New Intelligence Guidelines Encourage Racial Profiling, Dems Say

By Penny Starr | September 11, 2008 | 7:02 PM EDT

( - Revisions to the attorney general's guidelines for the FBI are set to be implemented on Oct. 1, but Democrats on the Senate Judiciary Committee and civil rights groups say the new rules will encourage racial profiling and target innocent people. The Democrats' protests have compelled the Justice Department to delay final approval of the guidelines, so it can brief the concerned parties and participate in a Sept. 17 congressional hearing on the matter.
The proposed guidelines, which do not require congressional approval and have not been made public, inspired a letter signed by four members of the Senate Judiciary Committee:  Sen. Russell Feingold (D-Wis.), Sen. Edward Kennedy (D-Mass.), Sen. Sheldon Whitehouse (D-R.I.) and Sen. Dick Durbin (D-Ill.).
They expressed concern about “intrusive investigative techniques” and “the extent to which the FBI may be permitted to gather or use information about Americans.”
Keith Nelson, principal deputy assistant attorney general, responded in a letter to Committee Chairman Sen. Patrick Leahy (D-Vt.): “We welcome the opportunity to explain in detail to the American people and members of this committee the importance of our efforts to revise and harmonize the Attorney General guidelines.”
Adding that the DOJ thought it important to meet the Oct. 1 deadline, Nelson said, “to that end, please consider us at your disposal prior to the hearing and the implementation date to provide additional briefing.”
These unusual steps and the letter, however, did not stop some of those groups, including the American Civil Liberties Union and the Rights Working Group, from holding a press conference Tuesday at the National Press Club claiming the new guidelines will lead to FBI practices that will target people based on specific characteristics and allow the Bush administration to implement sweeping national security policies before a new administration is sworn in.
“I think the issue of trust and mistrust is even more pronounced by the timing of these guidelines,” Joseph Zogby, Durbin’s chief counsel said. “The timing has raised some questions for members of the committee. Why Oct. 1? Why is this date so important? We really didn’t get a persuasive answer as to why it had to be now, rather than a new administration.”
Zogby, who along with committee members “spent some time” with a draft of the guidelines, added that members were also concerned about the process, or assessments, the FBI will use to launch an investigation.
“The guidelines authorize the use of so-called assessments, basically allowing the FBI to use surveillance techniques on innocent Americans with no indication of wrongdoing,” Zogby said.
When asked panel members how they could comment on guidelines they had not seen and why race should not be considered in the case of 9/11 – when it was known the perpetrators were Arab men – Margaret Huang, executive director of the Rights Working Group, cited past guideline changes.
“I think it’s clear from the changes that were made in (the) 2002 guidelines, as well as other changes that were made to guidelines affecting law enforcement, that there is a push for these kinds of changes where racial profiling is going to be allowed,” said Huang.
Huang describes her organization as a “grassroots and policy organization committed to promoting the civil liberties and human rights of all people in the United States, particularly in the wake of 9/11,” and “due process and fair treatment of non-citizens.”
She cited at the press conference the 1,200 men of Arab descent who were detained and questioned after the Sept. 11, 2001 attack that killed almost 3,000 people on American soil. Three of the people detained were eventually charged, but none were convicted, Huang said.
“If we knew there were white men who flew planes into the Twin Towers, would we have gone out and arrested hundreds of thousands of white men?” Huang said. “It’s not a strategic use of law enforcement.”
“We don’t know that all terrorism is Muslim men,” Mike German, policy counsel for the ACLU and former FBI special agent, said, adding to Huang’s response to’s question.

“You could look at Eric Rudolph. You could look at Tim McVeigh. There are all kinds of threats to our security, and if law enforcement is focused on actual threats inside of 1.5 billion (Muslim) people, they would be more effective.”
But DOJ spokesman Brian Roehrkasse said the revisions are part of the evolution of the FBI since 9/11, transforming it from a strictly law enforcement organization to one involved in intelligence-gathering and national security.
“The terrorists who attacked us on that day did so from within the United States, and these proposed changes reflect precisely what we asked of the FBI after Sept. 11, 2001,” Roehrkasse told “This transformation has been underway for some time and continues today.
“In fact, many of the recommendations we're implementing come as a direct result of the bipartisan commissions established after the terrorist attacks to recommend steps that the government could take to prevent additional terrorist attacks,” he said.
Roehrkasse cited the reports by the 9/11 Commission, the Silberman-Robb Commission, and the Joint Congressional Inquiry into Intelligence Community Activities – each of which concluded that the FBI had to become more nimble and effective at collecting and analyzing intelligence. 
And in a speech at an anti-terrorism conference in Portland, Ore., on Aug. 13, Attorney General Michael Mukasey said the new guidelines are meant to consolidate the various sets of guidelines that address different FBI activities and responsibilities.
“The new consolidated guidelines will, in short, integrate more completely and harmonize the standards that apply to the FBI’s activities,” Mukasey said. “As a result, they will provide the FBI and other affected Justice Department components with clearer, more consistent, and more understandable guidance for their activities. 
“They also will provide to the public in a single document the basic rules governing the FBI’s domestic operations,” he said.  
In the speech, Mukasey also addressed critics of the guidelines and the upcoming congressional hearing.
“We are in the process of explaining the guidelines to Congress,” Mukasey said. “Our staff has now met with each of the relevant committees to explain why this is an important undertaking and what changes we are making to the way the FBI will conduct its activities domestically. 
“Perhaps equally importantly, we are explaining what works now, what we are keeping, and what we are not changing,” he said.
“So, let me now mention to you a few things they will not permit,” Mukasey said. “They will not alter the previous department rules that forbid predicating an investigation simply based on somebody's race, religion, or exercise of First Amendment rights. 
“The guidelines will require all activities to have a valid purpose, and will require the FBI to carry them out in conformity with the Constitution and all applicable statutes, executive orders, and Department of Justice regulations and policies,” he added.
Aside from the ACLU, other groups the DOJ said it has worked with include the Hindu American Foundation, United Sikhs, Arab American Institute, Islamic Supreme Council of America, NAACP, Open Society Institute and the Cato Institute.
FBI Director Robert Mueller is scheduled to testify at the Sept. 17 hearing before the Senate Judiciary Committee.
The DOJ was unable to tell whether any of the groups had asked for additional briefings.