- The Washington Times - Thursday, June 19, 2003

The new limits on federal agents’ use of racial profiling announced by President Bush this week do a good job of beginning the process of delineating those instances where taking race or ethnicity into account can serve as a legitimate law-enforcement tool. Mr. Bush’s guidelines (which quite properly allow for greater flexibility in carrying out investigations of potential terrorists) will apply to approximately 70 federal law-enforcement agencies, including the FBI, the Department of Homeland Security, the Drug Enforcement Administration and the Coast Guard.

The guidelines, which are posted on the Justice Department’s (DOJ) Web site, are being attacked by groups like the ACLU, who claim they aren’t restrictive enough. We disagree: Based on the information made public thus far, they go a considerable way toward responding to reasonable concerns expressed by civil libertarians on profiling.

For example, the guidelines say that police would be barred from engaging in such practices as increasing traffic stops and drug arrests in certain neighborhoods solely because of their racial composition. Absent relevant data like 911 calls or arrest trends showing a pattern of criminal activity, these tactics would be unacceptable because they are based merely on “generalized stereotypes.” Courthouse screeners would also be barred from forcing people to undergo added scrutiny based solely on race or ethnicity.

But, in dealing with terrorist threats to the American public from al Qaeda and others, the guidelines — as they should — allow federal security officials greater leeway in taking proactive steps to head off attacks. As the guidelines point out: “Given the incalculably high stakes involved in such investigations, federal law enforcement officers who are protecting national security or preventing catastrophic terrorist events (as well as airport security screeners) may consider race, alienage and other relevant factors.”

In announcing the guidelines, DOJ provided several scenarios in which heightened scrutiny of individuals based in part on their ethnic background would be acceptable. For example, say U.S. intelligence sources reported that Middle Eastern terrorists are planning to hijack commercial airliners at an airport in California during the next seven days. Before men of Middle Eastern origin are permitted to board commercial airplanes at California airports during the next week, federal authorities may subject them to heightened scrutiny. Similarly, if the FBI obtained reliable information that people involved with a foreign ethnic insurgent group were planning to assassinate their country’s president and his entourage during a visit to the United States, federal law enforcement could focus its investigation on identifying members of that group who might be operating in this country.

At the same time, the guidelines also permit the FBI to use information on someone’s ethnic background in carrying out certain criminal investigations. These would include cases such as violence involving criminal gangs comprised of individuals of one ethnic origin.

In sum, so-called racial profiling can serve as a useful investigative tool in some cases. The Bush guidelines do a solid job of beginning to separate those cases in which taking ethnicity into account serves a law-enforcement purpose from those in which it has no legitimate place.

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