Religion Cannot be Considered in Terror Probes

The Justice Department will significantly expand its definition of racial profiling to prohibit federal agents from considering religion, national origin, gender and sexual orientation in their investigations, a government official said Wednesday.

The move addresses a decade of criticism from civil rights groups that say federal authorities have in particular singled out Muslims in counterterrorism investigations and Latinos for immigration investigations.

The Bush administration banned profiling in 2003, but with two caveats: It did not apply to national security cases, and it covered only race, not religion, ancestry or other factors.

Attorney General Eric Holder

Attorney General Eric Holder

Since taking office, Attorney General Eric H. Holder Jr. has been under pressure from Democrats in Congress to eliminate those provisions. “These exceptions are a license to profile American Muslims and Hispanic-Americans,” Senator Richard J. Durbin, Democrat of Illinois, said in 2012.

President George W. Bush said in 2001 that racial profiling was wrong and promised “to end it in America.” But that was before the terrorist attacks of Sept. 11. After those attacks, federal agents arrested and detained dozens of Muslim men who had no ties to terrorism. The government also began a program known as special registration, which required tens of thousands of Arab and Muslim men to register with the authorities because of their nationalities.

“Putting an end to this practice not only comports with the Constitution, it would put real teeth to the F.B.I.’s claims that it wants better relationships with religious minorities,” said Hina Shamsi, a national security lawyer with the American Civil Liberties Union.

It is not clear whether Mr. Holder also intends to make the rules apply to national security investigations, which would further respond to complaints from Muslim groups.

“Adding religion and national origin is huge,” said Linda Sarsour, advocacy director for the National Network for Arab American Communities. “But if they don’t close the national security loophole, then it’s really irrelevant.”

Ms. Sarsour said she also hoped that Mr. Holder would declare that surveillance, not just traffic stops and arrests, was prohibited based on religion.

The Justice Department has been reviewing the rules for several years and has not publicly signaled how it might change them. Mr. Holder disclosed his plans in a meeting on Wednesday with Mayor Bill de Blasio of New York, according to an official briefed on the meeting who spoke on the condition of anonymity because the conversation was private.

Mr. de Blasio was elected in November after running a campaign in which he heavily criticized the Police Department’s stop-and-frisk tactic, which overwhelmingly targets minorities and which a federal judge declared unconstitutional. The mayor and attorney general did not discuss when the rule change would be announced, the official said.

A senior Democratic congressional aide, however, said the Obama administration had indicated an announcement was “imminent.”

The Justice Department would not confirm the new rules on Wednesday night but released a short statement saying that the mayor and the attorney general discussed “preventing crime while protecting civil rights and civil liberties.”

In the past, Mr. Holder has spoken out forcefully against profiling. “Racial profiling is wrong,” he said in a 2010 speech. “It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing — whatever city, whatever state.”

Officials in the Bush administration made similar statements, however, which is why civil rights groups have eagerly waited to hear not just Mr. Holder’s opinion, but also the rules he plans to enact.

As written, the Justice Department’s rules prohibit federal agents from using race as a factor in their investigations unless there is specific, credible information that makes race relevant to a case.

For example, narcotics investigators may not increase traffic stops in minority neighborhoods on the belief that some minorities are more likely to sell drugs. They can, however, rely on information from witnesses who use race in their descriptions of suspects.

The rules cover federal law enforcement agencies such as the F.B.I. They do not cover local or state police departments.

That is significant because Muslim groups have sued the New York Police Department over surveillance programs that mapped Muslim neighborhoods, photographed their businesses and built files on where they eat, shop and pray.

Mr. Holder’s comments about the new racial profiling rules came up in a conversation about that topic, the official said. William J. Bratton, the city’s new police commissioner, has said he will review those practices.

While the rules directly control only federal law enforcement activities, their indirect effect is much broader, said Fahd Ahmed, the legal director of the Queens-based South Asian immigrant advocacy group Desis Rising Up and Moving.

For instance, he said, immigration bills in Congress have copied the Justice Department profiling language. And civil rights groups can use the rules to pressure state and local agencies to change their policies.

“Federal guidelines definitely have an impact,” Mr. Ahmed said. “Local organizers can say, ‘These policies are not in line with what’s coming from the federal level.’ ”

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