[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]


 
    RACIAL PROFILING AND THE USE OF SUSPECT CLASSIFICATIONS IN LAW 
                           ENFORCEMENT POLICY

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 17, 2010

                               __________

                           Serial No. 111-131

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 17, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     6

The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     6

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     6

                               WITNESSES

Mr. Hilary O. Shelton, Director, NAACP Washington Bureau
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11

Mr. Christopher Burbank, Chief of Police, Salt Lake City Police 
  Department
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17

Mr. Brian L. Withrow, Ph.D., Associate Professor of Criminal 
  Justice, Texas State University
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23

Ms. Deborah Ramirez, Professor of Law, Northeastern University 
  Law School
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34

Mr. Amardeep Singh, Program Director, Sikh Coalition
  Oral Testimony.................................................    38
  Prepared Statement.............................................    40

Mr. David A. Harris, Professor of Law, University of Pittsburgh 
  School of Law
  Oral Testimony.................................................    52
  Prepared Statement.............................................    54

Ms. Farhana Khera, President and Executive Director, Muslim 
  Advocates
  Oral Testimony.................................................    62
  Prepared Statement.............................................    64

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Ranking Member, Subcommittee on the Constitution, Civil Rights, 
  and Civil Liberties............................................     3

Information submitted by the Honorable Judy Chu, a Representative 
  in Congress from the State of California, Member, Committee on 
  the Judiciary, and Member Subcommittee on the Constitution, 
  Civil Rights, and Civil Liberties..............................    82

                                APPENDIX

Material Submitted for the Hearing Record........................    89


    RACIAL PROFILING AND THE USE OF SUSPECT CLASSIFICATIONS IN LAW 
                           ENFORCEMENT POLICY

                              ----------                              


                        THURSDAY, JUNE 17, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:21 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Scott, Johnson, 
Cohen, Jackson Lee, and Chu.
    Also present: Representative Ellison.
    Staff present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Keenan Keller, Counsel; and (Minority) Paul 
Taylor, Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order.
    I will begin by recognizing myself for an opening 
statement.
    Today's hearing examines racial profiling and the use of 
suspect classifications in law enforcement policy. Racial 
profiling is a problem, not simply because it unfairly targets 
people for different treatment by law enforcement based on the 
immutable characteristics such as race, nationality or 
religion, but because it is bad policing policy. Looking for 
people of a certain race in the hope that this will make it 
easier to find criminals is simply not an effective way to 
identify and apprehend the bad guys and make us all safer.
    It would be nice if all criminals and terrorists walked 
around with the mark of Cain on their foreheads, but the real 
world is not like that. Focusing on people who fit the profile 
of what some believe a criminal would or should look like 
distracts and diverts the attention of law enforcement in ways 
that can prove disastrous to public safety. So, in addition to 
being unfair, profiling does not deliver on its alleged 
benefits.
    What makes the problem of racial profiling more complex and 
requires policymakers to think about it in a more careful and 
sophisticated manner, is that racial profiling cannot simply be 
attributed to a few races abusing their power. They, of course, 
are still with us. But just as it would be easier if every 
crook carried around a sign saying, ``I am a bad guy,'' so, 
too, it would make our jobs a lot easier if every law 
enforcement agent or officer who engaged in the practice looked 
like Bull Connor. But that also is not the case.
    We need to deal with the fact that profiling is not always, 
and not necessarily, a result of racial or religious bigotry. 
It can be the result of poor training, flawed policing methods, 
or simply conventional wisdom, which may not be true, but which 
is commonly held--which is, of course, the definition of 
conventional wisdom.
    This is not to say that bigots have not tried, sometimes 
successfully, to use the public's justifiable fear of crime and 
terrorism to malign entire groups or faiths. Racist demagoguery 
is still with us, and we have an obligation to confront it 
forcefully and effectively.
    The facts, however, clearly belie the assertion that 
profiling is good or effective law enforcement. The view that 
it is appropriate law enforcement to go after certain groups is 
thankfully a marginal one in this day and age.
    Today's hearing will look at all the dimensions of racial 
profiling and examine what actions Congress can take to protect 
individuals from being singled out by law enforcement for 
reasons based on characteristics having nothing to do with 
whether or not they are fairly suspected of committing some 
kind of wrongdoing.
    The solution lies not just in enforcement of rules against 
profiling, but in education and training for our law 
enforcement personnel. Our law enforcement officers deserve our 
support and the tools they need to do their jobs effectively.
    I want to thank the Chairman of the full Committee for his 
efforts over the years and for his continued leadership on this 
very important issue. The effort to eliminate racial profiling 
has never been a partisan one, and I hope that as we move 
forward we can consider solutions to this problem in a 
business-like manner. I look forward to working with the 
Chairman as the Committee moves forward with this very 
important effort.
    I welcome our witnesses, and I look forward to their 
testimony. And I yield back the balance of my time.
    At this point, I would normally say the Chair now 
recognizes the distinguished Ranking Member for an opening 
statement, but he is not feeling well. And so, without 
objection, we will admit his written statement into the record.
    So, the Ranking Member's statement, without objection, will 
be admitted into the record.
    [The prepared statement of Mr. Sensenbrenner follows:]

  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
  Representative in Congress from the State of Wisconsin, and Ranking 
   Member, Subcommittee on the Constitution, Civil Rights, and Civil 
                               Liberties







                               __________

    Mr. Nadler. And we will now recognize the Chairman of the 
full Committee for an opening statement.
    Mr. Conyers. Thank you, Jerrold Nadler, Chairman of 
Constitution.
    Let me yield first to Bobby Scott, the Chairman of the 
current--of the Crime Subcommittee, with whom we have been 
working on this issue across the years.
    Mr. Scott. Well, thank you. Thank you, Mr. Chairman.
    And I thank the Subcommittee Chairman for calling the 
hearing. This is an important hearing.
    And the focus really needs to be on this issue of 
profiling, as to what impact it has on law-abiding citizens and 
the harassment that they get by undeserved attention, and how 
this practice diverts attention and resources of law 
enforcement from those who are, in fact, truly dangerous to 
society, so we have people who are being focused on without any 
reason, and you have law enforcement resources being diverted 
at the same time.
    So, I look forward to the witnesses in addressing those two 
issues, and yield back.
    Mr. Conyers. Thanks, Bobby Scott.
    I would like to just acknowledge Steve Cohen of Memphis, 
Tennessee, who is going to be very important in this. He was a 
state senator for many years in his state prior to coming to 
Congress, as well as an attorney for all these years, as well.
    Mr. Cohen. Thank you, Mr. Chairman. This is an important 
hearing, and I am pleased to participate.
    We filed two bills on this subject: the Justice Integrity 
Act, which calls for a study of racial profiling, groups to 
come together and study the issues and try to come up with 
recommendations on racial profiling; and also a bill that deals 
with Byrne grants, and requiring recipients of Byrne grants to 
do statistical analysis and report back to us. So, there are 
important subjects we need to look into.
    We passed a law like this in Tennessee to have the state 
highway patrol make such reports. And while I think it is 
important to get the reports, I think there is no question that 
the data is already in that there is racial profiling done by 
law enforcement.
    I know that the professor from Texas State--and I was in 
San Marcos this weekend--is not necessarily a proponent of 
this. But the fact is, if you are Hispanic, if you are African 
American, or even if you are a hippie, it is likely you are 
going to get picked up. And those are not the right things, and 
they do not normally find--even find anything.
    So, the statistics show it is a waste of law enforcement 
time, when they could be getting out and getting some real 
people that they ought to be getting and spend their time on 
the real criminals.
    So, I thank the Chairman for recognizing me, the Chairman 
of the Subcommittee for the hearing, and all of our panelists, 
too. Thank you.
    Mr. Conyers. Thank you.
    Chairman Nadler and I were working on the traffic stops act 
in 1997--that is driving while Black. And it passed the House; 
it did not pass the Senate. And we have had two things that 
have put emphasis on the nature of the discussion that we have 
before us with these seven distinguished witnesses.
    One was Henry Louis Gates, the professor that was arrested 
for I do not know what, suspicion of what the actual facts were 
there. But it highlighted the issue that we are examining 
today.
    The other, of course, was the Arizona law that has really 
made us think about this issue along the lines of the 
introductory remarks of Chairman Nadler.
    We are trying to limit profiling. And it makes an 
interesting case. We have law enforcement people here. And it 
is one thing to have a suspicion. It is another thing to be 
racially profiling, because you look like an Arab, you look 
like an African American.
    And I think that distinction is going to come out of this 
discussion. So, I think we are on the verge of moving past what 
we did in 1997, 1998.
    And I welcome the fact that you have called this hearing 
today. Thank you very much.
    Mr. Nadler. I thank the gentleman.
    In the interest of proceeding to our witnesses, and mindful 
of our busy schedules, I ask that other Members submit their 
opening statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. 
Without objection, the Chair will be authorized to declare a 
recess of the hearing, which hopefully will not be necessary.
    We will now turn to our panel of witnesses. And our first 
witness is--I will introduce them--Hilary Shelton is the vice 
president for advocacy and director of the NAACP's Washington 
bureau. He previously worked as the Federal liaison and 
assistant director for the Government Affairs Department for 
the United Negro College Fund. Mr. Shelton received his B.A. 
from Howard University and M.A. degree from the University of 
Missouri in St. Louis.
    Christopher Burbank is the chief of police of the Salt Lake 
City Police Department and has worked for the department since 
1991. During the 2002 Salt Lake City Winter Olympic Games, 
Chief Burbank also served as the liaison with U.S. Secret 
Service. He is a graduate of the University of Utah and the 
FBI's National Executive Institute.
    Brian Withrow is an associate professor of criminal justice 
at Texas State University San Marcos. He served one term as 
mayor of Bel Aire, Kansas, and worked for the Texas Department 
of Public Safety. Professor Withrow earned his B.A. from 
Stephen Austin State University, his M.P.A. from Southwest 
Texas State University, and his Ph.D. from Sam Houston State 
University.
    Deborah Ramirez is a professor of law at Northeastern 
University Law School. She is the founder of the Partnering for 
Prevention and Community Safety Initiative and has been a 
consultant to the Department of Justice on racial profiling 
issues. Professor Ramirez received her B.A. from Northwestern 
University and her J.D. from Harvard Law School.
    Amardeep Singh is the co-founder and program director of 
the Sikh Coalition, the Nation's largest Sikh American civil 
rights organization. In that role, Mr. Singh has represented 
dozens of Sikh victims of airport profiling, employment 
discrimination and hate crimes, and has helped shape guidelines 
governing the searches of Sikh passengers in U.S. airports.
    David Harris is the distinguished faculty scholar at the 
University of Pittsburgh School of Law. He served as a member 
of the Civil Liberties Advisory Board to the White House 
Commission on Aviation Safety and Security. Professor Harris 
received a B.A. from Northwestern University and a J.D. from 
Yale Law School.
    Farhana Khera is the president and executive director of 
Muslim Advocates. Ms. Khera was counsel to the U.S. Senate 
Judiciary Committee, Subcommittee on the Constitution, where 
she advised Senator Russ Feingold on civil rights and civil 
liberties. Ms. Khera received her B.A. from Wellesley College 
and her J.D. from Cornell Law School.
    I am pleased to welcome all of you. Your written statements 
will be made part of the record in its entirety. I would ask 
each of you to summarize your testimony in 5 minutes. To help 
you stay within that time, there is a timing light at your 
table. When 1 minute remains, the light will switch from green 
to yellow, and then red when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    Let the record reflect that the witnesses answered in the 
affirmative. You may be seated, all of you.
    And our first witness is Mr. Shelton. And I recognize Mr. 
Shelton for 5 minutes.

           TESTIMONY OF HILARY O. SHELTON, DIRECTOR, 
                    NAACP WASHINGTON BUREAU

    Mr. Shelton. Thank you, and good afternoon, Chairman 
Nadler, Ranking Member Sensenbrenner, Congressmen Scott, 
Johnson, Cohen and Members of the Subcommittee. Thank you so 
much for calling this important hearing and for asking me here 
today to share with you the NAACP's position on this crucial 
matter.
    Let me also offer a special word of thanks to Chairman 
Conyers for his leadership on this issue over the years.
    The NAACP currently has a membership unit in every state in 
the country, and I would wager that every NAACP unit has 
received numerous complaints of racial profiling.
    For the record and to avoid confusion, the operational 
definition of the term ``racial profiling'' means the practice 
of a law enforcement agent or agency relying to any degree on 
race, ethnicity, national origin or religion in selecting which 
individuals to subject to routine or spontaneous investigatory 
activities or in deciding upon the scope and substance of law 
enforcement activities following the initial investigatory 
procedure.
    Sadly, racial profiling is being used, even today, at all 
levels of law enforcement. Local, state and Federal agents have 
been shown to use racial profiling, a misdirected tool for 
policing. The fact that racial profiling is still a common 
tactic among so many law enforcement agents is, frankly, 
startling, given that this has been proven to be an 
inefficient, ineffective, offensive and counter-productive 
tool.
    It also, sadly, undercuts our community's trust and faith 
in the integrity of the American judicial system. When one 
cannot drive down an interstate, walk down the street or even 
enter into our own homes without being detained for questioning 
by law enforcement agents merely because of physical 
characteristics such as the color of one's skin, there is 
indeed a big problem.
    As a result of profiling practices, it becomes much harder 
for law enforcement--even those who do not engage in racial 
profiling--to do their jobs to prevent, investigate, prosecute 
or solve crimes.
    Evidence to support the prevalence of racial profiling by 
law enforcement officials is as voluminous as it is varied. 
According to a 2004 report by Amnesty International USA, 
approximately 32 million Americans--a number equivalent to the 
population of Canada--report that they have already been 
victims of racial profiling. And according to the Northeastern 
University Racial Profiling Data Collection Resource Center, 
there is an ongoing litigation involved in racial profiling in 
33 out of 50 states. And we will hear more about that when 
Professor Ramirez speaks.
    Furthermore, people speaking out against racial profiling 
from both political parties include former President Bill 
Clinton, who called racial profiling a ``morally indefensible, 
deeply corrosive practice,'' and further stated that ``racial 
profiling is in fact the opposite of good police work, where 
actions are based on hard facts, not stereotypes. It is wrong, 
it is destructive, and it must stop.''
    And George W. Bush, who on February 27, 2001, said that 
racial profiling is ``wrong, and we will end it in America. In 
so doing, we will not hinder the work of our Nation's brave 
police officers. They protect us every day--often at great 
risk. But by stopping the abuses of a few, we will add to the 
public confidence our police officers earn and deserve.''
    Since coming to the NAACP almost 14 years ago, I have had 
the honor of working with coalition partners, Members of 
Congress, varied Administration officials from both political 
parties, and folks on the street, to try to develop an 
effective approach to end racial profiling. There are a few 
steps that need to be taken at the Federal level to end racial 
profiling once and for all.
    First, we need a clear definition of racial profiling, an 
unequivocal ban on its use by all law enforcement officials.
    Secondly, we need data collection to truly assess the 
extent of the problem. In simple terms, our mantra must be, 
``in order to fix this problem, we must first measure it.''
    The only way to move the discussion about racial profiling 
from rhetoric and accusation to a more rational dialogue and 
appropriate enforcement strategies is to collect the data that 
will either allay community concerns about the activities of 
the police or help communities address the scope and magnitude 
of this problem. Furthermore, implementing a data collection 
system sends a clear message to law enforcement, as well as the 
larger communities they serve, that racial profiling is 
inconsistent with effective policing and equal protection.
    Data collection also informs the third element of an 
effective racial profiling agenda, which is effective training. 
Law enforcement officials at all levels--from the cop on the 
beat, to the state police, to the Federal agent--should all be 
required to not only identify racial profiling, but also to put 
an end to it while increasing their effectiveness in serving 
and protecting our communities and our Nation.
    Fourth, and last, is, an effective and aggressive anti-
racial profiling agenda must enable citizens and the government 
alike to hold law enforcement agencies that continue to use 
racial profiling accountable--not to be applied in a ``gotcha'' 
dynamic, but in informed law enforcement administrators as a 
tool to improve their effectiveness. In order for anti-racial 
profiling actions to be effective and to rebuild the trust 
between law enforcement and the communities that they are 
charged with protecting, people must know that we are serious 
about eliminating this scourge.
    Mr. Chairman, the vast majority of law enforcement officers 
are hard-working, courageous men and women whose concern for 
the safety of those that they have been charged with protecting 
is paramount--even when their own safety is, quite frankly, put 
on the line. In many cases, law enforcement officials are 
racial and ethnic minorities themselves, concerned about what 
happens when they, too, are out of uniform while traveling our 
Nation's highways, byways and walkways.
    All will acknowledge that law enforcement agents should not 
endorse or act upon stereotypes, attitudes or beliefs that a 
person's race, ethnicity, appearance or national origin 
increases that person's general propensity to act unlawfully. 
The concept that we must somehow choose between public safety 
and the protection of our civil rights and civil liberties is 
misguided, at best, and woefully unconstitutional. Ending this 
deplorable practice of racial profiling is an effective and 
principled way forward.
    I want to thank you again for the opportunity to be with 
you today, and I look forward to our questions and 
conversation.
    [The prepared statement of Mr. Shelton follows:]

                Prepared Statement of Hilary O. Shelton









                               __________

    Mr. Nadler. I thank you.
    We will now recognize Chief Burbank for 5 minutes.

 TESTIMONY OF CHRISTOPHER BURBANK, CHIEF OF POLICE, SALT LAKE 
                     CITY POLICE DEPARTMENT

    Chief Burbank. Thank you very much. It is an honor to be 
here.
    The essential duty of modern law enforcement is to protect 
the civil rights of individuals, while providing for the safety 
of all members of the communities we serve--equally, without 
bias. Anti-immigration fervor, manifesting itself in the form 
of controversial laws in states throughout the Nation, 
jeopardizes this fundamental tenet and the principles upon 
which we base our profession.
    Requiring local police agencies to enforce Federal 
immigration laws is contrary to our mission, marginalizes 
significant segments of the population, and ultimately harms 
effective community policing. We function best when we are a 
part of, not apart from, the community.
    Police officers should enforce and uphold the law 
regardless of race, ethnicity, gender, religion or sexual 
orientation. The ideal that all people are created equal with 
certain unalienable rights is the basis upon which the United 
States of America was founded. However, we have labored with 
this notion from its inception over 230 years ago.
    Unfortunately, law enforcement has been an effective tool 
of oppression throughout the history of our Nation. Biased laws 
and practices have forced officers to engage in institutional 
racism. It was barely a generation ago that law enforcement was 
charged with keeping water fountains separate and high schools 
racially segregated. We are still struggling to repair the 
mistrust and resentment that many communities continue to feel.
    By increasing our civil immigration role, law enforcement 
is placed in the untenable position of potentially engaging in 
unconstitutional racial profiling, while attempting to maintain 
the trust within the communities we protect. Officers are 
forced to detain and question individuals for looking or 
speaking differently from the majority, not for their criminal 
behavior.
    In Salt Lake City, approximately one-third of the 
population is Latino and subject to inappropriate police 
scrutiny. Often unrecognized in the immigration debate is the 
efficacy of enforcement and the adverse impact upon all 
individuals of color. How is a police officer to determine 
status without detaining and questioning anyone who speaks, 
looks or acts as if they might be from another nation?
    The process moves us frighteningly close to regulations 
restricting free movement inside the country and mandating 
identification or citizenship papers for all people. Can you 
imagine a procedure similar to that of boarding an airplane to 
cross the borders of states within the union?
    The strongest proponents of immigration enforcement are on 
record as saying Hispanics commit crime at a higher rate than 
other racial groups. There is no statistical support for this 
racist rhetoric. In fact, cities throughout the Nation have 
experienced dramatic reductions in crime across all categories, 
especially violent crime.
    Salt Lake City had a record low four homicides in 2009. 
This is incongruent with the proponents' claims that illegal 
immigrants are flooding to Utah and that they are responsible 
for committing the majority of violent crime.
    Recently, a Utah state representative publicly stated that 
a lack of proficiency with the English language amounted to 
reasonable suspicion to stop and detain an individual. Limited 
language skills are not indicative of criminal behavior. We are 
proud of the large number of immigrants living in the City of 
Salt Lake, many of which are of Hispanic origin and speak 
Spanish as their primary language.
    We also have immigrant residents from numerous other 
nations of the world. All are vital members of our community. 
We strive to provide those with limited English proficiency the 
same professional, quality police service as those who speak 
perfect English.
    Requiring law enforcement agencies to engage in civil 
immigration activities diverts critical resources away from our 
central responsibilities during a time of budget cuts and 
staffing shortages. Currently, the Salt Lake County adult 
detention facility releases, on average, 900 criminal violators 
monthly due to overcrowding. Detainees held for reasons of 
civil immigration status alone will necessitate the release of 
an even larger number of criminals into our neighborhoods.
    I firmly believe that we, as administrators and stewards of 
public trust, must have our voices heard. Dr. Martin Luther 
King, Jr., taught of social responsibility, ``History will have 
to record that the greatest tragedy of this period of social 
transition was not the vitriolic and the violent agents of the 
bad people, but the appalling silence and indifference of the 
good. Our generation will have to repent not only for the words 
and actions of the children of darkness, but also for the fears 
and apathy of the children of light.''
    In conclusion, I recently attended the funeral services for 
Sergeant Franco Aguilar of the Sevier County, Utah, sheriff's 
office--the son of an immigrant family who lost his life in the 
performance of his duty. He was an individual, representative 
of so many that we employ, willing to sacrifice his personal 
safety and the well-being of his family to serve each of us.
    I shudder to think that the children of this hero of the 
state of Utah might one day be inappropriately detained and 
questioned because of their ethnicity or the color of their 
skin. While all of us are entitled to freedom from persecution, 
I believe this family has earned it.
    Thank you.
    [The prepared statement of Chief Burbank follows:]

               Prepared Statement of Christopher Burbank











                               __________

    Mr. Nadler. Thank you.
    We will now hear from--I will now recognize Professor 
Withrow for 5 minutes.

 TESTIMONY OF BRIAN L. WITHROW, Ph.D., ASSOCIATE PROFESSOR OF 
            CRIMINAL JUSTICE, TEXAS STATE UNIVERSITY

    Mr. Withrow. Thank you, Chairman Nadler and Ranking Member 
Sensenbrenner and Members of the Subcommittee. I am honored to 
be here today.
    During the past 15 years, I have been involved in the 
racial profiling controversy in a number of ways. As a scholar, 
I conduct a great deal of research into this area and publish 
books and articles like many of the men and women that are here 
with us today. And also as a consultant, I work with police 
departments who are struggling with this issue all over the 
country. I work with departments very large, and some very 
small, and even a few from overseas.
    During this time, I have seen this controversy grow from an 
accusation following a routine traffic stop to an allegation in 
an airport, and now to a prediction on what might happen in a 
state that is somewhat committed to unilaterally enforcing 
Federal immigration laws.
    I am a participant in this controversy, but I am not a 
pundit. I am interested in this issue and recognize it as its 
importance to American policing, but I am not at all 
ideological about it.
    It is an important issue. It faces the policing community 
in a severe manner.
    But despite my experience in a previous life as a police 
officer, I approached the controversy and the research without 
a preconceived notion or assumption. The results are what they 
are. And it is an important part that we ask questions.
    One of the questions that we have today, as I understand, 
is to what extent should race or ethnicity influence decisions 
made by criminal justice actors? The answer lies on a 
continuum. At one extreme, race is an identifier; at the other, 
race is an indicator.
    As an identifier, race and ethnicity are indispensible. 
Along with other physical, behavioral and demographic features, 
information about an individual's race or ethnicity--or, as it 
often is viewed, skin color--is often essential for accurate 
identification--for good reason. Racial and ethnic information 
are often included in published descriptions of criminal 
suspects, missing persons and potential witnesses. Such 
information about known or suspected individuals enables police 
officers to be more efficient and to be more accurate.
    On the other side of that continuum is race as an 
indicator. Race and ethnicity as indicator are, at best, a 
distraction. There is no evidence at all--none at all--in the 
literature that race and ethnicity play any role in criminal 
propensity. The use of race and ethnicity in suspect 
classifications and profiles is far more than 
counterproductive; it is insidious.
    Spectators of the racial profiling controversy point to 
arrests, convictions, incarceration rates as evidence that 
racial and ethnic minorities are more likely to be involved in 
serious criminal activity. And while these statistics are 
generally true, that racial and ethnic minorities are over-
represented in arrests, convictions and incarcerations, there 
is scant evidence--none at all, actually--that they are 
necessarily more likely to be involved in criminal behavior.
    So, as an identifier, race and ethnicity are helpful. As an 
indicator, they are illegal.
    Let me finish by saying that in the history of American 
policing, we have dealt--the industry of policing has dealt 
with some very serious issues. High-speed vehicular chases, 
civil rights issues--a lot of challenges have faced the 
profession over the last 100 years or so. And there are three 
things that we always turn back to that make a difference in 
whether or not the problem was solved.
    The first thing is we measure it. We find out where it is, 
what is happening, what are the dynamics of it, where it is 
located and who is doing it.
    The second thing we do is attention. High-speed chase is an 
example. In many communities in this country, if a police 
officer engaged in a high-speed chase, they must have 
permission before they begin that process, and they must 
regularly engage in a review of that high-speed chase while it 
is going on in order to make sure that it is valid.
    So, we measure, we are attentive to it, and we train it.
    It is important that we understand as police officers how 
our behavior is perceived by others, and that makes a 
difference in the outcome of things.
    Again, I appreciate the opportunity to be here today and, 
certainly, at the appropriate time will be happy to answer any 
questions. Thank you.
    [The prepared statement of Mr. Withrow follows:]

                 Prepared Statement of Brian L. Withrow















                               ATTACHMENT




                               __________

    Mr. Nadler. Thank you.
    I will now recognize Professor Ramirez for 5 minutes.

 TESTIMONY OF DEBORAH RAMIREZ, PROFESSOR OF LAW, NORTHEASTERN 
                     UNIVERSITY LAW SCHOOL

    Ms. Ramirez. Thank you, Chairman Nadler, Representative 
Conyers and esteemed Members of this Subcommittee, for giving 
me this opportunity this afternoon to testify.
    I would like to share with you some of the lessons that I 
have learned over the past 10 years in working on racial 
profiling issues. And I am going to speak first about racial 
profiling in the context of national security.
    The first and most important lesson that I have learned is 
this. Racial profiling is not an effective component of a 
counter-terrorism strategy. It is a sloppy and lazy substitute 
for the kind of strategic and intelligent law enforcement that 
we need to keep our homeland safe. And while it may be tempting 
to target Arabs and Muslims, using race, religion or ethnicity 
as a proxy for involvement in crime is both too broad and too 
narrow.
    It is too broad, because the vast majority of Arabs in this 
world are non-violent, law-abiding people, not dangerous 
terrorists.
    And it is too narrow, because there is no such thing as a 
``Middle Eastern look.'' Arabs come in all colors and sizes, 
and numerous Americans who trace their heritage to Mexico, 
Spain, Greece, India, Italy all share a ``Middle Eastern 
look.''
    Moreover, most of the accused terrorists are not Arab. They 
are John Walker Lind, a White American; Zacarias Moussaouri, an 
African with a French passport; Richard Reid, a half-West 
Indian, half-Englishman with a British passport; Jose Padilla, 
Latino; David Hicks, Australian; and Colleen LaRose, also known 
by most of us as Jihad Jane, a blond, middle-aged, White 
American; and Daniel Patrick Boyd, a middle-aged, White 
American male from North Carolina.
    All of these people accused of terrorism do share one 
characteristic. They are Muslim. But Muslims are 20 percent of 
the world's population and can be of any nationality or origin, 
including African and Asian. Moreover, adding Muslims would now 
broaden the profile to the point of uselessness, because it 
creates an array of characteristics too widely shared to be 
meaningful.
    Second, I have learned that whenever we profile terrorists 
or criminals, they are going to respond by modifying their 
behavior and recruitment practices. If we target Middle 
Eastern-looking males, they will respond with someone like 
Jihad Jane.
    The second lesson I have learned is this, and I learned 
this from counter-terrorism agents. They tell me the key to 
effective counter-terrorism is information. And much of the 
information they need to thwart terrorism, especially home-
grown terrorism and radicalization, resides within the Arab, 
Muslim and Sikh communities. When law enforcement officers 
partner with these communities, the communities are more likely 
to share information with them about suspicious behavior or 
newcomers.
    We know that potential terrorists often try to evade law 
enforcement by exploiting the cultural and linguistic 
characteristics they share with these communities. By working 
with law enforcement to make their communities immune from 
terrorism, they can become a critical component of a national 
deterrence strategy. This approach not only produces stronger 
community relationships, it also results in more effective 
counter-terrorism.
    The third, very important lesson I have learned is this. We 
cannot indiscriminately target, arrest, profile, detain, 
fingerprint and harass this community in the morning and then 
ask them to partner with us to thwart terrorism in the 
afternoon. If we need community tips to thwart terrorism--and 
we do--particularly home-grown terrorism, then we cannot 
continue to engage in racial profiling, a practice which 
alienates and angers the communities.
    The fourth lesson I have learned is that truly smart 
policing involves the strategic and intelligent use of 
information to target individuals based on their behavior. 
Successful behavioral assessment systems have been developed 
and used in a variety of settings.
    The fifth lesson I have learned is this. To prevent 
profiling, you need to collect data on the race and ethnicity 
of those stopped and searched. I urge this Committee to support 
Federal legislation that would require law enforcement agencies 
to collect data on the stops and the seizures they conduct. 
This would allow agencies and officials to monitor their own 
conduct and evaluate whether a department, or officers within 
it, are engaged in profiling. Why? Because we cannot possibly 
manage what we do not measure.
    And the final lesson I have learned is that effective 
community-oriented policing and data collection efforts need to 
have a proper infrastructure to succeed. Thus, we need 
congressional funding for an academic center to guide and 
implement these ideas that will improve the quality of policing 
in this country.
    Thank you. I welcome your comments.
    [The prepared statement of Ms. Ramirez follows:]

                 Prepared Statement of Deborah Ramirez









                               __________

    Mr. Nadler. Thank you.
    I will now recognize Mr. Singh for 5 minutes.

 TESTIMONY OF AMARDEEP SINGH, PROGRAM DIRECTOR, SIKH COALITION

    Mr. Singh. I would like to wholeheartedly thank the 
leadership of this Committee, Chairman Conyers and Chairman 
Nadler, and the Members of this Committee, for the opportunity 
to appear before you today.
    The topic we discuss today has vital implications for the 
safety of all Americans and our freedom as Americans. To be 
direct, my humble submission today is that the use by law 
enforcement of classifications based on race, national origin, 
religion or ethnicity has severely undermined both our liberty 
and our safety. As the experience of the Sikh American 
community makes clear, profiling is invariably inaccurate, 
inevitably misused and ultimately detrimental to the important 
work of our men and women in uniform.
    In short, we profile, we lose.
    By way of background, I am the co-founder and director of 
programs at the Sikh Coalition. The Sikh Coalition was founded 
on 9/11 in the wake of the ugly torrent of hate crimes and 
misguided discrimination against our community. I say Sikh 
Americans have endured misguided discrimination, because our 
community has had no association whatsoever with the people and 
the organization that attacked our country on 9/11.
    Yet, since 9/11, hundreds of thousands, if not millions, of 
Sikhs have endured enhanced screening at airports across 
America. These screenings occur after a Sikh has already 
successfully passed through a metal detector. They are 
conducted in full public view, usually in a segregated glass 
box. It involves a public pat-down of a Sikh's turban, and at 
times even its removal.
    One Sikh who was affected by this enhanced screening is 
Narinder Singh, a member of the Sikh Coalition's board of 
directors. Narinder was born and raised in Cincinnati, Ohio. He 
is a Wharton School of Business MBA who co-founded a technology 
company in the Silicon Valley which employs hundreds of 
Americans. His wife is a doctoral student at Harvard. He is 
also a frequent air traveler. He has flown this year over 30 
times alone for business.
    By his estimate, he has been pulled aside for enhanced 
screening more than 27 times. Amazingly, the TSA expends time 
and effort on these screenings of Sikhs, even though there are 
no Sikhs who are considered a threat to the security of the 
United States. Rather than better focus our efforts, the Sikh 
Coalition has found that at some airports, Sikhs are pulled 
aside for extra screening 100 percent of the time.
    Yet, experience tells us that there is no reliable profile 
of a terrorist who would do our country harm. Consider the 
picture that I have put up there for your consideration and in 
my testimony. With the exception of the Sikh gentleman who is 
pictured, all four of the other people have either completed or 
have been accused of engaging in terrorism against the United 
States in the past 2 months.
    The Sikh picture here is an enlisted officer in the United 
States Army. Sadly, none of this matters to the TSA officers 
who have subjected this Sikh Army officer and patriot to 
multiple enhanced screenings across the country. Perhaps this 
is why NYPD Police Commissioner Ray Kelly; former Department of 
Homeland Security secretary, Michael Chertoff; former director 
of the CIA, General Michael Hayden; and the chief of security 
for Ben Gurion Airport in Tel Aviv, Israel, have all declared 
profiling to be ineffective and even dangerous to the security 
of our country.
    Yet despite these declarations, profiling occurs rampantly, 
as the Sikh experience demonstrates. Unfortunately, like many 
law enforcement officers, TSA officers have extremely wide 
discretion to pull aside whoever they choose, with little to no 
oversight and accountability. Should it surprise us then that 
from February 2003 to September 2003, Nathaniel Heatwole, a 
White college student, was able to smuggle box cutters, 
matches, bleach and razor blades onto planes in the United 
States.
    This is what happens when we lose our focus on behaviors 
and instead focus on external appearances. We profile, we lose. 
We are tired of hearing from law enforcement that profiling is 
ineffective, while their officers often engage in profiling 
every day. This double-speak needs to end.
    What is necessary to combat profiling is an effective law 
that allows for two simple yet powerful means of addressing 
profiling directly: one, a system of data collection that 
provides the public with insight into who is being stopped and 
whether the stop yields an arrest; and two, an individual right 
of action in a court of law to bring claims of profiling. 
Without these protections we end up with what is effectively 
collective punishment for minority communities in the United 
States.
    What do I mean by collective punishment? Consider the 
picture to my left. This is a picture of my 18-month-old son, 
Azaad. His name means ``freedom.'' He is a third generation of 
Americans in our family.
    This past April, my family and I were coming back to the 
United States from a family vacation. At Fort Lauderdale 
Airport, not only was I subjected to extra screening, but so 
was my son. I was sadly forced to take my son Azaad into the 
infamous glass box so that he could be patted down. He cried 
while I held him.
    He did not know who that stranger was who patted him down. 
His bag was also thoroughly searched. His Elmo book number one 
was searched. His Elmo book number two was searched. His mini-
mail truck that he loves was searched.
    The time spent waiting for me to grab him as he ran through 
the glass box was wasted time. The time going through his baby 
books was wasted time.
    I am not sure what I am going to tell him when he is old 
enough and asks why his father and his grandfather and soon 
him--Americans all three--are constantly stopped by the TSA 100 
percent of the time at some airports.
    It is not fair. It is not safe. It is not American. There 
is something wrong with a system that will allow a Sikh baby 
and his bag to be searched for 15 minutes, but allows Nathaniel 
Heatwole to pass through security six separate times with box 
cutters and dangerous liquids.
    This Subcommittee and this Congress has the power to stop 
this Groundhog's Day dynamic of profiling by enacting landmark 
legislation to address this. In the process, we will make 
America not only safer, but better.
    I thank you for your time and consideration.
    [The prepared statement of Mr. Singh follows:]

                  Prepared Statement of Amardeep Singh

























                               __________

    Mr. Nadler. Thank you.
    And I now recognize Professor Harris.

 TESTIMONY OF DAVID A. HARRIS, PROFESSOR OF LAW, UNIVERSITY OF 
                    PITTSBURGH SCHOOL OF LAW

    Mr. Harris. Good afternoon, Chairman Nadler, Chairman 
Conyers, Members of the Subcommittee. It is a great honor for 
me to be here to speak with you today.
    We have to end racial profiling in this country, because 
doing so will help us create a sustained public safety gain and 
at the same time protect the civil rights of all the people in 
this country.
    Now, some people will tell you that those two things do not 
go together, that one must trade civil rights for safety. That 
is wrong. That is not the American way. And it is not correct 
on any dimension.
    We talk about racial profiling. We have had a number of 
definitions today. Mine is this: Racial profiling is the use of 
race or ethnic appearance as one factor among others--not the 
only factor, but one factor among others--in deciding who to 
stop, search, frisk or question.
    Now, the reason that some proponents of this practice think 
this is a good idea, they think it will give police a boost. 
They think it will give them an edge. They think that it will 
target the ``right'' people, because, after all, we know who 
the criminals are. We know who the terrorists are, what they 
look like, what demographic groups they come from. And 
therefore, it gives them a way to target the right people.
    Therefore, that will make our police and our national 
security efforts much more effective. We will hit more often. 
We will find more drugs and more guns.
    But the data across the country--different departments, 
different studies--the data is quite clear; that is incorrect.
    When race or ethnic appearance are used as one factor among 
others in deciding who to stop, frisk, search, or whatever, 
when that is done, the rate of hits, the rate of success for 
police goes down. It does not go up. It does not even stay the 
same. It goes down. It drops off, and measurably so.
    Why is this? It goes back to one of the comments from 
another member of the panel.
    If you want to find people who are busy committing, or 
might commit serious crime or terrorism, you want to know who 
is in the car with the drug load, or who has got the weapon in 
the airport, the only thing that predicts that is behavior. 
Behavior is what the police and the security services must 
focus on like a laser beam. Anything that takes their attention 
off of that is a net loss.
    Now, they may still look at behavior as they pay attention 
to race, but race is, as Professor Withrow said, a distracter. 
You want to describe a person who has been seen by a witness, 
great. Race is a good way to describe somebody. It does not 
predict anything worthwhile.
    Now, what are the public safety implications of this? 
Number one, if we can move our police departments away from 
profiling race and ethnicity and toward things like behavior 
profiling, like using intelligence and information in a smart 
way, like community policing, we will increase public safety.
    So, this is not simply a matter of being nice to people. 
This is about everybody's public safety from crime and 
terrorism.
    Number two, return to the idea of community policing--words 
that get said in every city and town around the country--
central principle of community policing. The central principle 
is that communities and police work together as partners, as 
Professor Ramirez said. That is it. That is ground zero for 
that tactic, and it has been incredibly successful across the 
country.
    Now, if you want to have a partnership, you have to trust 
each other. And if you trust each other, you exchange 
information. The community can give police information, can 
give anti-terrorism forces information. This is exactly what 
happened in Lackawanna, New York. That is the way that case was 
broken.
    If, on the other hand, you put the focus on the community 
by using profiling, if everybody is a suspect, what will happen 
is that trust will be replaced by fear. And fear cuts off 
communication. No communication, no information, less 
successful law enforcement, less public safety.
    Now, what is the part of civil rights enforcement in this 
whole scheme of things? There is no reason that we should have 
to give up or be told that we need to give up our civil rights 
in order to have public safety.
    National legislation is needed on this to increase public 
safety, and because not all states or all police departments 
have come to grips with this, frankly. And plenty of Americans 
are living in towns and in states that do not have effective 
anti-profiling laws or anti-profiling policies.
    On top of that, the United States Supreme Court has behind 
it two decades of decisions which vastly increased the 
discretion of police as far as drivers of vehicles, passengers 
in vehicles, pedestrians--police have vast discretion in 
situations like this.
    Now, there is nothing wrong with our police officers having 
discretion. They have to have it. We want them to have it, but 
we want them to use it fairly.
    And the lesson of the last 20 years is, when discretion is 
wide open, as the Supreme Court has charted the course for, you 
get profiling--not in every police department and not every 
police officer, but some places you get profiling. So, national 
legislation is necessary on this.
    Its time has come, and it is a great honor to talk to you 
about it today. I look forward to your questions. Thank you.
    [The prepared statement of Mr. Harris follows:]

                 Prepared Statement of David A. Harris

















                               __________

    Mr. Nadler. Thank you.
    And finally, I recognize Ms. Khera for 5 minutes.

 TESTIMONY OF FARHANA KHERA, PRESIDENT AND EXECUTIVE DIRECTOR, 
                        MUSLIM ADVOCATES

    Ms. Khera. Thank you. Mr. Nadler and Members of the 
Committee, good afternoon.
    I appreciate this opportunity to testify on a very 
important topic of racial and religious profiling. I will focus 
my comments on FBI and Customs and Border Protection activities 
that target American Muslims.
    As we heard Chief Burbank testify, law enforcement has a 
solemn duty to not only protect the American people, but to do 
so consistent with the rights and protections guaranteed by the 
Constitution for all Americans regardless of race, ethnicity or 
religion, and Congress must ensure that they do so.
    American Muslims today, however, face less than equal 
treatment by Federal law enforcement in our everyday lives when 
we travel, log on to the Internet or enter a mosque to pray. We 
worry that we will be monitored, interrogated--or worse, 
arrested and detained--by government agents for no reason at 
all.
    Let me be clear. I am not referring to legitimate 
investigations of criminal activity. I am referring to sweeping 
questioning, searches and other investigative activities that 
target innocent Americans in groups.
    Our Nation has not seen such widespread abuse since J. 
Edgar Hoover era. It is wrong, it is counterproductive, and it 
must end.
    So, how did we get here? In 2001, after the horrific 
attacks on our Nation, Congress was understandably eager to 
help law enforcement do its job. The USA PATRIOT Act was 
enacted, but it went too far. It granted new, overly broad 
powers to the FBI to not only investigate criminal activity, 
but to snoop on innocent Americans.
    That same year, the FBI launched the first in a series of 
so-called voluntary interview programs targeting Muslim and 
Arab Americans for questioning. Director Mueller also 
instructed each of the FBI's 56 field offices to count the 
number of mosques and Muslim charities in their area and create 
a demographic profile.
    The word was out. From here on, agents would not be 
promoted based on their investigations of drug trafficking, 
mortgage fraud or other criminal cases. No. Whether you were an 
agent in Iowa or New York, the paramount focus would be 
counter-terrorism, and you would sink or swim in the bureau 
based on cultivating forces and informants, opening 
investigations and developing cases targeting the Muslim 
community.
    In December 2008, the FBI memorialized this new way of 
doing business in a revised set of investigative guidelines.
    Where did this lead us? By the end of 2005, Michael 
Rolince, the former head of the Washington office of the FBI, 
said that the FBI had conducted nearly 500,000 interviews of 
Arab and Muslim Americans, and not a single one of these 
interviews yielded information that would have led the FBI to 
get in front of the 9/11 attacks.
    Undeterred, the FBI was well on its way to aggressively 
developing informants and infiltrating mosques and community 
organizations.
    Today, the FBI also monitors Facebook and the Internet.
    Can you imagine attending your church or synagogue and 
wondering whether the FBI is peering over your shoulder while 
you pray? Can you imagine thinking twice before posting a news 
article on your Facebook, because it just might prompt an FBI 
visit to your home or workplace? That is the reality for many 
Muslims today.
    Muslim Advocates hears from American Muslims on a regular 
basis who are seeking guidance, because they have received a 
surprise visit at their home or workplace by the FBI with 
questions about their religious practice, political views or 
involvement in community organizations.
    These actions, which create fear, stigmatize individuals in 
groups, chill First Amendment protected activities and 
sometimes even jeopardize jobs, have been taking place, not 
based on any evidence of wrongdoing, but based on race, 
religious and ethnic discrimination, plain and simple.
    But the FBI is not the only problem. If you have the 
misfortune of being Muslim at the border, there is a good 
chance you will be stopped by a Customs and Border Protection 
agent before returning home and asked questions that have 
nothing to do with the purpose of your international travel--
such as, what mosque do you attend, how often do you pray?
    Can you imagine being asked what church or synagogue you 
attend, or how often you pray, by a Federal agent? You are 
probably thinking, that is none of the government's business--
and it is protected by the First Amendment. In the America I 
grew up in, that certainly would have been the case.
    But for me and countless other Muslim Americans today, it 
is not as simple as telling an agent it is none of their 
business. The consequences of being Muslim at the border are 
frightening and fraught with peril.
    Take, for example, the case of one prominent community 
leader returning home from Canada at a land crossing near 
Detroit. He and his wife were dragged from their car, 
handcuffed and detained in front of their young daughters, who 
were 1 and 3 years old at the time. To this day, his eldest 
daughter recoils in fear when she sees someone in uniform, 
afraid that he or she will do harm to her family.
    Is this the kind of relationship we want law enforcement 
developing with Muslim Americans young and old, one based on 
fear and mistrust? More importantly, is this the country we 
aspire to be? I certainly hope not.
    Members of the Committee, racial and religious profiling is 
not only contrary to our Nation's guarantee of equal justice 
under the law, it also yields negative results. Discriminatory 
policing diverts valuable resources from legitimate 
investigations. It erodes trust between the community and law 
enforcement, jeopardizing the vital relationship needed to 
counter actual criminal activity.
    Simply put, racial and religious profiling is bad policing.
    Thank you for the opportunity to present the views of 
Muslim Advocates. I look forward to your questions.
    [The prepared statement of Ms. Khera follows:]

                  Prepared Statement of Farhana Khera


















                               __________

    Mr. Nadler. I thank you very much. And I will recognize 
Members for 5 minutes of questioning apiece in the order in 
which they are here.
    I will begin with myself for 5 minutes.
    First of all, Mr. Shelton, New York City faced a class 
action lawsuit alleging racial profiling during Terry stops 
conducted in the 5-year period from 2004 to 2009. Among the 
nearly three million Terry stops during that period, about one-
and-a-half million were of African Americans, nearly 900,000 
were Hispanics and under 300,000 were of non-Hispanic Whites.
    Do you believe that that statistical disparity alone is 
indicative of the presence of racial profiling? Or do you need 
some more evidence to say that there is racial profiling?
    Mr. Shelton. Well, you certainly need more evidence than 
that. One of the issues you would want to look at is the hit 
rate; that is, how often those stops resulted in some kind of a 
paraphernalia or other illegal substance being found on people.
    What we find is that, when you have this kind of massive 
approach to stops, that you see that the number of hits 
actually declined. That is, look at the number of stops versus 
the number of hits. You find that it is even more 
discriminatory.
    The issue that we need to look at a little closer, and 
actually, we need to have legislation to actually collect data 
on how often those stops result in the actual commission of a 
crime. In this case, I think you will find in the case of New 
York City, it was abysmal.
    Mr. Nadler. Thank you.
    Chief Burbank, is there any way for an officer to 
differentiate a documented immigrant from an undocumented one 
without checking their papers?
    Chief Burbank. Absolutely not. And that is the question 
behind this whole thing. There is no way that I can perceive, 
and especially teaching a new recruit, this is an individual 
that is documented, and this is one that is not, and----
    Mr. Nadler. Without looking at the papers.
    Chief Burbank [continuing]. Absence of asking for 
documents----
    Mr. Nadler. So, you believe that there is a danger that any 
immigrant could be singled out under these new laws, since 
there is no way to determine short of checking papers who is 
documented or undocumented?
    Chief Burbank. Not only any immigrant, but any U.S. citizen 
who is of a different race or ethnicity will be questioned. 
There is no way that a law enforcement official, especially as 
we talk about fairness, can conduct that business without.
    Mr. Nadler. So, in the Southwest, Hispanic immigrants will 
be disproportionately affected, for example.
    Chief Burbank. Absolutely.
    Mr. Nadler. And obviously, you believe, since you testified 
to it, that cooperation between the police and the community is 
very important.
    Chief Burbank. There are stories across the country. The 
impact on my community alone, just from the thought of 
immigration laws going into effect that officers would enforce, 
have diminished the relationship that exists between the Salt 
Lake City P.D. and the communities that we serve----
    Mr. Nadler. And obviously, it breaks down the trust between 
a community and the law enforcement personnel when a law 
instructs the police essentially to single out a group because 
they are slightly more likely to be in the country without 
documentation?
    Chief Burbank. Absolutely.
    Mr. Nadler. Now, given the study co-authored by Professor 
Goff and yourself on attitudes toward SB81 in Utah, is there 
reason to believe that co-deputizing police to act as 
immigration officials will negatively affect community 
cooperation with police, both inside and outside the immigrant 
community?
    Chief Burbank. Yes. And in fact, the research conducted by 
Dr. Goff indicates that not only would Latino individuals be 
less likely to report crimes and participate with the police, 
but also, our White residents are less likely to report crimes, 
especially involving drug crimes, if they perceive that the 
police are biased or interjecting bias into their operations.
    Mr. Nadler. Thank you.
    Now, as I mentioned a moment ago, New York City has 
recently come under fire for the volume of Terry stop and frisk 
that they have carried out in recent years, and particularly 
for the overwhelming percentage of these stops that are devoted 
to African American and Hispanic people.
    Some have argued that judicious use of police resources 
necessitate the higher law enforcement presence in high crime 
neighborhoods, which often happen to be lower income and 
primarily minority areas, and, therefore, that the higher 
percentage of African American and Hispanic stops does not 
indicate racial profiling, but simply that the police are 
putting their resources where the crimes are.
    Do you think this--what would you observe of this 
observation?
    Chief Burbank. I agree with Mr. Shelton on this. More 
research needs to be conducted.
    And that is really what our aim was with Dr. Goff and the 
CPLE, was, in fact, to get to the underlying fact. We need to 
move from racial profiling to biased policemen, because it is 
not just a matter of do we stop people at an unequal rate or 
inappropriate rate, but what are the actions that we take 
afterwards as far as arrests, citations, search, seizure--all 
those things that are involved. It takes much more than 
population benchmarking to determine the action, whether 
appropriate or not of police officers.
    Mr. Nadler. Thank you.
    Now, Professor Ramirez, you have advocated for a 
requirement that police departments catalogue their stops of 
citizens. New York City, as I mentioned, has done so. And over 
the last 5 years, they have disproportionately stopped African 
American and Hispanic people, and they have documented that 
they have done that.
    Is this, by definition, enough to cause--is this by 
definition cause to accuse the NYPD of racial profiling, or is 
simply to indicate the necessity of more research?
    Ms. Ramirez. By itself, disproportionate stopping does not 
indicate racial profiling. But as others have said, you want to 
look at the hit rate. You want to look at what happened after 
the stop. Was there a search? Was there arrest? Were there 
seizures?
    And also, you want to know what the demographics were of 
the underlying population. If they are Terry stops on the 
street, you want to know what was the street population like. 
What percentage of people who were on the street were Latino, 
White, Black and Hispanic?
    And if you are doing these studies with the police, as 
opposed to doing them as historical documenting of activity 
that occurred in the past, you can disaggregate for particular 
initiatives that the community wants.
    For example, if you are doing a data collection system with 
the community, and the community says, look. We have a problem 
with Sunday mornings. There are races among Latino youth drag 
racing in a particular part of town, and we want you to be 
stopping those people. Or there is an African American bar that 
gets out at midnight, and we want you to stop drunk drivers at 
the White bars that get out at midnight, as well as the African 
American bars.
    You can disaggregate that and come up with a meaningful 
measure of whether it is profiling, by looking at what was the 
purpose of the law enforcement initiative, what were the racial 
demographics.
    When we have done this, even disaggregating for those 
instances where there was a need in high crime areas, or in 
predominantly Latino or Black areas, for special enforcement 
efforts, we still found evidence of racial profiling. And what 
I have been advocating for is a national center focused on how 
do you train statisticians to do appropriate statistical 
analysis.
    How do you get the research done to get appropriate 
benchmarks for the data, whether it is disproportionate 
stopping or not? And how do we create best practices and 
promising practices for the research that needs to be done in 
this area?
    Mr. Nadler. Thank you. My time has expired.
    I will now recognize the distinguished Chairman of the full 
Committee, the gentleman from Michigan.
    Mr. Conyers. Thank you, Chairman Nadler.
    We have in the audience Professor Richard Winchester from 
the Thomas Jefferson Law School in San Diego. And we are 
pleased that he is with us for this important hearing.
    And we also have our former Judiciary Member, Keith Ellison 
of Minnesota, with us. And with your permission, I would like 
to yield him my time.
    Mr. Nadler. Without objection.
    Mr. Ellison. Let me thank the Chairman of the Judiciary 
Committee. It is certainly a pleasure to be back at the 
Judiciary Committee.
    And Chairman Nadler, I thank you, as well as the Ranking 
Member.
    I will just take just a few questions--not take, ask--a few 
questions.
    What do you think some of the essential features of 
proposed legislation would include? What do you think needs to 
be in there to address this issue of profiling?
    I ask anyone on the Committee.
    Mr. Harris. My thoughts, congressman, would be data 
collection, provisions for best practices in policing. We know 
a lot that we did not know 15 years ago about what works in 
policing. And we want to give incentives for those things to be 
done, requirements that there be a policy in each department, 
that there be training centers for that training, funds for 
that training. I think those would be good starting points.
    I want to make clear that what we are looking for is a 
national set of standards and practices. We are past the point, 
I think, when the debate is about whether this ever happens. 
Now, it is about what we do and how we go forward. And I think 
all those things could contribute.
    Mr. Shelton. If I might add, in addition, certainly, the 
reporting mechanism needs to be one that is independent of the 
police departments themselves. We have run into problems that 
people wanted to report the misbehavior of police officers and 
actually being punished in that process, as well.
    So, I certainly strongly agree with Professor Harris and 
would offer it for your additional----
    Ms. Ramirez. If I could also just add to that, I totally 
agree with my colleagues. And I would just also add, a 
meaningful redress mechanism in terms of a right of action, I 
think is absolutely required, as well, in terms of seeking 
injunctive relief so that people who are aggrieved can go to 
the courts, do have a way to go to the courts eventually, if 
need be, to actually seek redress.
    And if I might add, in addition to legislation, the End 
Racial Profiling Act, I think Congress can also play an 
important job in helping to hold law enforcement, especially at 
the Federal level, accountable, too. And there is certainly a 
need for greater transparency in terms of the authority Federal 
law enforcement is using, whether it is by the FBI or Customs 
and Border Protection.
    What is happening with the information that is being 
collected? How is it being stored? How is it being shared? And 
there are a lot of questions and not enough disclosure.
    Mr. Ellison. There sometimes is a problem between what 
police leadership, or any leader might agree to and want to 
see, and how it is actually carried out on the ground. If we 
were to pass legislation regarding racial profiling, we may 
well get leaders of law enforcement throughout the country to 
agree with everybody on the panel.
    How do we make sure that it gets really--it really gets to 
the officer who is going to be facing that motorist or that 
passenger?
    Mr. Harris. Training--the mantra in police work. If you 
want things to change, it will come down to training. But it is 
not only training. You have to have a policy that reflects what 
the department is really about. There has to be supervision on 
the job of what people are actually doing on the street. People 
must be trained in the policy and know what is expected of 
them. And then there has to be accountability.
    You put those four elements together, and the leadership 
makes clear that it means it, they are going to hold people 
accountable, I would not say you can change all the hearts and 
minds, but I will take their behavior. That would be enough.
    Mr. Ellison. Mr. Singh?
    Mr. Singh. I would just add that, in terms of getting this 
to the front-line officers, it is critical that we, as Farhana 
had said, have a private right of action.
    I think the beauty of the Civil Rights Act of 1964 is that 
it actually took the enforcement mechanism straight to the 
people. The people had an ability to bring a suit in court and 
say that I have been discriminated against in the workplace, I 
have been discriminated against at a place of public 
accommodation. That we have that private right of action, I 
think it creates a very strong incentive for police departments 
to comply, because the people actually are able to enforce the 
promise of an End Racial Profiling Act.
    Mr. Ellison. I like the idea of a private right of action 
tool. But I also am curious about whether or not--how we can 
get officers on the line to really embrace this, because again, 
it does enhance public safety.
    How do we--I mean, a private right of action is, I think, 
necessary, but it is adversarial. What about the other way 
around, to get officers on the line saying, ``You know what? It 
is better for me to just deal with behavior, rather than just 
ethnic and religious factors, because it makes me a better 
cop.''
    Ms. Ramirez? Professor Ramirez, excuse me.
    Ms. Ramirez. I think the training piece has to be focused 
exactly on the issue that you are presenting, not just 
educating officers, but showing them, based on the research, 
why it is in their interest to do this. And that means you have 
to expand the training to include community policing.
    What do they get out of this? How can they be more 
effective officers? How can it improve their safety, in traffic 
stops, particularly, something they are interested?
    And the demographics and the research that we have been 
talking about at this table have not been widely disseminated 
to officers on the street. They need to see the statistics.
    And when you actually work with the police department and 
show them what they are doing, in what ways it is 
counterproductive and how they can improve, and then you 
continue to collect data to show them what happens when they 
switch, for example, from a race-based profile to behavioral 
profiling, that is when I think you get them engaged in the 
process.
    But the kind of profiling study that is going to get police 
engaged is not a ``gotcha'' historical study, but a study that 
they are engaged with from the beginning. You sit down with 
them and together you collaboratively decide what data you are 
going to collect, how you are going to collect it, how you are 
going to analyze it, and have a conversation around that. And 
that conversation has to be a non-public conversation.
    Mr. Ellison. Thank you very much.
    Mr. Nadler. Thank you.
    I will now recognize the gentleman from Georgia, Mr. 
Johnson.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this very 
important hearing.
    Yesterday I was reading about a multi-count Federal 
indictment against some White guys who ride around on 
motorcycles and they wear leather vests. Probably most of them 
have beards and probably shaggy hair. And based on that Federal 
indictment, multi-state, I hope, I sincerely hope that we do 
not have a period where every White guy riding around on a 
motorcycle wearing a leather vest is stopped to find out 
whether or not he is a legal citizen or whether or not he is 
guilty of some kind of criminal offense.
    But unfortunately now in this country, we have a situation 
that has arisen under Federal law. The Immigration and 
Nationality Act, section 287(g), authorizes the Federal 
Government to enter into agreements with state and local 
enforcement agencies, permitting designated officers to perform 
immigration law enforcement functions.
    So in short, they are, since it is against the law to be in 
the country illegally, if a law enforcement officer operating 
under 287(g) has a reasonable suspicion that someone is an 
illegal immigrant, then that officer has a constitutional right 
to stop that person, because they are violating the law.
    Now, you stop them whether or not they are in a car or 
walking down a public street, or behind a house barbequing, or 
even if the law enforcement officer is legally at a location 
where he can peer into a window, say, at the local barbershop, 
and you see someone who looks like they could be an illegal 
immigrant. Then you can go and pull the person out of the 
barbershop and say, ``Look, show me proof that you are a legal 
immigrant.'' Now, that is kind of scary under 287(g).
    And it is exacerbated by the Arizona law that has been 
signed into effect, which requires people to walk around--or 
again at the barbershop--have proof of citizenship. So, police 
in Arizona, if they think that you are--if they feel that they 
have a--if they have a reasonable suspicion that you may be an 
illegal immigrant, they can stop you and ask you for your 
papers.
    And, you know, this is where we have come as a society. 
Because if it can happen to the Latino, to a person such as 
you, Professor Ramirez, who--you look like you could have some 
Indian blood. You look like you could be Honduran. You look 
like you could perhaps be from Mexico or Colombia, you know, 
someplace--you know, I feel like you speak Spanish.
    So, I think that you would be a prime target to be jacked 
up, just like you have been, Mr. Singh, but not just at the 
airport, but on the street doing your own business, taking care 
of your business, walking the dog.
    And so, this is where we are as a society. And so, that is 
what makes this hearing so very important, because we are used 
to freedom. We are used to non-discrimination.
    And so, when you can single out someone based on a 
characteristic, a visible characteristic--well, that person is 
obviously Black right there, or that person is obviously a 
White boy riding on a motorcycle wearing a vest, or this person 
is obviously a Muslim, or this person is obviously Hispanic--
when we start doing these things, it hurts us all, because the 
White boys riding a motorcycle do not think it is going to 
happen to them. But if we allow it to happen to one segment, 
then it certainly can mushroom into something that hurts us 
all.
    And so, I guess my question would be, chief, what kind of 
impact does the 287(g) program have on the ability of law 
enforcement officers to protect citizens in areas populated by 
Latinos?
    Chief Burbank. Well, sir, the points that you made go to my 
reason for not being cross-deputized as a civil immigration 
enforcement. And that is the important thing here.
    Immigration law at the Federal level is a civil penalty. 
You can detain and deport. Nowhere else in law does local law 
enforcement get involved in civil enforcement. So, one, that is 
the first problem that exists.
    The other is the fact, this notion that reasonable 
suspicion to stop somebody--I do not know how you get 
reasonable suspicion without action. That is what we base our 
profession on. And when you talk about status, immigration 
status, about the only thing that comes to mind that I can 
think of rises to reasonable suspicion is to stand on the 
border and watch somebody run from the border. That gives you 
reasonable suspicion, based on their actions.
    Absent race or ethnicity, you cannot get to reasonable 
suspicion that somebody is undocumented in this country. And 
that is where police officers should not move. And it is very 
problematic for us to engage in that sort of behavior, because 
we lose sight of criminal action, we lose sight of actions that 
generates probable cause to make good criminal cases, when we 
rely on race and ethnicity as the basis for our stop.
    Mr. Johnson. Thank you.
    If there is a rapist and a child molester running amongst 
and running amok in a Latino neighborhood, would a program such 
as 287(g) have a chilling effect on a resident reporting 
criminal activity such as that?
    Chief Burbank. Absolutely. And we have seen that time and 
time again across the country.
    There are examples of individuals that failed to report 
criminal activity, or failed to report that they are the victim 
of criminal activity, for fear of deportation, or fear of 
deportation for family members. And so, it does have a chilling 
effect.
    Mr. Johnson. Thank you, and----
    Mr. Nadler. Before the gentleman yields back, would he 
yield to me for a moment?
    Mr. Johnson. Certainly.
    Mr. Nadler. Thank you.
    Chief Burbank, you said that aside from standing at the 
border and seeing someone run away from it, there would be 
nothing that you could think of that would yield reasonable 
suspicion that someone is an undocumented immigrant. If someone 
was stopped for legitimate--if someone driving a car was 
stopped for legitimate reasons, whatever--and have no documents 
whatever on him or her, this would also not be grounds for 
reasonable suspicion.
    Chief Burbank. Well, if someone is stopped, the privilege 
to drive requires a driver's license.
    Mr. Nadler. And let us assume he did not have the driver's 
license or anything else.
    Chief Burbank. Well, okay. But then you have suspicion to 
believe that that individual has committed a crime of driving 
without a driver's license, and that warrants further 
investigation.
    And so, potentially, and in the state of Utah currently, if 
someone is booked into the jail, they check the status of 
individuals. But the officer should not rely on the color of 
their skin unless we are moving--and again, this is what is 
scary--if we are moving to the point that every single person 
in society is going to carry a card that said, I am this, 
right, then we do not have the basis to do that.
    Mr. Nadler. We do not want to see the thing we see in the 
movie, ``papers, please.''
    Chief Burbank. Absolutely not.
    Mr. Nadler. Thank you.
    Mr. Johnson. And I yield back.
    Mr. Nadler. Thank you.
    And I now recognize the gentlelady from Texas.
    Ms. Jackson Lee. Chairman, thank you very much.
    It is only in a place as hallowed as this Judiciary 
Committee that a Chairman such as yourself will be willing to 
hold a hearing on what mostly is an unpopular topic. And some 
would argue that we finished that work and we need to move on. 
And I believe it is evident that we cannot move on.
    Some of us will be celebrating Juneteenth. And in some 
remarks about the history of that particular time, I commented 
that the work continues. And if in the instance of 1865, 
General Granger had ceased to be persistent and determined, a 
whole body of people would still be, some might imagine, not 
free.
    So, I think it is important for this Committee to continue, 
as Chairman Nadler and Chairman Conyers has granted us the 
privilege of doing. And certainly, I note my colleagues on the 
other side of the aisle have a definitive interest in their 
absence. I am sure they are very committed. And we look forward 
to providing the leadership for them to follow on what may 
necessarily be changes.
    If I might quickly ask questions. And thank you, Mr. 
Shelton, for the NAACP's continued persistence in going all 
over the country, a personal appreciation to President Jealous 
for accepting the call to Texas, that was proclaimed free in 
1865, but the board of education for the state determined we 
were not by recharacterizing our history books.
    Personally, I hope that we will be in a posture to file 
suit. But convey again to Mr. Jealous of my appreciation.
    Can you quickly reconcile the tension between the ability 
of an officer to take advantage of a complicated traffic law to 
create an escalating encounter with a driver and develop 
probable cause, which did not exist at the time of the stop, 
and the protections extended by the Fourth Amendment against 
unreasonable search and seizure? It is a complicated question, 
but if you can be as quick as possible. And it somewhat refers 
to the Arizona law that is abominable.
    Mr. Shelton. Absolutely. If there is a display of 
misbehavior, that indeed the law has been infracted, then 
indeed there is a probable cause to pull one over. And 
certainly, part of that process is asking for a driver's 
license. Most if not every state in our country requires a 
driver's license in your possession at the time you are 
operating a motor vehicle.
    Ms. Jackson Lee. And that is existing law----
    Mr. Shelton. Exactly.
    Ms. Jackson Lee [continuing]. Without the Arizona law.
    Mr. Shelton. That is exactly right.
    So, if you are going to the issue of the Arizona law, the 
Arizona law is not only not helpful at all, as a matter of 
fact, it is even more problematic. Indeed, if we talk about the 
Arizona law, what the NAACP has learned over our years is that, 
in order for law enforcement to be effective, they must first 
have the trust and a perception of integrity by those they 
serve. I think Chief Burbank did an excellent job of outlining 
much of that.
    Whether I have talked to Attorney General Janet Reno under 
the Clinton administration, Attorney General John Ashcroft 
under the Bush administration, or Attorney General Eric Holder 
under the Obama administration, they all agree on one central 
fact. And that is, in order for law enforcement to be effective 
in preventing crime or solving crime after it has been 
committed, then indeed they must have the trust of the 
communities they serve.
    If you will not talk to them before a crime is committed, 
then you cannot prevent it from happening. If people in the 
communities do not trust you, after a crime has been committed 
you cannot gather the evidence necessary to prosecute.
    Ms. Jackson Lee. And there may be the potential of 
unreasonable search and seizure inasmuch as you can stop a 
person not for the basic law that we have, you have a traffic 
infraction, but because of the color of your skin or the car 
you are driving, or maybe the music that is on your radio. And 
so, the probable cause is questionable.
    Mr. Shelton. Yes, indeed. Yes, it would be. As a matter of 
fact, it is an amazing thing----
    Ms. Jackson Lee. And I am not going to cut you off, but I 
have other questions, so if you want to finish your final 
sentence.
    Mr. Shelton. No, I will let you go on. I will take all of 
your time if you let me.
    Ms. Jackson Lee. Thank you for that basic answer.
    This is going to go to Professor Ramirez and Mr. Singh and 
Ms. Khera.
    Ms. Ramirez, I think--I am on Homeland Security. And one of 
the things that we have talked about is the whole question of 
behavioral versus the racial profiling. If you can quickly 
answer the value of that, because I begin to look at Mr. Singh, 
and I look at Ms.--I am trying to get it right here, my paper 
is away--Khera. And I would imagine there would be Muslim 
prayers, his attire, and I hope he will speak to that, not 
because I have asked.
    And so, the question is, is behavior the right way? I think 
behavior is good for the terrorist design, meaning that 
behavior connected to terrorists overseas, what is on your 
computer, et cetera, there are no other problems with that. But 
the question is, how do you work with that tension, so that 
behavior also is not profiling?
    Ms. Ramirez. I know that at Logan Airport they have been 
experimenting with a series of behavioral profiles and 
assessments, very successfully. And they have used it in tandem 
with a random number generator. And the random number generator 
just generates random numbers, and if your number comes up, you 
are searched.
    No criminal or terrorist organization can beat a random 
number generator, because it is random. So, that is part of 
what their success is. And the other part is focusing on 
behavior.
    Behavior can be abnormal travel plans, an abnormal travel 
agenda. It can be the way the person is conducting themselves. 
But it is not focused on race, ethnicity or religion. They are 
really moving away from that.
    Ms. Jackson Lee. Can I get the last two witnesses, just 
quickly, to answer the thought of behavior and the whole issue 
of racial profiling? Is that an option?
    Mr. Singh?
    Mr. Singh. Sorry, congresswoman----
    Ms. Jackson Lee. Is behavior an option, behavioral----
    Mr. Singh. Profiling----
    Ms. Jackson Lee [continuing]. Their behavior? Or does that 
incorporate actions of people who are attired differently, or 
doing their prayers, public prayers? Is that also a dangerous 
prospect?
    Mr. Singh. If the behavior that is focused on is simply my 
religious practice, wearing a turban or praying, then I would 
find that very problematic. The behaviors that have to be the 
focus of law enforcement scrutiny is criminal behavior, actions 
that actually would indicate that you are about to do 
something, or in the planning stages of doing something that is 
terrible.
    But merely wearing religious dress, or merely praying, in 
and of itself is not a crime. In fact, it is protected by the 
First Amendment of our Constitution. And I would hope that by 
behavior profiling we do not mean behavior being Muslim or 
being Sikh.
    Ms. Jackson Lee. Ms. Khera?
    Ms. Khera. Thank you for that question, congresswoman.
    We support a behavior focus. But I think the devil is in 
the detail, so, which I think gets to the point of your 
question. And I would say, where it is really important is in 
training and having an audit mechanism. So, ensuring that those 
officers are understanding, so that they are not singling 
people out based on religious practice, prayer, speaking 
Arabic, et cetera.
    And also what is really important is the audit mechanism. 
And that is where the data collection piece is absolutely 
critical, so that the higher-ups, the supervisors, the heads of 
agencies can determine whether the policies they have enacted 
to actually focus on behavior is actually being played out on 
the ground.
    Ms. Jackson Lee. So, as I yield back, racial profiling is 
active and alive, and it needs a frontal attack that is 
balanced and responsive to extinguishing it as it discriminates 
against people, simply because they exist.
    Thank you. I yield back.
    Mr. Nadler. Thank you.
    And finally, I recognize the gentlelady from California.
    Ms. Chu. Thank you so much, Mr. Chair.
    First, before I begin, I would like to submit the testimony 
of United Sikhs for the record, which is another Sikh advocacy 
organization that I work with closely on the racial profiling 
issue.
    [The information referred to follows:]

    
    
    
    
    
    
    
    

                               __________

    Ms. Chu. Well, I am--thank you--I am from California. I 
have talked to so many Sikhs who have had experiences similar 
to you, Mr. Singh. And I thank you for talking about the 
situation so eloquently. Racial profiling is a significant 
problem in connection to airport security and border crossings, 
because of the mistaken impression that Sikhs are connected to 
terrorism because of the turban.
    Do you know of any documented case of terrorism from the 
Sikh community?
    Mr. Singh. Not against the United States, Representative 
Chu.
    Ms. Chu. And can you tell me what are the officials 
policies of TSA regarding Sikhs and inspection of the turban, 
versus what the actual experience is?
    Mr. Singh. In theory, the TSA has an anti-profiling policy. 
I would note--and this is where I think legislation is so 
important--the TSA's anti-profiling policy is based on the 
Department of Justice's 2003 racial guidance on profiling. The 
Justice Department in 2003 guidance on racial profiling first 
is merely a guidance. It does not have the force of law.
    But second, it has a gaping national security loophole that 
is vague and undefined. So, for reasons of national security, 
the anti-profiling protections can literally be thrown away, 
and in fact, they are. At many airports around the country, 
Sikhs are literally screened 100 percent of the time.
    And again, as you have noted in your questions, given that 
our community has literally no--has not been--had any 
accusation of wanting to engage in terrorism against the United 
States, it shows you how foolish racial profiling is, that 
officers have so much discretion that they can just pull aside 
anyone who they want to pull aside, based simply on their 
appearance, with no oversight and no accountability.
    Ms. Chu. In fact, there are supposed to be three options. 
For instance, one, it is supposed to be a private area, but 
that is not followed. Is that correct?
    Mr. Singh. That is right. Most air traveler passengers do 
not know that they have--Sikh air travel passengers--have a 
private option if they want to be screened in private.
    But to be honest, it is silly that they need to have to 
even ask for a private screening. They should not be 
secondarily screened in the first place.
    Ms. Chu. Do you know how many cases of discrimination or 
complaints have been filed with TSA regarding handling of Sikh 
passengers?
    Mr. Singh. You know, our organization has filed more than 
50 individual complaints with the TSA. We have also sent them 
an Excel spreadsheet where more than 200 members of our 
community have complained of being profiled at the airports in 
the United States.
    Sadly, the TSA mechanism for reviewing these complaints is 
shoddy, at best. Usually, it takes more than a year to receive 
an acknowledgement that you even filed a complaint. And the 
disposition of the complaint usually comes 2 years later with a 
finding of no profiling in that individual case.
    We are disturbed that the TSA does not look at the 
complaints we have filed as part of a larger pattern or 
practice, but just keeps adjudicating each single case on its 
own.
    So, again, the mechanisms in place to hold the TSA 
accountable are literally nonexistent. They are written on 
paper and do not mean much on the ground. And that is why, 
again, I think legislation is so critical to address this issue 
in a way that is meaningful.
    Ms. Chu. Has TSA ever acknowledged that there has been any 
racial profiling with regard to Sikhs?
    Mr. Singh. The TSA's constant position--and it is extremely 
frustrating for our community--is that we do not profile, and 
profiling is against the policy of the TSA. I am so glad the 
TSA says that profiling is against their policy. But we would 
like to actually see that implemented on the ground.
    Ms. Chu. So, what recommendations would you have for 
improving TSA policies regarding Sikhs?
    Mr. Singh. I think the recommendation has to be actually a 
recommendation from this Congress. We need an End Racial 
Profiling Act that has a private right of action and has 
meaningful data collection.
    The public should actually have the information available 
to it to actually see who is being stopped and whether those 
stops are actually resulting in an arrest, or some indication 
of criminal activity. And then that way, the public can 
actually weigh the costs and benefits in an enlightened way of 
whether the actions our government is taking are actually 
keeping our country safe and how they square with our rights as 
Americans.
    Ms. Chu. Mr. Chairman, I am very concerned with the way TSA 
has handled complaints and requests from the Sikh community 
regarding racial profiling. Not only is it discriminatory, but 
it has the potential to make the Sikh community even more 
skeptical and less trusting of our law enforcement officials. 
And we need the full trust of all passengers in order to 
maintain the safety and security of our airports and planes.
    So, I would like to send a letter to TSA asking for an 
audit and additional data on the racial profiling of Sikhs by 
TSA employees. Actually, I would like to in fact get overall 
information--a racial breakdown, basically--of the complaints 
that have been filed with regard to the inspections by TSA 
employees, and urge them to review their policies and improve 
their training to limit this kind of discrimination.
    And Mr. Chairman and Members of the Subcommittee, I hope 
you can join me in that effort.
    Mr. Nadler. We will be happy to work with--the staff will 
work with your staff on that.
    Ms. Chu. Thank you.
    Mr. Nadler. Would you yield to me for a second?
    Ms. Chu. Yes.
    Mr. Nadler. Thank you.
    I want to ask Mr. Singh, as terrible as racial profiling 
is, I think we understand the mistaken psychology of some 
people who engage in it.
    From your knowledge of the TSA, since there is no history 
of Sikhs engaging in terrorism or attacks on the United States, 
or anything else, why does the TSA racially profile the Sikh 
community?
    Mr. Singh. I believe because their officers are given so 
much discretion, that there are no proper controls for the 
officers to actually review whether they are engaged in 
profiling and how that affects their law enforcement functions. 
There really is no great system----
    Mr. Nadler. No, no. I understand all that.
    Mr. Singh. Yes.
    Mr. Nadler. But why the Sikh community?
    Mr. Singh. Why the Sikh community? You know, Chairman 
Nadler, I really do not know, given what you have just said, 
given that Sikhs have not had any sort of terrorist accusation 
against the----
    Mr. Nadler. You would have to say just ignorance, then.
    Mr. Singh. Yes, I believe it is ignorance. I believe it is 
ignorance. And it goes a lot to what my distinguished panelists 
have said with regard to police training and education.
    Mr. Nadler. Thank you. I yield back to the gentlelady, who 
was going to yield back.
    Ms. Chu. Yes, I yield back.
    Mr. Nadler. I thank you.
    We have no further Members to ask questions.
    So, without objection, all Members will have 5 legislative 
days to submit to the Chair additional written questions for 
the witnesses, which we will forward, and ask the witnesses to 
respond as promptly as they can, so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    I want to thank the members of the panel. I want to thank 
the Members generally.
    And with that, this hearing is adjourned.
    [Whereupon, at 3:55 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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