ADC Comments on Racial Profiling

Calls for racial, ethnic profiling renewed after transit attacks
Critics say it unfairly singles out minorities
– Edward Epstein, Chronicle Washington Bureau
Wednesday, August 10, 2005
Washington — In the aftermath of last month’s terrorist attacks on London’s subways and buses, some have renewed calls in this country for authorities to use racial and ethnic profiling to try to identify terrorism suspects at airports and on the nation’s transit systems.
So far the idea has been advanced most forcefully by columnists, academics and local politicians in New York City, where anti-terror precautions including random searches of subway passengers’ bags were instituted after the London attacks. Bush administration officials resist the notion — which is against federal policy — but even the staunchest opponents of profiling admit the idea will gain force if Islamic extremists begin new attacks.
Emblematic of the proposals were comments by New York Assemblyman Dov Hikind, a Brooklyn Democrat who said he will introduce legislation to allow police to zero in on Middle Easterners when they conduct terrorism-prevention searches in subways or other locally controlled systems. For the past few weeks, New York City authorities have randomly searched subway riders’ bags and packages and say they’re doing it without regard to ethnicity or race.
“They all look a certain way,” Hikind said, referring to Muslim terrorists responsible for the London attacks and the Sept. 11, 2001, terrorist strikes on the World Trade Center and the Pentagon. “It’s all very nice to be politically correct here, but we’re talking about terrorism.”
Such talk riles critics, who say profiling by race or ethnicity is anti-American and unfairly discriminates against minorities. They argue such efforts, discussed repeatedly after the Sept. 11 attacks, will backfire by instilling fear and anger among the country’s Arab and Muslim residents and making them more reluctant to cooperate with investigators, cutting off the main source of information needed to prevent future terrorist attacks.
And, civil libertarians ask, wouldn’t Oklahoma City bomber Timothy McVeigh, would-be airplane shoe bomber Richard Reid, or terror suspect Jose Padilla confound would-be profilers?
Still other criminal justice experts say security operations need to switch from random or universal checks now used by authorities to focus on characteristics usually shown by suicide bombers and to rely more on devices invisible to the public such as closed-circuit cameras in public spaces.
So far, New York’s subway bag checks have not been copied in other cities, although Washington — which has the nation’s second-busiest subway system — has sent staff members to New York to study the program. In the Bay Area, BART has responded to the London attacks by stepping up a public information campaign and increasing police patrols aboard trains, with more bomb-sniffing dogs on duty.
Newspaper columnist Charles Krauthammer helped stir the pot in a recent column when he said the random checks in New York were “reflexive and stupid.”
“It recapitulates the appalling waste of effort and resources we see at airports every day when, for reasons of political correctness, 83-year-old grandmothers from Poughkeepsie are required to remove their shoes in the search for jihadists hungering for paradise,” he wrote.
Instead, he suggested homing in on young Islamic men.
The idea is opposed by Homeland Security Secretary Michael Chertoff. “I think we want to focus on behavior. It’s behavior which is the best test of someone’s intentions. … We want to focus on behavior and not prejudice,” he said Monday on CNN.
Profiling is against current federal policy and might run afoul of federal court decisions that bar racial profiling, except where it advances a “compelling governmental interest,” as the Supreme Court has ruled in cases involving affirmative action at universities.
During World War II, the court upheld the internment of tens of thousands of Japanese Americans, saying the federal government could abrogate an ethnic group’s rights in the name of serious national security issues.
John Banzhaf, a law professor at George Washington University in Washington, said the current situation probably meets that test.
“A very compelling argument can be made that the government’s interest in protecting the lives, safety and health of thousands of its citizens from another major terrorist attack similar to those carried out in New York, London and other cities … is at least as ‘compelling’ as a racially diverse student body,” he wrote recently.
Banzhaf also said a suspected terrorist’s race or ethnicity might be one of many factors that police could consider in figuring out whom to stop in searching for suspected suicide bombers. Those other factors include a nervous or drugged appearance, an odd gait caused by bulky strapped-on bombs, bulky, out-of-season clothing, or aggressive behavior.
Laila Al-Qatami of the American-Arab Anti-Discrimination Committee said she expects calls for racial profiling at airports, on subways or at other public places to increase, especially if there is another terrorist attack. But she warned against racial or ethnic profiling and said everyone has to grow accustomed to the inconvenience of things like security screening at airports.
“We’re living in a climate where it’s not about convenience anymore. If you use race or ethnicity, you’ll miss other things. It’s important we screen everyone so we don’t miss anyone,” she said.
She said using race as one of many factors in deciding who to examine closely is acceptable. “But basing decisions solely on race isn’t the best way to go.”
Professor John Yoo of UC Berkeley’s Boalt Hall Law School said racial profiling would be advisable under specific circumstances, such as when police have a description of a suspected suicide bomber’s race or ethnicity.
“But without that, I’m not sure it makes sense,” said Yoo, a former Justice Department lawyer who stirred controversy by writing a 2002 memo saying that fighters captured by U.S. forces in Afghanistan were not covered by the Geneva Conventions.
Yoo said that instead of race, a better profile for suspected terrorists might be of young men in general, pointing to the Sept. 11 and London bombers and terrorists of other races like Reid and McVeigh.
“If we searched everyone from the Middle East or Africa at our borders, it wouldn’t make sense, and it wouldn’t work,” Yoo said.
David DeCosse of the Markulla Center for Applied Ethics at Santa Clara University said that in the post-Sept. 11 atmosphere that has been amplified by attacks on transit in Madrid and London, “a hard-line civil libertarian stand isn’t too terribly wise in these circumstances.”
He warned that any use of profiling must be done in a circumscribed way.
“I’m not confident that if the United States moved to a more energetic embrace of profiling that we’d be able to limit it effectively.
“We need the use of real prudence, and the public needs specific reasons. … Giving people a chance to think about the reason gives people a chance to accept the step or not.”
E-mail Edward Epstein at

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