The Nationality Test
The manhunt for terrorists makes sense and it's constitutional.

he 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.