Digital Version of July/August 2015
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Three reasons not to profile
Earlier this month, responding to a question from the editor of this publication, the Secretary of the Department of Homeland Security (DHS), Janet Napolitano, categorically rejected the use of profiling in homeland security efforts. Instead of focusing its resources on young, Muslim men, DHS paid the most attention to behavior indicating terrorist activity, such as travel patterns. The Secretary’s rejection of profiling is spot on, both as a matter of efficacy and as a matter of ethics.
To begin with, commonly held assumptions about terrorism and stereotypes of terrorists are often incorrect and thus could misdirect law enforcement efforts.
For example, the assumption that the average terrorist is a young, Muslim man of Arab or South Asian origin is unsupported by facts. A 2010 review of post 9/11 terrorism prosecutions by the Center for Law and Security at NYU School of Law found that accused terrorists were most commonly identified with Marxist rebels in Colombia (FARC). Only 11 percent were identified as affiliated with Al Qaeda.
Recent cases vividly illustrate that terrorists are a diverse bunch. Joseph Stack, who flew a plane into a federal building in Texas because he was angry with the government, wasn’t a young Muslim. Nor was the gunman who opened fire at a security checkpoint at the Pentagon late last year.
Even among terrorists who claim to act in the name of Islam, it is nearly impossible to establish a profile. Jihad Jane, the blond, blue-eyed Pennsylvanian convert to Islam who plotted to attack a Danish cartoonist doesn’t fit the stereotype of a terrorist. Nor does Daniel Patrick Boyd, a North Carolina construction worker and father of five who plotted with his sons to commit attacks in Israel and Kosovo.
Indeed, as DHS’s former director Michael Chertoff has explained, terrorists deliberately recruit people who don’t fit the stereotype of a terrorist. If we rely on profiles, we could well miss the real threat.
Apart from being unreliable, profiling alienates the very American Muslim communities that law enforcement counts on for terrorism tips and may well undermine counter-terrorism efforts at home. Profiling -- through programs requiring young men visiting from Arab and South Asian countries to register with the government, extra screening for people who are from or travelling through these countries (both of which were recently discontinued), and concerted law enforcement scrutiny -- has led many American Muslims to believe they are regarded as inherently suspect. Unsurprisingly, this has made them more guarded in their dealings with law enforcement officials. Thus far, American Muslims have an exemplary record of providing critical tips to the police. Multiple studies show that community members provided information in some 40 percent of foiled terrorist plots. But there is a serious risk that the disenchantment bred by profiling will lead them to stop proactively cooperating with law enforcement agencies.
Finally, as even the Bush Department of Justice recognized, profiling is unfair and un-American. In its 2003 “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” the DOJ declared: “The use of race as the basis for law enforcement decision-making clearly has a terrible cost, both to the individuals who suffer invidious discrimination and to the Nation, whose goal of ‘liberty and justice for all’ recedes with every act of such discrimination.” Although the Department has not seen fit to apply this guidance to national security investigations, there is no principled reason why “invidious discrimination” is just as unacceptable when fighting terrorism as it is when combating other crimes.
Politically motivated violence is not the exclusive preserve of young men, or Muslims or Arabs or South Asians. Sadly, it is a tactic of choice for people of all ethnicities and religions who espouse a variety of ideologies. National security policy that reflects this reality will secure our nation far better than clinging to stereotypes. And, it will better fit our longstanding Constitutional values.
Faiza Patel serves as Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law. She can be reached at: