Ending the ‘National Security’ Excuse for Racial and Religious Profiling

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Several changes in law and policy after 9/11 have facilitated profiling on the basis of constitutionally protected characteristics. The attorney general’s guidelines for FBI investigations, for instance, were dramatically loosened in 2002 and again in 2008. Previously, the guidelines required agents to focus on suspicion of criminal activity. Now, however, agents can launch non-predicated investigations — i.e., absent any facts indicating wrongdoing on the part of the investigation’s target — so long as the purpose is to protect against criminal or national security threats or to collect foreign intelligence.

Rather than building guardrails to mitigate the risks of this open-ended authority, the guidelines water down controls and authorize a range of intrusive techniques, including using informants, scouring the internet, and attending religious services and political gatherings.

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