October 12, 2005,
The controversy over whether New Jersey’s State Office of Counterterrorism has engaged in improper profiling, which I recently described here, is getting more acrimonious. That may in fact be over deeply held views about the specter of profiling. But it may have a lot more to do with turf politics similar to the unseemly interagency cat-fighting that broke out in the midst of the last week’s supposed New York City subway threat.
The Newark Star Ledger says it has obtained a confidential federal report which confirms that 140 people were entered into the counterterrorism database simply because they happened to be Muslims.
If that happened, it should be condemned. But did it happen? On the surface, it seems very strange.
If being a Muslim, per se, were enough to get one into the database, you would think there would be many more than 140 such entries. Plus, it would be flat-out dumb intelligence work. If the authorities hope to win the cooperation of people in the Islamic community in a position to provide information about radical elements, they are not going to win many allies if their approach is that just being a Muslim makes one a terrorist suspect.
Now let’s consider the politics. This dispute has a combustible context. It occurs in the midst of efforts by Attorney General Peter Harvey and the state troopers, who are under his control, to emerge from a federal consent decree that resulted from the troopers’ legacy of improper profiling practices. They have a powerful incentive to project the appearance of condemning any practice that looks like profiling.
There is also a raging turf-battle over whether Harvey should control the counterterrorism office, or whether it should be placed under the direct supervision of Acting Governor Richard Codey. Last week, that bubbled over when Harvey and the state police pulled fourteen troopers who had been dedicated to the counterterrorism office. Codey responded by issuing an executive order that ended Harvey’s management of the counterterrorism office’s day-to-day operations.
With that background, a close reading of the Star Ledger article suggests there are reasons to question the confidential federal review that was apparently approved by although not conducted directly by the Justice Department.
First, the federal review was done at Harvey’s request, and he obviously has a stake here. Indeed, Codey’s spokesman announced that the report though obviously shared with the Star Ledger was not shared with the governor’s office. Codey, meantime, has turned for guidance to a different set of feds: New Jersey’s U.S. attorney and the Department of Homeland Security (whose leader, Secretary Michael Chertoff, used to be the U.S. attorney in New Jersey back when the state police were accused of profiling). They have yet to weigh in.
Second, the Justice Department, and the administration generally, have been conducting aggressive outreach to Muslims here and overseas including dialogue with activist organizations known to scream “Islamophobia” at the slightest suggestion that Muslims might have something to do with terrorism. Consequently, DOJ is likely to be hypersensitive to any profiling allegations, whether well-founded or not.
Third, the Star Ledger reports that DOJ contracted this review out to a private firm, the Institute for Intergovernmental Research. But IIR could not review the disputed database entries because it lacks the necessary security clearances.
So how did it come up with the information that forms the basis for its conclusions? IIR conducted interviews of the state police the agency that stoked the controversy in the first place. How surprising is it, then, that the review is said to conclude that the troopers "acted responsibly in removing the 140 submissions" from the database?
On the other side of the coin, the justification for the database entries thus far offered by the counterterrorism office does not inspire great confidence. Director Sidney Caspersen denies profiling allegations and, according to the Star Ledger, explains that the entries at the center of the storm were “simply incomplete.”
Clearly, however, entries into a database of this kind should not be made until they are complete. Moreover, there has to be something besides being a practicing Muslim to constitute valid grounds for suspicion. Even without all the usual fields being filled in, it would seem elementary that if incomplete entries include that a person is a Muslim, they must at a minimum also include the independent rational basis for suspicion. Without that, an entry would be improper profiling.
So the fur continues to fly in the Garden State. Regrettably, though, the main issues remain as murky as they are highly charged.
If there was a good reason to be wary of someone because of ties to suspected terrorists, association with known radical locations, financial contributions to suspected terrorist fronts, etc. there should be nothing objectionable in recording that a suspect is a Muslim. But if there was nothing more than religious affiliation, that would not only be inappropriate profiling but grounds for severely questioning the competence of whoever made the entries.
Until we know why these entries were made, we will not be in a position to judge. But the mere mention of “profiling” will keep pushing our hot buttons.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.