A Bogus Ban on Racial Profiling

Human Rights

Sometimes in order to really understand political developments, you have to read the comics. For example, if you’re looking for a good critique of the Bush Administration's recent putative ban on racial profiling, you wouldn't have found it on the editorial pages of the nation's major newspapers, let alone the television news. You will found it, however, in Aaron Mcgruder's syndicated comic, "Boondocks."

On June 17th, the U.S. Department of Justice announced that President Bush had ordered a ban on racial profiling in all federal law enforcement. The news release and accompanying proclamation were loaded with moral platitudes about the evils of stereotyping and racial bias in criminal justice. They reiterated President Bush's dramatic promise to end racial profiling in America.

It sounded like a great day for democracy and liberty. If we read the fine print, however, we find that the opposite is true.

This paradox is clearly illustrated in the Boondocks cartoon, where a man watching TV hears the report of the ban, calls excitedly to his friend to come watch the report, then hears from the set, "and there are only a few narrow exceptions for the sake of national security" and then, head hanging, tells his friend, "Never mind!"

Indeed, the DOJ announcement is an excruciating self-contradiction. The press release says, "as a result of today's directive, Americans of every race and ethnicity can be confident that generalized stereotypes will have no place in the routine work of federal law enforcement." But the new guidelines contain an explicit exemption for national security. Presumably this is in reference to specific national origins that are associated with terrorism. So, how do Arab Americans not fall in the category of "Americans of every race and ethnicity?"

The DOJ fact sheet on the new policy quotes U.S. Attorney General John Ashcroft as saying, "Using race as a proxy for potential criminal behavior is unconstitutional." How is it unconstitutional in standard law enforcement but not in counter-terrorism?

Perhaps the rationale is that counter-terrorism is deemed a "war," so normal rules governing law enforcement procedures do not necessarily apply. (Forget that racial profiling as we know it grew out of the federally proclaimed "war" on drugs.) This is consistent with the classification of terror suspects as "enemy combatants." But this logic tragically blurs the line between the guilty and the accused. That is a line that American law has, until this administration, held to be intensely bright and sacrosanct. Arab Americans -- and people who look like them -- should be given the same protections.

After all, the primary point of banning racial profiling is to protect the innocent, not the guilty. But the innocent are disproportionately affected by racial profiling. This is especially true for counter-terrorism, where the proportion of the population who are potential perpetrators is so minute that the ratio of innocent-to-guilty among those detained by law enforcement is extremely high. If you doubt this, consider how many of the hundreds of Middle Easterners the feds have detained since 9/11 have turned out to be linked to terrorism.

The DOJ also contradicts itself by claiming that the latest action fulfills President Bush's promise to end racial profiling. A stated ban is only an adopted strategy. It does not necessarily end anything. In this case, the stated policy has no enforcement mechanism and there is no provision for monitoring those affected. The ban is toothless and disingenuous; it is solely symbolic.

Racial profiling is already taboo in contemporary society. No law enforcement agent with any degree of professionalism would transparently engage in it. So a ban of sorts is already in effect. However, the stereotypes on which profiling is based are tenacious. Nearly a century of social science research has demonstrated conclusively that people in all walks of life use stereotypes to make judgments of others. Psychologists have shown how stereotypes operate outside of conscious awareness and control -- like a colored lens through which we interpret behavior. So even law enforcers who do not want to racially profile are likely to do so inadvertently.

Most law enforcement agents are fair-minded. They want to do a good job and uphold the law. Nevertheless, either by dint of lack of awareness, or lack of willingness to relinquish a strategy perceived to be effective, or even because of real racial bigotry, some will continue racial profiling in the face of a simple, unenforceable ban.

For the president to end racial profiling, he must mandate a program that monitors racial profiling by individual agencies and agents and holds accountable those who detain greater proportions of particular racial, ethnic, or national origin groups than subsequent arrest and conviction rates would justify.

Even those not troubled by the civil rights implications of racial profiling should worry that the administration's strong belief that counter-terrorism relies on stereotyping may ultimately undermine their ability to protect all of us. Focusing our attention on South Asians and Arabs to prevent the next big terrorist attack may prevent us from capturing the next Timothy McVeigh before it is too late. If we are only concerned about terrorism carried out by Middle Eastern-looking people, then that is the only kind we will prevent. Meanwhile, anti-American Muslim fundamentalist extremist groups will recruit operatives outside that profile, just as Palestinian and Chechen terrorist groups have begun confounding the suicide bomber profile by using women.

Banning racial profiling is a good idea. If it was implemented effectively, and consistently, it would move the nation forward in terms of liberty, justice, and security.

Sadly, if anything, the Bush Administration's new policy will move us backward. Prior to it, racial profiling was widely condemned and disavowed throughout the country. There was a de facto ban. Although careful observers recognized that the DOJ was engaged in racial profiling in the post-9/11 war on terror, rounding up suspects only of South Asian and Middle Eastern descent, at least Ashcroft denied it was the case, attributing such disparities to real differences in suspects' behaviors. Now even that pretense of deference to The Constitution has been discarded.

The Bush administration has affirmed part of the status quo - a condemnation of racial profiling - while overtly condoning the practice for particular groups. The headlines read that a new official policy bans racial profiling. In fact, the real news is that the opposite is true. Racial profiling has just become an official policy of the U.S. government.

Jack Glaser is Assistant Professor at the Goldman School of Public Policy at the University of California, Berkeley. He conducts research and teaches courses on stereotyping, prejudice, and discrimination.

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