned and deserve credit for the job they do in protecting Americans."

The Justice Department acknowledged, however, that past policies were often unclear.

Only 7 of the 70 law enforcement agencies surveyed had policies that specifically prohibited racial profiling, and those policies sometimes varied in tone and substance, the Justice Department review found.

Ralph Boyd, an assistant attorney general at the Justice Department who runs the civil rights division, said the over-arching theme of the guidelines is that law enforcement officials cannot use race or ethnicity "as a proxy" to focus increased criminal suspicion on a person.

"This is an antistereotyping guidance" aimed at balancing the civil rights of the public against the legitimate needs of law enforcement, Mr. Boyd said.

The policy lays out two distinct sets of guidelines: a broad prohibition on profiling in traditional and often routine law enforcement investigations; and a looser set of standards for national security cases.

In traditional operations like traffic stops, federal agents "may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description," the policy states. Officials said this prohibition was intended to go beyond the safeguards of the Constitution and existing law.

So, for instance, agents conducting drug or auto theft investigations are barred from singling out people or neighborhoods based on the "generalized assumption" that people of a certain race or ethnicity are more likely to be drug dealers or car thieves.

But federal park police who had a description of a fleeing bank robbery suspect with a specific race and physical description could use race in deciding which speeding drivers to pull over. The information in such cases must be specific and "trustworthy," the policy says.

In investigations involving national security and border integrity, the new policy adopts a lower standard, saying federal agents "may consider race, ethnicity and other relevant factors to the extent permitted by our laws and the Constitution."

The racial information that the authorities can use in such cases does not have to be very specific. The policy notes that because terrorists have the ability to strike almost anywhere, "there can be no expectation that the information must be specific to a particular locale or even to a particular identified scheme."

Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, said the new policy would do little to mollify Arab-Americans.

"There seem to be a lot of `buts' and `howevers' here that would allow profiling of Arabs and Muslims to continue," Mr. Hooper said.

He said he found the policy paradoxical in light of a report from the Justice Department this month criticizing the detentions of hundreds of illegal immigrants, most of them Middle Eastern, after the 9/11 attacks.

"This is a problem that's certainly widespread, and I don't think this policy does anything to help the situation," Mr. Hooper said.

Ms. Murphy at the A.C.L.U. said she was troubled that the policy was issued as "guidance" from the Justice Department rather than as an executive order from the White House or a legislative proposal. She said the policy might lack teeth and enforcement mechanisms as a result.

The Bush administration "is trying to get the public relations benefits of a new law without actually creating a new law," she said.

But the White House said that even without issuing an executive order, the administration was committed to ensuring that the new policy was strictly enforced.

"This guidance comes directly from the president," Mr. McClellan said. "The president directed the attorney general to come up with specific steps to end racial profiling, and this policy comes out of that commitment."

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