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The legitimacy of profiling
In light of the attempted Christmas Day bombing aboard Northwest Airlines Flight 253, it was certainly appropriate that President Obama directed a review of airline screening policies and procedures.
It is unlikely, however, that the current administration will re-evaluate long-standing policies prohibiting ethnic or gender-based terror profiling.
Nevertheless, failure to make common-sense changes may increase the chance that persons like Nigerian Umar Farouk Abdulmutallab or “shoe-bomber” Richard Reid (aka Abdul Raheem) will one day succeed in detonating a bomb aboard a commercial aircraft.
Considering the explosive power of PETN (the explosive apparently utilized in both incidents), we can count ourselves as extraordinarily lucky that no American lives have been lost in such an attack thus far.
Unfortunately, political correctness and misguided past applications of racial profiling by domestic law enforcement have poisoned the profiling well in the war on terrorism (or whatever the Obama administration calls its counterterrorism policy this month).
While ethnic minorities are statistically no more likely than whites to violate domestic laws, 32 of the 45 groups recognized as “foreign terrorist organizations” by the State Department are Islamist in orientation with direct ties to the Middle East, the Arabian Gulf region, Africa or South Asia.
Over the previous 25 years, Islamist “jihadism” has become the primary global threat to democratic values, peace and stability. With few, but certainly notable exceptions, the foot soldiers of terror attacks are primarily young men of Middle Eastern, North African or South Asian backgrounds. Most are in good physical health, well-educated, speak several languages, and are (outwardly at least) fairly well-adjusted. Many have either lived in or were born in the West.
Regrettably, if as a society America accepts profiling, we appear to endorse practices that seem fundamentally unfair and discriminatory. But, complete or perfect “fairness” is impossible when dealing with terrorists and terrorism. In an age of malevolent terror directed almost exclusively against innocents, there is something hopelessly derelict about ignoring race, gender and ethnicity (among other factors) in our national security strategy. Those who assert profiling is always wrong, even if effective, rarely find themselves in positions of responsibility for the safety and security of others.
Few people realize that under limited circumstances, security screening based at least in part upon ethnic or gender profiling violates neither constitutional protections nor federal civil rights laws.
Limited profiling is compatible with the president’s War Powers under Article II and with implied executive powers granted by Congress after Sept. 11, 2001. Within this context, most travelers routinely expect close scrutiny for almost any reason at all. Surveys consistently indicate terrorism is the most important issue of concern to Americans and polling conducted in 2002 by Public Agenda revealed that two-thirds of Americans “agreed that racial profiling of Middle-Easterners by law enforcement is understandable” (although of course regrettable).
Current Justice Department guidelines regarding the use of race by federal law enforcement agencies (Department of Justice Guidance, 2003) quite appropriately state that linking racial characteristics to “misconduct” is “erroneous,” “ineffective,” and “harmful” to society. With respect to national (and border) security, the guidelines state that federal agents “may not consider race or ethnicity except to the extent permitted by the Constitution and laws of the United States.” This is the equivalent of proclaiming that “profiling is not authorized unless it is authorized.”
To add to this confusion, in a footnote, the guidelines declare that “officials involved in homeland security may take into account specific, credible information about the descriptive characteristics of persons who are affiliated with identified organizations that are actively engaged in threatening the national security.”
To insist that an experienced bomb-dog handler or baggage screener, ignore any hunches while mindlessly sticking to random passenger screening is, at best, a waste of limited resources. Sky marshals, Transportation Security Administration screeners, and others on the front lines of counterterrorism should be afforded sufficient discretion to draw upon their common sense and experience regarding people who exhibit nonbehavioral risk factors.
While racial or gender-based profiling should never be considered acceptable under all circumstances, future guidance should take into consideration real-world threats while ensuring that valid cultural sensitivities are respected.
In his message on Monday, the president promised to “do everything in our power to protect our country.” He also said his administration “will be guided by our hopes, our unity, and our deeply held values.”
Bravo, as a great nation our strength derives, in large part, from our cultural and ethnic diversity. Protecting our values, however, requires balancing zeal with caution. While we zealously face the threat of Islamist terror, we should be free to carry out policies that involve brief and typically trivial impositions upon persons who, unfortunately, share some of the outward appearances of our enemies.
John Winn teaches business and constitutional law at Shenandoah University in Winchester, Va. He served in the Army Judge Advocate General’s (JAG) Corps, including five years on the Law Faculty at the United States Military Academy at West Point.
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