Breach of Law, Breach of Security – Racial Profiling

Prior to 9/11 a national consensus outlawing the use of racial profiling was emerging. After the attacks occurred, “…this consensus evaporated… The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Arab Americans, Muslims, and those perceived to be Arab or Muslim, such as Sikhs and other South Asians” [The Leadership Conference on Civil Rights, Racial Profiling: Wrong Then, Wrong Now, Feb. 27, 2003]. Since then, public calls for racial profiling of Muslims – and others who “look Muslim” – by various pundits has now become common fare in public discourse. The logic of racial profiling supporters – both pundits and some public officials – rests on the faulty premise that it is “a matter of survival” against terrorists. To the contrary, I argue that, like the warrantless NSA wiretapping, racial profiling is not only unethical, it also compromises America’s legal foundations and its national security.

Before presenting my arguments over “racial profiling,” it is important to define the term. I have slightly modified Congressional Research Service’s description of the term to define it as: the practice of targeting individuals for police or security interdiction, detention or other disparate treatment based primarily on their race, religion or ethnicity in the belief that certain racial, religious and/or ethnic groups are more likely to engage in unlawful behavior.

In spite of racial profiling’s unethical nature, there are very few domestic laws that specifically prohibit racial profiling. In June 2003, the Department of Justice (DoJ) released a document entitled, ‘Guidance Regarding the Use of Race by Federal Law Enforcement Agencies’ which gives outlines to Federal officials on the use of race in law enforcement and national security matters. In the section under national security, race is only to be used as factor when there is intelligence indicating that terrorists or criminals of a particular ethnicity will imminently attack a target and/or suspects must exhibit “suspicious behavior.” Profiling someone simply because of stereotype and not based on intelligence and/or suspicious behavior is to be considered prohibited.

Unfortunately, there are several problems with the document: 1) Its guidance is just advice and thus is not legally enforceable among any federal law enforcement agencies, in spite of recognizing that the 14th Amendment and subsequent legal precedent bans subjective law enforcement based on race; 2) it does not discuss profiling based on religion or religious appearance, in spite of the Equal Protection Clause within 14th Amendment and later legal precedent; 3) it does not give provisions for oversight or redress against discriminatory practices inconsistent with the document’s advice; 4) it fails to define what is an issue of “national security”, leave it up to wide discretion; 5) it does not define “suspicious behavior” – in spite of specific guidelines used by the FBI and local law enforcement agencies; and 6) it does not pertain to state and local levels where most racial profiling takes place, where there is very little legal protection and where terrorist plots are very likely to be prevented.

There are also practical reasons why racial profiling should be banned for policing/counterterrorism purposes, particularly when this relates to Muslims. If counterterrorism could be compared to finding needle in a haystack, then racial profiling simply adds more hay to the stack. The American Muslim community is extremely racially and ethnically diverse, reflecting the cultural pluralism of the larger global community. This includes groups such as South Asians, Southeast Asians (Indonesians and Malays), Arabs, Sub-Saharan Africans, Caucasians and large groups of Caucasian, African-American and Latino converts. (In fact the second largest group of American Muslims are African-American converts, making up approximately 30% of the community.) So how can one tell who is a Muslim and who is not? The only possible way to discern someone who is Muslim is by their possible “religious” clothing.

However not all Muslims may dress “religiously”, whatever that may mean. Integral to a terrorist’s ability to strike and survive is secrecy and the element of surprise. If Al-Qaeda operatives dressed “religiously” they would fit into stereotypes that make them stick out like a sore thumb. Unsurprisingly, the 9/11 attackers dressed like Westerners and some had shaved beards. That is why they have consistently sought after elite operatives who would best blend into their target societies. Their recruits are secular, western educated people (with little religious education) who easily become indoctrinated by an ideologically-tainted version of Islam. Furthermore, they are not just from “traditional” Muslim groups like Arabs and South Asians, but include others like Caucasian converts. Even operatives from a “traditional” group may try to manipulate their ethnic features in order to look like a “non-Islamic ethnicity” – like Latinos – in order to avoid suspicion, such as one foiled terror plot in New York City. The use of East Africans on 7/21, as opposed to majority-Pakistanis on 7/7, is another example of race-switching tactics to avoid being ensnared by the clumsy trap of racial profiling.

In addition, racial profiling of Muslims can undermine critical sources of intelligence needed to prevent an attack. The best people who understand and truly know the difference between peaceful law-abiding citizens and the tiny minority of bloodthirsty fanatics are Muslims themselves, whether as intelligence officers or anonymous informants. By profiling against individuals or groups from a specific racial, religious and/or ethnic background, it not only has a huge negative impact on civil liberties, it fails to smash terrorist networks and alienates the community law agencies need most to obtain the necessary intelligence to prevent an attack. Furthermore, at best it will make people hesitant to constructively cooperate with law agencies and at worst become disillusioned with American society and become more receptive to extremist messages. A good relationship between law enforcement and Muslim communities is not just a great photo-op for politically correct purposes; it has extremely important strategic implications that enhance national security.

Also, racial profiling is ineffective because terrorists may not directly attack a target with their own operatives. Terrorist organizations, as well as common criminals, have been known to use women and children to unknowingly transport a weapon to its intended destination. Just ask Anne-Marie Murphy or the two-year old child whose teddy bear was stuffed with a gun. Moreover, Muslim terrorist networks are not the only threat facing America. While not receiving as much attention as international Muslim terrorists have, domestic terrorism primarily from Neo-Nazis/White Supremacists and Christian extremists is still a major threat to American security. According to statistics from the Southern Poverty Law Center, at least 60 terrorism plots by domestic extremists have been foiled between July 1995 and May 2005. Of these 60 plots, 19 have been thwarted since September 11, and of these 19, 2 have involved possession of, or conspiracy to possess chemical weapons.

In sum, racial profiling is not only violates legal-ethical norms set within America’s constitution and laws; it is ineffective and counterproductive to national security. Focusing on certain people’s racial, ethnic and/or religious appearances instead of their suspicious behavior, overlook other methods and threats at great risk to public security and civil liberties. The terrorists score a major victory by letting the government commit a double sin by unraveling the nation’s civil liberties and compromising its national security.

Wa Allahu ‘Alim

Alejandro Beutel

Minaret of Freedom Institute

www.minaret.org

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