Civil Rights Rollback

The spread of racial profiling since 9-11

Four years ago the nation stood at the cusp of a major civil rights victory. Activists from across the country rallied in Washington, D.C., to end racial profiling. Polls showed a majority of Americans opposed the practice. Al Gore vowed that as president he would make a law banning it, "the first civil rights act of the 21st century."

George W. Bush agreed with his opponent. "I can't imagine what it would be like to be singled out because of race and stopped and harassed," he said during one 2000 debate. "That's just flat wrong." Then he did Gore one better: "There is other forms of racial profiling that goes on in America. Arab Americans are racially profiled. . . . People are stopped, and we got to do something about that."

But today his administration's reaction to the 2001 terrorist attacks has not only betrayed Bush's own rhetoric, but worse, it has undermined the political force of the anti-profiling movement in general—the force that made it a profound civil rights cause, not just a policy debate. By couching group-based profiling as necessary to homeland security, the government has traded the principles of universal equality and individual dignity for the presumption of safety. Nearly no one this election year has been bold enough to hint at the outrage that once powered a bipartisan movement. It has become impossible to be righteous about racial profiling without encountering the inevitable "But what about 9-11?"

Attorney LaShawn Warren, a leader in the fight for a federal law banning racial profiling
photo: Rick Reinhard
Attorney LaShawn Warren, a leader in the fight for a federal law banning racial profiling

What about it? Three years out, the question demands more than a knee-jerk nod. A thoughtful look will show that the terrorist attacks did not make such profiling any less wrong than it was on September 10, 2001. In fact, it is all the more insidious today, because the war on terrorism has lent profiling the veneer of legitimacy—even urgency, after alerts such as the one regarding financial centers last weekend. As this modern civil rights movement begins to put itself back together, with a renewed push for federal legislation, it is important to realize that racial profiling has not gotten any less wrong—the government is just more willing to do the wrong thing. And to be willing to do the wrong thing is a devastating rejection of the values of American life.

One and the same

"Racial profiling is being stopped driving while black or driving while Hispanic. This is not racial profiling," said Mark Corallo, spokesperson for the Department of Justice, when asked about the administration's 9-11–related operations. He voiced precisely the kind of thinking that has obscured the crisis of profiling for the past three years.

Trawling for terrorists and pulling over motorists in search of drugs are in fact the same thing. While it may be acceptable to target people based on a racial or ethnic description if—and only if—there is some specific indication that those particular people are actually criminals, broad sweeps based on general traits are never OK. Not only are they unlikely to yield "hits" and certain to humiliate innocent parties, but such dragnets also violate this nation's fundamental principle that people will be treated as individuals and not according to stereotypes.

"You either have racial profiling, or you don't have racial profiling. You can't have it both ways," says LaShawn Warren, a leader in pushing for passage of the End Racial Profiling Act of 2004, currently a bill with support from 124 members of the House and 16 of the Senate. As a national legislative counsel for the American Civil Liberties Union, she has been struggling to show Congress members that FBI questioning and immigration roundups of people who appear to be Arab or Muslim—whatever that looks like—are "no different than the old kind of racial profiling that we said was wrong."

There is little wonder that some people refuse to believe her. The Bush administration has led the way. In his long-promised racial profiling ban, announced with great fanfare in June 2003, Bush told federal law-enforcement agencies that "racial profiling is wrong and will not be tolerated" and that "stereotyping certain races as having a greater propensity to commit crimes is absolutely prohibited." (The directive, which is not a law, lacks any enforcement mechanism, so the prohibition is absolute only in theory.) But he created a crippling exception: "The above standards do not affect current federal policy with respect to law enforcement activities and other efforts to defend and safeguard against threats to national security."

In effect, that "national security" loophole has become the exception that would erase the rule. Like a political ray gun, it neutralizes any critic who would cry racism or xenophobia when it comes to 9-11–related profiling.

Corallo pointed out, "There were 19 hijackers who were from an Islamic background." Certainly it makes sense to hunt for people like them—but like them how? There was once a time when people defended the "driving while black" variety of profiling, because searching certain minorities for drugs was said to make sense. But as publicindignation mounted over the years, the U.S. Customs Service, for example, scaled back its profiling and turned to behavior-and intelligence-based investigations instead. Drug-runner apprehensions more than doubled.

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