Racial Profiling as a Preemptive Security Measure after September 11: A Suggested Framework for Analysis
Pal, K. Shiek, Kennedy School Review
The events of September 11, 2001, marked the beginning of the United States' renewed war on terror, and introduced racial and ethnic profiling as a tool in that struggle. This paper reviews the body of law and policy concerning profiling prior to and after September 11, and through statistical analysis the impact of preemptive profiling of individuals "of Middle Eastern appearance" to both society and those affected. The author draws attention to the collateral costs associated with broad population screening, and the disproportionate burden borne by the targeted group. Several courses of possible refinement and future research are developed.
September 11, 2001, marked a tragic day in the nation's history and ended an era of American innocence and isolation. Americans were no longer absolutely secure in the belief that they were safe within their own borders, and similarly many Americans were no longer secure in the belief that race or ethnic origin would not deprive them of the same civil liberties afforded other Americans. The casualties of September 11 included a massive loss of innocent life, financial loses in the billions, and also the loss of the bedrock American value that race or ethnicity should not be a factor in predicting criminal behavior. This development undermines an extensive body of law and public policy enacted over decades that delineated the appropriate consideration of race in such areas as jury selection, profiling, and internment. (1)
The question of racial and ethnic profiling after September 11 focuses on two new issues: the preemptive use of profiling as a prophylactic against terrorism and the identification of the so-called "of Middle Eastern appearance" (OMEA) group as the primary target of such profiling. (2) The OMEA group is broadly defined to include any individuals whose physical characteristics could plausibly serve as a proxy for Arab, Middle Eastern, or Muslim affiliations. (3) This proxy is theoretically used to identify threats against the United States emanating from extremist Islamic terrorists and is premised on the idea that all prospective terrorists representing this threat will fall into this category. (4) However, the use of preemptive profiling is a dangerous proposition because it carries inherent costs that must be evaluated against the potential benefits that would be derived from a foiled terrorist plot. These costs include the proportion of OMEA citizens falsely identified as threats and the associated harms of social stigma and further deprivation of civil liberties through detention, intensive interrogation, and invasive searches. This paper assesses these social costs as a means of evaluating the appropriate role of profiling under the current federal guidelines.
Preemption is controversial because it involves morally ambiguous questions of acceptable loss and calculated risk. However, in a global society increasingly susceptible to nontraditional forms of devastating attacks oriented at amassing massive casualties, preemption offers an inevitable and effective method of protection. Categorically discounting preemption compromises a state's ability to defend its citizens against enemies who do not adhere to similarly defined boundaries, and therefore preemption appears to be an inevitable future policy decision. The distinction between preemption and prevention turns on immediacy--preemption employs various tools to terminate a perceived threat prior to its effectuation, whereas prevention takes a less aggressive and more protracted approach to create an environment where such threats are less likely. Preemption becomes necessary because prevention is not a viable option in situations where the harm is imminent and there is insufficient time to implement a more comprehensive response. (5) The tools of preemption are more controversial than those of prevention because of the greater associated risks and costs. …