Roger, with great and due respect, I think you’re comparing apples and oranges with the Jews/Communists example. There is nothing inherent in Communism that calls for one to be Jewish even if, empirically, Jews were disproportionately drawn to Communism. By contrast, you can’t be an Islamist terrorist without being a Muslim, you can’t be the head of the Gambino Family without being Italian, and you can’t be a Mexican illegal alien without being a Mexican. It would be nonsensical not to take into account, for investigative purposes, the racial, ethnic, or religious characteristics of criminal activity if they are inherent in that criminal activity.

When I was a young prosecutor in the eighties, this was a lot less controversial than it has become in our irrationally sensitive times. A lot of crime is ethnic. The Westies were Irish, the tongs were Chinese, the Latin Kings were Hispanics, the YACs were Yugoslavs, Albanians and Croatian, and so on. When we were investigating Colombian cocaine cartels, the fact that someone was Colombian was part of the probable cause (and if he was from Cali, even more so). No one got pinched solely on the basis of his race or ethnicity. The important thing was conduct, not status. But if I had arrested a guy named Clegg or Goldberg and charged him with being the head of the Gambino Family, the defendant would have made his ethnicity a key part of his defense; it can’t be that an race/ethnicity/religion factor is only relevant if it cuts against guilt.

All that said, there is a pattern here to which I think national security conservatives (or law-and-order conservatives, or whatever the right designation is) need to be alert. I continue to believe — for the reasons argued here — that the Arizona law actually gives more protection to suspects than federal law does. If I am right about that, the law could well be counter-productive because (a) it gives police less lee-way than they previously had, (b) as a practical matter, it may be ineffective or irrelevant in many if not most instances, and (c) politically, it has put people in Arizona on the defensive when they are actually the aggrieved party.

We saw the same thing with the Patriot Act. Other than knocking down the infamous “wall” (which may have been unnecessary given a later FISA court decision), most of the Patriot Act simply gave national security investigators powers that criminal investigators had been exercising for years — and, in fact, put more strictures on those powers. For example, for all the hysteria over the so-called “library records” provision, the fact is that the Patriot Act made a national security agent go to a judge to get such records whereas a prosecutor who wanted library records for an ordinary criminal case simply wrote a grand-jury subpoena and asked an agent to serve it — no need to make any showing or representations to a judge.

But what happened? The Left and the civil libertarians used the Patriot Act as a vehicle to re-litigate all sorts of Fouth Amendment privacy issues that had been settled in the government’s favor for 30 or 40 years. There is a good argument that the Patriot Act, for all its useful provisions and good intentions, has left government more hamstrung than it might have been had Patriot not been passed.

There is a lesson here. For a long time, when we have enacted ostensibly “get tough” laws to address emergent problems, we have been too inattentive to the potential for political blowback. Unless the “get tough” laws really do give investigators materially more power than they had before, the price of the blowback is not worth it. It would be better for investigators to go quietly about stepping up enforcement within the parameters of powers they already have than to pass a law that just gives the Left a political opportunity to cut back on those powers. The brute fact is that the Left lives for these opportunities and is much better at finding and exploiting them than our side is at perceiving the potential for blowback.

Most of the time, the law is just fine as it is. The problem is lack of will to enforce it.