David Rudovsky is a senior fellow at the University of Pennsylvania Law School.

 

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Synopsis

In the wake of 9/11, the Bush Administration invoked broad notions of executive power to fight the “War on Terror.” Five years later, there is much dispute over the constitutionality and efficacy of many of these programs, including National Security Agency (NSA) electronic surveillance, incarceration and treatment of “enemy combatants” at Guantanamo Bay, “rendition” of terror suspects to other countries for interrogation, the practice of “alternative interrogation” of suspects in our custody, and limits on habeas corpus.

This dialogue will focus on another law enforcement tactic that has been equally controversial: racial profiling. Before the events of 9/11, there was a strong national consensus that racial profiling was both unwise and ineffective. President Clinton condemned racial profiling as “morally indefensible,” presidential candidates George W. Bush and Al Gore both agreed that the practice should be abandoned, and up to 80% of the public found this practice to be unfair.

Yet, while almost all agreed that it was impermissible to stop or search someone solely on the basis of race, some in law enforcement urged that reliance on race, in conjunction with other factors, was legitimate, even if race was not part of a specific suspect description. By this reasoning, the widespread practice of racial profiling in the “War on Drugs” was justified as reflecting the supposedly disproportionate numbers of racial minorities involved in drug trafficking.

This conventional law enforcement “wisdom” did not withstand empirical and legal scrutiny. As the Attorney General of New Jersey reported in his investigation of racial profiling on the New Jersey Turnpike:

The evidence for this conclusion is, in reality, tautological and reflects as much as anything the initial stereotypes of those who rely upon these statistics. To a large extent, these statistics have been used to grease the wheels of a vicious cycle—a self-fulfilling prophecy where law enforcement agencies rely on arrest data that they themselves generated as a result of the discretionary allocation of resources and targeted drug enforcement efforts.

The most obvious problem in relying on arrest statistics, of course, is that these numbers refer only to persons who were found to be involved in criminal activity (putting aside for the moment the presumption of innocence). Arrest statistics, by definition, do not show the number of persons who were detained or investigated who, as it turned out, were not found to be trafficking drugs or carrying weapons. Consistent with our human nature, we in law enforcement proudly display seized drug shipments or “hits” as a kind of trophy, but pay scant attention to our far more frequent “misses,” that is, those instances where stops and searches failed to discover contraband.

Empirical evidence supports this view. On the New Jersey Turnpike, seizures of contraband made incident to traffic stops were at a rate of 10.5% from white drivers and 13.5% from African-American drivers. In Maryland, searches on I-95 resulted in “find rates” that were roughly equal by race. Yet, in these states as in others, the rate of stops and searches of African-American drivers, which ranged up to 60-70% of the stops, was vastly disproportionate to both the rate of drug possession and the number of minority drivers.

The events of 9/11 reignited both the practice of racial profiling and the debate over its use. Since Al Qaeda was a Muslim organization and the planes were hijacked by nineteen Arab Muslim men from the Middle East, did it not make sense to single out Arab Muslims in any investigatory efforts? Many people who had condemned racial profiling in the War on Drugs were now convinced that it would be an effective tool in the War on Terror.

For the Bush Administration, there was no hesitation. Within days of the 9/11 attacks, the Department of Justice (DOJ) launched the first large-scale detention of persons based on race and country of origin since the internment of Japanese Americans in World War II. Thousands of suspected immigration violators were incarcerated under a veil of secrecy that left their families, employers, and even their lawyers completely in the dark as to their location or the nature of the charges against them. Ultimately, over 700 foreign nationals were detained for significant periods of time by order of the Attorney General as persons “of interest” to the 9/11 investigation. As it turned out, the only basis for the government’s “interest” in these 700 individuals was their Arab and Muslim identities. There was no individualized suspicion.

Soon thereafter, the government widened the racial and ethnic profiling net in a “Special Registration” program and “Absconder Apprehension Initiative” that resulted in the arrest and preventive detentions of several thousand additional Muslims and Arabs. Once again, the stated basis for the detention was a suspected link to terrorism, but, as before, this link was simply one of ethnicity. Ethnic profiling was also the basis for the November 2001 order of Attorney General Ashcroft to interview 5000 persons, aged eighteen to thirty-three, who had legally entered the United States in the past two years from countries linked to terrorism.

Meanwhile, at airports and at the country’s borders, it was apparent that Muslims and Arabs were being targeted for special attention for questioning, searches, and even for decisions prohibiting them from flying. The government insisted that it was not engaged in racial or ethnic profiling, but its practices spoke in far different terms. Indeed, in 2003, in issuing guidelines on the use of race in criminal investigations, the DOJ essentially codified the government’s split personality with respect to racial profiling: racial profiling was “wrong” and “stereotyping certain races as having greater propensity to commit crimes is absolutely prohibited,” but “efforts to defend and safeguard against threats to the national security or the integrity of the Nation’s borders” are exempt from racial profiling prohibitions.

In declaring that racial profiling is wrong and immoral, except where national security is at stake, the government asserts that there is something unique about the War on Terror that makes ethnicity and race legitimate factors when the same tactics have been found to be both ineffective and contrary to equal protection principles in other criminal investigations. The answer has been that terrorism threats in the United States are almost entirely a function of racial and ethnic-based hatred, and that those who would commit terrorist acts in the future almost assuredly are Al Qaeda members or supporters, who are, therefore, of Muslim and Arab extraction. Presumably, it is this high correlation between the targeted ethnic population and the criminal acts that distinguishes profiling in terrorism investigations from that which occurs in other contexts.

There are several fundamental flaws in this approach. First, it simply is not true that contemporary terrorists are from a single ethnic group. Richard Reid—the “shoe bomber”—did not fit the profile, as his mother was British and his father was Jamaican. Nor did John Walker Lindh, an American, who was convicted for his activities with Al Qaeda. Since Islamic tenets are part of the religious principles of millions of persons outside of the Middle East, it is difficult to see how a focus on Muslim Arabs will prevent attacks by others. It would be surprising if Al Qaeda, which has shown an ability to adjust to efforts to destroy its organization, would not be sufficiently flexible to arm persons who do not meet our profiles. And we should not forget that the Oklahoma City bombers and others who have committed terrorist acts were home grown and of various religious backgrounds and races.

Second, even if the underlying assumption is correct, with over one million Muslims in the United States, how do you begin to narrow the field? Are all of them suspects? Only young Muslim men? Whatever the standard, we are left with the same problem that haunts the use of all profiles and stereotypes. Assume that 90% of a certain type of crime is committed by a particular racial or religious group, that there are over a million persons who comprise that group, and that 1000 of them are involved in the criminal activity. That leaves 99.9% of the suspect group innocent, yet somehow presumed at risk for criminal behavior. We should not employ race or ethnicity when more effective techniques of law enforcement—such as criminal intelligence or observations of criminal conduct—are available. Indeed, our experience since 9/11 demonstrates that racial profiling does not work. Of the thousands of persons detained as immigration violators in the wake of 9/11, only one person was charged with terrorist crimes. We might not expect the government to bat 1.000 or even .300, but when the batting average is near zero, we should look carefully at the tools that are being used.

Indeed, even where race or ethnicity is used as a factor among others, there is a significant risk of abuse. In November 2006, the government settled a claim by lawyer Brandon Mayfield for $2 million for his wrongful arrest as a terror suspect after his fingerprints were erroneously matched to those on a bag of detonators in Madrid. As the DOJ Inspector General determined, because of Mayfield’s Islamic beliefs, investigators did not reexamine the case even after Spanish police challenged their fingerprint findings.

Third, there are distinct disadvantages to racial profiling. Where criminal conduct is organized within communities, one of the most effective law enforcement responses is the development of intelligence from within those communities. Thus, if the belief is that terrorist cells might be operating in a particular Muslim community, it is essential to develop reliable intelligence from members of the local population. Racial profiling may well undermine such efforts. If the community believes that it is the “enemy” by virtue of its ethnic identity, it will be far more difficult to encourage its members to report suspicious activity. We should not expect support from those we target as presumptive terrorists.

Finally, history has something to teach us as well. The most notorious and ineffective government national security programs have been built on racial stereotypes. For instance, the Palmer raids after World War I—in which thousands of immigrants were arrested, beaten, deported, and imprisoned in the wake of a terrorist bombing in the United States—targeted immigrants by ethnicity and amounted to nothing more than a vicious reprisal based on group characteristics. The internment of Japanese Americans during World War II, perhaps the greatest stain on our constitutional fabric aside from slavery and Jim Crow discrimination, reflected the unwise triumph of racism over fair national security policies. Even the ideological profiling of the McCarthy era was destructive of basic American values.

The wisdom reflected in equal protection principles applies equally to criminal and terrorist investigations, and we act at our peril in disregarding fundamental protections in the hope of achieving greater security.

R. Richard Banks responds to David Rudovsky.