ACLU - Unleashed: The FBI's Post-9/11 Powers (Part III) lyrics

C. FBI Profiling Based on Race, Ethnicity, Religion and National Origin Ironically, the FBI's authority to profile based on race, ethnicity, religion, and national origin was enhanced by Justice Department guidance that claimed to ban profiling in federal law enforcement. When issuing the Justice Department Guidance Regarding the Use of Race by Federal Law Enforcement Agencies in 2003, Attorney General Ashcroft said, “[u]sing race… as a proxy for potential criminal behavior is unconstitutional and undermines law enforcement by undermining the confidence that people have in law enforcement.”79 The ACLU couldn't have agreed more. But while the guidance prohibited federal agents from considering race or ethnicity “to any degree” in making routine or spontaneous law enforcement decisions (absent a specific subject description), it also included broad exemptions for national security and border integrity investigations, and it did not prohibit profiling based on religion or national origin. Allowing profiling in border integrity investigations disproportionately impacts Latino communities, just as profiling in national security investigations has led to inappropriate targeting of m**ms, Sikhs; and people of Arab, Middle Eastern, and South Asian descent. And given the diversity of the American m**m population, the failure to ban religious profiling specifically threatens African Americans as well, who comprise from one-quarter to one-third of American m**ms. In effect, Attorney General Ashcroft's ban on racial profiling had the perverse effect of tacitly authorizing the profiling of almost every minority community in the U.S. 1.The FBI Domestic Investigations and Operations Guide An internal FBI guide to implementing the 2008 Attorney General's Guidelines, called the Domestic Investigations and Operations Guide (DIOG), contains startling revelations about how the FBI is using race and ethnicity in conducting a**essments and investigations. While the DIOG repeatsthe Attorney General's Guidelines' requirement that investigative and intelligence collection activities must not be based “solely” on race, it a**erts that FBI agents are authorized to use race and ethnicity when conducting what it calls “domain management” a**essments. Through this program, the FBI allows: • “Collecting and an*lyzing racial and ethnic community demographics.” The DIOG authorizes the FBI to “identify locations of concentrated ethnic communities in the Field Office's domain, if these locations will reasonably aid in the an*lysis of potential threats and vulnerabilities, and, overall, a**ist domain awareness for the purpose of performing intelligence an*lysis… Similarly, the locations of ethnically-oriented businesses and other facilities may be collected…” • Collecting “specific and relevant” racial and ethnic behavior. Though the DIOG prohibits “the collection of cultural and behavioral information about an ethnic community that bears no relationship to a valid investigative or an*lytical need,” it allows FBI agents to consider “focused behavioral characteristics reasonably believed to be a**ociated with a particular criminal or terrorist element of an ethnic community” as well as “behavioral and cultural information about ethnic or racial communities” that may be exploited by criminals or terrorists “who hide within those communities.” • “Geo-mapping.” The DIOG states that “As a general rule, if information about community demographics may be collected it may be ‘mapped.'” The DIOG's instruction that the FBI may collect, use, and map the demographic information of racial and ethnic communities raises concerns that, once these communities are identified and mapped, the FBI will target them for additional intelligence gathering or investigation based primarily, if not entirely, on their racial and ethnic makeup. Treating entire communities as suspect based on their racial, ethnic, or religious makeup offends American values. It's also counterproductive to effective law enforcement. In fact, an FBI official publicly criticized an equally inappropriate NYPD surveillance and mapping operation targeting m**ms throughout the northeast for undermining law enforcement relations with the community. Newark FBI Special Agent in Charge Michael Ward called the NYPD program “not effective,” saying there should be “an articulable factual basis” for intelligence collection and that “there's no correlation between the location of houses of worship and minority-owned businesses and counterterrorism.” Unfortunately the FBI is not following his advice. The FBI unilaterally amended the DIOG in October 2011, giving its agents powers that are not authorized in the current Attorney General's Guidelines issued in 2008. These new powers include blanket permission for agents to search law enforcement and commercial databases without even opening an a**essment on the person searched or documenting why the search was performed. The 2011 DIOG amendments also authorized FBI agents to search peoples' trash during an a**essment to find derogatory information to pressure them into becoming informants. Since the 2008 Attorney General's Guidelines did not grant these powers, it is difficult to see where the FBI finds authorization for these activities. The FBI secretly amended the DIOG again in June 2012.89 Only one section of this new guide has been released, pursuant to an ACLU FOIA request regarding the FBI's policy for obtaining stored e-mails. One substantive change from the 2011 DIOG removes the requirement for FBI agents to specify in affidavits submitted to judges for criminal wiretap warrants whether the interception implicates sensitive circumstances, such as whether it targets public officials or religious leaders. A new subsection requires the agents to discuss the sensitive circumstances with Justice Department prosecutors, but failing to advise the judge evaluating the warrant request would seem to improperly withhold potentially important information that could impact the probable cause determination. It is unknown why this change was made. 2. FBI Racial and Ethnic Mapping In 2010, ACLU affiliates throughout the country issued FOIA requests to obtain information about how the FBI's domain management program operates. Although heavily redacted, the documents received from a number of different field offices demonstrate that FBI an*lysts make judgments based on crude stereotypes about the types of crimes different racial and ethnic groups commit, which they then use to justify collecting demographic data to map where people with that racial or ethnic makeup live. The DIOG claims that collecting community racial and ethnic data and the location of ethnic-oriented businesses and facilities is permitted to “contribute to an awareness of threats and vulnerabilities, and intelligence collection opportunities,” which raises concerns the FBI is seeking to identify these racial and ethnic communities to target them for intelligence collection and investigation in a disparate manner from other communities. For example, a Detroit FBI field office memorandum entitled “Detroit Domain Management” a**erts that “[b]ecause Michigan has a large Middle-Eastern and m**m population, it is prime territory for attempted radicalization and recruitment” by State Department-designated terrorist groups that originate in the Middle East and Southeast Asia. Based on this unsubstantiated a**ertion of a potential threat of recruitment by terrorist groups on the other side of the world, the Detroit FBI opened a “domain a**essment” to collect and map information on all m**ms and people of Middle-Eastern descent in Michigan, treating all of them as suspect based on nothing more than their race, religion, and national origin. Collecting information about the entire Middle-Eastern and m**m communities in Michigan is unjust, a violation of civil rights and an affront to religious freedom and American values. It's also a surprisingly ignorant approach for an intelligence agency, because it ignores the fact that many Michigan m**ms are not Middle Eastern or South Asian. The m**m community is incredibly diverse, and almost than a third of Michigan m**ms is African-American. Treating m**m communities as monolithic, and universally suspect, isn't good intelligence; it's religious bigotry. Other documents confirm that the FBI is targeting American m**ms and their religious institutions for intelligence attention through its Domain Management program. Below is a sample of a redacted FBI Knoxville domain management map: Unfortunately, this type of targeting based on broad-brush racial, ethnic, religious, and national origin stereotyping appears in many different types of domain a**essments focusing on a wide array of groups. A 2009 Atlanta FBI Intelligence memorandum documents population increases among “black/African American populations in Georgia” from 2000 to 2007 in an effort to better understand the purported terrorist threat from “Black Separatist” groups. A 2009 FBI memo justifies opening a domain a**essment of Chinese communities by stating that “San Francisco domain is home to one of the oldest Chinatowns in North America and one of the largest ethnic Chinese populations outside mainland China,” and “[w]ithin this community there has been organized crime for generations.” The same memo justifies mapping the “sizable Russian population” in the region by referencing the existence of “Russian criminal enterprises operating within the San Francisco domain.” Several documents from FBI offices in Alabama, New Jersey, Georgia, and California indicate the FBI conducted overly-broad a**essments that include tracking communities based on race and national origin to examine threats posed by the criminal gang Mara Salvatrucha (MS-13).97 While MS-13 certainly represents a criminal threat meriting law enforcement concern, the documents reveal that the FBI uses the fact that MS-13 was originally started by Salvadoran immigrants to justify collecting population data for communities originating from other Spanish-speaking countries, including Mexico, Cuba, the Dominican Republic, Colombia, and from the U.S. territory of Puerto Rico, even though the FBI acknowledges MS-13 admits “non-Hispanic individuals.” Targeting entire communities for investigation based on racial and ethnic stereotypes is not just unconstitutional, it produces flawed intelligence. The FBI should focus on actual criminal suspects and national security threats, not mapping entire communities based on racial stereotypes. 3.Innocent Victims of Aggressive Investigation and Surveillance The FBI's overbroad and aggressive use of its investigative and surveillance powers, and its willingness to employ “disruption strategies” against subjects not charged with crimes can have serious, adverse impacts on innocent Americans. Being placed under investigation creates an intense psychological, and often financial, burden on the people under the microscope and their families, even when they are never charged with a crime. All the more so when a heinous crime like terrorism is alleged, and when the investigators are convinced the subject of their investigation is guilty but they just don't have the evidence necessary for arrest. During the FBI's relentless investigation of the 2001 anthrax attacks, for instance, The New York Times reported that several people falling under suspicion lost jobs, were placed on watch lists, had citizenship and visa applications denied, and personal relationships destroyed. The FBI publicly hounded bioterrorism researcher Steven Hatfill for over a year, following him so closely with up to eight FBI surveillance cars that one of them once ran over his foot. FBI officials later acknowledged Hatfill was completely innocent, and the Justice Department paid him $4.6 million in damages. The FBI then turned its sites on another researcher, Bruce Ivins, who suffered a mental breakdown and committed suicide. The National Research Council has since questioned the strength of the scientific evidence supporting the FBI's case against Ivins, but the FBI considers the case closed. Such deleterious effects can be felt not just by the individuals who come under law enforcement suspicion, but by entire communities. A groundbreaking 1993 study in the United Kingdom by professor Paddy Hillyard documented how emergency anti-terrorism measures treated the Irish living in Britain and Northern Ireland differently in both law and police practice from the rest of the population, effectively marking them as a “suspect community.” The study found the British anti-terrorism practices inflicted physical, mental, and financial effects on the Irish community at large, not just those directly targeted, and had a suppressive effect on “perfectly legitimate political activity and debate around the Northern Ireland question.” There is evidence U.S. anti-terrorism enforcement and intelligence efforts are having similar effects on the American m**m community. In 2009, the ACLU documented the chilling effect aggressive enforcement of anti-terrorism financing laws was having on American m**m religious practices, particularly in suppressing mosque attendance and charitable giving, which is an important tenet of Islam. One donor to a m**m charity interviewed for the ACLU report said: Our whole community was approached by the FBI about donations. They've intimidated our whole community...They've been asking about every single m**m charity. Everyone is aware of this. People aren't giving as much as they should be giving, because of this. In 2013, civil rights and police accountability groups in New York published a report detailing how an NYPD surveillance program targeting m**m communities throughout the northeast suppressed m**ms' religious, political, and a**ociational activities. Treating entire communities as suspect because of their race, ethnicity, religion, or national origin violates individual rights and American values and undermines effective law enforcement.