On Tuesday this week the Bush administration released new policy guidance on racial profiling by the federal government. I read it with great trepidation, because there is so much nonsense generated these days by those discussing this topic, especially when politicians get involved. Moreover, the Bush administration has a very uneven record on racial issues. So I was prepared for the worst.
As it turns out, however, the new policy is perfect. Not just okay, not just acceptable, not just a C- or even a B — but perfect, A+, 100 percent.
To start out with, the guidelines define the term “racial profiling” the only way that makes sense: It means taking race or ethnicity into account in deciding whom to stop, question, frisk, etc. The definition would be too narrow if it meant only stopping someone for no reason except race; clearly discrimination takes place even if race is “just one factor” (too bad the left forgets this when college admissions are at issue). The definition would be too broad if it included any law enforcement practice that had a racially disproportionate effect
notwithstanding a lack of intent (since any rationale law-enforcement policy will have such an effect so long as some racial groups, for whatever reason, commit crimes at higher rates than others). So the Bush administration got it just right.
Next, the administration draws a legally valid and commonsensical distinction between “traditional” law-enforcement activities, on the one hand, and antiterrorism measures, on the other. That is, it makes a difference whether the police are trying to locate a bag of marijuana versus, say, a hydrogen bomb. Denying that there might be a distinction between the two is, as they say, a notion so ridiculous that only an intellectual could believe it.
In traditional law-enforcement contexts — street crime and so forth — the guidelines ban racial profiling. Even if such profiling might increase the likelihood of intercepting a shipment of cocaine, the breach of trust between the police and the communities being policed is, in the long run, not worth it. That, it seems to me, is also correct.
Incidentally, the New York Times reported that the Justice Department also concluded that such profiling, despite much hysteria over the past few years, does not appear to be “a systemic problem” — a point that has been made frequently and well by Heather Mac Donald. The guidelines avoid the pitfall of requiring law-enforcement agencies to keep demographic data on those stopped-a bad idea since this inevitably drives the agencies to follow quotas, with the equally inevitable result that some in “overrepresented” groups who ought to be stopped won’t be, and some in “underrepresented” groups who shouldn’t be stopped will be.
The guidelines also point out that, when race is part of the suspect’s identification, the police are not “profiling” when they use that evidence. That is, suppose police are told “to be on the look-out for a fleeing bank-robbery suspect, a man of a particular race and particular hair color in his 30s driving a blue automobile.” Then, the guidelines say, the police “may use this description, including the race of a particular suspect, in deciding which speeding motorists to pull over.” Of course.
The guidelines then go on to make another important distinction. Where there is “an identified criminal incident, scheme, or organization,” and there is “trustworthy information” that links race or ethnicity to it, then race or ethnicity can be considered then, too. That is, suppose the FBI is investigating the murder of a gang member and has information that the culprit is the member of a rival gang, which is made up exclusively of a particular ethnic group. For the FBI to focus its efforts on people who are in that ethnic group is akin to the policeman, in the preceding paragraph, focusing only on people of a particular race, hair color, and age who are in blue cars. Sounds right, again.
Finally, though, the guidelines turn to terrorists. The guidelines acknowledge that here, given “the incalculably high stakes,” the consideration of race may be justified. I would note that, because al Qaeda is not unlike the ethnicity-defined gang just discussed, focusing on individuals who share the geographic and religious characteristics of the organization is, likewise, not really profiling at all. Nonetheless, the guidelines are correct — as a matter of both constitutional law and common sense — that the government is entitled to take race, religion, and ethnicity — as well as, of course, alienage — into account in trying to find a suspect when the failure to apprehend him will cost thousands of lives. This recognition rebukes earlier pronouncements to the contrary by Secretary of Transportation Norm Mineta.
The distinction drawn between traditional law enforcement and antiterrorism has, predictably, drawn the disapproval of the American Civil Liberties Union, which called this a “huge loophole,” denigrated “vague and hollow justifications of ‘national security,’” and declared, “The war on terrorism isn’t served by allowing discrimination based on country of origin.”
I was feeling a little nervous about calling anything “perfect,” but the ACLU’s condemnation provided me with the reassurance I wanted.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.