Social Science Research Council

In Times of Trouble: the Problem of Racial Profiling
(Talk at UCSB Multicultural Center, January 28, 2002, "Race Matters" Lecture Series)

By Lisa Hajjar

The subject of my talk today is the relationship between race and law enforcement. The main focus will be on "racial profiling" by the police and other government agents. Racial profiling refers to the use of race as a proxy for criminality. The "logic" of this practice hinges on the idea that people of certain races are more likely to be involved in criminal activity than people of other races. Therefore, for purposes of crime fighting and prevention, it is justifiable to detain and investigate people who fit the racial profile in order to see if those particular individuals are indeed criminals. For example, the use of racial profiling of African Americans has been justified by the police on the basis of statistical evidence supporting claims that drug use and sale are proportionately higher among African Americans than among other races. From a law enforcement perspective, it is reasonable to equate blackness with suspiciousness, and act on this suspicion by stopping black people to see if they are in possession of drugs.

Defenders and proponents of racial profiling argue that fighting crime is a public interest that outweighs the "inconvenience" to innocent people who happen to be the wrong race in the wrong place. The widespread use of racial profiling by police on the nation's highways and streets has been undertaken as part of the "war on drugs." But the harassment of black people became so pervasive that it gave rise to an outcry that DWB-driving while black-has become a crime. And when those police stops turn violent-as they sometimes do-the problems of racial profiling become more apparent.

There are many problems with racial profiling. First and foremost, targeting people because of their race is a form of discrimination. Not all forms of discrimination are intended to hurt racial minorities; for example, affirmative action programs take race into consideration to enhance opportunities for previously excluded groups. But when the police use racial profiling, the primary aim is to apprehend criminals rather than to assist disadvantaged sectors of society. The consequence of using race as a proxy for criminality effectively criminalizes targeted races. Second, profiling people because of their race infringes on two of the core elements of our legal system: the presumption of innocence, and the individualization of criminal responsibility. Profiling is based on a presumption of guilt and targets people on the basis of a collective identity: race. Third, profiling is used to compensate for a lack of evidence and represents poor police work. It functions like a dragnet, sweeping in suspicious "types" to enable police to then sift through the catch.

In this country, given our sordid racial history, racially discriminatory policing should alarm all of us. In fact, by the year 2000 racial profiling had become a major issue in domestic policy debates. Critics branded profiling "the new lynching." And people across the political spectrum were demanding that it be stopped because of the damage it was doing to race relations. Even strong proponents of "law and order" like President George W. Bush and Attorney General John Ashcroft adopted the position that racial profiling is an illegitimate means to fight crime because it has damaged relations between the police and minority communities.

Then came September 11, the day that "changed everything" as common wisdom would have it. One of the changes is that racial profiling earned a new lease on life. The attacks that occurred on September 11, in which a group of individuals hijacked commercial airliners and transformed them into weapons of mass destruction, were a crime against humanity. Thousands of people died as a result. The definition of a crime against humanity is any large-scale or systematic attack targeting civilians. The attacks were also terrorism, which could be defined as acts of violence that are intended to breed panic far beyond those immediately affected. The direct perpetrators of the 9/11 attacks are all dead, their own suicides being integral to the "success" of their missions. But the lines of responsibility extend beyond those 19 individuals who went down with the planes. Consequently, the perceived "reasonableness" of racial profiling of "Middle Eastern types" has become widely accepted as necessary to protect ourselves from future attacks.

Let's begin by considering what is "reasonable." Many practices would be patently unreasonable in a democracy in times of peace, such as censorship of speech or the arrest and detention of people on the basis of their race or ethnicity. But these same practices can be regarded as reasonable and even necessary in times of trouble. During crises, the privileges of democracy and the protections of the rule of law are susceptible to being trumped by the imperatives of national security. The clearest example of national security trumping rights was the internment of Japanese Americans during World War II. Uprooting and detaining 120,000 Japanese Americans was undertaken on orders of the military, and justified as necessary to subvert any potential assistance this population might provide to the enemy, Japan. At the time, the Supreme Court upheld this policy as reasonable under the circumstances. However, in the decades since then, it has come to light that military and government officials responsible for this policy greatly exaggerated the dangers and fabricated or suppressed evidence that would have illuminated the unreasonableness of internment. In 1988, Congress finally passed remedial legislation that provided $20,000 in compensation to every surviving internee, and an official apology. In the words of the apology, the internment was an unfortunate by-product of "racial prejudice and wartime hysteria."

The internment of Japanese Americans offers a powerful example of the "racialization" of danger and suspiciousness. America was also at war with Germany, but German Americans were not rounded up and interned. Why not? People of German descent are white. Whiteness was, at that time-and to some extent it still is-regarded as the absence of race in the American pigmentocracy; whites are "un-raced" and therefore whiteness could not serve as a proxy for suspiciousness. "Asian-ness," on the other hand, is a raced identity. The logic of interning Japanese Americans arose from and played into popular racist stereotypes about Asians dating back to the 19th century in which fear of the "yellow peril" inspired overtly racist anti-Asian legislation and treatment by public officials. Asians were represented and popularly imagined as sneaky, inscrutable, fanatical and inassimilable. Even second and third generation Asians in America could not transcend the image of themselves as "foreign" because of their race-that is, their racial difference from whites.

It took decades for our government to acknowledge the wrongness of the WWII internment in which people who fitted a racial profile were stripped of their rights, but today we have no more legal protections against the repeat of such a scenario than we did in 1942. The official apology to Japanese Americans rings hollow because people deemed to be members of "enemy races" are still just as susceptible to internment and deprivation of their civil rights and liberties as Japanese Americans were five decades ago. Actually, in the aftermath of 9/11 and as a result of the anti-terrorism legislation that has been passed recently, members of "enemy races" are more vulnerable than ever.

In this "war on terrorism" in which we now find ourselves, the "enemy," the "danger," the "menace" fits a certain racialized profile of "Middle Eastern types." But what exactly is that profile? Physiologically speaking, it would include dark hair, dark eyes, olive or brown skin, aquiline nose…characteristics that are not a monopoly of people from the Middle East. In fact, many people with no connections to the Middle East have been beaten up or forced to disembark from planes or trains because they "look like terrorists." Even among actual "Middle Eastern types," a profile hinging on race, nationality or ethnicity elides some basic differences that would be relevant to the "profile" of a terrorist: religion, for example. A sizeable percentage of Arabs in America are Christians. But even if one were to hone the profile more narrowly, to regard only "Muslim Middle Easterners" as potentially suspicious, the net would encompass people of vastly different beliefs and political persuasions.

Do such differences and distinctions figure into the practice of profiling? The answer is no: when race is the criterion-the proxy-for suspiciousness, any ability to discern relevant differences can be undertaken only after the fact. Public ignorance about other cultures, coupled with fear, compounds both the likelihood and the dangers of racial stereotyping. The logic holds that because "Middle Eastern types" have made Americans afraid by attacking our country and killing thousands of our fellow countrymen and women, those "types" have lost the rights and privileges that "normal" people can claim.

Treating people as guilty simply because of their race is harmful not only to the individuals affected; racism degrades everyone, and government-sanctioned racism is a threat to national security, not a means of enhancing it. Discrimination violates our legal principles, and when the law is altered to allow punitive discrimination, the very fabric of our society is threatened. But that is what is happening now, because "national security" is being used to manipulate and erode the "rule of law."

Legal developments in the aftermath of September 11 provide a clear example of the manipulability of legal principles. Racial profiling, so recently condemned as deleterious to the goals of law enforcement, has been adopted as official policy: For example, the Justice Department has instructed law enforcement agents across the country to "interview" more than 5,000 immigrants-not on the basis of evidence that they have any connections to Al-Qaeda or the 9/11 attacks, but merely because they fit a profile. Lives are being disrupted and careers are being derailed, and there is no evidence that such measures will enhance security. Even the "necessity" of these interviews is dubious. For example, in Michigan where there is a very large Arab population, hundreds of "invitations" were sent out to Arabs, Iranians and South Asians, including to several dozen University of Michigan students. The school's administrators responded by providing a lawyer to accompany the students. After a few interviews, the rest of the student interviews were cancelled. Yet other Arabs in the area continue to be interviewed. If the interviews are necessary, why were the student interviews canceled? Clearly, the presence of a lawyer undermined one of the goals: to solicit informants, people who could function as the eyes and ears of the government within their communities.

Information is indeed crucial to any law enforcement campaign. But one would have to wonder about the means being used to get people to play that role. In the aftermath of 9/11, when hostility and suspiciousness toward Middle Easterners is high and the government is according itself wide powers to sweep communities for terrorists, individuals called in for questioning are going to feel particularly vulnerable and scared. Agents are capitalizing on their fears by means we can realistically assume include threats, intimidation and coercion. Even if people do concede to being informers, the process alienates them from the authorities, fortifies feelings of "outsiderness" by the community as a whole and ultimately undermines the very goal of law enforcement by turning the community against the police. It was for this reason that racial profiling of African Americans could come to be seen as counterproductive.

While interviewing people is a relatively innocuous form of profiling, more menacing practices being instituted include detention without trial, the use of secret evidence and secretive tribunals, and usurping the lawyer-client privilege. In the aftermath of the 9/11 attacks, Attorney General John Ashcroft asked Congress to broaden the Anti-Terrorism and Effective Death Penalty Law, enacted in 1996. Among its provisions, the 1996 law allows the Secretary of State to designate foreign political groups as "terrorist" if the Secretary finds that they engage in activity threatening the security of Americans or the national security of the United States. Yet how such groups come to be designated as such is not open to scrutiny or debate. The anti-terrorism law also created a special court that may hear secret evidence against residents or visitors who may be deported on suspicion of being members of designated "terrorist" organizations. Prosecutors may present classified evidence to a judge but the immigrants themselves are not allowed to see the material.

The new bill, passed after 9/11, called the USA Patriot Act of 2001, imposes guilt by association, rendering immigrants deportable for nonviolent associational activity on behalf of any organization that is blacklisted by the Secretary of State. The Patriot Act also authorizes the Attorney General to lock up aliens, potentially indefinitely, on mere suspicion, without any hearing and without any obligation to bring the detainee before a judge to determine if the detention is necessary. About 1,200 people have been detained on this basis, of whom about 10 - 15 are suspected of ties to Al Qaeda, according to the government. What about the other 1,185? Never in our history has the government engaged in such a blanket practice of secret incarceration.

Secrecy has become the new norm. Gag orders prevent detainees and their lawyers from saying anything public about their predicament. The Immigration and Naturalization Service is conducting secret immigration proceedings to deport immigrants, and these hearings are closed to the public and even to family members. The Patriot Act authorizes secret wiretaps and searches without probable cause of a crime; the only "cause" is the race of those subjected to these measures.

Civil libertarians have been protesting the institution of such police-state tactics, and even some members of Congress have been disinclined to allow national security legislation to trump our legal principles. Consequently, the Bush Administration has chosen to bypass Congress and the public, making radical changes through administrative fiat that go into effect the moment they are published and without notice or comment. But are these measures necessary? Many experts say no, pointing out that we have successfully apprehended and tried individuals responsible for terrorist crimes in open court with all the protections that are available in this country. The government has done nothing to demonstrate that these new measures are necessary. Rather, the Administration is trying to silence debate and delegitimize critics by saying that we are "at war." According to Ashcroft, "foreign terrorists who commit war crimes against the United States…are not entitled to and do not deserve the protections of the American Constitution." But we cannot know whether someone is a "foreign terrorist" until those charges are proven in fair and open proceedings. Just calling people terrorists-and treating them like terrorists-does not make them terrorists. The burden of proof is on the government, but racial profiling and secrecy are being used to relieve the government of its lawful duty.

Why hasn't there been a louder outcry about the draconian new measures? Why hasn't the public demanded that the Administration justify its expanded authority? For one thing, we are afraid, and in times of crisis we crave security. Fear and panic can cause us to abandon our principles. But if we abandon our principles, what are we fighting for? Can we defend freedom when we accept guilt by association? Can we defend the rule of law when we allow due process to be eroded? Can we claim equal protection under the law when we allow the government to utilize racial profiling?

The punch line of my critique of racial profiling as a law enforcement strategy is that "real American values" are at risk when racial discrimination becomes accepted public policy. Racial discrimination violates legal principles that were hard fought and won at great expense. Those principles are what we should rely on to guide us through this crisis, and those principles should be defended by anyone who claims to care about the security of this country. Resisting the easy temptation of discrimination at a time when danger is so clearly racialized requires a heightened consciousness and public vigilance. Racial profiling is the easy, lazy, incompetent way of dealing with crime and danger. "Real Americans" need to recognize that and speak out against it, to demand better of our officials. We live in a multi-racial society, and any time members of one race can be targeted for harassment and deprived of their rights, it reinforces a racial hierarchy and puts everyone at risk. No matter what your race, racial profiling is your problem, too.

Lisa Hajjar, a sociologist, is on the faculty at the Law and Society Program at the University of California - Santa Barbara (2001). She has a Ph.D. from The American University (1995) and an MA in Arab Studies with a concentration in International Affairs from Georgetown University (1986). Her primary research interests include human rights, international law and cause lawyering. She is completing a book, Authority, Resistance and the Law: A Study of the Israeli Military Court System in the West Bank and Gaza, to be published by University of California Press. She has also conducted a study of domestic violence and shari'a (Islamic law) in Muslim societies in the Middle East, Africa and Asia.