ACLU Sues Federal Police Agencies for Data on 'Racial Profiling'

By Jeff Johnson | July 7, 2008 | 8:21 PM EDT

Capitol Hill ( - The American Civil Liberties Union (ACLU) of Illinois filed suit in federal court Wednesday to force the Bush administration to release data the organization believes will show whether or not federal law enforcement and security agencies are engaged in so-called "racial profiling."

"If the Bush administration and the attorney general are serious about confronting and correcting racial profiling across the nation, a good first step would be to release for public scrutiny all information that gives citizens confidence that their government's actions are lawful and non-discriminatory," said Harvey Grossman, legal director of the Illinois ACLU.

"Making the data collected by federal law enforcement officials available to the public is a step toward building a strong bond of trust and confidence between law enforcement and the people," Grossman added.

The nine-page complaint seeks access to data collected in response to a "Presidential Memorandum" entitled "Fairness in Law Enforcement: Data Collection," signed in June 1999 by then-President Bill Clinton. The memorandum mandated that the race, ethnicity and gender of individuals with whom federal law enforcement and security officers have contact as part of their official duties be recorded and the aggregate data analyzed by senior officials to identify and prevent the use of race or gender as a determining factor for law enforcement contacts with civilians.

The suit names three specific federal agencies in two departments: the Drug Enforcement Administration (DEA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the Department of Justice (DOJ); and the U.S. Customs Service in the new Department of Homeland Security (DHS).

The complaint notes that the Illinois ACLU began requesting the information in July 2000 under the federal Freedom of Information Act (5 USC 552), but the agencies had not produced the requested data or the policies, training procedures, forms, compilations and analyses associated with the raw data prior to the legal action.

"We made our requests to the government under the terms of the Freedom of Information Act and waited patiently for an appropriate response," Grossman said. "The agencies have shown a callous disregard for the importance of providing this information to the public, leaving us no other option than pursuing the matter in federal court."

Mark Corallo, deputy director of the Office of Public Affairs at the U.S. Department of Justice, said the agency cannot comment on pending litigation.

Civil liberties groups oppose most uses of race or ethnicity by law enforcement

ACLU of Illinois Communications Director Ed Yohnka said Thursday that using race or ethnicity to identify terrorist or criminal suspects can be appropriate under limited circumstances.

"In fact, it's good law enforcement when you have some specific information," Yohnka said, citing examples such as intelligence information about terrorists of a known ethnicity seeking to enter the U.S. or witness accounts of a crime committed by a member of a particular race.

"The problem is that, when you use race as a factor, not based on actions or specific information, then, in point of fact, what it actually does is divert our critical law enforcement resources from identifying and capturing those people who may actually wish to do us harm," Yohnka said.

Andrew Thomas, an air security expert and author of Aviation Insecurity: The New Challenges of Air Travel, believes race or ethnicity must be considered when trying to prevent terrorist attacks.

"From a security perspective, it's necessary, there's no question about it. We need to have a profile of people, race being one of the components of that, that enables us to better determine, first of all, who it is that is possibly the greatest threat to the security system," Thomas said. "In the realm of aviation, we know, historically, who the 'bad people' have been."

Neil Livingstone is chairman of the board and CEO of Global Options, LLC., a counter-terrorism and executive security firm in Washington. He agreed with Yohnka that profiling based exclusively on race is wrong.

"Racial profiling doesn't work, it hasn't worked for law enforcement, but that isn't really what we're talking about here," Livingstone told Thursday. "We're talking about 'ethnicity profiling,' and ethnicity profiling does work."

"Ethnicity profiling," said Livingstone, "is the backbone of the Israeli civil aviation security system."

The process involves identifying specific ethnic groups, the majority of whose members have expressed hostility toward the United States, and including membership in those groups as one of dozens or hundreds of components in a terrorist suspect profile.

But Yohnka charged America with a "troubling history" of law enforcement paying too much attention to race and feared its inclusion, whether called race or ethnicity, is too tempting.

"When you include that as a factor, it is almost inevitable, it seems based on history, that that will become the factor that gets focused on," Yohnka said.

Omar Barzinji, deputy executive director of the American Muslim Council, agreed.

"When you get into the issue of profiling of any sort and race is an element of whatever criteria they use to profile, our perspective is that race will be the overwhelming criteria that's looked at," Barzinji said. "They can list a whole set of criteria that are being looked at but, once race is included in that, probably, that will be what's relied upon most of all."

Barzinji stressed his belief that using race or ethnicity for profiling by security and anti-terrorism agencies is just as wrong as when it's done by domestic law enforcement officers.

"We have to be consistent in it. If it's wrong for a cop to pull over a driver simply because he's black or fits a profile, then it's wrong to use race to identify people you stop at an airport."

Not including ethnicity and country of origin in profiles 'suicidal'

Thomas dismissed the thought that race or ethnicity should never be considered when looking for terrorists.

"That's ultimately silly, from my perspective. Race is a component," Thomas said. "But as we create security systems to deal with the 'bad guys,' if you will, the bad guys are not just simply defined by their race.

"The threats to aviation come only from a specific group of people that meet any number of characteristics, and the vast majority of people who fly fall into very few, if any, of those groups," Thomas explained. "The greater fear is Islamic extremists, for example, not all Arabs."

Livingstone responded with an even more specific example.

"We cannot deny the fact that all 19 hijackers on 9/11 were young Muslim males, 15 of whom were from Saudi Arabia," Livingstone explained. "So, for us not to focus on country of origin and ethnicity is suicidal."

Using phrases like "racial profiling" to label any attempts by law enforcement and security personnel to predict who might be a threat could make it more difficult in the future, Livingstone believes, to prevent terrorist attacks.

"Profiling is based on a number of factors, one of which should be country of origin, one of which should be ethnicity, one of which should be age, for example," Livingstone said. "There are a whole variety of factors that could go into an appropriate profile that should be used.

"And any effort to keep us from using those," Livingstone concluded, "probably will result in the deaths of American citizens in the future and can be laid at the feet of those who are objecting."

E-mail a news tip to Jeff Johnson.

Send a Letter to the Editor about this article.