STATEMENT OF Susan Udry, Director Defending Dissent Foundation Hearing on Ending Racial Profiling in America

SENATE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS UNITED STATES SENATE APRIL 17, 2012

Chairman Durbin, Ranking Member Graham and members of the Subcommittee: I am honored to submit this testimony for the record on behalf of the Defending Dissent Foundation (DDF) regarding todays hearing on racial profiling. DDF was founded in 1960 p rotect and advance the right of dissent in the United States, and we are particularly concerned that racial, religious, ethnic and national origin profiling have a strong chilling effect on the free speech and assembly rights of targeted individuals and communities.

We thank you for holding this critical and timely hearing on racial profiling and the End Racial Profiling Act.

Racial profiling occurs whenever law enforcement agents use race, religion, ethnicity, or national origin as a factor in deciding whom they should investigate, arrest or detain, except where these characteristics are part of a specific suspect description. We encourage the committee to examine the link between profiling and Intelligence-Led policing policies and procedures that specifically encourage investigations based on First Amendment-protected speech and/or legal but suspicious activity, and which allow law enforcement to use race, religion, ethnicity or national origin as a factor in deciding whether to open an investigation. Law enforcement officers should not be authorized to launch investigations, arrest or detain people without some predicating facts or allegations. In the absence of evidence or even a credible allegation of wrongdoing on which to base their activities, law enforcement agencies at every level have time and again turned to racial, ethnic, religious and national origin profiling, in direct violation of the civil and human rights of targeted individuals and communities.

DDF encourages the Subcommit tee to pay particular attention to the Attorney Generals Guidelines for Domestic FBI Operations and the Suspicious Activity Reporting Initiative.

Attorney Generals Guidelines for Domestic FBI Operations

In the closing days of the Bush Administration in 2008, then Attorney General Michael Mukasey issued a new set of Guidelines, prompting concerns from Senator Richard Durbin (D-IL) even before their implementation: These guidelines would permit FBI surveillance of innocent Americans with no suspicion and on the basis of their race, religion, or national origin. These

guidelines will hinder the FBIs efforts to protect our national security and threaten the constitutional rights of American citizens. 1

The Bush Administration had already loosened the guidelines considerably, in 2002, 2003, and 2006, but the 2008 Mukasey Guidelines vastly expanded the investigatory authorities available to agents without any predicating facts or allegations, by expanding the Assessment tier of investigative activity. The changes authorize a number of intrusive investigative techniques during Assessments, including pretext interviews, interviewing members of the public, recruiting and tasking informants, physical surveillance not requiring a court order, grand jury subpoenas for telephone or electronic mail subscriber information, and more. 2

The Guidelines give FBI agents broad individual discretion to investigate Americans using these techniques without reasonable suspicion of wrongdoing, or supervisory approval or oversight. They also allow race to be used as a factor, among others, justifying scrutiny. Given the pressure on agents to identify unknown threats to national security before they emerge, such unchecked power invites abuse, including inappropriate profiling according to race, religion, ethnicity, national origin, or political speech.

At an oversight hearing before the Senate Judiciary Committee on July 28, 2010, FBI Director Mueller testified that religious groups are protected from profiling because FBI agents cannot begin an investigation without reasonable suspicion of wrongdoing. Unfortunately, that assertion is untrue (as Director Mueller admitted in a letter to the Committee shortly after the hearing). FBI agents are allowed to, and do investigate people and groups about whom there is no

evidence, allegation or even suspicion of criminal activity. And, the guidelines allow agents to use race, religion, ethnicity or national origin as a factor in deciding to open an assessment (thus there is no protection against profiling at all).

FBI documents obtained by the ACLU under FOIA litigation have revealed that the FBI is engaged in unconstitutional racial profiling and racial mapping, and using community outreach programs to collect and store information abo ut Americans First Amendment -protected activities. Most recently, in March 2012, the ACLU released documents showing that the San Francisco FBI conducted a years-long Mosque Outreach program that collected and illegally stored intelligence about American Muslims First Amendment -protected beliefs and religious practices, including documenting the content of sermons. 3

The FBI has a long history of abusing its investigatory power, symbolized most aptly by the COINTELPRO scandal, which prompted the establishment of the Attorney Generals Guidelines. However, since 1976, the Guidelines have shrunk to a shadow of their original
protections. Rather than impose meaningful constraints on potentially politicized investigations and prosecutions, or intrusions by Bureau agents into constitutionally protected activity, todays guidelines inviterather than constrainthese sorts of abuses.

Suspicious Activity Reporting

Launched in 2010, the National Suspicious Activity Reporting (SARS) initiative encourages law enforcement officers and even the public to report activity that is suspicious on the assumption that it may indicate possible terrorist activity. Among the legal activities singled out as

suspicious are: taking videos or photographs4; paying in cash4; expressing extreme religious

or political views4 ; using an apartment as a house of worship4 ; traveling abroad4; speaking out against the government 5; converting to Islam and growing facial hair 6. The wide range of commonplace activities identified as suspicious opens the door to racial, religious, ethnic and national origin profiling.

A 2010 investigation by Public Research Associates exposed how Suspicious Activity Reporting enables and institutionalizes racial, ethnic and political profiling b y legitimizing prejudicial assumptions about certain groups' alleged propensity for terrorism. 7 The report documents numerous incidents where law-abiding people of Middle Eastern appearance received intimidating visits from police or FBI Joint Terrorism Task Force agents simply because they videotaped a tourist attraction, rented a boat without fishing gear, engaged in religious practice, or took a picture with a friend at an airport.

In 2011, a report8 by NPR and Center for Investigative Reporting detailed the SAR program at the Mall of America documenting that mall security stop 1,200 people each year for acting suspicious, and 65% of the subjects of SAR reports were non-white, far exceeding the proportion of non-whites in the population. In one incident, Saleem Qureshi, a 69 year old PakistaniAmerican left his cell phone at the mall food court. Mall security became suspicious when they noticed an unattended stroller nearby (which did not belong to Qureshi). Even after it became evident that neither the phone nor the stroller presented a threat, mall security officers continued questioning Qureshi, following him back to his place of work. Details of the report were forwarded to the FBI, who then visited the family at their home.

The public face of the SAR Initiative, which encourages the public to report suspicious activity through the If you see something, Say Something campaign is also problematic. The Department of Homeland Securitys webpage promoting the campaign to the public, suggests that factors such as race, ethnicity, national origin, or religious affiliation alone are not suspicious,9 leaving open the possibility that those attributes can legitimately be considered as one factor among others in determining whether any given activity is innocent, or suspicious.

Conclusion The Defending Dissent Foundation applauds the Subcommittees leadership in holding this hearing and we are grateful for the opportunity to present our position on the unjust, ineffective and counterproductive practice of racial profiling. We urge the Committee to move swiftly and take concrete actions to prohibit racial profiling at the federal, state and local level:

Congress should pass the End Racial Profiling Act (S.1670) and institute a federal ba n on profiling based on race, religion, ethnicity and national origin at the federal, state and local levels.

The Subcommittee should urge the Department of Justice to amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to apply to profiling based on religion and national origin, remove national and border security loopholes, cover law enforcement surveillance activities, apply to state and local law enforcement agencies acting in partnership with federal agencies or receiving federal funds, and make the guidance enforceable.

Congress should consider a legislative fix to the problem of the steady loosening of the Attorney General's Guidelines by establishing a legislative charter for the FBI, limiting the FBI's investigative authorities by requiring a factual predicate sufficient to establish

reasonable suspicion before intrusive investigative techniques may be authorized, and prohibiting investigations based in part on race, religion, ethnicity or national origin, or on the exercise of First Amendment Rights. Congress should hold hearings on the National SAR Initiative to evaluate the effectiveness of the program, as well as the legitimate privacy and civil liberties concerns the program raises. Thank you again for this opportunity to express the views of the Defending Dissent Foundation. We welcome the opportunity for further dialogue and discussion, please contact Sue Udry at 202-529-4225 or sue.udry@defendingdissent.org

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End Notes: 1 U.S. Senator Richard Durbin, Statement on Announcement of New FBI Guidelines (Oct. 3, 2008), available at http://durbin.senate.gov/showRelease.cfm?releaseId=304117. 2 U.S. Dept of Justice, The Attorney Generals Guidelines for Domestic FBI Operations, 19 (2008). 3 American Civil Liberties Union, various documents, available at http://www.aclu.org/national-security/foia-documents-show-fbi-using-mosque-outreach-intelligence-gathering 4 Montgomery County (MD) Police Department, Operation Tripwire: Potential Indicators of Terrorist Activites, available at http://www.montgomerycountymd.gov/content/pol/districts/ISB/sid/ViceIntelligence/operationtripwirewebready.pdf 5 Eileen Sullivan, Huffington Post, Obama Administration Holding Terrorism Summit With Police Chiefs, January 18, 2012. Available at http://www.huffingtonpost.com/2012/01/18/obama-administration-police-chiefs-violent-extremism_n_1212697.html 6 FBI Intelligence Assessment The Radicalization Process: From Conversion to Jihad, May 2006 7 Thomas Cincotta, Platform for Prejudice: How Nationwide Suspicious Activities Reporting Initiative Invites Racial Profiling, Erodes Civil Liberties, and Undermines Security (Political Research Associates, 2010) available at http://www.publiceye.org/liberty/matrix/reports/sar_initiative/index.html 8 Center for Investigative Reporting and National Public Radio, Americas War Within, available at http://americaswarwithin.org/articles/2011/09/07/mall-america-visitors-unknowingly-end-counterterrorism-reports 9 Department of Homeland Security, "If You See Something, Say Something" Campaign at: http://www.dhs.gov/files/reportincidents/see-something-say-something.shtm