Transit Attacks Revive Targeted Profiling Debate

In a country that has proclaimed from its inception that all men are created equal, many Americans find the notion of targeted racial profiling disturbing. In most cases, it's also illegal.

But the London terror attacks last month, on top of the Sept. 11, 2001, attacks (search) in New York and Washington, D.C., now have everyday Americans saying the unsayable and thinking the unthinkable:

What is wrong with racial and ethnic profiling if it will prevent a terror attack?

At the heart of the debate is an undeniable set of facts: the perpetrators of the attacks in London, New York and Washington, as well as in Bali, Madrid, Casablanca and Istanbul, were overwhelmingly young Muslim extremists from the Middle East, South Asia and North Africa.

Now, some Americans who have been staunch supporters of civil liberties (search) are beginning to rethink racial profiling. Most recently, two New York City officials publicly called for authorities to focus on Arab and South Asian men after a random bag-search policy was implemented for mass-transit passengers.

"We need to look at the terrorism that has happened since Sept. 11. ... It is so obvious they have certain things in common. They are young, they are Muslim, they are of Middle Eastern or South Asian background," said Democratic state Assemblyman Dov Hikind (search), who has called for legislation allowing police to use racial profiling in terrorism prevention.

"I'm not saying that if 15 Muslim men come into a subway station, search all of them. Maybe search none of them if the police officer feels there's no need. But a police officer should not be concerned about searching every single one of them if the police officer feels it is necessary," Hikind told FOX News.

Hikind, whose son-in-law is Iranian, said he felt badly that innocent people who fit "the profile" would be targeted, but he added that abiding by "political correctness" is senseless in the face of terrorism.

But what some derisively call political correctness is simple fairness to many others. Sofian Abdelaziz Zakkout, director of the American Muslim Association of North America, says Muslim and Arab-Americans have been penalized enough for the acts of a few extremists.

"We are American Muslims. Let the Muslims in that country worry about making the land safer," he said, referring to the London attacks. "We paid for 9/11 big-time and are still paying. Why should we be paying for a few idiot terrorists doing something in England?"

Many other Americans seem to agree. On Thursday, the New York Civil Liberties Union, along with five individuals, sued the city over its new subway search policy, calling it unconstitutional and ineffective.

The New York Police Department has firmly declared that bag searches, a response to the London attacks, are numerically random and that no racial profiling is allowed. Officers have been told to look out for passengers who are carrying heavy backpacks, look nervous, sweat heavily and fiddle with their hands.

Those who believe Middle Easterners and Muslims warrant special scrutiny find those criteria absurd.

"It recapitulates the appalling waste of effort and resources we see at airports every day when, for reasons of political correctness, 83-year-old grandmothers from Poughkeepsie are required to remove their shoes in the search for jihadists hungering for paradise," wrote syndicated columnist Charles Krauthammer.

Those who support narrower search criteria frequently offer up the "blue-haired granny" as an example of what's wrong with random searches. Gail Donoghue, an attorney for the city, even concedes that the searches are unlikely to net terrorists.

"While an attack is always possible, we believe random searches will deter conduct that could lead to an attack," Donoghue told "The main point here is people want absolute security, and unfortunately that may not be something we have again ever. But it doesn't mean we don't try to create as much security as we can within the constitutional framework of our government."

Oddly, groups that are traditionally vocal on civil rights have not responded to the recent calls for targeted profiling in kind. The American Civil Liberties Union, the Southern Poverty Law Center and the Rainbow/PUSH Coalition have remained largely silent on the issue since the London attacks, and all refused to comment for this article.

Perhaps that's because while the notion of racial profiling seems to most Americans wrong on its face, the choice between profiling and potentially saving dozens of lives is much more morally complex, and seems to pit this country's ongoing struggle to undo racial oppression against a desperate desire to prevent another 9/11.

"With the attacks in London and the previous attacks in New York and Washington, [targeted profiling] would fall under the category of special-needs searches and probably would be upheld by a court. ... I think including ethnicity in these times in a mass transit or airport situation is legitimate," said Lewis Katz, a criminal justice and Fourth Amendment expert at Case Western University's law school.

"[President Bush] is on record opposing this type of racial profiling, and so is the secretary of transportation, and they will have to eat their words," Katz told But, he added, "What I'm saying runs against my grain."

Katz's discomfort is shared by many who believe racial profiling is an ongoing problem in law enforcement. The term "driving while black" was introduced in the late 1990s after New Jersey was forced to clamp down on the targeting of black drivers on its Turnpike.

But contrary to what some civil libertarians believe, such profiling is not always illegal. The Supreme Court has traditionally given government a longer leash in emergency and wartime situations.

"The simple statement that racial discrimination is almost always illegal under the Constitution unless pressing public necessity requires it, that holds," said Diane Marie Amann of the University of California at Davis law school. "It is a statement of law that the [Supreme Court] has never overruled."

"But almost always there is an exception to the rule," she said. "The question is how narrowly you're going to raise the exception."

The problem is in many respects a utilitarian one. Americans have largely been willing to put up with more intrusive and lengthy checks at airports because they are in the interest of protecting many others along with themselves.

"I think it's a policy option government needs to think about when it's defending the nation from attack," said John Yoo of the University of California at Berkeley's law school. "This is not something government should do in peacetime, but in war. The stakes are much greater and you are talking about national survival, life-and-death matters."

But it is not clear how the court would rule on a policy that allowed authorities to take country of origin or ethnicity into account, even in the special circumstances of terrorism.

Korematsu v. United States, which said government had the right to inter Japanese-Americans during World War II, is still on the books today. But the decision to contain Japanese-Americans is so widely despised now that using it to justify counter-terrorism policy would be extremely risky.

Opponents say allowing authorities to engage in ethnic profiling could open the door for more egregious policies, such as those that led to the internment of the Japanese. But Yoo argued that considering country of origin in conducting searches and the Japanese internment camps are two very different things.

"We hate having to go through extra search processes; we all have seen examples of people being searched. But is it really that much of a burden compared to what happened in the past?" said Yoo, who helped draft torture and terrorism policy for the Bush administration while a Justice Department lawyer.

Most government attorneys seem to agree that the discriminatory effects of profiling are unacceptable, and few if any have called for it.

But Yoo said profiling is a necessary tool that is already widely used by American authorities.

"The problem is not the 'profiling' part, it's the 'racial' part," he told "Certainly in law enforcement and military operations and intelligence, profiling is just a way of making predictions about the future."

And while the Bush administration has vowed not to single out the Muslim community in the War on Terror, it's hard to believe that intelligence officers tasked with tracking down sleeper cells are focusing on churches and synagogues as much as mosques.

"We've already been doing [ethnic profiling], frankly, without being open and honest about it," Case Western's Katz said. "It'd be better if we would be open and honest about it. It would be subject to debate and we could make sure it is not abused."

Harvey Kushner, a counterterrorism expert and author of "Holy War on the Home Front," said profiling based solely on race, religion or ethnicity would be foolish. He advocates behavior-based profiling comprising a "basket of variables," which may sometimes include ethnicity.

"We have to develop a prudent protocol for profiling to protect the public," Kushner told "The basket of variables might include a person looking nervous, who is overdressed, sweating, reeking of heavy perfume, but we might also be looking at where the person comes from. This might include nationality."

Kushner said that to automatically dismiss any consideration of ethnicity was to "throw the baby out with the bath water." But, he stressed, the Muslim community would have to be a part of any national discussion.

Michael Scheuer, a former top CIA analyst whose book, "Imperial Hubris," lambastes the Bush administration's handling of the War on Terror, agreed that a frank discussion on how to prevent terrorism has yet to happen in the United States.

"Politicians are too concerned about getting elected," he told "Effective security implies some prohibition against doing something. Americans are a pretty individualistic bunch of people who like to go their own way. They are averse to giving up liberties."

But rather than asking Muslims and Arab-Americans to give up their sense of comfort and protection, AMANA's Zakkout, who volunteers as a consultant to regional and federal law enforcement, says other Americans should more actively develop partnerships with his community.

"You should stop complaining about us and start working with us to prevent terrorism," he said. "We get rejected many times [when we] come forward to help. You should take advantage of us."

Zakkout said despite the prejudice his community has encountered, he and other Muslim Americans should never stop reaching out and trying to help.

"We feel this country is ours. The American flag is mine. Some Americans may not like me, but I don’t care — I'm going to fight for it."