Was TSA Green-Lighted to Profile Under New Anti-Profiling Rules?

Last month, to great attention, the Justice Department issued new racial profiling guidelines that continue to allow U.S. Customs and Border Patrol and the Transport Security Administration to discriminate based on ethnicity and religion.

Former President George W. Bush, whose administration released similar guidelines in 2003, was the first to ban racial profiling in the U.S. But that policy had loopholes for national security and border patrol that left Muslims and Latinos unprotected.

The new developments widen the scope to also prohibit federal agents from considering religion, national origin, gender and sexual orientation without intelligence about a potential threat. However, the new rules don’t apply to “protective, inspection, or screening activities”, giving the TSA free rein over the use of race, religion and nationality in deciding who should undergo secondary screening or be detained for questioning.

For Sikhs like 21-year-old Harleen Kaur, who wears a turban, this is bad news.

Sikhism, a religion founded in Punjab, India is based on the oneness of God. Followers are forbidden from cutting their hair, although this practice is more predominant among men than women. Most Sikh women don’t wear a turban. Neither did Kaur, until 2012 – when a neo-Nazi opened fire at her gurdawarah, a Sikh place of worship, and killed six and wounded four. Kaur heard from Sikh males around the country about how strangers approached them to offer condolences.

This wasn’t the case with her even though she lost Satwant Singh Kaleka, president of the gurdawarah, who was like an uncle to her.

“I realized if I want people to identify me as Sikh – the identity I hold so dear to me – that’s something I have to take ownership of,” she says.

Two weeks later, Kaur put her turban on and hasn’t taken it off since. It’s become a permanent visual reminder of her faith.

A week after her decision, a transport security officer at the Detroit Metropolitan Airport forced her to remove it as part of a security check. Although she says it’s uncommon to be pushed to these extremes, she encounters secondary screenings a lot more than she used to. The new rules allow such profiling to continue. But Sikhs maintain the right to refuse to remove their turbans if they successfully clear the metal detection procedure and additional screening pat down.

Kaur can’t understand why “an external change in physique that is motivated by an internal reflection of faith” warrants treatment which, “affects the way a person views themselves, especially through the eyes of how the public views them and how a place they call home may view them.”

A volunteer advocate for the Sikh Coalition, Kaur recently taught about 150 teachers about Sikhism and what they can do to support Sikh students who may be bullied. She’s determined to stay optimistic and sees a future in policy; she’s already lobbied on the hill as part of an advocacy training program with the Sikh Coalition. “I don’t think this is a battle we should be giving up,” she says.

The TSA states on it its website that its advanced imaging technology can see through layers of clothing. But at a Sikh policy briefing at the White House, they said they can’t look through the cloth the turban is made of. Kaur finds this hard to believe as she says most turbans are made out of fine cotton.

Turbans can also fall into the category of bulky items, which it’s TSA policy to be able to look into. But Rajdeep Singh, policy director for the Sikh Coalition, doubts people who wear jackets, hoodies and sweaters are set aside at the same rate as those wearing hijabs or turbans. He proposes the use of an audit system: looking at surveillance footage to determine discrepancies in who the TSA chooses to screen.

“We need a laser focus on data collection to hold these agencies accountable,” Singh said. “Think of it as a report card: it’ll create incentives to be the best but if data reveals problems suggestive of profiling it helps NGOs and policymakers.”

Singh also thinks profiling can be dangerous, especially in a post 9/11 world. “People want to feel like they’re absolutely safe,” he says. “In that context, the guy with a beard or turban being searched and given extra scrutiny reinforces the stereotype that leads to school bullying and even hate crimes.”

The Sikh Coalition has found 100 percent of Sikh travelers report they are subject to unfair secondary screening at some airports across the U.S.

“There’s nothing random about a screening experience when you’re screened 100 percent of the time,” Singh says. But the organization also admits that their small size limits their data-gathering capacities.

No available statistics capture the full extent to which Sikhs have been profiled but there’s been enough discontent in the community for the Sikh Coalition to create FlyRights, a mobile app that gives all travelers an easy way to submit complaints regarding airport screening to the TSA, Department of Homeland Security and even their members of Congress.

The DHS reported to Congress that the TSA only received 8 complaints of improper or discriminatory TSA screening in 2012, but FlyRights received 157 complaints from April 2012, when FlyRights was released until the end of the year. About half the complaints were based on ethnicity; 16 percent were based on gender and 9 percent on disability.

Both Kaur and Singh emphasize that these new guidelines have implications that go beyond the Sikh community. The American Civil Liberties Union put out a statement, condemning the guidance for it’s “bias-based policing” that “gives a green light for the FBI, TSA, and CBP to profile racial, religious and other minorities”, especially American Muslims.

The rules only cover federal law enforcement, which means they have no bearing on state and local police. Though some believe the cases of Eric Garner and Mike Brown have little, if anything to do with profiling, they do raise the question of preventative measures – and there are none.

Even if they did, their influence is questionable. Singh thinks the DOJ guidance doesn’t have the force of law and instead, is a suggestion of best practices. “The DOJ is projecting it as a breakthrough and monumental but it’s not,” he says. “It’s sort of a dud.”

Still, the guidelines send a bleak message. Singh said in a statement that these new rules “would not be the legacy Attorney General Eric Holder aimed to leave.”

Holder, who recalls being stopped by the police as a college student and federal prosecutor, had promised “rigorous new standards” that would “help end racial profiling once and for all.”

Leave a Reply