Feds' draft review keeps many FBI profiling tactics

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WASHINGTON -- Attorney General Eric Holder's long-awaited revisions to the Justice Department's racial profiling rules would allow the FBI to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic communities and using that data to recruit informants and open investigations.

The new rules, which are in draft form, expand the definition of prohibited profiling to include not just race but also religion, national origin, gender and sexual orientation. And they increase the standards that agents must meet before considering those factors. But they do not change the way the FBI uses nationality to map neighborhoods, recruit informants or look for foreign spies, according to several current and former U.S. officials either involved in the policy revisions or briefed on them.

While the draft rules allow FBI mapping to continue, they would eliminate the broad national security exemption that then-Attorney General John Ashcroft put in place. For Mr. Holder, who has made civil rights a central issue of his five years in office, the draft rules represent a compromise between his desire to protect the rights of minorities and the concern of career national security officials that they would be hindered in their efforts to combat terrorism.

The Justice Department has been reworking the policy for nearly five years, and civil rights groups hope it will curtail some of the authority granted to the FBI in the aftermath of the Sept. 11, 2001, terrorist attacks. Muslims, in particular, say federal agents have unfairly singled them out for investigation. The officials who described the draft rules did so on condition of anonymity because they were not authorized to discuss them.

Mr. Holder, who officials say has been the driving force behind the rule change, gave a personal account of his experience with racial profiling Wednesday before the National Action Network, the civil rights group founded by the Rev. Al Sharpton. "Decades ago, the reality of racial profiling drove my father to sit down and talk with me about how, as a young black man, I should interact with the police if I was ever stopped or confronted in a way I felt was unwarranted," he said.

Throughout the review process, however, the attorney general and the Justice Department's civil rights lawyers ran up against a reality: Making the FBI entirely blind to nationality would fundamentally change the government's approach to national security.

The Bush administration banned racial profiling in 2003, but that did not apply to national security investigations. Since then, the FBI adopted internal rules that prohibited agents from making race or religion and nationality the "sole factor" for its investigative decisions. Civil rights groups see that as a loophole that allows the government to collect information about Muslims without evidence of wrongdoing.

Intelligence officials see it as an essential tool. They say, for example, that an FBI agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population, and, if so, where it is.

The Justice Department rules would also apply to the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, but it is the FBI that has the lead on most national security investigations.

Farhana Khera, president of Muslim Advocates, said expanding the rules to cover nationality and religion would be a significant step forward. But she opposed any rule that allowed the FBI to continue what it calls "domain mapping" -- using census data, public records and law enforcement data to build maps of ethnic communities. Agents use this data to help assess threats and locate informants.

Department officials were prepared to announce the new rules soon and had told Congress to expect them imminently. But recently, the White House intervened and told Mr. Holder to coordinate a larger review of racial profiling that includes the Department of Homeland Security, officials said. That is significant because the Bush-era racial profiling rules also contained an exception for border investigations, which are overseen by the department.


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