WASHINGTON — In the six and a half years since the Sept. 11 terrorist attacks, federal law-enforcement agencies have secretly established profiling techniques to screen immigrants based on their nationalities, protocols that critics charge encourage the unjustified targeting of Muslims.
The profiling, described in a February 2006 Immigration and Customs Enforcement memo obtained by McClatchy Newspapers, shows that the government has relied more heavily on nationality as an indicator of security risks than was previously known.
Federal agencies have created internal lists of countries that are of "special interest" for national security reasons, wrote the memo's author, Ted Stark, supervisory special agent with the Office of Intelligence at ICE.
So many federal agencies have created different lists that U.S. officials contemplated adopting a single one to streamline the process, Stark wrote.
The proposed list, which officials said had yet to be adopted, includes 35 countries, most with significant Muslim or Arab populations. Almost 20 percent of the world's countries — including some of the United States' key allies, such as Jordan, Turkey and Egypt — are on the list.
The effort to come up with a uniform approach is another reflection of how the nation continues to grapple with finding effective ways to detect terrorists, and how those efforts sometimes collide with constitutional and legal rights.
In this case, with little or no oversight or public scrutiny, law enforcement officials have assumed flexible and expansive discretion to make screening decisions based on where an immigrant was born.
The group of agencies — which included ICE, the National Security Agency and U.S. Customs and Border Protection — not only recommended one list but also suggested an interagency definition of a "special interest alien."
Under the proposal, a special interest alien would be an immigrant with terrorist ties or an immigrant who by nationality, "ethnicity or other factors may have ties or sympathies" with the listed countries.
As a result, an immigrant who doesn't have any known terrorist links and who isn't from a country on the list conceivably could be considered a special interest alien, if his or her ethnic background included a listed country.
Stark described the proposed term as "generic enough to address all the functional issues" of federal law-enforcement agencies.
Critics charge that the screening technique not only appears to target Muslims but also is too broad to be effective.
"When you're targeting as 'special' 20 percent of the world, you're obviously sweeping far too broadly and you're going to waste a lot of resources on people who pose no threat," said David Cole, a professor at Georgetown University Law Center in Washington.
"The second problem is that when you treat people from Muslim countries as suspect merely because they come from Muslim countries, you are very likely to alienate the people here and abroad we need to be working with if we're going to get helpful information on what the real threats are."
Federal authorities wouldn't discuss the memo or the screening methods in detail but denied singling out Muslims. When asked, some confirmed that such lists existed but wouldn't disclose the identities of the nations.
According to the memo, once a federal agency designates an immigrant a "special interest alien," officials run him or her through a "full court press" of interviews, inspections and database checks.
Depending on what agents discover, such foreigners might be cleared after lengthy background checks. Or they could be flagged for detention or deportation, or become the subjects of criminal investigations.
While U.S. officials said their current special-interest country lists were based on intelligence about international terrorist networks, the proposed list doesn't include Germany and England, where authorities have acknowledged breaking up al-Qaida cells.
Cole, a leading critic of the administration's anti-terrorism initiatives, said the description of the special-interest designation confirmed his suspicions that federal law enforcement officials had gradually set up permanent profiling efforts throughout the government.
After the 9-11 attacks, federal agents detained 1,200 mainly Muslim men and separately required visa-holders from predominantly Muslim or Arab countries to be fingerprinted and registered in a database.
"This sounds like a continuation and an institutionalization of what was essentially a failed initiative in the first couple of years after 9-11," Cole said. "It's a proxy for religious and ethnic profiling."
Courts have upheld immigration policies that discriminate based on nationality, but they generally view law enforcement profiling of U.S. citizens based on ethnicity, race or religion as unconstitutional.
Proponents of stricter immigration enforcement have pressed authorities to concentrate on Muslim or Middle Eastern immigrants, given that four of the 19 Sept. 11 terrorists overstayed their visas and almost all came from Saudi Arabia.
Mark Krikorian, the executive director of the Center for Immigration Studies, said agents had the prerogative to single out immigrants based not only on nationality but also on race, religion or ethnicity because of the federal government's broad authority in all immigration matters.
"This is not a constitutional issue," Krikorian said. "This is a question of the best law enforcement and security approach."
After the attacks, Americans expressed ambivalence about whether law enforcement should rely on profiling. While a majority thought that it was wrong to base profiling on race, religion or ethnicity, many also described it as "understandable" if Middle Easterners were singled out.
In practice, agents don't automatically scrutinize every immigrant from the listed countries, ICE and FBI officials said. Nor do agencies rely on the designation when deciding whether to pursue criminal charges or to grant U.S. citizenship or green cards.
"It's not an automatic trigger," said Steve Kodak, an FBI spokesman, who confirmed that the bureau's criminal investigative, counterintelligence and counterterrorism division used such lists. "It's a tool that agents use at their own discretion."
Kelly Nantel, an ICE spokeswoman, said her agency didn't have one list or definition but used different approaches depending on the division or situation.
"In many cases, that includes reviewing the country of origin," she said. "But it's a single consideration in an overall decision."