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Recommendations in Response to the Assessment of and Revisions to the Anti-Discrimination Policies of DOJ and Homeland Security

A coalition of over 50 organizations sent the recommendations to Attorney General Merrick Garland and Homeland Security Secretary Alejandro N. Mayorkas.

Published: May 2, 2023

The Honorable Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

The Honorable Alejandro N. Mayorkas
Secretary
U.S. Department of Homeland Security
301 7th St. SW
Washington, D.C. 20528

Re: Assessment of and Revisions to the Anti-Discrimination Policies of the Departments of Justice and Homeland Security

Dear Attorney General Garland and Secretary Mayorkas,

On behalf of The Leadership Conference on Civil and Human Rights and the undersigned organizations, we commend President Biden’s pledge and actions to enhance equity in our nation, and in particular his directive to you and your departments to “assess the implementation and effects” of the Justice Department’s (DOJ) December 2014 “Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity” footnote1_hj6duuj 1 Department of Justice, “Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity,” December 2014, https://www.dhs.gov/sites/default/files/publications/use-of-race-policy_0.pdf. (2014 Guidance) and to “consider whether this guidance should be updated.” footnote2_q126oti 2 Exec. Order 14074, § 9(e), 87 Fed. Reg. 32945, 32952–3 (May 25, 2022), https://www.federalregister.gov/documents/2022/05/31/2022–11810/advancing-effective-accountable-policing-and-criminal-justice-practices-to-enhance-public-trust-and. We appreciate the discussions many of our organizations have had with your departments already, and strongly urge your departments to seize this opportunity to issue comprehensive and meaningful antidiscrimination policies that finally end biased profiling by your agencies, including in their partnerships with state and local law enforcement.

Specifically, we urge you to issue anti-discrimination rules that:

  1. Prohibit discrimination based on actual or perceived race, ethnicity, religion, national origin and nationality, sexual orientation, disability, and gender (including gender identity and expression) across each department component, without any loopholes.
  2. Close loopholes that treat “routine or spontaneous law enforcement activities” differently from other activities, and treat the border region differently than the rest of the nation.
  3. Ensure that nationality and national origin are not used as a proxy to discriminate against people based on their race, ethnicity, or religion.
  4. Apply to state and local law enforcement agencies that receive federal funding or participate in joint operations or partnerships with federal law enforcement agencies.
  5. Provide data collection, training, and accountability measures to ensure compliance and effective implementation.

More than seven years ago, The Leadership Conference and many partner organizations wrote to President Obama expressing serious concerns about the loopholes in the 2014 Guidance and its application to the Department of Homeland Security (DHS). Put simply, DOJ and DHS have antidiscrimination policies that to this day permit discrimination. Taken together, the loopholes across the two departments allow federal agents to target people and communities for surveillance, investigation, and other measures on the basis of race, ethnicity, religion, and other protected traits; fail to adequately cover large swaths of activity undertaken by each department; and exclude many state and local police partnerships with federal law enforcement from the protections that the 2014 Guidance does include. footnote3_1xoi87d 3 The Leadership Conference on Civil and Human Rights et al. to President Barack Obama, “Re: Concerns with the U.S. Department of Justice Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity,” February 24, 2015, https://civilrights.org/resource/re-concerns-with-the-u-s-department-of-justice-guidance-for-federal-law-enforcement-agencies-regarding-the-use-of-race-ethnicity-gender-national-origin-religion-sexual-orientation-or-gender-id/#.

Because of these deficiencies, the 2014 Guidance in effect sanctions the damaging and unwarranted targeting of communities of color and immigrants, tearing at the fabric of our society. DHS has stated that it follows the 2014 Guidance, but the practical effect of this commitment is very unclear. footnote4_8o72u7w 4 Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga, A Course Correction for Homeland Security: Curbing Counterterrorism Abuses, Brennan Center for Justice, April 20, 2022, 4, https://www.brennancenter.org/our-work/research-reports/course-correction-homeland-security. Indeed, DHS has a patchwork of anti-discrimination policies that leave gaping loopholes both in the traits protected and in the activities to which the policies apply.

The 2015 Leadership Conference letter was written after the killings of Michael Brown, Tamir Rice, and Eric Garner. The names of George Floyd, Philando Castile, Breonna Taylor, Daunte Wright, and too many other Black people now join that devastating roster. Still, law enforcement agencies at all levels of government continue to operate in ways that undermine our country’s ideals of fairness, justice, and due process for all. DOJ and DHS anti-discrimination policies contribute to this failure and allow both clear bias and “invidious profiling” to continue. footnote5_i36i702 5 Faiza Patel, “Ending the ‘National Security’ Excuse for Racial and Religious Profiling,” Brennan Center for Justice, July 22, 2021, https://www.brennancenter.org/our-work/analysis-opinion/ending-national-security-excuse-racial-and-religious-profiling. For example:

At the root of the problem is the fact that the 2014 Guidance draws a fundamental and unjustified distinction between “routine or spontaneous law enforcement decisions, such as ordinary stops” and all other contexts. For the former, federal law enforcement officers are banned from using race, religion, national origin, and other protected traits “to any degree,” except in a specific suspect description. But the same rule does not apply to activities in the broad and vague contexts of national and homeland security, the border, screening activities, and intelligence gathering. In these contexts, biased profiling continues largely unchecked, often through secretive government programs that evade meaningful accountability. While both departments have a patchwork of other rules, those rules are designed to give federal agents wide discretion in using protected characteristics with weak or non-existent safeguards. footnote22_9bxeg7q 22 Patel, Levinson-Waldman, and Panduranga, Course Correction, 23; and Michael German and Kaylana Mueller-Hsia, Focusing the FBI, Brennan Center for Justice, July 28, 2022, 6, https://www.brennancenter.org/our-work/research-reports/focusing-fbi. For example, DHS’s policies fail to cover profiling on the basis of religion and even allow DHS agents to consider the national origin of American citizens.

The 2014 Guidance in effect also excludes state and local law enforcement, failing to use the federal government’s immense influence and resources to address biased policing. The killings of Black people made headlines and galvanized historic protests around the country, yet biased policing continues unabated. Many millions of dollars in federal funding flow to state and local police and partnerships between federal, state, and local law enforcement, such as FBI-led Joint Terrorism Task Forces (JTTFs) and DHS-led fusion centers. Given the loopholes outlined above, these partnerships have unsurprisingly come under criticism and scrutiny for bias-infused reporting, analysis, and investigations, and for lacking adequate civil rights, civil liberties, and privacy safeguards. footnote23_bgj04rx 23 ACLU, Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority, September 2013, 10, https://www.aclu.org/sites/default/files/field_document/unleashed-and-unaccountable-fbi-report.pdf; and Brennan Center for Justice et al. to Lindsey Graham, Chairman, S. Comm. on the Judiciary, Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, Ron Johnson, S. Comm. on Homeland Security and Governmental Affairs, and Gary Peters, Ranking Member, S. Comm. on Homeland Security and Governmental Affairs, May 8, 2019, https://www.brennancenter.org/our-work/research-reports/brennan-center-urges-congress-hold-hearings-fusion-centers. The partnerships collect and share vast amounts of Americans’ personal data and carry out surveillance and investigative activities without adequate public oversight. As a result, both JTTFs and fusion centers have long targeted Muslims and in recent years have added the Black Lives Matter movement and family separation protestors to their list of “suspicious” movements. footnote24_moneut2 24 Chris Brooks, “After Barr Ordered FBI to ‘Identify Criminal Organizers,’ Activists Were Intimidated at Home and at Work,” Intercept, June 12, 2020, https://theintercept.com/2020/06/12/fbi-jttf-protests-activists-cookeville-tennessee/; Lee Fang, “Why Was an FBI Joint Terrorism Task Force Tracking a Black Lives Matter Protest?,” Intercept, March 12, 2015, https://theintercept.com/2015/03/12/fbi-appeared-use-informant-track-black-lives-matter-protest/; Alex Kane, “How the NYPD’s Counterterrorism Apparatus Is Being Turned on Protestors,” VICE, January 19, 2015, https://www.vice.com/en_us/article/exm3z4/how-the-nypds-counter-terror-apparatus-is-being-turned-on-police-protesters-119; Dan Neumann, “MIAC ‘Shadow Report’ Raises Questions About Surveillance, Targeting of Vulnerable Mainers,” Beacon (Maine People’s Alliance), April 1, 2022, https://mainebeacon.com/miac-shadow-report-raises-questions-about-surveillance-targeting-of-vulnerable-mainers/; Privacy SOS“So-Called ‘Counterterror’ Fusion Center in Massachusetts Monitored Black Lives Matter Protesters,” November 27, 2015, https://privacysos.org/blog/so-called-counterterror-fusion-center-in-massachusetts-monitored-black-lives-matter-protesters/; Josh Anderson, “Is ARIC Still Watching?,” Austin Chronicle, December 11, 2020, https://www.austinchronicle.com/news/2020–12–11/is-aric-still-watching; and Jesse Franzblau, “New Documents Expose Government Monitoring of Protests Against Family Separation,” National Immigrant Justice Center, April 29, 2019, https://immigrantjustice.org/staff/blog/new-documents-expose-government-monitoring-protests-against-family-separation.

Finally, there is no publicly available information about whether DOJ or DHS have implemented the 2014 Guidance’s requirement to track complaints and study implementation through “targeted, datadriven research projects.” footnote25_48sscyz 25 It also appears that DHS has not followed through on its implementation and accountability commitments or measured implementation of the anti-bias provisions that it has adopted. DHS, “Fact Sheet: U.S. Department of Justice Racial Profiling Guidance,” December 8, 2014, https://www.dhs.gov/news/2014/12/08/fact-sheet-us-department-justice-racial-profiling-guidance. Even the best anti-discrimination policies are of little value without serious attention to implementation and impact, which appear to have been neglected.

We believe these recommendations will go a long way toward meeting our shared goal of eliminating discriminatory policing and profiling, moving our nation forward on the path to achieving the ideal of equal justice for all.

Thank you for considering our views. If you have any questions, please contact Nadia Aziz, senior director of The Leadership Conference’s Fighting Hate & Bias Program, at aziz@civilrights.org; Hina Shamsi, director of the ACLU National Security Project, at hshamsi@aclu.org; and Faiza Patel, senior director of the Brennan Center for Justice’s Liberty and National Security Program, at patelf@brennan.law.nyu.edu.

Sincerely,
The Leadership Conference on Civil and Human Rights
American Civil Liberties Union
Brennan Center for Justice
American-Arab Anti-Discrimination Committee (ADC)
Andrew Goodman Foundation
Arab American Institute (AAI)
Asian American Legal Defense and Education Fund (AALDEF)
Asian Americans Advancing Justice – AAJC
Autistic Self Advocacy Network
Bend the Arc: Jewish Action
Center for Disability Rights
Center for the Study of Hate & Extremism
Color of Change
Disability Rights Advocates
Disability Rights Education & Defense Fund
Equal Justice Society
Equality California
FL National Organization for Women
Greater Orlando National Organization for Women
Haitian Bridge Alliance
Hispanic Federation
Houston Immigration Legal Services Collaborative
Impact Fund
Indivisible Miami
Japanese American Citizens League
LatinoJustice PRLDEF
League of Conservation Voters
Matthew Shepard Foundation
Miami Coalition to Advance Racial Equity
Miami NOW
Movement Advancement Project (MAP)
NAACP Legal Defense Fund (LDF)
National Association of Councils on Developmental Disabilities
National Center for Parent Leadership, Advocacy, and Community Empowerment (National PLACE)
National Council of Jewish Women, Greater Miami Section
National Employment Law Project
National Hispanic Media Coalition
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Organization for Women
NCJW Sarasota Manatee
People for the American Way
Progress Florida
Project on Government Oversight
SAGE
SAVE Inc – Safeguarding American Values for Everyone
Southern Border Communities Coalition
Southern Poverty Law Center Action Fund
Tahirh Justice Center The Sikh Coalition TransSOCIAL, Inc.

End Notes