[Reader-list] The FBI'€™s Plan to Profile Muslims

[Paul Miller]

The FBI’s Plan to ‘Profile’ Muslims
by Juan Cole

Published on Thursday, July 10, 2008 by Salon.com
http://www.commondreams.org/archive/2008/07/10/10255/

The U.S. Justice Department is considering a change in
the grounds on which the FBI can investigate citizens
and legal residents of the United States. Till now, DOJ
guidelines have required the FBI to have some evidence
of wrongdoing before it opens an investigation. The
impending new rules, which would be implemented later
this summer, allow bureau agents to establish a
terrorist profile or pattern of behavior and attributes
and, on the basis of that profile, start investigating
an individual or group. Agents would be permitted to
ask "open-ended questions" concerning the activities of
Muslim Americans and Arab-Americans. A person’s travel
and occupation, as well as race or ethnicity, could be
grounds for opening a national security investigation.

The rumored changes have provoked protests from Muslim
American and Arab-American groups. The Council on
American Islamic Relations, among the more effective
lobbies for Muslim Americans’ civil liberties,
immediately denounced the plan, as did James Zogby, the
president of the Arab-American Institute. Said Zogby,
"There are millions of Americans who, under the
reported new parameters, could become subject to
arbitrary and subjective ethnic and religious
profiling." Zogby, who noted that the Bush
administration’s history with profiling is not
reassuring, warned that all Americans would suffer from
a weakening of civil liberties.

In fact, Zogby’s statement only begins to touch on the
many problems with these proposed rules. The new
guidelines would lead to many bogus prosecutions, but
they would also prove counterproductive in the effort
to disrupt real terror plots. And then there’s Attorney
General Michael Mukasey’s rationale for revising the
rules in the first place. "It’s necessary," he
explained in a June news conference, "to put in place
regulations that will allow the FBI to transform itself
as it is transforming itself into an intelligence-
gathering organization." When did Congress, or we as a
nation, have a debate about whether we want to
authorize the establishment of a domestic intelligence
agency? Indeed, late last month Congress signaled its
discomfort with the concept by denying the FBI’s $11
million funding request for its data-mining center.

Establishing a profile that would aid in identifying
suspects is not in and of itself illegal, though the
practice generally makes civil libertarians nervous.
When looking for drug couriers, Drug Enforcement Agency
agents were permitted by the Supreme Court in United
States v. Sokolow (1989) to use indicators such as the
use of an alias, nervous or evasive behavior, cash
payments for tickets, brief trips to major drug-
trafficking cities, type of clothing, and the lack of
checked luggage. This technique, however, specifically
excluded the use of skin color or other racial features
in building the profile.

In contrast, using race and ethnicity as the -- or even
a -- primary factor in deciding whom to stop and
search, despite being widespread among police forces,
is illegal. Just this spring, the Maryland State Police
settled out of court with the ACLU and an African-
American man after having been sued for the practice of
stopping black and Latino men and searching them for
drugs. New Jersey police also got into trouble over
stopping people on the grounds of race.

The New Jersey Supreme Court ruled last year in State
v. Calvin Lee that a defendant’s plausible allegation
that the arrest was initiated primarily because of race
would be grounds for discovery: The defense attorney
could then request relevant documents from the
prosecution that might show discriminatory attitudes
and actions on the part of the police. Because racial
profiling is most often felt by juries to be
inappropriate, its use could backfire on the FBI.
Suspects charged on the basis of an investigation
primarily triggered by their race could end up being
acquitted as victims of government discrimination.

If the aim is to identify al-Qaida operatives or close
sympathizers in the United States, racial profiling is
counterproductive. Such tiny, cultlike terror
organizations are multinational. Richard Reid, the shoe
bomber, is a Briton whose father hailed from Jamaica,
and no racial profile of him would have predicted his
al-Qaida ties. Adam Gadahn, an al-Qaida spokesman, is
from a mixed Jewish and Christian heritage and hails
from suburban Orange County, Calif. When I broached the
topic of FBI profiling to some Muslim American friends
on Facebook, a scientist in San Francisco replied,
"Profiling Muslims or Arabs will just make al-Qaida
look outside Islam for its bombers. There are many
other disgruntled groups aside from those that worship
Allah."

It is a mystery why the Department of Justice has not
learned the lesson that terrorists are best tracked
down through good police work brought to bear on
specific illegal acts, rather than by vast fishing
expeditions. After Sept. 11, the DOJ called thousands
of Muslim men in the United States for what it termed
voluntary interviews. Not a single terrorist was
identified in this manner, though a handful of the
interviewees ended up being deported for minor visa
offenses. Once it became clear that the interviews
might eventuate in arbitrary actions against them, the
willingness of American Muslims to cooperate declined
rapidly, and so the whole operation badly backfired.

The fiasco of the prosecution of the Detroit Four
should also have been instructive. These four Arab men
apparently had the misfortune to be in the wrong place
at the wrong time, having moved into an apartment in
southwest Detroit recently vacated by a man suspected
of al-Qaida ties. The prosecution alleged that innocent
vacation videotapes of places such as Disneyland found
in the apartment were part of a terror plot, and that
vague doodles in a notebook depicted targets abroad
such as a Jordanian hospital and Incirlik Air Force
Base in Turkey. The prosecution relied heavily on an
Arab-American informer who might reduce his own prison
sentence for various acts of criminal fraud if a
conviction were obtained, and whose testimony against
the four suspects evolved dramatically over time. The
initial conviction of two of the men, Karim Koubriti
and Abdel-Ilah Elmardoudi on charges of giving material
support to terrorism, which was hailed as an
achievement by the Bush administration, was overturned
when the prosecution was discovered to have withheld
key exculpatory evidence.

In a startling reversal, two members of the prosecuting
team were tried for criminal misconduct, and although
they were acquitted, their misconduct was not in
question. A Detroit judge even apologized to a third
man, who was held for three and a half years on a minor
fraud charge and then deported. The entire affair
raised questions about whether Muslim-Americans could
hope for justice if for any reason they got
accidentally caught up in the Justice Department’s
frantic search for Muslim terror cells on American soil
(very few have been found). The flimsy case against the
four men would have had no plausibility at all had they
been white upper-middle-class residents of Connecticut.

Not only has the Justice Department engaged in
prosecutorial misconduct with regard to Muslims, but at
least one FBI operation also appears to have involved
actual entrapment. Narseal Batiste, Patrick Abraham,
Burson Augustine, Rothschild Augustine, Stanley Grant
Phanor, Naudimar Herrera and Lyglenson Lemorin were
arrested in June 2006, and accused of being an al-Qaida
cell plotting to blow up the Sears Tower in Chicago.
Batiste, aka Brother Naz or Prince Manna, led a small
cult in a poor neighborhood of Miami called Seas of
David, which was apparently an offshoot of the Moorish
Temple Science, an African-American folk religion. The
cult mixed themes from Judaism, Christianity and Islam
but was not identifiably Muslim. The group met in a
warehouse and talked big.

The FBI put an informant among them who repeatedly
offered them money and equipment for their activities,
some of which he appears to have suggested. Batiste
maintained in the trial that he was just stringing
along the informant in hopes of extracting a promised
$50,000, and that he was insincere in pledging
allegiance to al-Qaida. When the Justice Department
announced the arrest in 2006, the indictment went on
about the belief of the group in jihad, or Muslim holy
war, but it is a little unlikely that these individuals
knew anything about Islam at all. Both attempts to
prosecute them ended in mistrials, primarily because
the FBI could produce no evidence that when they were
arrested they had any weapons or explosives in their
possession. They were full of crazy talk, but even some
of that was suggested to them by the Department of
Justice.

Muslim Americans and Arab-Americans, along with members
of some other ethnic groups, are therefore
understandably alarmed that the Department of Justice
may soon have the tools to bring them under
investigation without any proof of wrongdoing. As CAIR
national legislative director Corey Saylor noted in a
statement, "Any new Justice Department guidelines must
preserve the presumption of innocence that is the basis
of our entire legal system ... Initiating criminal
investigations based on racial or religious profiling
is both unconstitutional and un-American." Muslim
Americans and Arab-Americans have already suffered from
being profiled in a de facto sense. Unsurprisingly, to
have that injustice become policy concerns them. The
protests would be even louder if so many in the
community were not afraid to speak up and draw
attention to themselves, as one of my Muslim American
Facebook correspondents pointed out to me. Another
remarked sadly that not only had George W. Bush not
brought democracy to the Muslim Middle East, but he had
also damaged its prospects in America itself.

-------------
Juan Cole teaches Middle Eastern and South Asian
history at the University of Michigan. His most recent
book Napoleon’s Egypt: Invading the Middle East (New
York: Palgrave Macmillan, 2007) has just been
published. He has appeared widely on television, radio
and on op-ed pages as a commentator on Middle East
affairs, and has a regular column at Salon.com. He has
written, edited, or translated 14 books and has
authored 60 journal articles. His weblog on the
contemporary Middle East is Informed Comment.

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