The rules Holder announced, though, are quite a bit less broad then that condemnation. The Department of Justice was ready to issue the guidance months ago, but other agencies—particularly the Department of Homeland Security—pushed back. DHS wanted softer rules applied to its border and aviation screening activities. And so the DOJ’s new document acknowledges three key carve-outs: “non-law enforcement personnel, including U.S. military, intelligence, or diplomatic personnel, and their activities,” “interdiction activities in the vicinity of the border,” and “protective, inspection, or screening activities.”
Those aren’t minor exemptions. Just like the 2003 policy it replaces, that phrasing excludes the National Security Agency and other non-FBI intelligence agencies, as well as several key parts of the Department of Homeland Security—the offices that do border screening at international airports and other ports of entry; the Border Patrol, which operates between ports of entry within 100 miles of the border; and TSA, which conducts airport screening. (In addition, the new policy expressly allows the FBI to continue its controversial ethnic mapping activities without any additional regulation, so long as it does not “target only those persons or communities possessing a specific listed characteristic.”). In fact, all told, those seemingly minor phrases actually exclude the majority of federal law enforcement personnel. While the rules apply to the FBI’s 14,000 agents, the ATF’s 2,500 agents and the DEA’s 5,500 agents, among others, they don’t apply to TSA’s 47,000 screening officers or to the bulk of the activities of the 46,000 Customs and Border Protection officers, nor to the protective activities of the 3,200-strong Secret Service. Moreover, the guidance does not—and could not, legally—govern local and state law enforcement agencies, which between them employ over 450,000 sworn officers who perform the bulk of American policing. The new guidance covers local police only when they participate in federal law enforcement task forces. (Local police are, of course, bound by the Constitution, which forbids some but not all uses of race, ethnicity, gender, etc. And they may have additional state or local law or policy further constraining them.)
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