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EDITOR'S
NOTE: Over the weekend it was reported that 9 of the 19 Sept.
11 hijackers drew special scrutiny before they boarded their flights,
but none were actually questioned. NR Editor Rich Lowry wrote
about this issue in his January 28, 2002 cover story on profiling
and airline security."
 n
late September, M. Ahsan Baig was kept off United Flight 288 from
San Francisco to Philadelphia because the pilot didn't like the
way he seemed to be furtively talking to another passenger in the
waiting area. Baig, a California computer specialist who is from
Pakistan, got on another flight 90 minutes later after apologies
from a ticket agent. An hour-and-a-half delay, for many fliers,
might be considered a good day at the airport. For Baig,
it was the occasion for a civil-rights lawsuit.
So it goes
at the nation's airports. An Arab-American Secret Service agent's
recent difficulty boarding a flight with his gun has become a national
scandal. Meanwhile, discrimination lawsuits filed by Arab-American
men have become the latest cause of aspiring Erin Brockoviches.
September 11 may have changed the world, but grievance politics
is one corner of it that has been serenely untouched. Arab-American
groups still scream at any suggestion of commonsense security at
airports, while the Bush administration still cowers at any association
with "racial profiling." It has become clear in recent
weeks that the pieties of American racial politics will remain unchanged
— even after contributing to a mass murder.
No one likes
to say it out loud, but more than half the people on the FBI's Most
Wanted terrorist list are named Mohammed, Ahmed, or both (for instance,
Ahmed Mohammed Hamed Ali). Islamic terrorists will necessarily be
Muslims, and probably from the Arab world. Not to profile for those
characteristics is simply to ignore the nature of today's terrorism.
As security expert Neil Livingstone points out, when the Black Panthers
were hijacking planes in the 1970s, security personnel should have
been on the lookout for young black men; when D. B. Cooper —
the famed skyjacker who parachuted out of a plane with a bagful
of cash in 1971 — was on the public mind, security should have
been suspicious of young-to-middle-aged white men booked to fly
over rugged terrain.
Profiling of a sort has been an official practice of the nation's
airlines for years. In 1994, Northwest began to develop a computer-assisted
passenger pre-screening system (CAPPS) to single out high-threat
passengers. After the TWA Flight 800 disaster in July 1996, the
Clinton administration convened an Al Gore-led commission to study
aviation security. This commission recommended that the Northwest
system be adopted by the airline industry generally. But, under
pressure from Arab-American and civil-liberties groups, it insisted
that profiling not rely "on material of a constitutionally
suspect nature — e.g., race, religion, or national origin of
U.S. citizens." The profiles instead would use factors such
as whether someone had bought a one-way ticket or paid cash for
it.
Even this prompted
howls of outrage. After the commission issued its final recommendations
in 1997, a dozen Arab-American and civil-liberties groups sent a
letter to Gore warning that "the risks to privacy are enormous"
and reminding him that "passengers check their luggage, not
their constitutional rights." The ACLU even complained that
CAPPS might be biased against poor people, since they may not have
credit cards. The Gore commission had gone out of its way to address
such concerns: It had convened a group of civil-liberties experts
to worry officially about the dangers of profiling in an appendix
to its report. "Efforts should be made," the group advised,
"to avoid using characteristics that impose a disproportionate
burden of inconvenience, embarrassment, or invasion of privacy on
members of minority racial, religious, or ethnic groups."
Efforts to avoid embarrassment were indeed vigorous. And this is
why there was eventually some Arab-American support for CAPPS. The
Justice Department examined CAPPS in 1997 for evidence of racism,
and found none, although it recommended that the FAA require airlines
to take steps to keep profiling from becoming discriminatory or
insensitive. The FAA obliged, focusing on preventing personal searches
that might make flagged passengers feel uncomfortable. "Manual
screening has been criticized by persons who perceived it as discriminating
against citizens on the basis of race, color, national or ethnic
origin and gender," warned the FAA.
No one flagged
by CAPPS, therefore, would be searched on their persons, so they
wouldn't even know they had been profiled. Instead, their checked
luggage might be screened for bombs, and attempts might be made
to ensure they actually boarded the plane on which they checked
their bags (the pre-September 11 assumption was that no terrorist
would get on the same plane as a bomb). The feds had hit on a perfect
policy: sensitive, hands-free profiling! This politically correct
system had its intended politically correct result: According to
the Council on American-Islamic Relations, profiling complaints
dropped from 27 when CAPPS first came online in 1997, to two in
1999, and finally none in 2000.
"YOUR
FLIGHT IS NOW BOARDING"
CAPPS, then, had served its political function. Its security function
was another matter. Not all terrorists are idiots, so they might
attempt to avoid the behavior that triggers the profiling system.
For example, they can buy round-trip tickets and use credit —
thus easily slipping by two of the CAPPS criteria. According to
the Wall Street Journal, CAPPS managed to flag two of the
September 11 hijackers, Nawaf Alhazmi and Khalid Al-Midhar, who
commandeered Flight 77, the Pentagon plane. They had reserved their
tickets by credit card, but paid in cash. While their checked bags
were supposedly more carefully checked, neither of them was searched
or questioned at the airport — lest, presumably, they complain
to the Council on American-Islamic Relations.
And so, they
went on their way. If ethnicity and national origin were among the
CAPPS criteria, all of the September 11 hijackers probably would
have been flagged. And, as the Manhattan Institute's Heather Mac
Donald has pointed out, if personal searches and questioning had
been routine, a bizarre pattern might have become clear — why
so many Arabs in first class? why so many box cutters? — and
the whole plot come undone. Other countries have had exactly this
experience. In a famous 1986 case, a pregnant woman booked on an
El Al flight from Heathrow to Tel Aviv was pulled aside (pregnant
women don't usually travel alone). After questioning, it was discovered
that, unbeknownst to her, her Jordanian boyfriend had planted a
bomb in her carry-on bag that would have killed all 375 people on
her flight. It is inarguable that sensitivity about profiling in
the U.S. made the September 11 hijackers' job easier.
Their plot
would have simply been a non-starter in Israel. There, passengers
are divided into three categories: Israelis and foreign Jews, non-Jewish
foreigners, and anyone with an Arab name. Those in the third category
get lots of special attention, including being taken to a special
room for baggage and body checks. Arab passengers can be interrogated
up to three different times. The philosophy is to concentrate resources
on the more likely threats, and not waste them on low-risk passengers.
As one former Israeli security official told the Associated Press,
if everyone got the most vigorous treatment, the planes would never
get off the ground.
But the Israeli
system requires a tough-mindedness that is in short supply in the
U.S. On the issue of profiling, transportation secretary Norman
Mineta's ignorance appears to be nearly invincible. Mineta's Japanese-American
family was interned during World War II. He implies at every opportunity
that by standing in the way of ethnic profiling, he is preventing
a similar enormity today. "A very basic foundation to all of
our work," he says, "is to make sure that racial profiling
is not part of it." Asked on 60 Minutes if a 70-year-old
white woman from Vero Beach should receive the same level of scrutiny
as a Muslim from Jersey City, Mineta said, "Basically, I would
hope so."
Mineta pulls
no rhetorical punches: "Surrendering to actions of hate and
discrimination makes us no different than the despicable terrorists
who rained such hatred on our people." Since Mineta thinks
"discrimination" includes ethnic profiling, this must
be one of the laziest statements of post-September 11 moral equivalence
this side of Susan Sontag. The airlines are only too happy to play
along. A September 21 memo to Delta employees from CEO Fred Reid
has the subject line "Tolerance," and disavows ethnic
profiling in the strongest possible terms: "We cannot afford
to follow this tragic behavior. It is exactly what our enemies are
striving for: the end of our open, diverse, and tolerant way of
life."
If you believe
the feds, the airlines have a legal obligation to ape the federal
line. In memos sent to the airlines after September 11, the Transportation
Department has constantly claimed that the law forbids profiling
on the basis of ethnicity or national origin: "Various federal
statutes prohibit air carriers from subjecting a person in air transportation
to discrimination on the basis of race, color, national origin,
religion, sex, or ancestry." I called a spokesman at Transportation
to confirm that the department meant to suggest that ethnic profiling
constituted illegal discrimination. He was adamant that this was
so.
But this is,
at best, a misreading of the law. Discrimination in public conveyances
has been outlawed for a long time, but that was meant to forbid
things like forcing blacks to ride on the back of the bus. The circumstances
of airline security are, of course, entirely different. Profiling
at airports would not be classic New Jersey Turnpike "racial
profiling," where police mark out a whole class of people as
more likely than average to be transporting drugs, and then stop
large numbers of them. Airport profiling would respond to a specific
threat to commit a specific crime (more suicide hijackings) made
by a specific group (the Islamic terrorists of al Qaeda). It would
be less analogous to New Jersey, then, than to a recent case in
Oneonta, N.Y. The courts endorsed the right of police there to stop
and examine almost every black man in that small town after an elderly
woman said she had been attacked by a black assailant whose hand
was cut in their scuffle.
So, the airlines
and the federal government are not legally required but instead
are freely choosing to collaborate in a system that no one considers
secure, while creating the maximum inconvenience and delays. It's
a system that features the false egalitarianism of the anti-profilers.
One of the recommendations of the Gore commission's in-house anti-profiling
panel was that "the procedures applied to those who fit the
profile should also be applied on a random basis to some percentage
of passengers who do not fit the profile." This idea has been
adopted on a massive scale, which accounts for much of the absurdity
of flying today: ditzy celebrities, children, and older women subjected
to the same excruciating security as a 25-year-old man just arrived
from Riyadh.
There are many
problems with this. The first is one of justice. It burdens people
whom we have absolutely no reason to believe have any chance of
being terrorists, just to create an appearance at airports that
will make young male Arabs feel better. The second is that the time
and resources spent getting the proverbial Vero Beach 70-year-old
to take off her white sneakers could be better spent searching and
questioning a passenger who has a higher chance of being a terrorist.
Finally, there is the matter of economics.
Long lines
make people marginally less likely to fly, which pushes airlines
that much closer to bankruptcy. The only way to reduce lines in
the current system would be to add more security checkpoints. But
that's not easy. It means hiring more screeners, when it is difficult
to have enough competent ones to fill the current slots; it means
spending more money, when airlines are already bleeding; and it
bumps up against a physical constraint at many airports, which may
not have more room for screening checkpoints. The same problem applies
to examining checked luggage — there is so much of it and so
few machines that doing all of it well and quickly will be impractical
for years.
THE WAY TO
GO
It obviously makes sense to find ways to whittle down the security
load. The answer is to separate out passengers according to the
threat they represent, probably into three groups. One would be
members of an enhanced frequent-flyer program, with travelers voluntarily
undergoing a background check and getting a fool-proof biometric
ID card in return for fewer security hassles. (The airport in Amsterdam
already has such a program, which includes an eye scan.) Arab-American
travelers could opt into such a program, and never again worry about
being profiled. Then, there would be the unwashed masses, who would
get more routine security treatment. The last category would be
passengers profiled as potential risks, who could get a version
of the full-bore Israeli scrutiny.
This would
make everyone involved very uncomfortable, especially, of course,
the targeted passengers. Almost all of them would be clean. The
extra burden on young male Arab-Americans and Arab immigrants —
the extra pat-down, the searching questions — would be very
unfair in a cosmic sense, but an acceptable social cost given the
stakes involved in preventing further attacks.
The fact that
no one is systemically profiled on the basis of ethnicity and national
origin now contributes to the nervousness of pilots, passengers,
and security personnel who don't trust the current system and attempt
to do amateur profiling on their own. A sophisticated computerized
system would reduce the need for individual judgments after a passenger
has already passed security checkpoints. But a pilot should still
have the right to refuse a passenger, a privilege that goes back
to old maritime law. It was this prerogative that was in play in
the American Airlines/Secret Service agent case, as the pilot balked
at carrying an agitated armed man whose paperwork wasn't properly
filled out.
American, to
its credit, has stood by the pilot, all the while insisting that
the airline would never ethnically profile. But if the pilot hadn't
noticed that the angry guy trying to board his plane with a gun
looked like all of the September 11 terrorists, he would have been
a fool. The Left talks often of "diversity," but is unwilling
to acknowledge that the world's variousness might mean that certain
ethnic groups are more likely to be terrorists than others. Willfully
ignoring this fact contributed to September 11. Continuing to do
so would heap criminal folly on top of willful recklessness. In
a famous 1949 case, Justice Robert Jackson said that the Constitution
is not "a suicide pact." Indeed, it isn't, but maybe our
racial politics is.
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