Legalized racial profiling.

Aref Assaf

July 6, 2008

The Muslim Public Affairs Council (MPAC) issued a statement last Thursday about the Department of Justice’s aim to update the Attorney General Guidelines. MPAC reported that besides for its own organization, other groups, including the American-Arab Anti-Discrimination Committee (ADC) and the Arab American Institute (AAI), are concerned by developments in the drafting of the new DoJ guidelines, which hope to transform the FBI into an intelligence gathering center for the U.S. in the War on Terror. According to the article, “Terror Profiling without Evidence Considered in US,” in USA Today, “The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims.” MPAC quoted the President of AAI, who is worried that millions of Americans would be the targets of “arbitrary and subjective ethnic and religious profiling.” This might lead, therefore, to further alienation of certain religious communities, particularly Muslim-Americans and Arab-Americans. The main dilemma for creating the terrorist profile is the process itself – that is, which people (and with what foundational biases) could possibly develop an effective list of traits that describe a “suspicious” person, whom the government should rightly subject to further investigation and interrogation. Excellent material and research on the topic of profiling can be found on the website of the Center for Human Rights and Global Justice at the NYU School of Law. Two reports are particularly interesting:  The first is titled, “Americans on Hold: Profiling, Citizenship, and the War on  Terror” and the  second, from 2006, is “Irreversible Consequences: Racial Profiling and Lethal Force in the War on Terror.” Read a very important editorial in the Star Ledger.

The FBI's plan to compare untold numbers of Americans to a terrorist profile could be a sound way to target suspects and prevent attacks -- if the agency could be trusted not to use race or ethnicity or religion as automatic triggers for spying.
We fear the FBI cannot be trusted to wield a profiling pointer with a laser's precision. The temptation would be to compile a list of all Muslims or all Arabs or all members of some other group and only then start checking for legitimate triggers such as explosives training or frequent trips to terrorist-infested areas that should arouse suspicion.

The limited details on the proposed program now leaking out of the Justice Department reveal an effort that could easily boil down to presuming everyone is guilty until proven innocent. Guidelines are broad and vague and don't distinguish between what traits can be used to build profiles and what is lazy stereotyping.

Justice Department assurances that changes to existing -- and much stricter -- policies will "reflect our traditional concerns for civil liberties" are not comforting. Often the only concern the FBI and other agencies have had for civil liberties is that they get in the way of what officials want to do.

From J. Edgar Hoover's obsession 40 years ago with keeping files on John Lennon and anyone else who struck his fancy to George W. Bush's recent warrantless wiretapping, those who would spy on their fellow citizens have proven that the more absolute the power, the more likely that civil liberties will be trampled.

That the FBI profiling would be done for the most compelling of reasons makes no difference. Otherwise, there could have been no legitimate objection to New Jersey State Police using the color of a driver's skin as a proxy for evidence of drug trafficking.

Targeting people based on race or ethnicity isn't just unfair. It also isn't very effective, as profiling on the New Jersey Turnpike showed. The percentage of profiling stops that uncovered drugs, guns or other contraband was lower than for stops based on evidence that some law was being violated.

Broad federal data mining would swamp investigators with worthlessly large lists of potential suspects, just as the aviation anti-terror watch list is now approaching an unmanageable 1 million names. And as with the aviation list, almost all the suspicion would be absolutely baseless.

Maybe, just maybe, the Justice Department could develop a series of specific behavioral factors that, taken in sufficient number and under tight supervision and control, could justify taking a closer look at someone.

But we doubt it. And so far, the G-men aren't even trying