ACLU 9 (a nonpartisan, non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." “The Persistence of Racial and Ethnic Profiling in the United States: A Follow-Up Report to the U.N. Committee on the Elimination of Racial Discrimination” August 2009 https://www.aclu.org/files/pdfs/humanrights/cerd_finalreport.pdf , cayla_)
FBI Investigations of Muslims As part of the “war on terror,” the Federal Bureau of Investigations (FBI) has continued to undertake problematic inquiries and investigations of members of Muslim communities, Muslim religious organizations (including mosques), and even Muslim charities.137 Targeted individuals have been investigated at their places of employment, their homes, and their schools and universities, and have had their families, friends, classmates, and co-workers questioned and harassed.138 These investigations have had a chilling effect on the civic participation of Arab, Muslim and South Asian individuals and communities, since many are afraid to attend their local mosques or get involved with Islamic organizations and events.139 Updates 32 The Persistence of Racial and Ethnic Profiling in the United States Rarely do these investigations result in terrorismrelated charges. Most cases have resulted in no charges being filed at all or with the filing of lesser charges such as immigration-related offenses, tax evasion or document fraud. As discussed elsewhere in this document, the creation of a “suspect community” seems to have been codified in the new FBI guidelines, allowing agents to consider race and religion when starting investigations. For example, in February 2009, it was reported that the FBI had infiltrated several mosques in California, using cameras and other surveillance equipment to record hours of conversations in those mosques, as well as in restaurants and homes.140 Local residents report that the surveillance has caused them to avoid the mosques and pray at home, avoid making charitable contributions – a fundamental tenet of the Muslim faith – and refrain from having conversations about political issues such as U.S. foreign policy.141 Use of Informants and Agent Provocateurs Since 9/11, the FBI has increasingly used informants to infiltrate mosques and other places where Muslims gather.142 A number of these informants have been paid large sums of money to elicit information about potential criminal or terrorist activity, which has led to charges of entrapment.143 Some feel that the financial incentives cause these agents to exaggerate claims or instigate plots in order to show success. The FBI has used several questionable and coercive tactics to recruit Muslims to serve as informants. These attempts have occurred directly through FBI agents or through questioning by other law enforcement agencies like Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).148 Attempts have also been made to recruit individuals who report suspicious activity to law enforcement.149 Anecdotal evidence suggests that individuals who refused to cooperate were threatened or retaliated against. Updates The Persistence of Racial and Ethnic Profiling in the United States 33 The stories below tell the experiences of two individuals who were subject to such recruitment and retaliation: FBI Guidelines In October 2008, former Attorney General Michael Mukasey and the Department of Justice under the Bush Administration released The Attorney General’s Guidelines for Domestic FBI Operations. 152 While a small number of NGOs, including the ACLU, were invited by the Department of Justice to review and comment on the Guidelines during the drafting process, the final version lacks the changes requested by the ACLU and others, including members of Congress.153 The new Guidelines went into effect on December 1, 2008. The new Guidelines have several significant problems. Most notably, they open the door to abuse of power and racial profiling by allowing the FBI to open “assessments” without any factual predicate.154 By calling their investigations “assessments,” FBI agents can investigate any person they choose, provided it is done with the goal of preventing crime, protecting national security, or collecting foreign intelligence.155 There is no requirement of a factual connection between the agent’s authorizing purpose and the actual conduct of the individuals who are being investigated.156 FBI agents can initiate “assessments” without any supervisory approval and without reporting to FBI headquarters or to the Department of Justice.157 Moreover, the new Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed, and “assessments” have no time limitation.158 The FBI can even initiate an “assessment” if the agent determines that the person might make a good FBI informant.159 Innocence does not protect people from being subjected to a wide range of intrusive investigative techniques including: the collection of information from online sources, including commercial Updates 34 The Persistence of Racial and Ethnic Profiling in the United States databases; the recruitment of informants who are then tasked to gather information about individuals under “assessment”; the use of FBI agents to surreptitiously gather information from friends and neighbors without revealing their true identity or true purpose for asking these questions; and the use of FBI agents to follow individuals under “assessment” day and night for as long as the agents deem necessary.160 Perhaps most troubling is that the new Guidelines will significantly increase racial profiling. Former Attorney General Mukasey stated that the Guidelines “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.”161 But, rather than eliminating racial profiling, the Guidelines actually encourage the profiling of people of color through the national security exceptions. Because the exceptions do not require legal proof of criminal suspicion, the U.S. has disproportionately targeted and will continue to target Arabs, Muslims and South Asians.162 Despite the statements of Attorney General Holder, who said that ending racial profiling was a “priority” for the Obama administration and that profiling was “simply not good law enforcement,”163 the Obama administration has not repealed these guidelines.