Congress recently held a hearing titled, "End Racial Profiling in America." The scope of the hearing was unique in so far as it was not only limited to the experiences of African Americans and Latinos but encompassed the American Muslim one, too.
While African Americans and Latinos have long complained about racial and ethnic profiling policing tactics, religious profiling only became more visible after 9/11.
Following the attacks, for example, thousands of Muslims were detained and interrogated but none were ever criminally charged with any ties to 9/11. More than a decade later, religious profiling by federal, state and local law enforcement persists.
Consider the routine course of international travel, for instance. Upon returning home to the U.S., American Muslims are regularly selected for secondary security screenings and interrogated about their religious views and practices -- the sort of stuff that is supposed to be protected by the First Amendment of the U.S. Constitution.
Federal agents ask inappropriate questions like, "What is your religion?" "What mosque do you attend?" "What charities do you contribute to?" To make matters worse, agents have confiscated laptops, cell phones and cameras while forcing others to turn over business cards and credit card numbers without any evidence of criminal wrongdoing.
Most recently, a group of Michigan-based Muslims who filed a lawsuit against the government to stop such religious profiling at the border. The lawsuit claims they have been held at gunpoint, handcuffed and repeatedly harassed about their religion when returning home to the U.S. from Canada.
They also describe being probed about constitutionally protected religious activity like, "How many times a day to you pray?" "Do you pray your morning prayer in the mosque?" and "Who else prays in your mosque?"
Unfortunately, religious profiling by federal agents is not limited to airports and our international borders.
Here's a prime example: Documents recently obtained by the ACLU through Freedom of Information Act litigation show that the FBI's Southern California office misused outreach efforts to collect and illegally store information about American Muslims' First Amendment-protected religious beliefs and practices such as the subject and tenor of sermons delivered at mosques.
Such misconduct not only violates the Privacy Act of 1974 but also the First Amendment.
And, as we have learned from the Associated Press, the use of religious profiling in policing is not limited to federal law enforcement alone.
For years, the NYPD has engaged in the widespread warrantless surveillance of law abiding American Muslims without any credible evidence of criminal wrongdoing. Based upon the reports, their only crime appears to be their religious belief in Islam.
Besides being morally wrong and harmful to the trust between law enforcement and the communities they serve -- profiling in all of its forms is fundamentally ineffective as a policing and counter terrorism tool.
Simply put, it just doesn't work.
Professor David Harris of the University of Pittsburgh School of Law, a national expert on police practices who was called to testify before Congress this week, has explained:
"Effective policing requires law enforcement to follow legitimate leads and evidence of wrongdoing. Racial, ethnic and religious profiling fails to ensure security, and may well ultimately undermine it by diverting precious law enforcement resources -- at a time when those resources are especially scarce -- to pointless scrutiny of innocent individuals. It's like federal agents investigating fraudulent activities at major banks by interrogating every person who enters a bank about why they do business there, how much money they have in their account, and what they think of the Treasury Department."
The assumption underlying religious profiling is that your identity as a Muslim or Islamic devotion translates into a likelihood to commit a terrorist act. Yet, existing research belies this notion: terrorists who claim to be inspired by religion are not likely to be found at mosques nor do they exhibit signs of devout religiosity.
A study by the British intelligence agency MI5 found that, "[f]ar from being religious zealots, a large number of those involved in terrorism do not practice their faith regularly. Many lack religious literacy and could actually be regarded as religious novices."
Similarly, a highly respected social scientist's review of 500 cases, backed by multiple other empirical studies, found that "a lack of religious literacy and education appears to be a common feature among those that are drawn to [terrorist] groups." Indeed, there is evidence that "a well-established religious identity actually protects against violent radicalization."
How can we address the problem of profiling?
In June 2003, the U.S. Department of Justice (DOJ) issued a Policy Guidance ordering federal agencies not to use race or ethnicity, alone or in conjunction with other factors, as an indicator of suspicion in routine law enforcement activities.
It should be amended to encompass a prohibition of religious profiling as well.
Also, since the DOJ Guidance regulates only federal agencies, Congress should finally pass the End Racial Profiling Act (ERPA) which prohibits law enforcement agencies from engaging in religious, ethnic and racial profiling.
This week's congressional hearing is a significant and welcome step forward to achieving the end of an abhorrent practice in all of its contexts -- racial, ethnic and religious -- by law enforcement officials in America.
Let's keep the momentum going by amending the DOJ Guidance and passing ERPA.
Engy Abdelkader is a Legal Fellow with the Institute for Social Policy and Understanding, a think tank based in Washington, D.C.
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