Discriminatory profiling needs to end at Homeland Security

On his first day in office, President Biden issued an executive order directing federal agencies, including the Department of Homeland Security, to review their policies to ensure that they advance equity for all, including people of color and other historically marginalized groups. And this year he ordered the attorney general and the secretary of homeland security to review the Justice Department’s rules against discriminatory profiling, which are riddled with loopholes, and consider whether they should be updated.

It is equally important to adopt more robust rules at Homeland Security, a sprawling agency whose activities touch on millions of Americans’ lives, often in unseen ways. Two decades since its founding in response to the Sept. 11 attacks, the department still does not forbid its agents from discriminating against Americans based on their religion or country of birth and gives them too much latitude to consider race and ethnicity. Its weak safeguards — and the agency’s failure to police even these lax boundaries — have gained the department a reputation for targeting Muslims as terrorists and Latinos as illegal immigrants.

Secretary Alejandro Mayorkas can fix this. He has already ordered that race, religion, national origin, and other protected characteristics “shall never be factors” in decisions about whom to apprehend or deport. (This directive is being challenged in court for unrelated reasons.) He must now ensure that this principle is applied to the myriad other decisions that the department makes, such as placing someone on a terrorism watchlist, which can trigger immigration, travel, and employment consequences; tagging someone as a security risk, which can impede travel; and collecting intelligence without suspicion of criminal activity, which can encroach on constitutional rights.

The department makes most of these decisions in secret. But the treatment of Muslim travelers provides a glimpse into the weakness of the department’s rules and oversight. At airports across the country, Homeland Security agents have questioned American Muslims about their religious views, asking what mosque they attend, how many times a day they pray, and whether they have friends or relatives “who have been martyred fighting in defense” of their beliefs. Earlier this year, three Muslim Americans sued the department claiming that they had been subjected to unconstitutional questioning from border officers about their faith and were “unfairly targeted and humiliated” based solely on their religious beliefs.

Religion and national origin often overlap. In January 2020, some 200 Iranian and Iranian American travelers entering the U.S. were held for questioning about their “political views and allegiances” — based on the assumption they might be predisposed to retaliate for the U.S. killing of the Iranian general Qasem Soleimani.

As with other forms of profiling, there’s no evidence this approach makes us safer.

The Department of Homeland Security itself has done no studies or even published case studies suggesting that this type of profiling protects the country.

According to one former high-level department official, risk assessments that rely on travel history and demographic factors (for example, national origin or nationality) yield a false positive rate of at least 97 percent. Indeed, the idea that the government can assess the risk posed by an individual based on broad criteria like nationality or religion — which was the essence of President Trump’s 2017 “Muslim ban” — is roundly rejected by national security officials.

And yet discriminatory profiling persists at the Department of Homeland Security. That’s because the department’s own rules essentially allow the practice. The department’s current guidance on discriminatory profiling does not prohibit (or even mention) religious profiling. That’s a striking omission, given its track record of targeting Muslims as potential terrorist threats. The department claims to follow 2014 Justice Department guidelines that do cover religion, but those rules exempt most of the agency’s counterterrorism, screening, and border activities.

The department does better on paper with race and ethnicity, allowing the use of these criteria only “when a compelling governmental interest is present, and only in a way narrowly tailored to meet that compelling interest.” Nevertheless, national security is the “compelling government interest” par excellence. It is all too easy for homeland security officials to take a broad view of what it constitutes. And the department seems to make no effort to keep tabs on these decisions to ensure that its guidance is properly implemented.

The department must replace its current patchwork of gap-riddled policies with a clear and comprehensive set of rules that prohibits discriminatory profiling in all its forms and across all the department’s activities. In a new report, the Brennan Center proposes a policy that would strengthen and broaden the department’s nondiscrimination rules and institute mechanisms to enforce compliance.

Secretary Mayorkas has the authority to adopt such a policy and should do so without delay.

Discriminatory profiling in the name of security is among the toxic legacies of 9/11. It’s wrong. It’s ineffective. It tramples basic rights. And it traumatizes vulnerable communities.

The Biden administration and the Department of Homeland Security have affirmed their commitment to equity and fairness. As the nation marks another 9/11 anniversary, it’s long past time to live up to that commitment.

Faiza Patel is senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.