Washington — The Muslim Public Affairs Council, the American-Arab Anti-Discrimination Committee (ADC), the Arab American Institute (AAI), and other organizations are concerned by an Associated Press report  quoting “senior FBI, Justice Department, and U.S. intelligence officials” concerning new Department of Justice guidelines which are slated for implementation later this summer.  The guidelines would allegedly give the FBI authority to “investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.”

According to the media reports, race, ethnicity, and “travel to regions of the world known for terrorist activity” are allegedly among the factors to be considered by the FBI when triggering “a national security investigation.”  These tentative guidelines will also allegedly allow “FBI agents to ask open-ended questions about activities of [American Muslims] or Arab Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.”  Once an investigation is opened, the FBI agents are allegedly “allowed to eavesdrop on phone calls or dig deeply into personal data such as the content of the phone or e-mail records or bank statements.”

These guidelines seem to be emanating from the DOJ’s criminal division, which has failed to meet with our groups, said Salam Al-Marayati, Executive Director of MPAC. If implemented as described in media reports, these new guidelines will make suspects out of our communities and strike a blow to more than seven years of constructive engagement with law enforcement officials.

ADC National Executive Director Kareem Shora said,  “Our country was founded on solid constitutional principles that protect us from such alleged abuses of power. While the U.S. Department of Justice and specifically the FBI are working to respond to our concerns, Americans should not tolerate in any way profiling based on race, religion, ethnicity, or national origin.  We will continue to address this issue until we can confirm that these new guidelines do not violate our constitutional principles of justice, freedom, due process, and equality under the rule of law.”

AAI President Dr. James Zogby said “There are millions of Americans who, under the reported new parameters, could become subject to arbitrary and subjective ethnic and religious profiling.  This will compromise basic civil liberties and constitutional protections, having an negative impact not only on the affected communities, but on the United States’ overall effort to combat terrorism. We are wary of this administration’s assurances, given their past behavior, and therefore are exploring avenues to ensure that such profiling does not occur. We thank ADC for the leadership that they have demonstrated, and the other organizations in affected communities for their partnership in this matter.

As a result of these media reports, ADC, AAI, MPAC, and other organizations contacted John Miller, FBI Assistant Director for Public Affairs, to raise alarm and opposition to any form of racial or religious profiling which violate constitutional principles of equal protection under the law.  Furthermore, implications of such guidelines would have a profound impact on Muslim Americanand Arab American communities.

Assistant Director Miller said “Since the Department of Justice is still in the process of drafting the guidelines, it is impossible to address specific issues. It is only reasonable that we would want to see what the guidelines look like in their final form before we can tackle any specifics.  That said, I believe it is important to note that nothing in the Attorney General’s guidelines can authorize what is prohibited by any law or by the Constitution. We in the FBI will always adhere to that principle. Any review and change to the guidelines will reflect our traditional concerns for civil liberties, the First Amendment, and our emphasis on using the least intrusive investigative tools possible.  I would urge against jumping to conclusions, especially those based on conjecture by people who have not seen the new guidelines, since a final draft is not complete. We will work with the Department of Justice and our community liaison partners to keep an open dialogue.

ADC, AAI, MPAC, and other organizations note that senior Bush administration officials, including President Bush, have repeatedly publicly asserted that racial profiling is not an effective law enforcement tool. On March 14, 2007, DHS Secretary Michael Chertoff testified before the Senate Committee on Homeland Security and Governmental Affairs saying “It is very important that we make clear that we are not racially profiling people. We are not imputing to people that they are dangerous or threatening because they are Muslim.  We have to continually treat every American with the same respect that our Constitution requires, regardless of their heritage, regardless of what their religion is, and when that is not honored, that actually has a counterproductive effect.

Government officials have also publicly testified about the vital need for constructive community engagement.  On May 7, 2007, FBI Assistant Director Miller testified before the Senate Committee on Homeland Security and Governmental Affairs saying, “We now have partners in the Arab-American and Muslim communities. Some have become publicly declared allies in our efforts to condemn terrorism. They have become our bridge to many who viewed the FBI with either contempt, or worse, fear. They now come through the doors of the FBI and feel free to share their views on sensitive issues.”

On March 14, 2007, DHS Officer for Civil Rights and Civil Liberties Daniel Sutherland testified before the Senate Committee on Homeland Security and Governmental Affairs saying “These communities want to have two-way communication with the government,  certainly they want to be able to raise complaints about various situations or policies, but they also want to be invited to roll up their sleeves and help find solutions, “Sutherland testified. “We believe that a critical element of our strategy for securing this country is to build a level of communication, trust and confidence that is unprecedented in our nation’s history.  We believe that we will be a much safer country if we better connect the government to these strong communities; if we learn to improve our work through listening to their concerns and ideas; if we convince more young people from these communities to join public service; if we receive their help in educating us about the challenges we face; and, if we receive help from key leaders in explaining our security mission to their constituents.”

Law enforcement experts and officials have also regularly recognized ethnic and racial profiling as an ineffective law enforcement technique and not a productive nor efficient means of protecting national security.

During conversations in the past two days, U.S. Department of Justice officials informed ADC, AAI, and MPAC that a briefing will be held regarding the guidelines when they are no longer in draft form and prior to implementation.

This article first appeared in the July 21, 2008 issue of The Nation.