he fight to keep bias from influencing law enforcement actions is as old as the

of our history, biased policing based on fear instead of fact - has been widespread and ineffective.

The ACLU was founded in 1920, in response to the broad suppression of dissent in World War I and a series of huge mass detentions and deportations, largely of recent immigrants from eastern Europe, initiated by Attorney General A. Mitchell Palmer in 1919. The Palmer Raids, as they are now known, came in response to a series of terrorist acts, including the bombing of Palmer's house, that were attributed to left-wing anarchists and socialists.

In response, Palmer ordered federal agents to round up thousands of immigrants based not on evidence of any conspiracy, but on their ethnicity, and in the case of the many Jews who were detained and deported, their religion. It was racial profiling before the term was coined.

Eighty years later, history is repeating itself. Since the tragedy of 9/11, we have seen an increase in the nation's willingness to condone law enforcement and security actions based primarily on skin color or other immutable characteristics, and a clear willingness on the part of the Bush administration to implement such programs.

The nation's Arab, Muslim and South Asian populations are most affected by these new initiatives. Policies primarily designed to impact certain groups often result in the destruction of civil liberties for us all. Moreover, racial profiling

diverting limited law enforcement resources and singling out individuals who ought not fall under government scrutiny.

This report details how the trauma of 9/11 has made general anti-immigrant sentiment acceptable in the guise of law enforcement and how national security initiatives incorporate discrimination into their application.

Just as troubling is Congress' inability to pass legislation to address the problem of bias-based policing both in the contexts of post-9/11 security measures and the traditional "driving while black or brown" turnpike racial profiling. A bill called the End Racial - and it deserves our support.

Among other things, the ERPA is a good first step toward addressing traditional racial profiling, driving while black or brown and some post-9/11 selective enforcement. It provides victims a legal recourse, implements and funds key data collection policing and gives the attorney general the ability programs to identify and track discriminatory to deny funds to police departments that refuse to comply. Please visit www.aclu.org/action to find out how you can encourage your members of Congress to sign on to this necessary legislation.

We can, and must, be both safe and free. To accomplish this, we must replenish security policies that depend on old fashioned policing, based on evidence and fact, and respect the tradition of minority and individual rights in America. By allowing base prejudice to decide who gets pulled over on our highways or who gets detained and strip searched in our airports, we betray that fundamental promise.

And, most tragically, we do so unnecessarily.

A Roma

ANTHONY D. ROMERO
Executive Director

"America has a moral obligation to prohibit racial profiling;" and

"stereotyping certain races as having a greater propensity to commit crimes is absolutely prohibited.”

But the guidelines themselves fall far short of the Bush administration's rhetorical posturing. Since they are only a set of guidelines, rather than a law or an executive order, they have no teeth. They acknowledge racial profiling as a national concern, but they provide no enforcement mechanisms or methods for tracking whether or not federal law enforcement agencies are in compliance.

The guidelines' most serious flaw, however, is that they carve out a huge national security loophole. The guidelines specify:

"The above standards do not affect current Federal policy with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security or the integrity of the Nation's borders..."

Since the 9/11 terrorist attacks, it has been the official policy of the United States government to stop, interrogate and detain individuals without criminal charge - often for long periods of time on the basis of their national origin, ethnicity and religion. In fact, the very inclusion of a national security exception in the guidelines is an admission by the Department of Justice that it relies upon racial and ethnic profiling in its domestic counterterrorism cfforts.

In response to the severe shortcomings in the president's guidelines, a bipartisan group of lawmakers in both the House of Representatives and the Senate has introduced the "End Racial Profiling Act," a comprehensive package designed to track and provide steps toward eliminating racial, ethnic, religious and national origin profiling. As this report went to print, nearly 100 members of Congress had co-sponsored the measure and a large coalition of public advocates from many points on the political spectrum, including several law enforcement organizations, were actively working to ensure it receives its duc consideration in Washington.

Specifically, the bill would define racial, ethnic, religious and national origin profiling, ban their use and provide a cause of action for individuals

harmed by these forms of profiling. It would permit the attorney general to withhold funds from non-compliant police departments and government agencies and would provide grants to aid compliance. And, crucially, it would require data collection to ensure police accountability and provide police executives with a needed management tool.

Congress should act expediently to make this legislation law. Only through federal legislation can the problem of racial profiling be comprehensively identified and ended.

This report is the latest in a series issued by the ACLU on government actions since 9/11 that threaten fundamental rights and freedoms and fail to make us safer. The ACLU opposes all racial, religious and ethnic profiling, whether in the context of routine law enforcement, or domestic counterterrorism. As we have argued repeatedly in our litigation, legislative advocacy and public statements over the years, racial profiling is in every instance inconsistent with this country's core constitutional principles of equality and fairness.

We have also argued that law enforcement based on general characteristics such as race, religion and national origin, rather than on the observation of an individual's behavior, is an inefficient and ineffective strategy for ensuring public safety. The strength of this argument has been borne out over and over again by data that has been collected by individual police departments throughout the country in response to ACLU lawsuits and the public's demands for answers and police accountability.

We now have incontrovertible proof that racial profiling does not, in fact, give the police a "leg up" in fighting crime. The

premise upon which it is based - that certain ethnic minorities are more likely than whites to be in violation of the law is simply wrong. Studies consistently show that "hit rates" - the discovery of contraband or evidence of other illegal conduct among minorities stopped and searched by the police are lower than "hit rates" for whites who are stopped and searched. Indeed, the findings of numerous studies throughout the country have been so consistent that police officials are starting to recognize that racial profiling, while still practiced broadly, is ineffective and should be rejected. The International Association of Chiefs of Police, the world's oldest and largest nonprofit membership organization of police executives, has adopted a resolution condemning racial profiling:

"We must ensure that racial and ethnic profiling is not substituted for reasonable suspicion in traffic stops and other law enforcement activities. The best way to ensure the trust of citizens and the courts, and to protect our officers from unfair criticism, is to develop an anti-profiling policy that delineates approved techniques for professional traffic stops, and makes a clear statement that profiling is not one of those techniques."

There is no reason to believe that a counterterrorism strategy based on ethnic profiling will be any more effective. The overwhelming majority of Muslims, Middle Easterners and South Asians are hardworking, law-abiding people. Singling them out for special law enforcement scrutiny will produce the same low "hit rates" as has racial profiling in the context of drug law enforcement.

Not long after the 9/11 attacks, a group of senior U.S. intelligence specialists combating terrorism circulated a memo to American law enforcement agents worldwide cautioning against relying on ethnic profiling as a counterterrorism tool. As reported in the Oct. 12 issue of The Boston Globe, "the four-page memo warns that looking for a type of person who fits a profile of a terrorist is not as useful as looking for behavior that might precede another attack." One of the authors of the memo, all of whom spoke on condition of anonymity. said,

"There are at least a million people of Middle Eastern descent in the U.S. Do we consider them all potential terrorists?"

Another explained,

"... Fundamentally, believing that you can achieve safety by looking at characteristics instead of behaviors is silly. If your goal is preventing attacks...you want your eyes and ears looking for pre-attack behaviors, not characteristics." 2

Another expert, Vincent Cannistano, the former head of counterterrorism at the CIA, told Newsweek, "It's a false lead. It may be intuitive to stereotype people, but

Bill Dedham, "Fighting Terror Words of Caution on Airport Security Memo warns against use of profiling as a defense," The Boston Globe Oct. 12, 2001