ACLU Acknowledges Improvements to DOJ Racial Profiling Policy, But Says Far More is Needed
On Anniversary of President Biden’s Policing Executive Order, ACLU Disappointed by Administration’s Failure to Fully Ban Discriminatory Profiling
WASHINGTON — Two years after the murder of George Floyd at the hands of police, President Biden issued an executive order on policing, pledging to make his administration “part of a larger effort to strengthen our democracy and advance the principles of equality and dignity.” Today, on the third anniversary of George Floyd’s murder, the Biden administration has publicly released more than 20 policies, guidelines, and reports implementing this executive order.
As part of the release, the administration announced progress on incentivizing local law enforcement to adopt federal use of force policies that strictly limit dangerous and deadly practices through grant making and accreditation. The administration announced steps agencies have taken to limit the transfer of military equipment to local law enforcement, but more implementation is necessary.
The Department of Justice also revised its racial profiling guidance for federal law enforcement. For decades, communities of color and rights groups like the ACLU have called on the U.S. government to fully ban discriminatory profiling. Unlike previous rules, the new DOJ policy applies to all of the department’s personnel, as well as joint DOJ operations with state and local law enforcement. The policy also:
- Expands anti-bias protections to include disability, but still excludes nationality and sex characteristics.
- Narrows but does not eliminate loopholes treating national security and intelligence operations as zones where discriminatory profiling can occur.
- Gets rid of language from the prior policy that could be read to permit pretextual stops.
Despite improvements, the new policy does not fully ban bias across all national security activities and programs — such as watchlisting, law enforcement pressuring people to become informants, or immigration enforcement — contexts in which the ACLU has repeatedly seen the most harm occur. The ACLU has also called for the Department of Homeland Security to issue a comprehensive and meaningful anti-discrimination policy.
“We welcome the improvements the Justice Department has made, but are disappointed that after so much work and communities’ calls for change, this policy falls short of a full and effective ban on discrimination by federal agencies,” said Hina Shamsi, director of the ACLU’s National Security Project. “We will closely monitor the policy’s implementation as we work to support and defend communities of color and immigrants harmed by pervasive government discrimination. Federal agencies must not treat anyone as suspicious or a threat to any degree based on the religion they practice or the color of their skin.”
Federal use of force policies mandated by the executive order strictly limit the use of chokeholds and deadly force, and create an affirmative duty for officers to intervene and render aid. Because the executive order applies to federal law enforcement, the administration announced the use of federal grant making and accreditation to incentivize law enforcement at all levels to adopt the federal standards.
“We are cautiously optimistic, and are closely watching implementation to make sure the promises made on paper are actualized at all levels of policing — using the carrot and stick of federal power,” said Cynthia W. Roseberry, acting director for the Justice Division at ACLU. “We see room for improvement in implementation, for example, recalling the military equipment already in local law enforcements’ possession and clarifying that grants will be withheld from law enforcement agencies that do not have federal accreditation. Robust alternative responses — separate and apart from police — must be the priority. We hope in the next year there will be more movement to end discriminatory pretextual stops, particularly in traffic enforcement, which the executive order rightly recognizes as a wedge between communities of color and police. The mandate remains to transform policing by reimagining public safety.”
Related Documents
The Biden Administration’s Executive Order on Policing is a Foundation to Build Upon
Two years after the murder of George Floyd, a new executive order on police reform offers a starting place, but does not go far enough.
Source: American Civil Liberties Union
DOJ and DHS Racial Profiling Guidelines Must Close Loopholes Permitting Bias
Glaring loopholes in DOJ’s racial profiling guidance, parts of which are followed by DHS, still permit pervasive discrimination.
Source: Just Security
Learn More About the Issues in This Press Release
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general. -
Press ReleaseNov 2024
National Security
Free Speech
Ahead of House Vote on Bill that Would Stifle Dissent, ACLU Sounds Alarm AgainAhead of House Vote on Bill that Would Stifle Dissent, ACLU Sounds Alarm Again
WASHINGTON — The House of Representatives is set to vote Thursday on the Stop Terror-Financing and Tax Penalties on American Hostages Act, a bill that would give the incoming Trump administration new power to muzzle, punish, and effectively shut down tax-exempt organizations without transparency or appropriate due process. This misguided piece of legislation would impact a wide range of tax-exempt organizations, including nonprofits, universities, and even news outlets. Last week, Congress narrowly blocked the bill based on due process concerns and significant constituent opposition. In just a few days, over 100,000 people sent messages to their members asking them to oppose H.R. 9495. Last week’s vote was brought up under suspension, which requires a two-thirds majority to pass. Tomorrow’s vote will come under regular order and only requires a simple majority. The American Civil Liberties Union led a coalition of over 180 non-profit organizations — including Planned Parenthood, AFL-CIO, United Auto Workers, and the NAACP — in a letter to Congress outlining why this bill is not only dangerous, but unnecessary. The letter also laid out how future administrations could abuse it to lock in power, silence dissent, and go after disfavored groups and vulnerable communities. “Every time we give the president new powers and more authority to act alone, we create an open invitation for abuse by the executive branch,” said Kia Hamadanchy, senior federal policy counsel at ACLU. “While the ACLU would oppose this legislation no matter who the president is, and there is no question it could be weaponized against groups on both ends of the ideological spectrum, the rhetoric we saw on the campaign trail from the president-elect is even more reason for Congress to reject this bill.” H.R. 9495 joins two unrelated measures together: one allowing the Treasury Department to withhold tax-exempt status from any nonprofit it accuses of being a “terrorist-supporting organization” — without being required to disclose the evidence against it — and another, non-controversial measure, which would offer tax relief to Americans imprisoned unjustly abroad. The latter provision already passed the Senate as a stand-alone bill, and as the coalition letter notes, none of the groups oppose these tax-relief provisions. In fact, not a single member of Congress has thus far raised any opposition to these provisions. The fastest way for it to become law is for the House to simply pass the Senate bill.