ANDREW McCARTHY: WITHOUT PROFILING IT MAKES NO SENSE..WRITTEN IN 2005!!!
AT WAR
Unreasonable Searches
Policing without profiling makes no sense
http://nrd.nationalreview.com/article/?q=ZTg5ZTEyN2U5ODBjNDVhOGQ0MWM0NDhkMTMxYTk2OWQ=
ANDREW C. McCARTHY
Year four of the War on Terror is coming to a close with the bombing of London’s mass-transit system by Islamist terrorists. Year three saw the Islamists bomb Madrid’s railway, as well as synagogues, businesses, and the British consulate in Istanbul. In year two, they struck a resort in Kenya, nightclubs in Bali, and Western citizens in Casablanca and Riyadh. And in year one, even as we waged a massive counterattack in the aftermath of 9/11, they managed to savage a synagogue in Tunisia.
There is a pattern here — but the U.S. government seems to be incapable of detecting it. We have met the enemy, and it is militant Islam. Yet we refuse to acknowledge that fact, pretending that the enemy is “terror†— a method of attack — rather than the terrorists who employ that method. The latest expression of our refusal to identify the enemy is our ongoing debate over “racial profiling.†One cannot listen to this debate without wondering whether three decades of political correctness have undermined not only the common sense necessary for survival, but our will to survival itself.
I was on a panel some months ago with a top official from the Department of Homeland Security. After reeling off three now-infamous but manifestly non-Arabic names — Richard Reid (the “Shoe Bomberâ€), John Walker Lindh (the “American Talibanâ€), and Jose Padilla (allegedly a would-be “Dirty Bomberâ€) — the official offered to that room full of idealistic law students the cheery lesson our government has drawn: You can’t construct a terrorist profile because the monsters come in all colors, shapes, and sizes. As I listened to this absurdity, I couldn’t help but think of Muggsy Bogues, the five-foot-three-inch dynamo of a point guard who lit up pro-basketball arenas for years. I hope that if some exigency ever impels the Transportation Safety Administration to put together an NBA team, the agency will not think “Muggsy†and scour the land for Lilliputians.
Terrorists — particularly those who are likely to attack — have a profile. They are Muslim males, overwhelmingly young adults of Middle Eastern and North African descent. That doesn’t mean everyone who falls into that profile is a terrorist. Nor does it mean that every terrorist will fit the profile — you will get the occasional Reid, Lindh, or Padilla. But so what? A profile is not a judgment of guilt. It is not even an accusation of guilt. It is an investigative tool. It enables law enforcement to organize suspicions and husband resources rationally, in a manner related to a known threat. It is not foolproof, but no one who utilizes it is under any such misimpression. Its point is not to cast aspersions but to improve the odds of thwarting an attack the fallout of which could be catastrophic. It is essential in any strategy aimed at preventing a strike rather than prosecuting the guilty after the victims have been slaughtered.
Profiling is not congenial to our tender postmodern sensibilities. Nonetheless, it is legally inoffensive, at least under federal law. To be sure, the Fourteenth Amendment guarantees all persons equal protection. Yet this has never meant anything so absurd as that government must in all circumstances regard everyone as the same. The state routinely, and quite properly, makes common-sense distinctions: A seven-foot-tall naval officer may be ruled ineligible for duty in the tight confines of a submarine; women are excluded from combat missions; members of both sexes may be barred from employment as firemen or police officers if unable to meet physical-strength criteria; and so on.
Moreover, if the state interest at issue is compelling enough, even suspect distinctions such as those based on race or ethnicity are permissible. The Supreme Court has recently held that states may use race and ethnicity as grounds for denying qualified Americans admission to universities — and for no better reason than to achieve a critical mass of student diversity. How much more compelling is our interest in saving lives?
The Supreme Court has long recognized the security of the governed as the highest imperative of government. The Constitution, as Justice Robert Jackson famously observed, is not a suicide pact. If a profound threat stems from a particular group, the government may take that fact into account when deciding how to marshal its resources. The government has no less than a duty to do so, and until recently this duty was carried out without much controversy.
It has, for example, been established federal law since the Alien Enemies Act of 1798 that, in a time of declared war, the United States may imprison or deport nationals of enemy nations. (What was excessive about internment camps during the Second World War was that they included American citizens of Japanese descent; there was nothing objectionable in principle about holding Japanese, German, or Italian nationals.) In the War on Terror, the enemy is a global network rather than a nation — but that complication hardly extinguishes the underlying principle: Those whose allegiance may lie with the enemy must be subject to greater scrutiny.
This line of thinking is not exclusive to wartime considerations. The mafia has historically been a syndicate composed of males of Italian descent. In the prosecutions of the 1980s and 1990s that shattered the mob, the Justice Department did not cast its net widely enough to snare octogenarian Guatemalan grannies; it made Italian heritage part of the profile. Likewise, the Westies were a Hell’s Kitchen–based Irish mob; in dismantling it, the government did not target, well, Muggsy Bogues. Ditto for Chinese tongs, Colombian drug cartels, Russian organized crime, Nigerian scammers, and the entire gorgeous mosaic of crime.
Criminal conspiracies, like much concerted activity (including much that is socially beneficial), tend to be ethnic and cultural. Government was never expected to ignore that reality when the worst consequence of misdirected attention might have been a gang murder or a kilo of cocaine slipping into the stream of narcotics traffic. Why would anyone think the blinders should go on when the consequence could be mass homicide — tens or hundreds of thousands of deaths — in a WMD attack?
Our chariness about profiling is best seen in post-9/11 airport procedures and, following the London tube bombings, in New York City’s subway searches. As to the former, one sees its absurdity by imagining an international network of old ladies intent on carrying out suicide strikes. Does anyone think the TSA would have the nerve to subject young Muslims to aggressive secondary screening at the nation’s airports? Yet, in our current war against militant Muslims, no one — not children, not aged invalids — is immune from overwrought intrusion, lest we be thought inhospitable to the genus exclusively within which lies the barbaric species aiming to destroy us.
The NYPD’s subway searches, meanwhile, are ludicrously benign. To forfend claims of profiling, the cops are reacting to militant Islam’s atrocities by randomly stopping approximately every tenth person carrying a bag. (Query: Why is it kosher to discriminate against bag-carriers? Don’t they have a lobby?) Further underscoring that this is a gesture, not a strategy, the police announce their presence at a particular station ahead of time; real bombers need only tote their bags a few blocks to the next stop. And no one who has the misfortune of being stopped is forced to undergo a search — if you object to opening your knapsack, the police will leave you alone, although you will not be permitted to board a train. No profiling, no searches, and no effectiveness.
Yet the NYPD is still being sued by the New York Civil Liberties Union. NYCLU’s complaint, after mouthing that “concerns about terrorism of course justify — indeed, require — aggressive police tactics,†argues that the searches violate the Constitution because they lack individualized suspicion. It then argues that they could easily lead to such suspicion, and to profiling — which would, conveniently, also violate the Constitution.
This attempt to have it both ways, consistency be damned, is lunacy run amok. In fact, not focusing on those who pose a danger is flagrantly to violate civil rights: specifically, the right of the vast majority of Americans to be free from unreasonable searches.
Which is to say nothing of the right to life of everyone we are failing to protect. Until we stop pretending not to see what the terrorists who are attacking us look like, we may as well give them an engraved invitation to strike again.
Mr. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies, and a contributor to National Review Online.
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