why wouldn't you include all of muslim religion, then? that strikes me as the very core of the reason we are gathering today. if we are going to say to people across america, you have certain rights and freedoms because you live in america and we have certain values, that it does create perhaps more of a challenge to law enforcement. a police state may be more -- much more efficient in many respects but it isn't america. >> listen, in my testimony, my organization's whole focus is on the principles of e.plueribus unum. i take that very seriously. but what i'm saying is there are going to be some circumstances where i think it would be very unwise for congress to say that law enforcement agencies cannot give some limited consideration to an individual or an organization's geopolitical and, you know, religious background.

>> i'd like to defer now to senator graham who has patiently waited for his opportunity. >> thank you all. i guess what we're trying to highlight is how complicated this issue is. mr. gale, do you think you have ever been racially profiled? >> probably. yeah, i -- i can't say i understand because i don't. i've never been in that situation. but the fact that you're a law enforcement officer and you probably, sometime in your life, have been viewed with suspicion by police makes your testimony pretty persuasive to me in the sense that you're now sitting in the role of a law enforcement official, trying to protect the community. and the zimmerman case is a private individual, not a law enforcement organization. and i just really -- i think i understand the problem. i just don't know where the line

between good law enforcement and racial profiling ends and begins because let me tell you one thing about congress. we'll be the first one to jump on you when you're wrong. when you get a phone call that somebody looks suspicious in the neighborhood and you ask a bunch of questions, well, that doesn't seem to justify us going in and that person winds up killing somebody, or robbing or raping somebody, we'll be the first ones to blame you. so you're in an untenable situation. and when it comes to the war on terror, mr. clegg, i couldn't agree with you more. the reality of the fact is, i wish we had done more to major hassan, not less. there's some websites out there that i'm glad we're monitoring. there's some groups within america that are saying some pretty radical things. and i hope we follow the leaders of these groups to find out what they're up to because homegrown terrorism is on the rise. how do you fight it without fighting a religion? how do you fight homegrown terrorism without fighting

people who are local to america people who are loyal to america who belong to a particular faith? i don't know. but i know this. if the law enforcement community in this country fails to find out about the major hasans, we're the first one to be on your case. why didn't you follow this website? he said these things in these meetings and why didn't the supervisor tell the wing commander you've got somebody who is really out of sorts here? and as an air force officer, when do you go to your wing commander and say, this person says something that makes me feel uncomfortable and you do so at your own peril. so i just don't know what the answer is. i know what the problem is. and i think in the last decade, we've made some progress, chief davis and maybe having

legislation that makes us focus on this problem more might make some sense, quite frankly. maybe we would look at redefining it but just collecting information to show exactly what happens day in and day out in america so we can act logically on it. i know you want to say something, mr. clegg, but when it comes to fighting the war on terror, the fact of the matter is that great britain and france are going through this very similar situation right now where they have groups within the country that are espousing pretty radical ideas and they just expelled someone, i think, from great britain just today or yesterday, an iman who was saying pretty radical things. i don't know when national security starts and individual liberties begin. what's your thought? >> i want to endorse what some of my co-panelists are >> i want to he doors some of have said, that it's very important in the war on terror

that we have the cooperation of the overwhelming majority of arab americans and muslim americans. >> one of the great strengths of our country is that even though homegrown terrorism is on the rise, generally speaking, american muslims have assimilated in our society and our culture, thousands serve in the military, and that we're actually the example to the world of how you assimilate. >> no, i think that's right. stereotyping is very dangerous in this area. most arab americans are not muslims. i believe they're christian. you can't just look at somebody's name and conclude things about them. as my co-panelist said, it's very important to have the cooperation and trust of arab american communities. so i don't want to give the impression that i think it should be, you know, open season on anyone on account of their

ethnicity or their religion. i'm simply saying there are going to be circumstances -- >> what we should be looking for is actions by individuals within groups. statements made that send signals that this is not where practicing religion should be taking one is the activity on the internet. that's what i want us to -- how we do that i think is very complicated because when you monitor these websites, maybe you capture some innocent conversation so having judicial oversight i think is important. but i guess that's what i'm looking for is sort of objective indicators of, you know, this is getting out of bounds here. >> senator graham, you're absolutely right. it is about behavior. that's the key to everything and making statements, whether out loud or on the internet, that's action.

that's behavior. >> and here is the problem we have. if you're an air force member and you have an american muslim in the group and they say something that alarms you, you have to think, well, if i just say something, am i going to get myself in trouble? >> but, senator, if i may interject, nice to see you again, senator, thank you for yielding to me, i think part of the challenge we have in a country that's dedicated to free speech is how you draw that line well in a way that doesn't quell speech we want to protect. i know that perhaps my organization and you have different points of view on abortion, for instance. yet i think you and i would completely coincide from the moments i've shared with you, i know you and i would completely coincide that anyone who dares to blow up an abortion clinic is a criminal. >> that's not speech. >> then would you feel comfortable survelling the

anti-abortion websites for individuals who perhaps would be willing to blow up an abortion clinic just because they happen to share the points of view of the radical who would blow up a clinic. i know you would not feel comfortable if i put the words in your mouth. >> i know exactly what you're saying. >> so the context is not that different that perhaps we find odious, perhaps we find difficult, but that is what america is about. democracy is a great many things, but it should never be quiet. but if we all agree it's not the america we know and love, sir -- >> i guess this is where maybe legislation could happen. my time is up. having thoughts against the government or expressing yourself in an aggressive way, you can be radically pro-choice, radically against abortion. you can feel the way you would like to feel. you can speak your mind. but there comes a point in time when the rest of us have to defend ourselves and our way of life. and what i hope we'll do in this discussion is not ignore the threats that do exist.

there is a lurking, looming threat against this country. and against our way of life. and i hope we will not get so sensitive to this dilemma that we will basically unilaterally disarm ourselves. and when it comes to basically the immigration issue, if there was ever a reason to fix our immigration system, this hearing highlights it. you have millions of people who are undocumented, illegal, and i would just be greatly offended if i were a corporal coming back from afghanistan who happened to have an hispanic last name and got stopped because somebody thinks i'm here illegally, i could be greatly offended, but the fact of the matter is that there's a downside of illegal immigration in terms of crime and the way to solve that problem is clear to me is comprehensive immigration reform. thank you all. this has been a very good

hearing. we will see if we can work with senator cardin to find something more bipartisan. >> mr. chairman, can i just answer one question? you asked captain gale had he ever been profiled. i'll take a shot at that. unequivocally, yes. but i think what's telling, not only have i been profiled but as a law enforcement officer, i have profiled. that's the part that we bring to the table that in many cases may be implicit by us. it may be no malice intended. but at the end of the day, the result is that you have a disparate effect on the people of color that you need most to help address some of the issues that were at the table. so i think for us not to acknowledge that it exists, to acknowledge implicit bias is a human behavior that no one is exempt from, for us to require that we are trained in it, that we hold ourselves accountable so that we don't have these disparate outcomes is really what we're talking about. and it's easy to focus on the small percentage. i agree with the opening statement. only a small percentage of our professor i believe are racist.

but if the issue was as simple as racism, it would be a bigger problem to fix. >> thank you senator graham. i'm going to take an extraordinary risk here and put this committee in the hands of senator franken. in all seriousness, we're in a roll call vote and senator graham and i have to vote and senator franken, i'll recognize you and i'll let you monitor your own time used and watch senator blumenthal proceed and then i'll return. >> thank you. >> you may regret this. i have the gavel. in that case, i'll turn it over to senator blumenthal. >> i have a -- if i may, i have a question, chief, to follow up on the remark that you made at the close of senator graham's questions. under what circumstances have you profiled and if you could,

talk a little bit more about what limiting principles you think should apply to profiling when it is used legitimately, if it can be used legitimately in your view. >> yes. the example that stands out for me when i was a police officer in oakland, you would have an area that we would identify as high crime. this area was very accessible to the freeway so we had customers coming in from out of town to buy narcotics and quite often, they were actually white. so the presumption on my part and many others that any white person in the neighborhood would then be buying narcotics. the problem with that assessment, it attaches criminality to the entire neighborhood so the only way that neighborhood could be judged, based on the actions of a few which means you're criminalizing everyone that lives there. two, that suggested that the only reason why a white person would visit someone black is to buy drugs. besides being ineffective and insulting to the neighborhood, it wasn't very -- it just did

not work. so as we got better, we learned how to watch behaviors. so now someone leaning on a car, someone exchanging money, somebody yelling signals that a drug buy was about to take place or the police officers were coming works a lot better. doing proper investigations. the circumstances in which i think profiing would work would be under the category of criminal profiling when you're looking at behavioral aspects of what a person is doing. in other words, a person -- people that when they're selling drugs, they engage in certain behaviors. whether it's how they drive, whether there's furtive movements in a car, something that would be specific to their actions. i cannot think of any context in which race is appropriate, other than when you're describing someone that's committed a crime. in fact, senator, i would say what ends up -- race ends up doing is being a huge distractor. we've seen this time and time again. we did operation pipeline where we targeted so-called drug couriers and did not get what we were looking for because we were

so busy looking for black or brown people driving on a freeway. we were proven wrong time and time again and we lose the support of our community. >> and added to that problem is the difficulty often of using eyewitness testimony where somebody supposedly identifying a potential defendant in a lineup can be just plain wrong because of race being a factor. would you agree to that? >> yes. in fact, there's much work in science now looking into some of the danger of basing convictions and even arrests merely on lineups because they can be inaccurate. if i may, one of the questions that came up earlier was about officers guessing on race. if i can say, it's really interesting because we're supposed to assess race. and so the idea -- i don't think we're suggesting that race has no place. so if you put something comes out on the radio that you're looking for a black male, six

foot tall, 225 pounds that did a robbery, it would make sense that you would stop me. i could understand that. >> objection. >> but the officer has to make an assessment at the time. there's a time and place, just not when you're trying to predict criminal behavior. >> mr. gale, if i may ask you to comment on the general principle that race or other similar characteristics alone if used for identifying or profiling individuals can be distracting or undermining credibility and really should be used in combination with other, if at all, characteristics, mainly conduct, behavior and so forth, what would you think about that? >> conduct is what drives it all.

when you talk about -- and because, you know, i'm the commander of the training academy in my department and we're training officers all the time. one of the things we talk about is the stop and frisk, terry stop type of situations. it's all driven by conduct. if you're going to properly teach that, you teach that it's driven by the conduct of the person and you're determining that their conduct indicates that they're involved in criminal activity. race has no place in that. i think the distractor is that now, you would have criminals who are involved in criminal activity who will now use, you know, the racial profiling as a distractor as they complain for having been arrested or stopped because of their criminal conduct. and i think there's a presumption by some and wrongly so, i believe, that, you know, no criminals ever complain against police officers and that no criminals ever, you know, don't just acknowledge that they do crime. my experience in 23 years is that it's very rare to roll up

on someone engaged in criminal conduct and have them say oh, you got me, copper. i'm guilty. they don't do that. they look for any way they can to try to get out of that process. conduct is what drives all of it. the distractor is now that if you pass a bill like this, you're going to now say here's something you can use in addition. i think the courts have already told law enforcement agencies very clearly you cannot use race as the basis for how you do this. so conduct is it. the bulk of my testimony is really that i think we're trying to fix something that doesn't need to be fixed because you're trying to fix it with a law as opposed to just saying, hey, there's a problem and the problem is bad police work. >> and i'm sympathetic as one who has been involved in law enforcement for actually more than 23 years combining both federal and state as u.s. attorney and then as attorney general of my state,

connecticut. and i would be very low to create what you have charitably called distractions, impediments to effective law enforcement. but i think that one of the roles of legislation, it's also to provide guidance, raise awareness and practice provide direction to police or their departments who may not be as aware as you are or even other witnesses here. mr. romero. >> thank you, senator blumenthal. officer gale, i must take some time to visit your fair city of denver because it doesn't look liej any of the major cities i've visited in any 11 years as director of the aclu. with all due respect, you will forgive me for having to point out that your very optimistic assertion that all is well is just not borne out by the data

we already have. let my give you data that we know quite well in new york city, the country's largest police department. there were, from 2002 to 2011, there were more than 4.3 million street stops. 4.3 million. 88% of those -- that's nearly 3.8 million -- were of innocent new yorkers. that means they were either arrested for summons or -- either issued a summons or arrested. let's break it down by race. obviously it's a much better place if you're puerto rican like me and might live in denver but new york is not a very good place for people who are african-american or latino. in 2011 a record 685,000 new yorkers were stopped by the new york city police department. 88% were totally innocent of any crime. 53% of those were black. 34% were latino.

9% white and remarkable number of guns were found on 0.2% of all stops. now, with all due respect, you say this is all conduct driven. because, clearly, these facts beg otherwise. the fact is that there is a problem and i would assert that the reason why -- and i think one point where we agree, the fraternity order of police nationwide lack the trust from communities of color. i think you have said as much. that you have a p.r. problem, if you will, with communities of color, and i would assert that the reason why you might have that difficulty with the communities of color is because they know these facts. they may not know them the way i know them, but they've experienced it. that is precisely why the act is essential. the data we have is problem. let's collect the data and put in place some remedies.

your point about the supreme court and the equal protection clause giving sufficient comfort to those who have been wronged by the police, that's simply not true. the supreme court case in the case of wren, which i were cite for you, basically allowed police officers to make a pretextual stop based on race ethnicity and national origin. it is the law of the land, ard coulding to our supreme court. at times our supreme court gets it wrong, which is why we exhort this congress and this senate to step in when we know there is a problem that has not yet come to the attention of our supreme court. with all that, i thank you. >> thank you. my time is up. i want to thank all of the witnesses. this has been a very, very important and useful hearing, and we have some areas of disagreement, which i think we need to explore further, but i want to thank particularly mr. gale and chief davis for

your excellent work over the years in law enforcement, and thank the chairman and substituting chairman for their tolerance and patience. >> i think you actually call me the chairman. it's protocol. >> you know, i think i need the ad -- i have a right to the remain silent, don't i? >> yes, you do. >> unfortunately, i have an appointment, so i'm going to ask my questions and then you'll get the gavel and you'll be the chairman and get every due respect being called the chairman. thank you, senator blumenthal. everyone here has talked about the importance of cooperation of law enforcement officers and the communities they serve, and it seems everyone agrees it racial profiling can undermine trust in

the authorities and can cause resentment among targeted groups. minnesota is home to a large population of somali-americans. in my opinion, no community was more upset when than when we learned that a few somali-americans had gone back to somalia and become involved with al shabaab. when i talked to both the fbi director muller and more importantly when i went back to the twin cities and talked to the special agent in charge there, both said that the somali community had been cooperative in fbi investigations. and i think it was because of actually very good police work and very good work by the fbi in making sure that they earned the

trust of the somali community there. my questions are to chief davis and to officer gale. both of you have served as law enforcement officers. how do you earn the trust of the diverse communities that you serve? some of which -- some of whom may be initially skeptical of the police? >> thank you, senator, and one stop at a time. one day at a time. one interaction at a time. i think when people -- i think we have to, one, acknowledge the history police have played. the role of law enforcement with regard to race in this country. we still have generations of people that remember the desegregation. we have generations of people that are still here that remember when the police were the enforcement tool and rule of law with regard to jim crow law and black code laws. we have to acknowledge we might start off with this lack of trust and confidence. it's one interaction at a time.

i think the first thing law enforcement can do is acknowledgement. take our heads out of the sand and acknowledge that we have this horrific history. we should acknowledge that we, whether intentionally or not, are still engaging in practices that have -- disparity resulting in regard to people of color. whether intended or not. we should put defensiveness down and realize we're here to serve, not be served and only going to be successful if the community engages with us, and the more we engage with them the safer we make them. the safer we make our communities, the more they'll partner with us. with the evidence that's showing time and time again of each major city and community, the stronger the relationship between the police and minority communities, the greater the crime reduction is going to be. we do it one interaction at a time. we do it by holding officers accountable, but we also do it by acknowledging that which is in front of us. there is no greater insult as a minority is for someone to look me in my eyes and insult my intelligence by telling me there is not profiling when everything about me knows that it is.

and i think that happens with our communities and we need to stop doing that. >> officer gale? >> i think i agree with the chief, that you have to do it one person at a time, but i think you have to be more global. you have to look at the community you serve and the different populations in that community and you have to make a concerted effort to be in those communities and having dialogue with those people and you have to listen. and it doesn't matter that you might not agree with the things that they say. years ago i was in the military and i went to a leadership school and they had a manual that said any problem real or perceived is still a problem, and i agree with that and i've held to that. it doesn't matter if it's not the actual problem. if it's perceived to be a problem by someone or by a group of someones, we have to listen, we have to validate it and we have to dialogue through it, and i think we have to take agencies and train agencies to understand who these populations are.

that they're serving. and what the concerns of those agencies are. i agree also with chief davis that, you know, we have to acknowledge the history of law enforcement. it has not always been one of stellar conduct, and i think that that's being done in a lot of organizations. i think in the fraternal order of police we talk about it very honestly and candidly with our membership and say, this is the way you need to go to improve your relations with the communities that you serve. and so it's important to do those things, to hear what they have to say. but it's also important to explain to them what the challenges are. what we have to do if we're going to protect people. what, you know -- what we're faced with as the challenges, when we are protecting communities, and it's important for us to illustrate that to individuals in the community. because, you know, no one's perfect. but if we understand each other better and we dialogue more, i

think when there are these honest misunderstandings, we can move past them. >> thank you. mr. romero, in your written testimony on behalf of the aclu, you wrote about a recent, a recently uncovered fbi training materials that rely on bigoted stereotypes of muslims. i think we can all agree that those materials are not acceptable. fbi director mueller acknowledged that those materials damaged the fbi's relationship with muslim communities, and i commend chairman durbin for his recent letter to the fbi on the subject and i'm working on a letter to express my concerns as well. mr. romero, what actions should the fbi take to show that it is serious about reforming its training programs? >> thank you for the question, senator franken. and, yes, what i would first

point out is, of course, those memos and files and training manuals surprised us. when we used the freedom of information act we go asking for documents that we don't know exist. and so we used the freedom of information act as democracy's x-ray. how to get documents that we need. that questions, hunches, based on conduct of what we've seen already when the fbi's been tracking young muslim men between the ages of 18 and 33 asking them to come in for voluntary fingerprinting, photographing, mapping out mosques. we had a hunch they had to have some training materials that were going to be troubling and problematic. and lamentably our hunches were borne out. i think, frankly, one thing that the fbi needs to -- i would encourage, and director mueller is a man with whom we have great disagreements. we've sued him dozens of times,