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Justice Department's announced manhunt for Middle Eastern men who
have ignored their deportation orders is no doubt an application
of ethnic profiling. Each of the 6,000-targeted individuals, among
300,000 who have been ordered to leave the United States, is from
a country with known al Qaeda cells. Technically, the profiling
is based on nationality, but the correlation with ethnicity is obvious.
Still, in this instance, the manhunt makes sense and it's constitutional.
Profiling may
be objectionable if law-enforcement authorities use race or ethnicity
as a substitute for suspicious behavior or other credible evidence
to investigate, apprehend, and detain suspects. That's not what
is happening. The men sought are not unidentified potential suspects,
but named lawbreakers; not statistical artifacts, but real people.
Their wanted status was triggered by their conduct, not by their
nationality. The vast majority of Middle Easterners have nothing
to fear from the Justice Department campaign, which involves no
more than prioritizing scarce law-enforcement resources.
This past term,
in Zadvydas v. Davis, the Supreme Court reaffirmed
that immigrants — even those here illegally or temporarily
— are entitled to the same due process as citizens. But the
Court qualified its holding, noting that "the question before
us is not one of conferring on those admitted the right to remain
against the national will or sufferance of aliens who should be
removed."
Although the
Constitution guarantees equal protection to persons within our borders,
there is no constitutional or statutory right for a lawbreaker to
escape punishment. Persons are not protected against deprivation
of a right that does not exist. Moreover, if such a right did exist,
equal protection guarantees are not absolute. Government may still
treat persons unequally, even based on ethnicity, if it has a compelling
interest in doing so, and that interest cannot be satisfied in a
less intrusive manner.
Here the profile
is narrowly tailored to cover a small number of individuals from
a few selected countries — only persons who have already been
ordered deported. And the government's interest is palpable: to
prevent terrorist acts that could injure or kill thousands or even
hundreds of thousands of Americans. That's why the Court in Zadvydas
expressly did not consider "terrorism or other special circumstances
where special arguments might be made … with respect to matters
of national security."
The terrorist
threat demands that law-enforcement resources be deployed promptly
and effectively. If those resources are spread too thin, government
could default on its foremost obligation — to protect the nation
against loss of life, our most precious civil liberty.
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