From the January 28, 2002, issue of National Review.
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.
In 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.