The American-Muslim community and civil rights organizations are alarmed at the proposed Justice Department policy change that would permit the Federal Bureau of Investigation (FBI) to consider race and ethnicity when opening an investigation.

Under the new guidelines, which could be implemented as early as the fall, the FBI could open preliminary terrorism investigations after analyzing public records and intelligence to build a profile of traits that are deemed suspicious. Among the factors that could make someone suspect is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person’s race and ethnicity. The guidelines do not require congressional approval.

Attorney General Michael Mukasey acknowledged the change was underway last month, indicating the new guidelines were designed to ensure regulations for FBI terror investigations do not conflict with ones governing criminal investigations. Mukasey stated, “It’s necessary to put in place regulations that will allow the FBI to transfrom itself into an intelligence gathering organization in addition to just a crime solving organization.”

Let us not forget that what we are dealing with here is clearly 9/11 and the government’s efforts to avoid another terrorist act against the United States. The question is and will remain, if the FBI had such a program in the 90’s, would it have revealed the 9/11 conspiracy.

Should the U.S. government be interested in an individual that travels to the easternmost island of Mindanao, where rugged terrain, weak rule of law, sense of grievance among the country’s Muslim minority, and poverty make it difficult for the Philippine government to root out Abu Sayyaf and the Moro Islamic Liberation Front? Or how about travel to Trinidad and Tobago, and specifically Cunupia, Trinidad (a 45 minute drive from Port-au-Spain), where Jamaat al-Muslimeen, a militant and radical muslim organization operates?

Can we afford to ignore these facts? Can we afford to not have a law enforcement program that would capture and monitor such clearly relevant factors?

I understand the American-Muslim and civil rights organizations concerns with this new Justice Department program. It is clearly a program that will have to be closely monitored to ensure that civil rights and liberties are not trampled. Strong independent oversight is a must. The FBI, under Hoover, and current Director Robert Mueller (as evidenced by the Inspector General’s Report on National Security Letters), has had problems in “self-monitoring.”

The Department of Justice is still in the process of drafting the guidelines. We need this program, but we also need it to be scrutinized.

I hope the Justice Department is considering the establishment of an independent (within Department) review mechanism to ensure that the program is operating within its guidelines and reflects our traditional concerns for civil liberties, the First Amendment, and the emphasis on utilizing the least intrusive investigative tools possible.