This week, President Bush issued a limited federal ban on the use of racial profiling on the part of federal agents. The federal ban adopts a stricter standard on profiling in traditional and routine law enforcement investigations but allows a looser standard on profiling in national security cases.

In traditional law enforcement investigations, the federal ban bars federal agents from using race or ethnicity to target specific neighborhoods or groups of people, even in cases where the profiling would be permitted by the Constitution.  Federal agents may only rely on racial descriptions in cases where the description relates to a specific suspect. Only in cases where a victim or witness describes the suspect as being a specific race, ethnicity, or age may the officer use that information to locate the suspect. In these cases, the officer uses specific witness information to locate a suspect, rather than using a generalized assumption. In order to determine the legitimacy of the specific information, the information must be trustworthy, the information must be tied to the particular criminal act, and the information must be relevant to the locality or time frame of the criminal act. 

Federal law agents may, however, consider race, ethnicity, and other relevant factors in investigations that involve national security and border integrity, as permitted by the Constitution. The Constitution permits racial profiling only in the most exceptional instances, including cases of national security. The Constitution does place a limit on generalized stereotyping in racial profiling.

The Administration has come under fire for their handling of certain immigrant groups in the war on terror. The profiling ban does not apply in national security cases, where the information or description need not be specific to the crime, location of the crime, or time of the crime. Rather, racial profiling may be used in terrorist identification so long as some information or description is provided. Random stereotyping continues to be prohibited under the Constitution.