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COLUMN - The Case for Using Racial Profiling at Airports COLUMN - The Case for Using Racial Profiling at Airports

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COLUMN - The Case for Using Racial Profiling at Airports

September 22, 2001

With bigots harassing and violently attacking loyal Arab-Americans, it is a bit taboo in some circles to advocate racial or ethnic profiling of any kind, in any place, ever. "I'm against using race as a profiling component," even in screening would-be airline passengers, Attorney General John Ashcroft declared in a September 16 television interview.

At the same time, the Bush Administration has rushed to adopt rules authorizing indefinite detention of legal immigrants, and is pressing Congress to pass immediately-with minimal scrutiny-far-reaching new powers that would (among other things) enable law enforcement officials, without presenting evidence, to lock up indefinitely foreigners suspected of terrorist links.

This, I respectfully submit, seems backwards. The new powers may be justified if they would, in fact, make us safer. But Congress should not simply assume as much without first hearing out critics who fear heavy costs to liberty with only illusory benefits to safety. The emergency measures adopted now could be with us for decades, because this emergency is not going away. So we'd better be careful. History is replete with hasty emergency legislation that we later came to regret-from the Alien and Sedition Acts to the detention camps for Japanese-Americans-and with abuses of the new powers years later by officials whose invocations of national security proved overblown or even fraudulent.

If the Administration says it needs new powers immediately, Congress should provide that they will lapse in 30 days unless reauthorized after due deliberation.

Racial profiling of people boarding airliners, on the other hand-done politely and respectfully-may be an essential component (at least for now) of the effort to ensure that we see no more mass-murder-suicide hijackings. If you doubt this, please try a thought experiment: A few weeks hence, or a year hence, you are about to board a cross-country flight. Glancing around the departure lounge, you notice lots of white men and women; some black men and women; four young, casually dressed Latino-looking men; and three young, well-dressed Arab-looking men.

Would your next thought be, "I sure do hope that the people who let me through security without patting me down didn't violate Ashcroft's policy by frisking any of those three guys"? Or more like, "I hope somebody gave those three a good frisking to make sure they didn't have box cutters"? If the former, perhaps you care less than I do about staying alive. If the latter, you favor racial profiling-at least of Arab-looking men boarding airliners.

This is not to condone the special scrutiny long given to African-Americans and other dark-skinned people in other law enforcement situations, such as when police pull them over on interstate highways in hugely disproportionate numbers and search them for drugs. Racial profiling of that kind (not to be confused with stopping and frisking young men in high-crime neighborhoods) should be deemed unconstitutional even when there is a statistically valid basis for believing that it will help catch more drug dealers or violent criminals. (There often is, given the disproportionate percentage of such crimes committed by young black men.) This benefit is far outweighed by the costs: Such racial profiling is hard to distinguish from-and sometimes involves-plain old racist harassment of groups that have long experienced discrimination at every stage of the criminal justice process. It subjects thousands of innocent people to the kind of humiliation that characterizes police states. It hurts law enforcement in the long run by fomenting fear and distrust among potential witnesses, tipsters, and jurors. It is rarely justified by any risk of imminent violence. And it makes a mockery of conservative preachings that the Constitution is colorblind.

But stopping hijackings is different. First, preventing mass murder is infinitely more important than finding illegal drugs or guns. Second, 100 percent of the people who have hijacked airliners for the purpose of mass-murdering Americans have been Arab men. Third, a virulent perversion of Islam is the only mass movement in the world so committed to mass-murdering Americans that its fanatics are willing to kill themselves in the process. Fourth, this movement includes people who have lived legally in America for years-some of whom may be citizens-so the risk of weapons being smuggled onto airliners cannot be eliminated by giving special scrutiny only to foreign nationals.

In short, the mathematical probability that a randomly chosen Arab passenger might attempt a mass-murder-suicide hijacking-while tiny-is considerably higher than the probability that a randomly chosen white, black, Hispanic, or Asian passenger might do the same. In constitutional-law parlance, while racial profiling may be presumptively unconstitutional, that presumption is overcome in the case of airline passengers, because the government has a compelling interest in preventing mass-murder-suicide hijackings, and because close scrutiny of Arab-looking people is narrowly tailored to protect that interest.

Did Ashcroft really mean to reject any use of race "as a profiling component"? Perhaps not. In another September 16 interview, he said that people are not "suspects based solely on their race or ethnic origin." The next day, FBI Director Robert Mueller said: "We do not, have not, will not target people based solely on their ethnicity. Period."

The key word is solely. As Ashcroft and Mueller well know, the types of racial profiling that they properly deplore will rarely lead to overtly stopping or searching people based solely on their ethnicity. That's why well-dressed 60-year-old black men and women are searched for drugs a lot less than well-dressed young black men-not to mention teenagers in gangsta-rap attire.

The question is not whether Arab-looking people should be stopped, questioned, and searched based solely on their ethnicity. The question is whether airport security people should be allowed to consider ethnicity at all. The answer is yes, unless we are prepared to frisk everyone who seeks to board a plane, and until we have a security system so foolproof that we need not frisk anyone.

Such a system seems attainable: It would incorporate X-ray machines as good at detecting weapons as any physical search; hi-tech equipment that can compare passengers' faces or retinas with those in government databases; impregnable doors to keep would-be hijackers from entering cockpits; rules forbidding pilots from coming out even if flight attendants' throats are being cut; and armed sky marshals. Measures like these may eventually eliminate the risk of a box cutter being used to hijack a plane. But for now, we have a clear and present danger of Arab Islamic extremists doing just that.

The Administration cannot and should not cloak its profiling policy in ambiguity. It is increasingly obvious that disproportionate numbers of Arabs are being interrogated, frisked, and perhaps strip-searched at airports. Unless the security people on the ground are told clearly what they should and should not do, they may engage in more (or less) racial profiling than safety requires. And if the Administration uses racial profiling while pretending to reject it, the message to police and citizens around the country will be that it's OK, as long as you lie about it. Instead, the Administration should articulate a general rule against racial profiling with one narrowly drawn exception: People who seek to board airliners will be randomly questioned and searched for potential weapons as thoroughly as, and for any reason, deemed appropriate by the responsible officials.

Should this be the only exception? What about the dangers of terrorists smuggling bombs or guns or box cutters onto buses or trains or subways or bridges, or into tunnels or crowded stadiums or office buildings or schools or the Capitol or Disneyland?

These dangers are real. But in such settings, they are as likely to be presented by domestic terrorists such as Timothy McVeigh as by people of Arab descent. Only by crashing airliners can terrorists commit mass murder with weapons as easily concealed as box cutters and plastic knives. And only would-be mass murderers bent on suicide-the vast majority of them extremist Islamic fanatics craving martyrdom-would crash an airliner.

It's true that the gravest threats of all-biological, nuclear, and chemical terrorism-emanate mostly from Islamic extremists and do not involve airliners. But if anyone succeeded in smuggling such weapons of mass destruction across our borders, there would be so many places to hide them that racial profiling would be futile. That's why it is imperative to arrest or kill terrorists and destroy their most fearsome weapons wherever we can find them.

Arab-Americans understandably resent being singled out for special scrutiny when boarding airliners. But the alternatives-a greater risk of being killed and greater political pressure for detention of relatives and other visitors from abroad who fall under unwarranted suspicion-are worse.

Stuart Taylor Jr. National Journal

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