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Milton Heumann and Lance Cassak
excerpted Wrom: JGDGVCJVTLBXFGGMEPYOQKEDOTWFA
Afterward: September 11th and Racial Profiling , 54 Rutgers Law Review
283-291, 287-291(Fall, 2001) (35 Footnotes)
Of course, there is nothing wrong with re-opening the debate over
racial profiling or taking it ina different direction, particularly in
connection with so important a topic as efforts to detect and prevent
terrorism. Reconsideration of whether there is a role for racial
profiling in the battle against terrorism to a large extent raises again
some of the issues we have explored in Profiles in Justice? Police
Discretion, Symbolic Assailants, and Stereotyping, although in a
radically new setting. Whether the new debate clarifies any of the old
issues remains to be seen.
Most important in this regard, there is the question, still largely
skirted as this issue has become revisited, of what exactly one means by
racial profiling. Is it consideration of race or ethnicity alone, or
consideration of race or ethnicity as one of a number of factors? Is it
enough, for example, to pull an Arab or a Muslim person off a commercial
airplane based on that fact alone, or does law enforcement need to know
more, such as how long before the flight the person had been in the
United States, what he did while he was in the United States, with whom
he had associated with, and/or whether he had taken flying lessons? For
better or worse, based on some of the incidents so far in the wake of
the attacks, it appears that a person's Middle Eastern ancestry alone
has been enough to prompt action (at least by citizens).
Nonetheless, it is possible to envision use of racial profiling in
the battle against terrorism consistent with some of the strictures laid
down so far. We might begin with the assumption that stopping a person
for questioning based solely on the fact that he appears to be Arab or
Muslim is not permissible. However, as long as the Supreme Court and
other federal courts remain wedded to the principle set forth in the
United States v. Martinez-Fuerte, that race or ethnicity may be one
factor among many that can be considered in the decision to stop
someone, one might argue that a stop based on the fact that a person is
Arab or Muslim combined with other factors, could justify the stop. But
what are the "other factors" that could legitimately be added
to the profile? Would it be enough that there was not one person of
Middle Eastern descent, but a group of Arabs or Muslims? Does it
strengthen or weaken the decision to stop if the group has congregated
near an Arab-American community in cities such as Brooklyn, New York,
Dearborn, Michigan, or Paterson, New Jersey? Near an airport or
reservoir? In any of the cities--for example, Boston, Massachusetts or
Daytona Beach, Florida--associated with those who carried out the
September 11th hijackings?
Assuming that one can identify the appropriate "other
factors" to be included in the profile, there is also the issue of
what the investigative stop would entail. Questioning alone might not
cross the line; treatment analogous to what Japanese-Americans suffered
during World War II clearly would (and no one has argued for that, yet).
But what about a broad range of investigative tools in between? Assuming
that law enforcement has stopped someone based on the fact that the
person is Arab or Muslim plus the hypothetical "other factors"
needed to justify the stop, how far, if at all, can they go to determine
whether the person is up to anything? Evidence of the threat posed by
the person in this setting might be more elusive than the type of
evidence police routinely look for in a stop at an airport based on the
drug courier profile or in connection with a traffic stop. How far
beyond mere questioning, if at all, can police go to require a person to
demonstrate proof of long time residency in a location, significant ties
to a "mainstream" community, or any other fact that would
allay concerns that prompted the stop in the first place? Could the
police, for example, remove such a person from an airplane or train, or
insist that some members of the group take a later flight or train? At
this point at least, we believe that even if attitudes towards racial
profiling change, prompting more leeway for law enforcement to employ
the practice, the intrusions that change occasions will stop short of
the most extreme measures that are universally considered to be
indefensible (such as what happened to Japanese-Americans during World
War II). But there is considerable play in how we balance the variables
in this regard. Exactly where that line will be drawn and whether that
will be consistent with cherished attitudes toward civil liberties or a
significant compromising of those attitudes has become a central issue
in the new debate.
Other issues in the current debate also loom in this new setting. Of
course, there is the issue of whether a racial profile, however it is
composed, actually increases the effectiveness of law enforcement in
rooting out the problem. At this point, it is difficult to tell whether
racial profiling will serve as anything more than a placebo, reflecting
some action being taken by a nation hungry for such signs, yet without
any measure that the action is effective. Moreover, even if it is
effective, are the psychological and other costs of racial profiling
stressed by commentators such as Randall Kennedy sufficiently high with
regard to Arabs or Muslims so as to counsel against the practice? Or
does the argument only apply to racial profiling as it came to be
understood in the 1990's, largely against African-Americans as a
discrete and insular minority that has had a history of discrimination
and similar mistreatment at the hands of law enforcement in this
country?
But there is more. Consideration of the use of racial profiling in
any efforts to prevent terrorism, in addition to re-stating familiar
issues, raises new ones. The central one involves context. It is worth
remembering that the new category of investigative stops created by
Terry v. Ohio that gave rise to what has evolved into racial profiling
was borne out of a pragmatic balancing of the relative interests
involved. Without minimizing the problems associated with illegal drug
use, there are few who would question that the threat posed by what
occurred on September 11th exceeds--by a considerable amount--the threat
posed by illegal drugs. Terrorism, in a word, convincingly
"trumps" drugs. However one strikes the balance when a racial
profile is used to stop drug couriers, the stakes appear much higher
now. Where is the balance to be drawn when the conduct law enforcement
hopes to detect and prevent could result in the deaths of thousands, if
not more, and the disruption of major cities, financial centers, and
government institutions?
This is the critical new issue that, in fact, overwhelms all others.
Indeed, if this is a War Against Terrorism, much of the debate of the
past couple of years becomes irrelevant, or at least requires a
decidedly different approach. Inter arma, silen leges; in times of war,
law is silent, goes the old expression. This may not be absolutely true
but, just as the initial formulation of the "clear and present
danger" test, in many regards hostile to free speech, was arguably
influenced by the backdrop of World War I and the Red Scare, so too the
context in which racial profiling is now being considered is certain to
raise a host of new questions and provoke answers to those questions
different than the previous debate would suggest. Not only is there the
question of how the balance is to be struck--including who is properly
the target of racial profiling in this setting and what investigative
practices we will allow--but perhaps more important is the question of
who determines how the balance is struck.
Also, who in law enforcement should do the racial profiling: law
enforcement officers trained in counter-terrorism measures or any law
enforcement personnel assigned to guard airports, patrol the highways,
or walk the streets? If the former, are there sufficient resources and
manpower to accomplish anything meaningful and, just as important,
satisfy the cry for action that has prompted the reconsideration of
racial profiling? If the latter, can we be certain that racial profiling
in this circumstance will involve the drawing of reasonable inferences
based on years of relevant law enforcement experience, or instead,
become the type of "hunch policing" that has appropriately
attracted the harshest criticism?
Finally, there is yet another new issue raised by the prospect of
using racial profiling in light of September 11th related to the issue
of context just discussed. Assume that the imperatives of the fight to
eradicate terrorism produce a consensus that racial profiling in some
form is a legitimate law enforcement tool. Would that consensus be
necessarily limited to the fight against terrorism or would it expand,
either as a theoretical matter or practical matter, to other areas of
law enforcement? Can we realistically restrict the use of racial
profiling only to the fight against terrorism or is the reconsideration
of the practice in this context going to prompt a sea of change in
attitudes about racial profiling in general, such that those who approve
of the practice will become the dominant voices? This remains to be
seen. |
