January 20, 2010
We’re all familiar by now with the theme song, even if this year it’s being sung in a different key: an attempt at terrorism thwarted; calls for racial profiling go up.
Despite castigation from the right for being too soft on Muslims, the Transportation Security Agency (TSA) installed new search rules in late December for travelers from 14 mostly Muslim countries. Just as after September 11, the attempted bombing by Richard Reid and the 2006 arrests of more than 20 men allegedly involved in a transatlantic bombing conspiracy in the United Kingdom, blatant racial and religious profiling at our airports and borders seems just a question of time.
The use of racial or ethnic profiling is, in fact, nothing new in the United States. The earliest significant federal use of racial profiling was the 1882 Chinese Immigration Act, which dramatically constricted labor flows from Asia, as well as imposing harsh restrictions upon Chinese already in the United States. Indeed, some of the U.S. Supreme Court’s earliest decisions on race under the Equal Protection Clause were responses to overt anti-Asian bigotry.
The 1924 Johnson-Reed Act then imposed national origin quotas designed to preserve the Caucasian tincture of the day. And in 2002, the so-called “special registration” program—an administrative venture the Bush-era INS imposed before any congressional authorization occurred—singled out citizens of majority Muslim countries (and, just for larks, North Korea) for special scrutiny.
This year’s racial profiling model is but the most recent in a long line of immigration measures grounded in dubious intelligence all too often based on ethnic and racial stereotypes.
It would be a mistake, though, to think that race only enters the equation through formal rules and directives. Last year, the San Francisco-based organization Muslim Advocates published an important study of Muslim Americans’ experience with invasive and inappropriate questioning about faith and personal politics as they entered the U.S. As Sen. Russ Feingold has pointedly noted in Senate questioning of TSA staff, American Muslims are often targeted for discriminatory searches of laptops and other personal property.
The new TSA rules, then, must be seen against the backdrop of an air travel security system that is already deeply racialized.
None of this will especially surprise readers who have experienced first-hand mistreatment while traveling. It is, indeed, easy to despair that even eight years after the Sept. 11 attacks, we are still having the same conversation about race, security and justice. Yet progressives should not lose hope. In the last eight years, scholars and advocates have identified an increasing volume of evidence of profiling’s failure—and, indeed, its harms to security goals. The Christmas day bombing attempt on an airplane traveling from Amsterdam to Detroit provides an opportunity to brush up on those arguments.
Profiling can actually increase terrorism.
There is no evidence that racial or ethnic profiling decreases the net amount of terrorism. To the contrary, studies of airline security measures imposed after a wave of hijackings in the 1970s suggest that it has the perverse effect of increasing terrorism. In one of the best of these studies, Walter Enders and Todd Sandler found in 1993 that although new mandatory screening procedures decreased the number of hijackings, they coincided with an increase in other forms of terrorism, such as kidnappings and attacks on stationary targets.
The facts of 23-year-old Umar Farouk Abdul Mutallab’s attempt, moreover, should count against profiling. Recall that after 2001, “special registration” used racial criteria to identify purportedly high-risk migrants. Predictably, the government’s list was comprised of largely Arab countries. Nigeria was not among them.
From the perspective of al Qaeda then, the profile provided something of a guide for what not to do. There is every reason to expect that the next time there is an attack on an airplane, the person involved will be called something like “David Hicks” or “John Walker Lindh.”
Profiling produces a backlash.
Profiling alienates the very constituencies that are needed to prevail against terrorist plots: the friends and families of those targeted by al Qaeda and its allies.
Until recently, this “backlash” thesis has stood on unclear ground. But stronger support is now available. A 2009 study of British policing tactics in Northern Ireland, published in the journal Criminology, makes a clear case for the “backlash” thesis by showing how the British army’s failure to maintain the trust of the Catholic community directly impeded its ability to limit terrorist attacks.
In today’s context, consider Abdul Mutallab’s father, who went to American authorities with concerns about his son. Will the next person who is in the elder Abdul Mutallab’s position, after having been manhandled by U.S. airport security, be so quick to step forward?
Arguments based on the “backlash” thesis have to gingerly made. Some members of the Muslim American community feel strongly that the argument is an implicit concession of a special connection between Muslims and terrorism, and that this concession can only engender more profiling. I have sympathy for this point, but ultimately disagree. It is simply a deeply unpleasant fact that al Qaeda targets Muslims for recruitment. This does not mean that Muslims are statistically more likely to be terrorists or deserve singling out: why should any group that is the target of a vicious conspiracy be themselves condemned? But it does mean that Muslims may have some special leverage, just as Abdul Mutallab’s father did.
Profiling is a quick fix for the public…like torture.
The real lesson of the Abdul Mutallab incident is that the systemic failures of institutional design condemned by the 9/11 Commission have not been fixed. The Bush Administration invested time and political capital in a torture and indefinite detention regime but didn’t fix the vital stuff.
Just as with torture, profiling is a policy that politicians can offer as a quick and emotionally satisfying fix. But those taking the bait should know that their relief comes at the expense of real and substantial changes in national security. In reality, the debate on profiling is political theater. However well it plays in Peoria, it makes no one safer.
Aziz Huq teaches at the University of Chicago law school and previously litigated civil liberties cases in the Supreme Court and other federal courts with the Brennan Center for Justice.