Much is still not known about the apparent large-scale effort in racial profiling, partly because the documents the ACLU obtained through public records requests are heavily redacted.
The FBI maintains that the mapping program is designed to “better understand the communities that are potential victims of the threats,” but the ACLU says it is plainly unconstitutional.
To learn more about the FBI program, its implications for civil liberties and the questions that remain unanswered, I spoke to Michael German, policy counsel at the ACLU’s Washington office and a former FBI agent.
What is the new information that has come to light here?
In 2008, the FBI’s guidelines were changed to create a new category of investigations called assessments, which required no factual predicate. The FBI’s policy in implementing those changes were released around 2010 and showed the FBI was engaged in a program called “domain management,” which included mapping and gathering intelligence on racial and ethnic communities. We were concerned about the program, so we filed a series of Freedom of Information Act requests across the country and we now have documents that indicate what the FBI has been doing with this new authority. Clearly they have been engaging in crass racial stereotyping of minority groups are linked to certain types of crime, and then using Census information to map entire communities based on their race or ethnicity.
When you say “map,” what does that actually look like in practice?
It’s hard for us to know because all the maps were heavily redacted. It’s clear they are maps. They are using Census data in order to identify anybody who identifies with a certain race or ethnicity. In the Detroit memo, it’s based on adherence to Muslim faith or Middle Eastern origin. The purpose of the program is to identify these communities where the FBI can then conduct intelligence or law enforcement investigations.
So what sort of crimes have they linked to various racial groups?
There was a San Francisco memo that suggested because there was Chinese organized crime, there should be a domain management collection program to identify the entire Chinese community in the San Francisco area. That memo also included an effort to target the Russian-American community. There was an Atlanta FBI memo that purported to analyze the black separatist threat. It documented the population growth of blacks in Georgia as part of the assessment. It also identified a couple of actual organizations, but in the information, what is reported is their First Amendment activities: their appearances at different protests and at a congressional campaign event.
Is the ACLU arguing here that this program is unconstitutional?
Yes, we feel it is unconstitutional — and in many cases actually violates the Department of Justice guidance regarding the use of race in federal law enforcement. That guidance purports to ban racial profiling in ordinary law enforcement investigations. The problem is, it has a huge loophole for national security and border integrity investigations. What’s clear from these new documents is that the loophole has swallowed the rule because they are using this program to target communities based on their race in the context of normal criminal activity.
What part of the Constitution does this violate in the ACLU’s view?
It violates the First, Fourth and 14th amendments. This program is entirely targeting communities of people for investigation based on their race, ethnicity, national origin, or religion, denying them equal protection under the law — and also targeting people because of their First Amendment-protected activities. They are then conducting broad suspicionless investigations called assessments, and collecting information in which there are Fourth Amendment concerns that it is unreasonable to conduct such invasive investigations.
One of the documents we released this week is an FBI memo to the field where they discuss what type of information they want collected during assessments. That document shows this isn’t a minimally invasive investigation. It collects a tremendous amount of material so the FBI can build dossiers against people with no reason to believe that they as individuals were involved in any kind of wrongdoing. It also authorizes what it calls a “disruption strategy,” in which, after all the information is collected and the threat is otherwise resolved, the FBI can continue doing other things like performing interviews, arrests and source-directed operations. Back in the Hoover era, the FBI’s COINTELPRO included a disruption strategy that was later found to be aimed at obstructing First Amendment-protected activity. So we have serious concerns about what this new disruption strategy might be doing and who is overseeing it.
When it comes to that Detroit memo about Muslims and terrorism, how do you respond to people who look at this and think, “This is what the FBI should be doing”?
This is racial and religious profiling on an industrial scale. Rather than just stopping an individual based on race, the FBI is identifying an entire community based on race and subjecting them to more intense scrutiny. There are many problems that exist with racial profiling: first that it’s unlawful, but also that it’s ineffective as a methodology because every dollar and every hour of an agent’s time that is spent investigating innocent people is completely wasted. It is also really a dangerous practice because all law enforcement depends on public support to be successful. If they’re alienating entire communities based on race or religion, that is going to be an entirely counter-productive methodology.