The terrible events of September 11, 2001 have left an indelible mark on the profiling debate. In response to the attacks, the federal government has engaged in a sweeping anti-terror campaign focused almost exclusively on individuals who are of Arab or South Asian descent, Muslim, or Sikhs.85 Many of the tactics in this campaign amount to racial profiling - that is, they involve the use of racial, religious or ethnic stereotypes by law enforcement officials in determining who to target as part of the anti-terrorism effort. The anti-terror campaign has prevented any rational discussion of profiling generally - including traditional profiling, which as demonstrated by the data from Los Angeles, San Diego, Colorado, and Massachusetts, continues unabated since September 11. The suggestion is that one cannot condemn racial profiling because to do so will hinder the war on terrorism and undermine national security.86
The argument that racial profiling cannot be addressed without compromising the anti-terrorism effort is fundamentally wrong because it incorrectly assumes that profiling is necessary and useful to that effort. The opposite is true: terrorism profiling is a flawed law enforcement tactic that diverts precious anti-terrorism resources, alienates potential allies in the anti-terrorism struggle, and is inconsistent with cherished notions of freedom and equality. Certainly, if terrorism profiling does not work, its use to fight terrorism is no defense to its use in the effort to fight street crimes. The only conclusion that can be drawn from a review of terrorism profiling is that these practices are no more workable or acceptable in the terrorism context than in the "traditional," street-level context. Racial profiling in any manifestation is a flawed law enforcement tactic that is in direct conflict with constitutional values.
Any discussion of what to do about terrorism must of course acknowledge the need for heightened security and increased vigilance against the terrorist threat. It should also be acknowledged that suspicion directed at Arabs, South Asians, and Muslims in the wake of September 11 - like the suspicion that Blacks, Hispanics and other minorities are linked to street-level criminal activity and immigration violations - is rarely motivated by overt racism.87 Rather, much of the support for post-September 11 profiling against Arabs, South Asians, Muslims, and Sikhs, is motivated by the confusion and anxiety that has gripped the nation since the terrorist attacks. Americans are unaccustomed to living under siege and the threat of continuing terrorist attacks by al Qaeda and others has caused inappropriate and unfair action by the state (and also by private citizens) toward those perceived to pose the threat.
Nevertheless, selectively targeting Arabs, Muslims, South.Asians, and Sikhs for increased law enforcement attention based on race, ethnicity, or religion is flawed for three reasons. First, such profiling is based on the same kinds of myths about particular groups and their propensity for particular criminal activity that fuel traditional, street-level profiling. Second, like street-level profiling, terrorism profiling is simply not an effective tool against the illegal activity it is designed to stop. Third, like traditional profiling, terrorism profiling and the selective enforcement of immigration laws that accompanies it are inconsistent with basic constitutional principles.
A. Forms of Terrorism Profiling
1. "Driving While Arab"
As demonstrated by the account of the Indian American motorist set forth in Chapter I, "driving while Arab" has joined the profiling lexicon alongside "driving while Black" and "driving while brown" since September 11. Arabs, Muslims, South Asians, and Sikhs are now subjected to traffic stops and searches based in whole or in part on their race, ethnicity, or religion due to law enforcement perceptions that they are likely participants in terrorist activity. For example:
- On October 4, 2001, in Gwinnett, Georgia, an Arab American motorist was pulled over by a patrol car following an illegal U-turn. The police officer approached the car with gun drawn. He ordered the motorist out of his car, searched him, threatened him, and called him a "bin Laden supporter."88
- On December 5, 2001, in Burbank, Illinois, a veiled Muslim woman was stopped by a police officer for driving with suspended plates. After she showed the officer her license and registration, as requested, the officer allegedly asked her when Ramadan would be over. She was arrested for driving with suspended plates, was pushed by the officer as she got in the patrol car, and was asked inappropriate questions about her hair by the officer. The woman was released later that day.89
- On October 8, 2001, in Alexandria, Virginia, two police officers stopped an Arab American motorist and his two Arab American passengers, questioned them about the verse of the Koran hanging from the car's rear view mirror, and inquired about documents and photocopies in the backseat. After asking for and receiving the motorist's and passengers' identification cards, the police officer returned to his car and drove off without explanation. He returned 10 minutes later, explaining that he had had to take another call.90
As in the traditional profiling context, other types of stops have become occasions for profiling in the terrorism context. On September 12, 2001, Providence, Rhode Island police stormed an Amtrak train and removed four men, including Sher J.B. Singh, a Sikh man who was carrying a Kirpan, a blunt ceremonial dagger that must be carried by Sikh men as part of their religion. All the men were released except for Mr. Singh, who was arrested for carrying a concealed weapon.91 According to the man, he was strip-searched and asked by one of the officers, "How is Osama Bin Laden?"92
To be sure, many law enforcement agencies have aggressively investigated hate crimes against Arabs, Muslims, South Asians, and Sikhs, and have otherwise shielded them from abuse and intolerance.93 But some state and local law enforcement officers are clearly acting on the basis of assumptions about the propensity of certain racial, ethnic and religious groups to engage in terrorism -- in the same way they have long assumed African American or Hispanic involvement in drug crimes and immigration violations -- and in the process are stopping, searching, and arresting many innocent people. While the "driving while Arab" phenomenon is recent enough that detailed statistical data does not exist on this subject, there is no evidence to suggest that traffic stops of Arabs, Muslims, South Asians, or Sikhs have yielded a significant number of arrests for terrorist activity.
2. Detentions and Deportations
A particularly disturbing form of terrorism profiling has been the federal government's use of race as a basis for the detention without due process of Arabs, Muslims and South Asians and its subsequent use of the anti-terrorism investigation as a vehicle for the disproportionate application of U.S. immigration laws against detainees who are found to be innocent of any terrorist activity.94
In the wake of September 11, the United States detained hundreds - perhaps thousands - of Arabs, South Asians and Muslims on suspicion of terrorist activity.95 Almost none of these individuals were ultimately found to have been in any way involved in terrorism. Yet many continued to be held without being formally charged with any crime or immigration violation. For example, two Pakistani immigrants were arrested on October 2 and detained for 49 days before being charged with overstaying their visas.96 In another case, an Israeli of unidentified ethnic background was held for 66 days before being charged with entering the country illegally.97 Many of those who were ultimately charged with immigration violations were held to be deportable based on relatively trivial offenses. One Palestinian man was detained and charged for failing to notify INS of a change of address; and a Pakistani was detained and charged with helping some illegal immigrants find housing.98 It has been reported that during some of the often unexplained detentions, law enforcement officials "interrogated [the detainees] rudely and even abusively, limited their access to families and lawyers severely, threw them into jails where guards and other prisoners taunted and (in at least one case) badly beat them, kept them behind bars long after abandoning any claim that they were terrorists, and offered those released little explanation, no apologies, and no compensation."99
The story of Ali al Maqtari, a French teacher from Yemen, provides a chilling example of what many Arabs and Muslims have faced since September 11. Mr. al Maqtari was married on June 1, 2001 to an American citizen and was therefore himself eligible for citizenship. On September 15, 2001, Mr. al Maqtari and his wife drove up to the Fort Campbell, Kentucky, U.S. army base so that she could report for duty as a new recruit. Federal agents descended on them, separated them and questioned Mr. al Maqtari for 12 hours. The federal agents falsely accused Mr. al Maqtari of violating the immigration laws, abusing his wife, and conspiring with terrorists from Russia; claimed to have evidence against him which proved not to exist; and threatened him with beatings. Even after polygraph tests showed that he was telling the truth, but after INS and FBI officials indicated he would be freed, Mr. al Maqtari was held for an additional seven weeks, during which time he was housed with hardened criminals in two separate jails, taunted by guards, and limited to one phone call per week.100 Mr. al Maqtari's experience supports the conclusion of Amnesty International that "a significant number of detainees continue to be deprived of certain basic rights guaranteed under international law."101
Since September 11, race, ethnicity and religion have become proxies for suspected terrorist activity, which in turn has become a pretext for the application of immigration laws in an unequal manner toward Arabs, South Asians, and Muslims.102 Along the way, the federal government has treated many of these individuals in a manner that shocks the conscience and would not have been tolerated before September 11.103
3. The Questioning of Arab Men
In the fall of 2001, in the immediate aftermath of September 11, the federal government announced a nationwide campaign to question the thousands of Arab men who had entered the United States after January 1, 2000 on non-immigrant (i.e., student, tourist, or other temporary) visas. The government acknowledged that none of these men were individually suspected of wrongdoing, but stated that the questioning was designed to uncover leads that might prove useful to the anti-terrorism struggle. Of course, the only link drawn by the federal government between terrorism and the interviewees was that the men were all Middle Eastern.
Attorney General Ashcroft emphasized that the interviews were voluntary and friendly. But internal DOJ memoranda suggesting that interviewees could be held on bond if authorities developed an interest in them belied these representations.104 And indeed, the authorities detained about 20 men who were questioned, although in each case only for immigration violations, not on suspicion of terrorist activity.105
In planning these interviews - which were expected to number 5000 in late 2001 and an additional 3000 in early 2002 - the federal government sought the support of state and local governments and law enforcement agencies. In a stunning reversal, many of these state and local offices balked at assisting federal authorities, arguing that to single out Arab men for questioning amounted to racial profiling.106 Nevertheless, the interviews were carried out as planned. Ninety percent of those sought for questioning appeared and were interrogated about their political and religious beliefs and those of their families; whether they sympathized with the September 11 hijackers; whether they had any scientific or weapons training; and where they had traveled. It is not believed that any person interviewed provided any useful information to law enforcement authorities,107 although Attorney General Ashcroft claimed that the interviews "generated a significant number of leads . . . into the September 11 attacks . . .fostered new trust between law enforcement' and the Arab and Muslim communities, and helped to disrupt potential terrorist activities."108
4. Alien Registration Requirements
Most forms of profiling, such as "driving while Black," feature the exercise of law enforcement discretion based on certain assumptions about the propensity of a particular group toward certain criminal behavior. This discretion is exercised on a case-by-case basis at the point of contact. That is, the officer observes and decides to take action against a person who the officer believes, based on the assumptions under which he operates, is likely to engage in criminal activity.
But profiling can also occur at a more general level, when a law enforcement institution makes the determination that an entire group of people is so dangerous that all persons in that group should automatically receive heightened attention. In such cases, profiling is not a function of the exercise of law enforcement discretion, but represents the absence of law enforcement discretion.
An example of this type of profiling is the alien registration program, which went into effect in late 2002. The program enforces a requirement that foreign visitors to the United States register with the INS and keep law enforcement apprised of their whereabouts. The Justice Department claims that the registration program will eventually cover visitors from all foreign countries, but the first individuals subjected to the requirements were visitors from five Arab or Muslim countries - Iran, Iraq, Syria, Sudan, Libya - and those from North Korea - who were required to register by December 16, 2002. Pakistan, Indonesia, and Saudi Arabia were later added to the original list and, overall, the program has now been extended to cover 25 countries, 24 of which have significant Arab and/or Muslim populations.109 Registrants are required to re-register annually.
When the program was announced, Justice Department officials defended it on the grounds that the requirements were merely administrative measures that would assist the anti-terrorism struggle by helping authorities keep track of visitors to the United States - not as a vehicle for prosecuting or investigating these individuals for activity unrelated to terrorism. These representations proved false. Almost immediately after the registration requirements went into effect, the government began to detain registrants found to have been guilty of immigration violations, not terrorism. According to reports, 500-1000 registrants were detained in the Los Angeles/Orange County area alone when they attempted to meet the initial December 10 registration deadline.110
Many of the detainees had committed only minor immigration infractions, had experienced delays or difficulties in adjusting their status to citizen or legal permanent resident, and/or had been living in the United States legally for years, often with spouses and families. In one such case, a Moroccan man living in the Washington, D.C., area with an application for legal permanent residency pending was handcuffed, placed in leg irons, and held in a county jail overnight. He now faces deportation, even though he was not found to be connected at all to terrorism.111
Most of the detainees have been released, but problems linger with the registration program in general. Some registrants have reported being subjected to verbal abuse and taunting by government officials. According to the relative of one anonymous registrant, officials at one Florida registration site mockingly offered ham sandwiches to hungry registrants who had been held for hours and interrogated about their immigration status and suggested that the registrants wash their hands in "camel's milk" before being fingerprinted.112
The recent experience of Ejaz Haider, an editor at one of Pakistan's most respected English-language news magazines and a visiting research fellow at the Brookings Institution, demonstrates the twisting of INS registration programs into vehicles for the unfair treatment of Arabs, South Asians, and Muslims under the guise of counter-terrorism. Pursuant to INS regulations, Mr. Haider registered in the United States upon his arrival and was told to report for an interview within 40 days. Mr. Haider subsequently checked with both the State Department and INS and was told that in fact that he did not have to report for the interview. On January 28, however, Mr. Haider was accosted by two INS agents in front of the Brookings Institution, taken into custody, fingerprinted, photographed, and told that he would spend the night in jail. Only the intervention of Mr. Haider's colleagues at Brookings and the Pakistani Foreign Minister caused his release and saved him further hardship.113 Most visitors to the United States are not so well-connected and have been forced to endure even more extreme hardship and embarrassment, for no other reason than that they come from Arab, South Asian, or Muslim countries.114 The registration program has not only become another pretext for the disproportionate targeting of Arabs, South Asians, and Muslims. There is also no evidence that the program has been useful to the anti-terrorism struggle.115> In fact, as The Washington Post has pointed out, "The bait and switch, which punishes and humiliates those who tried to follow the rules, can only undermine the purpose of the registration program."116
5. "Flying While Arab"
This Report does not attempt to cover hate crimes and other acts of private discrimination against Arabs, Muslims, South Asians, and Sikhs after September 11, simply because such actions, while deplorable, do not qualify as "profiling" by law enforcement officials. However, there is one area of discrimination, while technically not "profiling" is closely analogous: the practice by airport screeners targeting Arabs, Muslims, and those thought to be Arab and Muslim for extra scrutiny - the so-called "flying while Arab" phenomenon.
Until the implementation of the Aviation and Transportation Security Act ("ATSA") in 2002,117 airport screening and security activities had both a public and private component: these activities were undertaken by the airlines and airports, but under Federal Aviation Administration supervision. Since the implementation of ATSA, the government has become directly responsible for airport security. Thus, while much of the discriminatory treatment of Arabs, South Asians, Muslims, and Sikhs at U.S. airports began with actions by private security officials (though some then featured the intervention of public law enforcement officials), future security efforts will be undertaken by the federal government. It remains to be seen whether the "flying while Arab" syndrome will persist under the new federal system.
Discrimination against Arabs, South Asians, Muslims, and Sikhs at U.S. airports as part of anti-terrorism efforts did not begin after September 11. The phenomenon of "flying while Arab" has been part of the profiling landscape since the late 1980's. In particular, the bombing of Pan Am flight 103 over Lockerbie, Scotland in 1988, which was perpetrated by Arab terrorists, caused many Americans to link the threat of airline-related terrorism with Arabs. By the mid-1990's, the popular association of Arabs and Muslims with terrorist activities caused the American public to immediately suspect Arab and/or Muslim involvement whenever an unnatural disaster of significant proportions occurred. In the wake of the Oklahoma City bombing in 1995, law enforcement officials immediately posted bulletins looking for Arabs and/or Muslims, and authorities detained a Jordanian.118 That terrorist attack, of course, turned out to be the work of an Anglo-American, Timothy McVeigh. Similarly, the 1996 crash of TWA flight 800 off Long Island was initially attributed to Arab terrorists by many, but ultimately attributed to equipment malfunction. After that crash, large numbers of Arab Americans, Muslims, and other Middle Eastern-looking airline passengers were subjected to harsh questioning, demeaning treatment, and searches of their personal possessions. Some were told that they were receiving special treatment because they "fit a profile."119
Discriminatory screening and abusive treatment of Arabs and Muslims by airport personnel continued well into the 1990's.120 The FAA attempted to address these abuses in 1998 through its implementation of the Computer Assisted Passenger Screening (CAPS) system, which standardized the criteria for deciding which passengers to scrutinize closely. While the elements of CAPS have not been made public, the government insists that the CAPS system does not rely on race or ethnicity in determining who should be subjected to heightened scrutiny at airports.121
Since September 11, the "flying while Arab" phenomenon has returned with a vengeance. Passengers perceived to be Arab or Muslim have experienced abuse or humiliation, have been subjected to especially intrusive security screening procedures, and have even been ordered off planes for no reason other than that they appeared to be Arab or Muslim and were therefore perceived to be terrorist threats. The most notorious example of this treatment involved Secret Service Agent Walid Shatter, an Arab American who was flying to Texas on Christmas Day 2001 to join President Bush's security detail. Agent Shatter was removed from his flight when a flight attendant spotted a book on Middle Eastern history on his seat and airline officials refused to believe that his credentials and badge were authentic.122 There is no question that Agent Shatter would not have been treated in this manner had he not been Arab American. The same can be said of scores of Arabs, South Asians, Muslims, and Sikhs who experienced discrimination at airports and on airplanes post-September 11. The following anecdotes are illustrative:
- On January 1, 2002, an Arab American passenger en route to Washington, D.C. passed through security checks, submitted his boarding pass, and stood in line at the jet way during boarding. Two police officers approached him and escorted him back to the airport. When he asked why this had happened, the officers informed the passenger that the airplane's pilot had requested that he be "checked out" because he had an "Arabic name." Three FBI agents then appeared and questioned the passenger about his identity.123
- On October 28, 2001, three Arab American women were prevented from boarding their flight to New York City from Minneapolis because airline personnel had overheard them quietly praying before the flight and became concerned on hearing one of the women say the word "Allah."124
- On October 10, 2001, a Muslim businessman was singled out for extra interrogation before boarding a flight from Los Angeles to Tampa. When he inquired about why he was receiving this extraordinary attention, he was told by the airline employee that "[m]aybe you were acting suspiciously or maybe (because of)] the way you look."125
- On November 7, 2001, a 22-year-old Muslim American woman was asked to remove her head scarf - which many Muslim women wear for religious reasons - after passing through an airport metal detector without setting it off. After a manual detector was passed along her body, again revealing nothing, she was asked to remove her head scarf and was escorted to a private room where female airport security personnel conducted a full body search and ran their fingers through her hair.126
Clearly, it has become commonplace for security personnel to exercise their discretion in a manner that distinguishes Arabs, South Asians, Muslims, and Sikhs from the rest of the air traveling public. This treatment is based on the unfair assumption that Arabs and Muslims share a general propensity for terrorist activity and is directly analogous to the treatment of Blacks and other minorities on America's highways and streets.
B. Why Profiling is a Flawed Anti-Terrorism Tactic
As in the street crime context, terrorism profiling is a crude substitute for behavior-based enforcement. It violates core American values, including the constitutional guarantee of equal protection. It also hinders anti-terrorism efforts because it alienates people and communities that are critical to the success of the anti-terrorism effort.
1. The Myths Driving Terrorism Profiling
The assumptions driving terrorism profiling are the same as those behind traditional, street-level profiling - i.e., that a particular crime (here, terrorism) is most likely to be committed by members of a particular racial, ethnic or religious group, and that members of that group are, in general, likely to be involved in that kind of criminal activity. As in the street-crime context, these assumptions are flawed.
First, it is not true that terrorist acts are necessarily perpetrated by Arabs, or that the perpetrator of a terrorist act is likely to be an Arab. While all the men involved in the September 11 hijackings were Arab nationals, Richard Reid, who on December 22, 2001 tried to ignite an explosive device on a trans-Atlantic flight, was a British citizen of Jamaican ancestry. Prior to September 11, the bloodiest act of terrorism on United States soil was perpetrated by Timothy McVeigh. Non-Arabs like John Walker Lindh can be found in the ranks of the Taliban, al Qaeda and other terrorist organizations. At the same time, the overwhelming majority of Arabs, Arab Americans, Muslims, South Asians and Sikhs are law-abiding persons who would never think of engaging in terrorism.
2. Why Profiling Hinders the Anti-Terrorism Effort.
Focusing on the many Arabs, South Asians, Muslims, and Sikhs who clearly pose no threat to national security detracts from the anti-terrorism effort. First, it diverts precious law enforcement resources away from investigations of individuals - including Arabs and Muslims - who have been linked to terrorist activity by specific and credible evidence. Second, it ignores the possibility that someone who does not fit the profile may be engaged in terrorism, or may be an unwitting accomplice to terrorism.
That race is an ineffective measure of an individual's terrorist intentions was made clear in a memorandum circulated to American law enforcement agents worldwide by a group of senior U.S. law enforcement officials in October 2002. The memorandum, entitled "Assessing Behaviors," emphasized that focusing on the racial characteristics of individuals was a waste of law enforcement resources and might cause law enforcement officials to ignore suspicious behavior, past or present, by someone who did not fit a racial profile. One of the authors of the report noted: "Fundamentally, believing that you can achieve safety by looking at characteristics instead of behaviors is silly. If your goal is preventing attacks . . . you want your eyes and ears looking for pre-attack behaviors, not characteristics."127
The memorandum urged investigators to focus on actual behavior involving selection of targets, recruitment and organization of members, acquisition of skills, assessing vulnerabilities of targets, acquiring financing, probing boundaries, communicating with conspirators, using insiders, maintaining secrecy, and acquiring weapons.128 An emphasis on race, the memorandum noted, distracts from the observance of potentially suspicious behavior. This memorandum answers one of the main arguments of those who support racial profiling in the context of airport searches - i.e., that it is simply logical to focus precious law enforcement resources on Arab men rather than on older women from Minnesota or Swedish au pairs.129 What U.S. intelligence experts have made clear is that any emphasis on personal characteristics, rather than on behavior, misdirects scarce anti-terrorism resources.
This is not to say that law enforcement can never rely on race in fighting terrorism. As in street-level law enforcement, it is permissible to rely on race as part of a suspect-specific description. No one argues, for example, that the police cannot follow up on a specific tip that a group of Arabs is plotting terrorist acts in a particular apartment building by questioning Arabs who live in that building. Assuming the reliability of the source or the specificity of the information, identification of an individual's race carries with it the real potential for uncovering criminal activity.130
Profiling, by contrast, is a scattershot device that is so crude as to be virtually useless. It is no coincidence that the questioning of 8000 young Arab men in late 2001-early 2002 yielded virtually no leads about terrorism - there was no evidence to suggest that any of these men knew anything about terrorism in the first place.
Racial profiling is particularly foolish in the anti-terrorism context for three additional reasons. First, even if one accepts the false assumption that terrorists are likely to be Arab or Muslim, the application of the profile is fraught with error. The experience of Sher J.B. Singh, a Sikh, described above, demonstrates how many persons who are neither Arab nor Muslim can get caught up in the terrorism profiling web. Consider these other examples from the airport security context:
- On October 22, 2001, four Hispanic businessmen were escorted off a Delta flight after passengers alerted airline staff that the men appeared to be Middle Eastern.131
- On September 26, 2001, a group of six passengers of Indian ethnicity were questioned aboard a United Airlines flight from Los Angeles to Washington, D.C. The men were taken to the back of the plane, where they were first questioned by a pilot and then by FBI and INS.132
- On September 24, 2001, a Canadian woman of Indian origin was removed from her US Airways flight from Toronto to Las Vegas because her last name was similar in pronunciation to the name of one of the September 11 hijackers, Mohammed Atta. She was told that her name was "Middle Eastern" and therefore suspicious.133
- A flight bound for New York's LaGuardia Airport was accompanied on its descent by a military plane after a passenger raised suspicions about a group of entertainers from India who were passing notes and changing seats. The group was detained for questioning and released five hours later without being charged. The passengers were not terrorists; they were animated because they were excited about visiting New York.134
Thus, the profile of a terrorist as an Arab or Muslim has been applied to individuals who are neither Arab nor Muslim (e.g., Hispanics, Indians, and Sikhs). Profiling of Arabs and Muslims amounts to selective enforcement of the law against anyone with a certain type of "swarthy" foreign-looking appearance even if they do not in fact fit the terrorist profile. The profile is then useless in fighting terrorism, as well as offensive to an ever-broadening category of persons.135
Second, using racial profiling in the anti-terrorism effort is a classic example of refighting the last war. As noted above, al Qaeda and other terrorist organizations are pan-ethnic: they include Asians, Anglos, and ethnic Europeans. They are also adaptive, dynamic organizations that will learn how to use non-Arabs such as Richard Reid to carry out terrorist attacks, or to smuggle explosive devices onto planes in the luggage of innocent people.136 The fact that the September 11 hijackers were Arab means little in predicting who the next terrorists will be. Racial profiling in any case is a crude mechanism; against an enemy like al Qaeda it is virtually useless. Third, and perhaps most important, the use of profiling in the anti-terrorism context, as in the street-crime context, alienates the very people that federal authorities have deemed instrumental in the anti-terrorism fight. Arab, South Asian, and Muslim communities may yield useful information to those fighting terrorism. Arabs and Arab Americans also offer the government an important source of Arabic speakers and translators. The singling out of Arabs, South Asians, Muslims, and Sikhs for investigation regardless of whether any credible evidence links them to terrorism will simply alienate these individuals and compromise the anti-terrorism effort.137 In particular, to the extent that federal authorities use the anti-terrorism effort as a pretext for detaining or deporting immigration law violators, individuals who might have information that is useful against terrorism may be afraid to come forward. At a minimum, those individuals will choose not to register, thereby defeating the very purpose of the registration program.138
The alienation that results from terrorism profiling is compounded by the clumsy and insensitive manner in which it has thus far been carried out. As demonstrated by the many examples in this report, Arabs, South Asians, Muslims, and Sikhs who have tried to cooperate with authorities and to comply with the law have consistently been met by verbal (and sometimes physical) abuse; complete insensitivity to their cultural and religious practices; and a general lack of respect. As in the "driving while Black" context, this treatment has caused many Arabs, South Asians, Muslims, and Sikhs to alter their behavior in order to avoid confrontations with authorities. Khaled Saffuri, a Lebanese man living in Great Falls, Virginia, says he makes sure to shave closely and wear a suit every time he flies; stays silent during flights and makes sure not to go to the bathroom in the middle of the flight; and sometimes avoids flying altogether in favor of long drives to his destinations in order to avoid air travel.139 In October 2002, Canada even issued a travel advisory warning those of its citizens born in Middle Eastern countries against traveling to the United States because of the hassles they would encounter.140 One celebrated Canadian, author Rohinton Mistry, who is of Indian descent and neither Arab nor Muslim, cancelled his book tour of the United States because he was "repeatedly and rudely" stopped at each airport along his tour route.141
Recent events have demonstrated the futility of relying on profiles to predict who engages in targeted violence. In the fall of 2002, the Washington, D.C., area was shaken by a series of sniper attacks. Traditional profiles of serial killers assume that they are disaffected White men. Of course, the two men charged with the attacks are Black - an African American Gulf War Veteran, John Allen Muhammad, and Jamaican-born John Lee Malvo. Their capture was hailed by law enforcement authorities as a triumph of "old fashioned police work" and entailed the investigation of multiple leads, the pursuit of evidence nationwide, and the use of the media and the public to help develop the facts.142 The investigation showed how reliance on a profile "can have [police] chasing a stereotype while the real culprit slips away."143
Profiling has proven to be an inaccurate indicator of other types of targeted violent crimes. Traditional profiles presumed that political assassins were male. But women - Sarah Jane Moore and Lynette "Squeaky" Fromm - carried out assassination attempts on the life of President Ford.144 And in a situation directly analogous to the one facing Arabs and Muslims today, the 10 individuals found to be spying for Japan during World War II were Caucasian. They clearly did not fit the profile that caused America to order the internment of thousands of Japanese Americans.145
The same kind of old-fashioned police work that tracks down serial killers, assassins, and spies will help catch terrorists, not reliance on broad, inaccurate, and confusing racial stereotypes. Federal authorities have also taken many useful steps to improve airport security that pose no threat to civil rights. The use of improved technology to detect explosives, luggage matching protocols, better training of screeners, and reinforcing of cockpit doors, for example, are all prudent measures to enhance airport security. These are the types of weapons, along with behavior-based surveillance, that will win the war against terrorism.
Those who support the use of profiling against Arabs, South Asians, Muslims, and Sikhs argue that America must resort to profiling given the stakes. The opposite is in fact true. The stakes are so high that the nation cannot afford to use an anti-terrorism mechanism as deeply flawed as racial profiling.
Winning the war on terrorism requires sacrifice from all Americans. The assumption that terrorism is only an Arab or Muslim problem fosters the false impression that the problem can simply be eradicated if the government has free rein to deal with "those people" and leaves the rest of us alone. As one commentator has noted, in analogizing the current treatment of Arabs, South Asians, Muslims, and Sikhs to the treatment of Japanese Americans during World War II, "[i]t turns out . . . to be easy enough to surrender the civil rights of somebody else."146 This is a convenient way to fight terrorism, but it is also, as discussed above, ineffective.
And in a moral sense, the scapegoating inherent in profiling is wrong. America will win the war on terrorism through shared sacrifice, not by placing the burdens of the fight on a few.147