Profiling Terrorists
A dose of realism.

Mr. Clegg is general counsel at the Center for Equal Opportunity.
September 18, 2001 9:30 a.m.

few news stories over the last week have reported on the fear of some people that the government will use "racial profiling" in trying to identify terrorists. To which there are two responses. First, it is not at all clear that what will be used really is racial profiling. And, second, so what?

If you are mugged by a six-foot-two-inch, black male wearing a red sweatshirt, it is not "racial profiling" for the police to be on the lookout for people who meet that description, even though one element in it is racial. The classic case of racial profiling is, instead, when the police decide to stop cars being driven by young black males, not because they have the description of a specific suspect, but because they know that statistically drugs are more likely to be smuggled by young black males than, say, old Asian females.

But there are other circumstances that fall in between these two extremes. Suppose, for instance, that you are looking for members of a particular drug cartel, who are engaged in particular acts of smuggling, and you know that they will all be Colombian nationals, but you don't have specific names or descriptions that go beyond that. Is it "racial profiling" to look harder at dark-eyed, dark-haired, darker-skin whites, and give shorter shrift to Asians, blacks, and folks with blond or red hair?

Enough hypotheticals. Suppose that you have already identified several members of a terrorist ring and want to find the rest. The ones you have identified so far meet a particular profile: Middle Eastern descent. Moslem. Several are trained pilots. Male. Young or middle-aged. Booked on transcontinental flights. Any problem with assuming that there is a good chance that the remaining members of the ring are likely to meet this profile, too?

This is a lot closer to the specific-description extreme of the spectrum than the statistically speaking end of the spectrum. Which means that this really isn't properly characterized as racial profiling at all. This doesn't mean you ignore everyone who doesn't meet the profile or shoot to kill anyone with black hair. But you look harder at those who fit the description.

But the other response is, so what if it is racial profiling? No one believes that the government should never, under any circumstances, consider race in its actions.

Suppose a prison has just suffered a race riot. Would it be barred from temporarily segregating prisoners? Of course not, as several of the justices noted — with none disagreeing — in one Supreme Court case. In an earlier decision, another justice wrote that the Constitution is not a suicide pact. Just so, and thus one would not expect it to bar the government from doing what is necessary to defend the ordered liberty of our society.

Racial classifications are allowed if they are "narrowly tailored" to a "compelling governmental interest," according to the Supreme Court's case law. If stopping terrorism is not a compelling interest, then nothing is. And in some circumstances there will be no way to safeguard this interest without taking the ethnicity of suspects into account. Such discrimination should be as limited and temporary as possible, but it is preferable to allowing mass murder, as all three branches of government would surely conclude.

And I doubt that few people would complain about it. My boss, a Latina, suspects that she is often assumed to be Middle Eastern when she travels on international flights, and that in Europe she is therefore more often stopped by security guards. She has no problem with that. And why should she — why should anyone — if the alternative is to diminish, however slightly, the chances of catching the next terrorist?