After rereading my last post on racial profiling and doing some thinking I realized that the issue of racial profiling in the context of airport security is a much more complex issue to which there is probably no clear correct answer. No matter what position we take, we are going to have to compromise on some of our (commonly) held values. Also, coincidentally about a month ago on NPR there was a very interesting panel debate with some of the top experts in the world on the subject, which got me to figuin’. I’m going to recap the main themes of some the arguments and give some of my own thoughts. By the by, here’s the link to the debate if you’re interested:
There are 3 main issues that I find interesting: the legality of racial profiling; the “human” aspect of profiling; and the efficacy aspect.
The legal issue
Lets look at the legality of racial profiling in the context of airport security. I find it interesting that in the mainstream media you don’t hear too much about this. Maybe it will be mentioned indirectly in conjunction with the human aspect but I’ve never read (maybe I just haven’t looked hard enough) an article devoted exclusively to legal considerations. So, being the US constitutional scholar that I am, I will endeavour to fill this void.
The legal argument revolves around the 4th amendment. For those of you aren’t rabid libertarians or don’t have wikipedia on hand, the amendment concerns search and seizure without probable cause. Off the top of my head (not lifted from wikipedia, I just like to pepper my writing with the occasional blue) the 4th amendment
“guards against searches, arrests, and seizures of property without a specific warrant or a ‘probable cause‘ to believe a crime has been committed.”
So, from this perspective it seems a legal argument against profiling might have legs. There doesn’t seem to be much probable cause. However, there is more to the 4th amendment. The 4th amendment regarding search and seizure without a warrent or probable cause is generally directed at actions occurring within someone’s domicile. For this reasons there are some important exceptions that are relevant to our investigation, and as a long time constitutional legal scholar specializing in the 4th amendment article on wikipedia.org I can cut and paste the additional information for you:
Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the “border-search” exception. Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to U.S. Customs and Border Protection plenary search authority. However, searches that intrude upon a traveler’s personal dignity and privacy interests, such as strip and body cavity searches, must be supported by “reasonable suspicion.” The U.S. Courts of Appeals for the Fourth and Ninth circuits have ruled that information on a traveler’s electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.
So, like it or not, it seems that there is a general legal argument for search without warrant and probable cause in airports. An interesting issue does arise however: wikipedia tells us that “border searches may be conducted entirely at random”. Does that mean, that they don’t have to be at random? That is to say, they can be carried out “unrandomly”? I don’t feel like clicking on the link to “US Customs and Border Protection” to read all the specifics so I’m just going to hypothesize that, who is searched is up to each border officer.
Tangential but relevant to all this is the interpretation of “probable cause”:
the Court ruled in Dumbra v. United States, , that “the term probable cause…means less than evidence that would justify condemnation[,]”
So where do we stand with the legal argument? Basically, it seems that in international airports the US government has a legal right to search individuals with or without probable cause. I have not found anything on the wikipedia 4th amendment page concerning biasing “random” searches toward certain groups; therefore, information regarding this matter does not exist. Were I a betting man, I wager there’s probably another wikipedia page about another amendment that could indirectly support the no profiling position.
On the other hand, any 1st year philosophy or political science student can tell you that pretty much the only role of government all people of all political stripes agree on (excluding anarchists, of course) is that of national defence. If the populace, right or wrong, feels that the government is failing in this regard, that government is fair game for overthrow. This means that given conflicting legal principles the government, and probably most segments of the population will lean toward the interpretation that favours (perceived) national security rather than violation of civil rights (profiling).
Conclusion? Racial profiling in US international airports in probably legal.
The “Human” Issue
I’m going to do something I don’t usually do. I’m going to appeal to anecdotal emotional arguments to illustrate the issues here. First a story about a family friend
I have a friend who is Egyptian-Canadian. He is quite successful and holds an executive position for a very large US firm, in the US. As part of his job he has to fly all over the US. After the airports reopened after 9-11, naturally he had to fly all over the US for business meetings. On one of his first post-9/11 flights he got up from his seat in the business section to use the lavatory. As he was making his way to the lavatory the stewardess yelled at him “you better sit your ass down or I’m gonna tackle yer ass!”
There are so many things wrong with this scene it’s hard to know where to begin. The basic issue is this, when you paint everybody from one group with the same brush, you end up with injustice to those who are innocent of any wrong doing. Do we really want to live in a society in which this occurs? What if, by chance, holding our personalities constant, those of us who have almost no pigment in our skins were born with higher levels of pigment? And/or were born into a family that believed in one set of beliefs (Islam) rather than other? To put it poetically, that would suck.
But I’d like to counter this anecdotal argument with one of my own. When I lived in Japan, I lived in small and mid sized cities. In the non-cosmopolitan parts of Japan some business won’t serve foreigners, apartments won’t rent to you, and even video stores won’t give you a membership. I’m not making this up. I lived it. But there were some instances where I felt this profiling was justified, and I even begrudgingly approved of it.
In one of the towns where I lived there was only one night club, so if you wanted to go out, your options were limited. This night club would not let foreign men in without a Japanese friend that would “vouch” for you. At the door, you’d give your Foreigner ID card number and your Japanese friend would give his name. Sounds a bit much, doesn’t it? The Japanese love of protocol and bureaucracy notwithstanding, what was this all about?
Well, since the first foreigners came to Japan, they have for the most part acted like savages by drinking and fighting and abusing the women. The latest culprits are Brazilian imported labourers and US military personnel. If anyone has spent a night in Roppongi (the foreigners’ nightclub district in Tokyo) you could not blame the Japanese for their policy. Roppongi is notorious for fights and drunken debauchery. I lived and worked in Roppongi for a year, at not once did I see a fight, or problem that involved a Japanese national, but I didn’t observe a shortage of instances involving foreigners, especially US military.
The was also a foreigners’ bar in that same aforementioned mid-sized town. I saw plenty of fights there, all between foreigners.
So, to wrap it up, I don’t blame the Japanese for painting us white devils all with the same brush. Could I reasonably expect them, at a glance, to identify me as one of the “good” ones? In fact, when I went to the Japanese club with my Japanese friends I never had to worry about fights and drunken slobs. The atmosphere was much more pleasant, and even though it was a bit more trouble for me to get in, I benefited from the profiling. So, in an indirect way, this is an argument for profiling.
There are of course many objections that can be raised. People don’t have to go to night clubs but may have to travel for their business and livelihood; Japan is 97% ethic Japanese, US and A is not ethnically homogenous, and so on. This is true, but I only seek to illustrate a principle.
So, is racial profiling ugly? Yup. But should national security policy be based on the “yuck” factor? Probably not. Have I lost the thread of my argument? Yup.
I guess the human issue comes down to values. If racial profiling can be shown to be more effective than not in airport security, should we adopt it regardless of the undesirable consequences to a segment of the population? Or, phrased other way, do the negative consequences to a segment of the population outweigh potential increases in security efficacy?
Lets use another anecdote to illustrate the point. The man who sold the tickets to some of the terrorists on one of the 911 flights felt suspicious about them. Something to do with the fact they they were wearing “poor man’s shoes” but they had bought 1st class tickets, and of course they looked middle eastern. The three factors converged to raise the man’s suspicions. Normally, in such a case, he’d walk the passengers over to security and give the security guys a signal to select them for a “random” security check. But on that day he didn’t. He said he didn’t because he didn’t want people to think he was a racist. If his account is true, this man lives with the knowledge that he might have stopped a terrorist act.
So where do we stand now? Having been subject to profiling (although, not as a terrorist, just as a barbarian) myself, given the history and other considerations I understood the why. On the other hand, my heart goes out to my friend. I certainly don’t want anyone to have to go endure physical threats every time they get up to go to the bathroom. But that was an extreme case. No one is going around to Muslims now saying they are going to “tackle their ass”. They are being pulled out of line to be searched more thoroughly. Annoying, yes. Humiliating and hateful? I’m not sure.
Ok, this entry is getting too long to be a blog entry. I’m going to stop here and do a part 3, regarding empirical evidence of efficacy of methods later. Ta!ta!
By the by, I’d love to hear what y’all think about this. I think it’s a really interesting issue.