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Milton Heumann and Lance Cassak

excerpted from   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.