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president's speech was effective in part because he told Americans
that the challenge would require sacrifices. It is a part of human
nature to express its commitment to a cause by making sacrifices.
These can take many forms. We have seen Americans in New York attacking
rubble, giving blood, holding hands, kneeling down in church. The
sacrifices Mr. Bush has asked for are not yet specified, but one
of them will surely be ideological: the sacrifice of what John Derbyshire,
writing last February in National Review, termed "a
fanatical egalitarianism, a grim determination not to face up to
the realities of group differences, a theological attachment to
the doctrine that the sole and sufficient explanation for all such
differences is 'racism' — which is to say, the malice and cruelty
of white people — and a nursed and petted guilt towards the
behavior of our ancestors."
Back then, the author was defending some police practices categorically
condemned as racial profiling. The author's point was that, informed
by reality, policemen sometimes sniff more readily when looking
for plausible crime suspects. And of course the classical expression
of this was done by Jesse Jackson, who in 1993 confessed that "There
is nothing more painful to me at this stage in my life than to walk
down the street and hear footsteps and start thinking about robbery,
then look around and see somebody white and feel relieved."
Now here is the constitutional challenge we are looking at. When
airport security sees someone coming through whose ethnic background
is the same as that of the 19 hijackers whose faces we have become
familiar with, is security defensibly more curious than in inspecting
others?
The most recent holding was that of a San Francisco court. It held
that to detain someone with unequal regularity is okay provided
that the person's race is not the only reason to focus on
him.
If the Reverend Jackson was apprehensive looking behind him and
seeing that he was being followed by young male blacks, we can imagine
that he might feel apprehensive on boarding a plane in which there
were a dozen men of Arab features. Representative John Conyers has
introduced a bill to force police agencies to keep detailed information
about traffic stops. The presumed idea would be to document that
the incidence of cars and trucks stopped reflected the demographic
scale. So (theoretically) if 100 drivers were stopped for routine
inspection, no more than 13 could be black; or, perhaps, not more
than 50, male. The dean of academic anti-profiling is Randall Kennedy
of Harvard. He is a law professor who has acknowledged that outlawing
racial profiling will reduce the efficiency of police work. Even
so, for constitutional and moral reasons, we should outlaw the practice.
If this means extra burdensome law enforcement, well, "racial
equality, like all good things in life, costs something; it does
not come for free."
Neither does airport security come free.
So that it is appropriate to ask whether one of the sacrifices
President Bush calls on us to make would include an activation of
ethnic stereotypes. We are all accustomed to equality in airplane
security practices, where old ladies and little children equally
are made to pass through the x-ray stations again and again when
the buzzer sounds, until the compact or water pistol is unearthed
and found non- lethal.
But airport security people are talking about imitating the practices
of other airports. In Tel Aviv, for instance, as also in Stockholm,
rigorous questioning takes place. I have seen it operate, and the
questioner takes his/her time over it, satisfying whatever curiosity
is stimulated. Question before the court: If an Arab passenger is
detained longer than others, and a pattern of profiling emerges,
how will the courts rule on the question? What will airport security
adduce, as a reason other than ethnic background to justify
special curiosity? How will the government defend the practice?
Will the government be permitted to say that a profile of known
hijackers informs us that 90 percent of them were of Arab racial
background? Can the security practitioners inquire into the religious
affiliation of the passenger? "Mr. Atta, you are a Moslem?
What Moslem sect do you belong to? Have you ever had training in
self- defense? Training with weapons? Have you ever used knives
other than to eat with?"
And so on. Distasteful. But 30 minutes from now, all those people
are going to be in the airplane at 30,000 feet above the ground;
above where the police are; out of reach of the ACLU. We will be
hoping for, and expecting, a safe landing. But we will be counting
on sensible security procedures to maximize that possibility.
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