Letter to Secretary Napolitano re NSEERS

June 1, 2012

The Honorable Janet Napolitano
Secretary
U.S. Department of Homeland Security
Washington, DC 20528

Dear Secretary Napolitano:

The undersigned organizations write to express our concerns regarding the Department of Homeland Security’s (DHS) April 16, 2012 memorandum ("April 2012 Memo") on the National Security Entry-Exit Registration System (NSEERS).1 While our organizations appreciate the initial measures outlined in the memo which may potentially benefit some individuals affected by NSEERS, we remain deeply concerned by its significant limitations.2 Specifically, we are disappointed that it retains the program’s regulatory framework; fails to provide redress for all individuals who continue to face adverse immigration consequences as a result of the program; and lacks information regarding the status of databases created under the program. We urge DHS, in consultation with individuals and organizations with expertise on NSEERS, to issue and implement regulations that terminate the program in its entirety; remove residual penalties associated with NSEERS for all affected individuals; and discontinue the use of data collected through NSEERS by DHS and other law enforcement agencies.

Notably, the April 2012 Memo to the U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE)
sets up a framework for relief for certain NSEERS-related cases.3 Specifically, it provides a definition for "willful" and instructs that in cases "where DHS personnel have determined that noncompliance was not willful, DHS should not pursue immigration enforcement action, nor deny any immigration benefit, solely on the basis of the alien's failure to comply with NSEERS."4 However, the memo nevertheless raises numerous concerns, including the fact that it retains the program’s regulatory framework, fails to articulate a policy for individuals who actually did comply with NSEERS, and adopts a potentially vague definition of "willful."5

NSEERS has been widely acknowledged as a counterproductive response to the September 11th attacks and a clear example of racial and religious profiling. The program has been condemned for its ineffectiveness for counterterrorism purposes and its discriminatory nature by both advocacy organizations and members of Congress. In February 2012, even DHS’ own Office of Inspector General called for a full termination of NSEERS as the "database that supports this program is obsolete" and it "does not provide any increase in security."6 Yet, rather than eliminating NSEERS, the April 2012 Memo maintains its core regulatory architecture, raising the possibility that it could be resurrected by DHS in the future. Furthermore, it continues to allow DHS to use information that was obtained through or in connection with the NSEERS program.7

We urge DHS to take additional measures in order to achieve the goal of eliminating the program and its effects on families and community members. Specifically, we urge DHS, in consultation with individuals and organizations with expertise on NSEERS, to issue and implement regulations that:
- Dismantle the regulatory framework of NSEERS in its entirety and instead adopt programs that target individuals based on legitimate and particularized evidence, not identity-based criteria such as race, religion, ethnicity, gender, or nationality
- Remove residual NSEERS penalties, both immigration and criminal, by regulation for all individuals affected by NSEERS and apply such regulations retroactively
- Discontinue the use of data collected through NSEERS by DHS and other law
enforcement agencies for other purposes

Thank you for your attention to this matter. If you have any questions or require further information, please contact Sameera Hafiz, Policy Director at Rights Working Group, at shafiz@rightsworkinggroup.org or Priya Murthy, Policy Director at South Asian Americans Leading Together, at priya@saalt.org.

Sincerely,

Adhikaar
The American Civil Liberties Union American Immigration Lawyers Association American Muslim Voice
American-Arab Anti-Discrimination Committee
Americans for Immigrant Justice (formerly Florida Immigrant Advocacy Center) API Chaya
Apna Ghar, Inc.
Arab American Action Network
Arab American Association of New York
Arab American Institute
Asian American Justice Center, a member of Asian American Center for Advancing Justice
Asian & Pacific Islander American Health Forum
Asian Law Alliance
Asian Law Caucus
Asian Pacific American Labor Alliance
Asian Pacific American Labor Alliance - DC Chapter
Asian Pacific Partners for Empowerment, Advocacy, and Leadership (APPEAL) Bill of Rights Defense Committee
Blacks in Law Enforcement of America
Causa Justa :: Just Cause
Center for Constitutional Rights Center for National Security Studies Chhaya CDC
Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) Community to Community
Coney Island Avenue Project
The Constitution Project
Council of Peoples Organization
Council on American Islamic Relations
Council on American Islamic Relations - Florida Council on American Islamic Relations - Los Angeles Council on American Islamic Relations - New Jersey Council on American Islamic Relations - St. Louis
Counselors Helping (South) Asians/Indians　
Creating Law Enforcement Accountability & Responsibility (CLEAR), CUNY School of Law
DRUM - Desis Rising Up and Moving Equality Alliance of San Diego County Families for Freedom
Indo-American Center
Interfaith Coalition on Immigration, Minnesota (IOCM, Inc.) International Center for Advocates Against Discrimination Japanese American Citizens League
Khadijah's Caravan
Laotian American National Alliance, Inc. Latina Institute for Reproductive Justice Lawrence Action Network for Diversity (LAND)
The Leadership Conference on Civil and Human Rights
Maitri
Massachusetts Immigrant and Refugee Advocacy Coalition
Minority Executive Directors Coalition
Muslim Advocates
Muslim Legal Fund of America Muslim Public Affairs Council NAACP
National Asian Pacific American Families Against Substance Abuse
National Fair Housing Alliance
National Immigrant Solidarity Network
National Immigration Forum
National Network for Arab American Communities National Network for Immigrant and Refugee Rights NC Immigrant Rights Project
North American South Asian Bar Association (NASABA) OCA
OneAmerica
Priority Africa Network
Raksha
Reformed Church of Highland Park
Rights Working Group
Sakhi for South Asian Women
San Diego Immigrant Rights Consortium
Sikh American Legal Defense and Education Fund (SALDEF) The Sikh Coalition
Sneha, Inc.
South Asian American Policy & Research Institute (SAAPRI) South Asian Americans Leading Together (SAALT)
South Asian Bar Association of New York
South Asian Council for Social Services (SACSS) South Asian Network
South Asian Youth Action (SAYA!) Southern Border Communities Coalition
Tennessee Immigrant & Refugee Rights Coalition
UNITED SIKHS
The Westchester Square Partnership Who is My Neighbor? Inc. (WIMNI) The Woodhull Sexual Freedom Alliance
Cc: John Sandweg, Counselor to the Secretary and Deputy Secretary, DHS
Kelly Ryan, Acting Deputy Assistant Secretary, DHS Francis Cissna, Director of Immigration Policy, DHS
Tamara Kessler, Acting Officer for Civil Rights and Civil Liberties, DHS
David Aguilar, Acting Commissioner, CBP Alejandro Mayorkas, Director, USCIS
John Morton, Director, ICE
Cecilia Muñoz, Director, White House Domestic Policy Council
Felicia Escobar, Senior Policy Director for Immigration, White House Domestic Policy
Counsel
Julie Rodriguez, Associate Director of Latino Affairs and Immigration, White House
Office of Public Engagement

------------------------------------------------------------------------------------------------------------- 1 As you are aware, NSEERS was established in 2002 by the Department of Justice and resulted in a wide-scale registration program targeting male visitors from countries with Muslim-majority populations. The implementation of NSEERS was controversial from the start because of the discriminatory nature of the program, lack of notice or accurate information about the registration requirements, and resulting immigration consequences. This led to widespread fear and confusion within Arab, Middle Eastern, Muslim, and South Asian communities across the country resulting in many community members not registering or experiencing harsh immigration consequences, regardless of compliance. Though the program has undergone some changes since it was inherited by the DHS in 2003, targeted visitors were subject to NSEERS until April 2011. See American Arab Anti-Discrimination Committee and Penn State Dickinson School of Law, Center for Immigrants’ Rights, NSEERS: The Consequences of America’s Efforts to Secure Its Borders (March 2009), available at http://www.adc.org/PDF/nseerspaper.pdf; Race Matters Blog, available at http://endnseers.blogspot.com; DRUM - Desis Rising Up and Moving, The Sikh Coalition, UNITED SIKHS, South Asian Youth Action (SAYA!), Coney Island Avenue Project, Council of Peoples Organization, and South Asian Americans Leading Together, In Our Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling (March 2012), available at http://www.saalt.org/filestore/Reports/In%20Our%20Own%20Words%20Web%20FINAL.pdf; and Rights Working Group and Penn State Dickinson School of Law, Center for Immigrants’ Rights, The NSEERS Effect: A Decade of Racial Profiling, Fear, and Secrecy (Forthcoming, June 2012).In April 2011, DHS issued a rule (“April 2011 Rule”) stating that the 25 countries would be “delisted” and nationals and citizens from these countries who were previously subject to NSEERS would no longer be required to register. See 76 Fed. Reg. 23830, 23831 (Apr. 28, 2011); available at http://www.gpo.gov/fdsys/pkg/FR-2011-04-28/html/2011-10305.htm. While DHS asserted that the April 2011 Rule was the “end” of NSEERS, this rule did not eliminate the program’s underlying infrastructure and individuals continue to face adverse immigration consequences, including removal and denial of immigration benefits for which they are otherwise eligible. See “Letter to DHS Secretary Regarding Unfinished Work Around NSEERS” (May 17, 2011); available at http://endnseers.blogspot.com/2011/05/letter-to-dhs-secretary-regarding.html.2 See Press Release, “Rights Groups Continue to Call for Dismantling of NSEERS and Criticize Department of Homeland Security’s Refusal toRepudiate This Discriminatory Program” (May 7, 2012); available at http://endnseers.blogspot.com/2012/05/rights-groups-continue-to-call- for.html.3 Memorandum from DHS Deputy Secretary to USCIS, ICE, and CBP, “Department of Homeland Security Guidance on Treatment of Individuals Previously Subject to the Reporting and Registration Requirements of the National Security Entry Exit Registration System” (April 16, 2012); available at https://law.psu.edu/_file/NSEERSMemoPublic.pdf.4 Id. at 4.5 For further analysis of the April 2012 memo, see supra note 2; see also Denyse Sabagh, American Immigration Lawyers Association, “DHS Releases Long-Awaited Memo on Controversial 9/11 Program” (May 3, 2012); available at http://ailaleadershipblog.org/2012/05/03/dhs- releases-long-awaited-memo-on-controversial-911-program/.6 U.S. Department of Homeland Security, Office of Inspector General, “Information Sharing on Foreign Nationals: Border Security (Redacted),OIG-12-39” (February 2012); available at http://www.oig.dhs.gov/assets/Mgmt/2012/OIGr_12-39_Feb12.pdf.7 In fact, a recent Systems of Records Notice (SORN) issued by DHS demonstrates that NSEERS data is continuing to be “ingested” into the agency’s databases. In the SORN, DHS proposes “to update and expand the categories of individuals, categories of records, routine uses, accessprovisions, and sources of data stored in [the Automated Targeting System] ATS” and states that “ATS maintains copies of key elements ofcertain CBP databases … including: … historical National Security Entry-Exit Registration System (NSEERS).” See 77 Fed.Reg. 30297 [DocketNo. DHS-2012-0019] (May 22, 2012); available at http://www.gpo.gov/fdsys/pkg/FR-2012-05-22/html/2012-12396.htm.

New York Times - Today

May 15, 2012
Source: The Reformed Church of Highland Park

Dear Church Family and Extended Supportive Community,

Today a very important article was published in the New York Times by Kirk Semple. The article "A Sanctuary Amid Fears of Persecution at Home" is on page A23 and can also be found online. Please share the article as widely as you can.

http://campaign.r20.constantcontact.com/render?llr=mj7f5vdab&v=001xmZOF4pc7pOUFklV6PBCb280jJRO3lce5NJWIbhiHEqvyCWjCuGRMNy77fWv3B5s7yaWQeW4F3cuYWkZQN35yufhFmCEuVdwVtng8LfI0cg%3D>

The day of visitations in Washington was very effective. We visited 30 congressional offices and we believe we made some significant strides toward winning some hearts for this cause. In addition, the religious liberty commission of the National Council of Churches gave us many new contacts who may prove helpful.

Tomorrow, Friday, is the day when the General Secretary of the Reformed Church in America will visit our church. This is the first such visit since we've been pastors here. We will be holding a 1pm event that I hope you'll try hard to attend.

Saturday, from 2pm-7pm is our Family Freedom Festival. Also, it is the day for the debut showing of "Broken Asylum," a video that tells the story of our church's efforts around the family story of Harry and Yana. The movie will show at 3:30 and 7:30pm.

Your energy and love for our Indonesian brothers and sisters sustains me in this effort! Thanks and Peace, Pastor Seth

Rights Groups Continue to Call for Dismantling of NSEERS and Criticize Department of Homeland Security’s Refusal to Repudiate This Discriminatory Prog

FOR IMMEDIATE RELEASE
Contact:
Keith Rushing, Rights Working Group, 202.591.3305.
Nasreen Hosein, South Asian Americans Leading Together, 301.270.1855
Sandhya Bathija, American Civil Liberties Union, 202.675.2312
Ibrahim Hooper, Council on American-Islamic Relations, 202.744.7726
Kate Casa, National Network for Arab American Communities, 313.842.5119
Amardeep Singh, Sikh Coalition, 212.655.3095

May 7, 2012, Washington, D.C. –

The American Civil Liberties Union (ACLU), Council on American-Islamic Relations (CAIR), National Network for Arab American Communities (NNAAC), Rights Working Group, Sikh Coalition, and South Asian Americans Leading Together (SAALT) express serious disappointment regarding the Obama administration’s announcement last month that it will not fully terminate the National Security Entry-Exit Registration System (NSEERS), which, in the aftermath of September 11th, required certain nonimmigrant men from predominantly Muslim nations to register with the federal government. In addition, the administration has indicated that it will not provide redress to all people impacted by the discriminatory program.

Last month, the Department of Homeland Security (DHS) issued a memorandum about individuals impacted by the notorious NSEERS program. NSEERS was a counterproductive response to September 11th requiring certain non-immigrants to register at ports of entry and local immigration offices. Those required to register were from predominantly Arab, South Asian, or Muslim countries. The specifics of NSEERS revealed it to be a clear example of discriminatory and arbitrary profiling. The Obama administration has itself found that NSEERS “does not provide any increase in security.” DHS’ own Office of Inspector General has called for the full termination of NSEERS. In April 2011, DHS modified the program by “delisting” the countries whose nationals were subject to registration requirements, yet individuals still face harsh immigration consequences resulting from the program, including deportation and denial of immigration benefits for which they are otherwise eligible.

The administration’s most recent announcement on NSEERS did not fully terminate and dismantle the program. Instead, DHS offers limited relief to some individuals negatively impacted by this discriminatory program. Favorable consideration is limited to narrow circumstances, such as individuals who could not comply with the program because they received inaccurate information from the government or those who were hospitalized. The memorandum does not address relief for the many individuals who complied with the program but were found to lack immigration status nor those who were deported through secret proceedings that took place without due process of law.

“The recent issuance of the NSEERS memo by DHS misses the mark and fails to provide redress to all individuals who have been harmed by NSEERS,” stated Margaret Huang, executive director of Rights Working Group. “Further, the announcement leaves the program intact and states that information obtained through the discriminatory NSEERS program can continue to be used against individuals. The administration, yet again, has failed to address unconstitutional profiling based on race, religion, ethnicity and national origin,” continued Huang.

“While the initial measures outlined in this policy could potentially benefit a subset of individuals affected by NSEERS, it does not go nearly far enough. Despite the advocacy community’s years of engagement with DHS on NSEERS, the new announcement reveals the administration’s failure to grasp the widespread fear this program caused in South Asian, Arab, Middle Eastern and Muslim communities in America and how NSEERS has torn families apart,” stated Deepa Iyer, Executive Director of South Asian Americans Leading Together (SAALT).

The memorandum does not directly grant relief or benefits to individuals impacted by NSEERS but rather asks DHS agencies to develop guidance to implement the memorandum. The groups call on DHS to engage with advocacy organizations in developing this guidance to ensure that it grants meaningful relief. The groups also urge DHS to dismantle NSEERS completely and discontinue using information obtained through the program.

###

DHS Releases Long-Awaited Memo on Controversial 9/11 Program

05/03/2012, 5:15 pm
Written by: Guest Blogger
Cross Posted from American Immigration Lawyers Association:http://ailaleadershipblog.org/author/guest/
By Denyse Sabagh, AILA Past President, and Shoba Sivaprasad Wadhia, AILA Amicus Committee

NSEERS (National Security Entry and Exit Registration System) was a controversial tracking program launched in the wake of 9/11 and aimed at visitors from predominantly Arab and Muslim countries. Those subject to NSEERS or special registration were fingerprinted, photographed and interrogated at ports of entry, inside a local immigration office and upon departure from the United States. The NSEERS program contained all of the features of bad policy, as it appeared to target individuals based on their religion and national origin; caused thousands of men to be placed in removal proceedings after complying with the program; and proved to be ineffective as a counter-terrorism tool.

Last month, the DHS released a memorandum to address the scores of people who did not register under NSEERS when they were supposed to. It clarifies that innocent individuals who failed to previously register should not suffer immigration consequences, such as a denial of a green card or a deportation charge. The memo could help a countless number of young men who have laid down roots, built families and/or been steadily employed in the United States but whose immigration status is vulnerable because of an NSEERS issue.

The April Memo provides that individuals who “willfully” failed to register under NSEERS in the past may be subject to immigration violations. It goes to elucidate the definition of willful as “deliberate, voluntary, or intentional, as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable”; instructs that the burden of proving that his registration was not willful is on the non-citizen (which may not be satisfied if failure to comply was based on fear or inconvenience); and notes that even where an individual is found to have “willfully” failed to register, the agency may exercise prosecutorial discretion in accordance with its litany of memoranda on the topic.

Previous adjudications of “willful failure” did not give credence to the applicant’s statements such as “I was 16 years old when I entered, I could barely speak English and my family was not involved in the community, I did not know about special registration.” In some cases, applicants were not even asked the question “Why didn’t you register”? ICE took the passports and stamped them “willful failure” and told individuals that everything would be fine. Things were not fine and many people ended up in deportation. People’s lives have been damaged due to this program and it is critical that DHS conveys its intent clearly to rectify this to the field with training and specificity. Without it, even with the April Memo, the hoped for result will fail.

The April Memo is an encouraging step but what is ultimately needed is a termination of NSEERS and a clear policy that protects all people affected by NSEERS from immigration consequences unless DHS can prove that such protection is adverse to the public interest. The NSEERS program has brought more than a decade of fear and damage—the Department’s own Inspector General, civil rights and immigration advocates, and the private bar have all recommended that the NSEERS program be terminated.

Senator Durbin on NSEERS, DHS Oversight Hearing and Memo from the Deputy Secretary of Homeland Security

Time: 149:10

Senator Durbin on NSEERS, DHS Oversight Hearing, April 25, 2012http://www.senate.gov/fplayers/jw57/commMP4Player.cfm?fn=judiciary042512&st=1320

NSEERS MEMO

Profiling, as in NYPD Muslim probe, does not improve security

Published: Friday, April 20, 2012, 8:26 AM Updated: Wednesday, April 25, 2012, 1:45 AM
By Star-Ledger Guest Columnist
Getty ImagesDespite the uproar by politicians, most New Jersey voters believe the NYPD was doing "what is necessary to combat terrorism" when officers documented the activity of Muslim residents in the Garden State, a new poll has found.
By Engy Abdelkader
In 2002, our federal government implemented the National Security Entry-Exit Registration System, which required males 17 and older to register with U.S. immigration authorities. The requirement applied only to natives of predominantly Muslim countries.
After reporting to registration, many of the men and boys never returned home. Rather, they were detained and deported, often without any notice to remaining family members in the United States, who were left wondering about their whereabouts.
In response, I organized a human rights monitoring campaign outside of the Immigration and Naturalization Service offices in Manhattan. About 90 Americans volunteered to work three-hour shifts beginning as early as 5 a.m. and ending as late as midnight.
Donning bright yellow shirts with the words "Human Rights Monitor," the volunteers tracked the compliant men who entered and exited the building. In the event someone did not leave, we contacted their family and provided legal and other resources.
One of the things that struck me about the volunteers is that they were, for the most part, not Muslim. In other words, they were not members of the very religious, racial and ethnic groups singled out by NSEERS, which has since been terminated.
As an American and Muslim, that resonated positively with me. And I have carried that experience forward. So I was disappointed to read recently that 70 percent of surveyed New Jerseyans approved of the New York City Police Department’s profiling of the American-Muslim, Arab-American and South Asian communities.
Over six months, the Associated Press has cataloged widespread warrantless surveillance of average, law-abiding American Muslims without any indication of criminal wrongdoing and in violation of the First and Fourth Amendments.
The NYPD has monitored Muslims’ daily life in bookstores, cafes, bars and nightclubs; gathered intelligence on cab drivers and food cart vendors hailing from particular countries and regions; photographed restaurants and grocery stores frequented by Muslims; built databases showing where Muslims shopped, got their hair cut and prayed; and used university records to identify and spy on students.
Studies dating to the 1990s have shown that police officers who engage in profiling were less likely to find contraband in searches of their targets than they were in their searches of whites.
In other words, profiling does not work.
In June 2003, the U.S. Department of Justice issued a policy guidance regarding racial and ethnic profiling by federal law enforcement agencies stating: "Racial profiling in law enforcement is not merely wrong, but also ineffective. The DOJ orders 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.
While law enforcement use of religious profiling became more visible after 9/11, the DOJ guidance remains woefully silent on the subject. Indeed, it should be amended to reflect that the effects of religious profiling are equally as pernicious and ineffective as its racial and ethnic twins.
Existing research highlights this best: Terrorists who claim to be inspired by religion are not likely to be found at mosques, nor do they exhibit signs of devout religiosity. Further, a highly respected social scientist’s review of 500 cases found evidence that "a well-established religious identity actually protects against violent radicalization."
Since the DOJ guidance regulates only federal agencies, Congress should finally pass the End Racial Profiling Act, which prohibits law enforcement agencies from engaging in religious, ethnic and racial profiling.
We need to protect our homeland from those who would harm us, but we can only do that by using lawful policies and tactics that work and preserve who we strive to be. I hope New Jerseyans can see that, just as those 90 human rights volunteers did.
Engy Abdelkader is a legal fellow with the Institute for Social Policy and Understanding, a think tank based in Washington.
http://blog.nj.com/njv_guest_blog/2012/04/profiling_as_in_nypd_muslim_pr.html

Long Time Coming: Trayvon's Law

For the first time in a decade, Congress holds a hearing on anti-profiling legislation
By Jefferson Morley
Source: http://www.salon.com/2012/04/18/long_time_coming_trayvons_law/singleton/

The name of Trayvon Martin was invoked early and often at a Capitol Hill hearing on federal anti-profiling laws Tuesday as supporters hope the furor over the shooting of Florida teenage will prompt Congress take up a legislation that has languished since 2001.
“The senseless death of this innocent young man should be a wake up call,” said Sen. Dick Durbin of Illinois, a co-sponsor of legislation which would expand current federal law enforcement guidelines against profiling and mandate training on racial profiling at all federal law enforcement agencies.
“He was profiled, followed, chased, and murdered,” said Federica Wilson, the cowboy hat-wearing congresswoman from Miami where Trayvon lived with his father. “This case has captured international attention and will go down in history as a textbook example of racial profiling.”
More than 225 organizations submitted testimony for the hearing which included testimony by five Congressmen, civil liberties advocates, and two police officials. Five senators attended, including Lindsey Graham, Republican of South Carolina. Most of the speakers favored the legislation, sponsored by Maryland Democrat Ben Cardin, which would also forbid law enforcement officers from using race, ethnicity or religion as a factor in routine policing decisions.
The profiling issue exploded into national consciousness earlier this year with intense media coverage of the story of the boy who came home from a convenience store with a snack for his brother only be shot dead by a volunteer neighborhood security guard. Last week, Florida investigators concluded that George Zimmerman had “profiled” Martin as he passed through a residential neighborhood in Sanford, Florida on February 26, resulting in an altercation in which Zimmerman shot Martin. Zimmerman has been charged with second-degree murder.
The standing room-only crowd in the Dirksen Senate Office Building demonstrated how the social media campaign to demanding “Justice for Trayvon” had revived the profiling issue in Washington. The last time Congress held hearings on anti-profiling legislation was the summer of 2001, when revelations about the profiling practices of the New Jersey and Maryland state troopers had prompted a broad-based sentiment that using race and ethnicity to make traffic stops was fundamentally wrong and unfair. Profiling is “wrong and we will end it in America,” said President George W. Bush in Feb. 2001.
Then came September 11. Profiling gained legitimacy as a national security tool. The Bush administration explicitly used racial profiling to contact non-citizens from Muslim countries under a program the National Security Entry-Exit Registration System (NSEERS) set up by Kris Kobach, then an attorney in the Bush Justice Department, now an immigration adviser to Mitt Romney. More than 82,000 people from 25 countries, (24 of them predominantly Muslim) were contacted, fingerprinted and interrogated. More than 12,000 were deported. The Bush Justice Department did issue a ban on racial profiling in 2003 but the DOJ guidelines allowed the use of religion and national origin as a law enforcement criteria.
After the failure of Bush and Congress to enact comprehensive immigration reform in 2007, profling Mexicans and Central Americans became more common. With the federal government unable to control the flow of people into the country, Arizona, Alabama, and Georgia passed laws requiring police to check status of anyone for whom there is a “reasonable suspicion” of being undocumented. “There is no way to enforce the laws ‘show me your papers’ provisions without engaging in stereotypes based on race and ethnicity,” Anthony Romero of the ACLU, told the hearing
Yet as profiling has become entrenched in drug enforcement, counterterrorism, and immigration control, said criminologist David Harris, research shows it is an ineffective law enforcement tool. “In many contexts, in many types of police agencies, the results all fall in the same direction: when racial or ethnic profiling is used, police are less likely, not more likely, to catch bad guys,” Harris said.
Ron Davis, police chief in East Palo Alto, California, said his experience as as a cop on the streets confirmed that finding. Admitting that he himself had engaged in profiling, he called profiling “an ineffective tactic that wastes scares law enforcement resources and it harms our relations with communities whose cooperation we need. ”
Davis said passage of S. 1670 would help police nationwide.
“Without the legislation and updated Department of Justice guidance we will continue business as usual and only respond to this issue when it surfaces through high-profile tragedies such as Oscar Grant case in Oakland California and the Trayvon Martin case in Sanford Florida, ” he said.
But the remarks of Frank Gale, a 23 year veteran of the Denver police force and the vice president of the Fraternal Order of Police, illustrated one of the biggest obstacles facing supporters of a profiling ban: police unions.
Calling the bill “highly offensive,” Gale voiced the FOP’s “strong opposition” to S. 1670. The measure, he said, “provides a ‘solution’ to a problem that doe not exist, unless one believes that the problem to be solved is that our nation’s law enforcement officers are racist.”
“We can and must restore the bonds of trust between law enforcement and minorities,” Gale said but argued a profiling ban would only generate more mistrust “because it is written with the presumption that racist tactics are common tool of our nation’s police departments.”
The clashing views of Davis and Gale, two veteran African-American cops, “reflects the complexity of the issue,” Davis told me. For Davis, the profiling ban is simply the implementation of best practices while for Gale it is the institutionalization of second-guessing officers on the street who have to make difficult and dangerous decisions. “We don’t have to be afraid of being held accountable,” Davis said.
Yet the Obama administration seems reluctant to act. Two years ago Attorney General Eric Holder told profiling critics he would review the 2003 DOJ guidelines, and reconsider the use of religion and national origin in national security and immigration enforcement. Holder has yet to act.
Republican support for legislation supported by Muslim-Americans and opposed by police unions seems unlikely, especially in an election year. Lindsey Graham, the only Republican in attendance, voiced general support for the bill while expressing the belief that profiling Muslims might still be necessary in national security investigations. He said he hoped for “something more bipartisan.” (Cardin’s bill currently has 12 co-sponsors, all Democrats. A companion House bill has 52 co-sponsors, all Democrats.)
A true end to profiling will require cultural, as well as political, change. The resonance of the Trayvon Martin story is a sign of cultural change that enhances the legislation’s prospects. But these things can take a long time in Washington. The murders of Matthew Shepard, a gay teenager in Wyoming, and James Byrd, a black man in Texas, in 1998 galvanized a movement to establish a federal hate crime law. But the Sheppard-Byrd Hate Crimes Prevention Act wasn’t enacted until President Obama signed it in 2009.
The time may come for Trayvon’s Law but it probably won’t be this year.

Jefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday).More Jefferson Morley

Webcast: “Ending Racial Profiling in America” Senate Judiciary CommitteeSubcommittee on the Constitution, Civil Rights and Human Rights http://www.judiciary.senate.gov/hearings/hearing.cfm?id=cbe9d491fb674660dfb1774bdef05358