few news stories over the last week have reported on the fear of
some people that the government will use "racial profiling"
in trying to identify terrorists. To which there are two responses.
First, it is not at all clear that what will be used really is racial
profiling. And, second, so what?
If you are
mugged by a six-foot-two-inch, black male wearing a red sweatshirt,
it is not "racial profiling" for the police to be on the
lookout for people who meet that description, even though one element
in it is racial. The classic case of racial profiling is, instead,
when the police decide to stop cars being driven by young black
males, not because they have the description of a specific suspect,
but because they know that statistically drugs are more likely to
be smuggled by young black males than, say, old Asian females.
But there are
other circumstances that fall in between these two extremes. Suppose,
for instance, that you are looking for members of a particular drug
cartel, who are engaged in particular acts of smuggling, and you
know that they will all be Colombian nationals, but you don't have
specific names or descriptions that go beyond that. Is it "racial
profiling" to look harder at dark-eyed, dark-haired, darker-skin
whites, and give shorter shrift to Asians, blacks, and folks with
blond or red hair?
Suppose that you have already identified several members of a terrorist
ring and want to find the rest. The ones you have identified so
far meet a particular profile: Middle Eastern descent. Moslem. Several
are trained pilots. Male. Young or middle-aged. Booked on transcontinental
flights. Any problem with assuming that there is a good chance that
the remaining members of the ring are likely to meet this profile,
This is a lot
closer to the specific-description extreme of the spectrum than
the statistically speaking end of the spectrum. Which means that
this really isn't properly characterized as racial profiling at
all. This doesn't mean you ignore everyone who doesn't meet the
profile or shoot to kill anyone with black hair. But you look harder
at those who fit the description.
But the other
response is, so what if it is racial profiling? No one believes
that the government should never, under any circumstances, consider
race in its actions.
Suppose a prison
has just suffered a race riot. Would it be barred from temporarily
segregating prisoners? Of course not, as several of the justices
noted with none disagreeing in one Supreme Court case.
In an earlier decision, another justice wrote that the Constitution
is not a suicide pact. Just so, and thus one would not expect it
to bar the government from doing what is necessary to defend the
ordered liberty of our society.
are allowed if they are "narrowly tailored" to a "compelling
governmental interest," according to the Supreme Court's case
law. If stopping terrorism is not a compelling interest, then nothing
is. And in some circumstances there will be no way to safeguard
this interest without taking the ethnicity of suspects into account.
Such discrimination should be as limited and temporary as possible,
but it is preferable to allowing mass murder, as all three branches
of government would surely conclude.
And I doubt
that few people would complain about it. My boss, a Latina, suspects
that she is often assumed to be Middle Eastern when she travels
on international flights, and that in Europe she is therefore more
often stopped by security guards. She has no problem with that.
And why should she why should anyone if the alternative
is to diminish, however slightly, the chances of catching the next