|
recent Gallup poll indicates that 60 percent of Americans want Arabs
to undergo more intensive screening at airports. The Federal Motor
Carrier Administration, which inspects trucks carrying hazardous
materials, has announced that it "will be looking closely at
the drivers, and if the person looks to be of Arab descent that
would be enough" for stepped-up scrutiny. Those are just two
instances of ethnic profiling now urged on us in the aftermath of
September's horrific events.
But can ethnic
or racial profiling ever be justified? After all, national security
is a legitimate function of the federal government. Even hardcore
civil libertarians concede that it would be foolish to treat civil
liberties as inviolable when the lives of innocent thousands are
at stake. So, what is to be done?
The Constitution
guarantees all persons, including non-citizens, due process, and
equal protection of the laws. Yet those rights are not absolute.
The Supreme Court has insisted that the government pass a rigorous
two-part test if it intends to discriminate on the basis of race
or national origin. First, government must show that it has a "compelling
interest" in employing its discriminatory scheme. Surely, protection
against the kind of terror that we experienced on September 11 would
qualify as compelling. But second, government may not discriminate
unless it adopts means that are "least restrictive" when
compared against alternative approaches to accomplish the same ends.
That second principle will ultimately control disputes over ethnic
profiling.
Where, then,
should we draw the line? That's a tough question to answer. But
there is an analytical framework that can be applied in determining
whether ethnic profiling should be condoned. To some, that framework
will seem too quantitative, even though it deals with factors that
are difficult, perhaps impossible, to quantify. The goal is not
to reduce the factors to a cost-benefit calculus. Rather, the goal
is to frame the issues so that both practical and moral considerations
can be assessed in a structured, systematic manner.
First, the
easy part: At one extreme, we should reject uncompromising views
of national security. Ethnic profiling cannot be defended simply
by asserting that some people will be more secure. When Rep. John
Cooksey (R., La.) vented his spleen — "If I see someone
[who] comes in that's got a diaper on his head and a fan belt wrapped
around the diaper on his head, that guy needs to be pulled over"
— rational people condemned such drivel. At the other extreme,
civil liberties cannot be allowed to trump national security despite
overwhelming evidence that ethnic profiling could, on balance, safeguard
individual rights. Imagine, for the sake of argument, that 90 percent
of New Zealanders were terrorists and 90 percent of terrorists were
New Zealanders. Only a fool would forbid New Zealand nationality
to be added to a composite profile of suspected terrorists.
Unhappily,
we are left with a vast number of tough cases that require more
nuanced analysis. Toward that end, I propose the following standard,
which combines two tests centering on individual rights and a third
test that is explicitly utilitarian. Ethnicity may be included as
one factor in a multi-factor profile if, and only if, all three
of these criteria are met:
First, the
addition of an ethnic factor must significantly improve the effectiveness
of the profile in ferreting out the guilty. Thus, if one in a hundred
truck drivers who transport hazardous materials is likely to be
a terrorist, and one in a hundred Arabic truck drivers who transport
hazardous materials is likely to be a terrorist, the government
obviously may not initiate stepped-up scrutiny because "the
person looks to be of Arab descent." People who are similarly
situated must be treated the same. The key, here, is evidence, not
guesswork, that the profiled class is indeed different.
Second, there
must be reasonable suspicion to believe that a meaningful portion
of the profiled ethnic class is guilty. Otherwise, the profile will
be unduly over-inclusive — vesting the sins of the guilty on
the innocent. In the truck driver context, it may be that Arabs
are 10 times as likely to be terrorists as non-Arabs. But if only
one tenth of one percent of hazardous materials truck drivers of
Arabic descent are terrorists, the addition of ethnicity to the
profile cannot be justified without violating the rights of 999
out of every 1,000 persons. That seems clearly excessive to me,
although I might reconsider if the government could find a way to
compensate those innocent persons whose rights are abridged.
Third, the
benefit of including ethnicity must exceed its cost. On the benefit
side, two dynamics enter into the equation: First, the chance that
addition of an ethnic factor will prevent a terrorist incident that
would not otherwise have been prevented. Second, a measure of the
likely harm if the incident were to have occurred. The product of
those two terms tells us the value of profiling ethnicity. Again,
evidence rather than conjecture must control. For example, the Federal
Bureau of Investigation issued an advisory warning that future terrorist
attacks might come in the form of hazardous materials trucks used
as rolling bombs. If substantiated, that report must certainly weigh
heavily in assessing the possible damage.
On the cost
side of profiling are potentially grave impositions on innocent
persons, triggered by their membership in a targeted ethnic group.
Naturally, a vital consideration is the scope of the imposition.
We should not object if police use ethnic profiling simply to limit
their investigations. Even the questioning of profiled suspects
raises few concerns if the suspects are free not to answer and free
to leave. But subpoenas, custodial interrogations, and extended
detentions are another matter. And, of course, the number of profiled
suspects is of paramount importance. It's one thing for government
to stop a dozen Arab truckers of hazardous materials. It's quite
different to detain all Arab non-citizens unless and until it can
be proven that they pose no threat.
No doubt that
framework raises more questions than it answers. The devil is in
the details. Still, in light of recent events, all three branches
of government could be asked to tradeoff precious civil liberties
against the prospect of grievous losses to innocent civilians from
terrorist acts. That tradeoff cannot be based on seat-of-the-pants
speculation, or knee-jerk invocation of theories that refuse to
yield despite the exigencies of the moment. We face a new and unprecedented
evil, which we must defeat without abandoning the liberties that
set us apart from every other country in the world. That difficult
task calls for logic, not emotion; for evidence, not rumor; and
for a structured approach that weighs the competing interests rationally
and morally.
|
