Good morning, distinguished ladies and gentleman. I am David A. Harris, Balk Professor of Law and Values at the University of Toledo College of Law, and the author of "Profiles In Injustice: Why Racial Profiling Cannot Work," (The New Press, February 2002.). We meet here today, in the unfortunate aftermath of the September 11 tragedies in New York and Washington, to discuss the implications of these events, especially as regards the treatment of those who have immigrated to our country. What changes in the law might we see? We know that we are a nation of immigrants - that, in many ways, immigrants built our great nation. We know that the immigrant experience has, in many ways, been at the core of the American experience, and that the diversity that these people have brought to our country has been, and continues to be, our greatest strength. But we also know that we have sometimes dealt harshly and unfairly with them, especially in times of national emergency and crisis. Thus the Commission does exactly the right thing by inquiring into these issues now, even as new legislative proposals continue to unfold in the Congress. In short, we seek to understand what the implications will be of the changes that will surely come because of the events of September 11 - changes in the very idea of what America is, and what it will be in the future.

History

I said earlier that our history gives us reason to feel concern at such a critical juncture. Any serious appraisal of American history during the some of the key periods of the twentieth century would counsel an abundance of caution; when we have faced other national security crises, we have sometimes overreacted - or at the very least acted more out of emotion than was wise. In the wake of World War I, the infamous Palmer Raids resulted in the rounding up of a considerable number of immigrants. These people were deported, often without so much as a scintilla of evidence. During the Second World War, tens of thousands of Japanese - immigrants and native born, citizens and legal residents - were interned in camps, their property confiscated and sold off at fire-sale prices. To its everlasting shame, the U.S. Supreme Court gave the internment of the Japanese its constitutional blessing in the infamous Korematsu case. It took the United States government decades, but eventually it apologized and paid reparations to the Japanese. And during the 1950s, the Red Scare resulted in the ruining of lives and careers and the jailing of citizens, because they had had the temerity to exercise their constitutionally protected rights to free association by becoming members of the Communist Party years before.

Categorical Thinking

We must hope that we have learned the lessons of this history - that the emotions of the moment, when we feel threatened, can cause us to damage our civil liberties and our fellow citizens, and that this is particularly true for our immigrant populations. And it is this legacy that should make us think now, even as we engage in a long and detailed investigation of the September 11 terror attacks. As we listen to accounts of that investigation, reports indicate that the investigation has been strongly focused on Arab Americans and Muslims. What's more, private citizens have made Middle Eastern appearance an important criterion in deciding how to react to those who look different around them. Many of these reports have involved treatment of persons of Middle Eastern descent in airports.

In itself, this is not really surprising. We face a situation in which there has been a catastrophic terrorist attack by a small group of suicidal hijackers, and as far as we know, all of those involved were Arabs and Muslims and had Arabic surnames. Some or all had entered the country recently. Given the incredibly high stakes, some Americans have reacted to Middle Easterners as a group, based on their appearance. In a way, this is understandable. We seldom have much information on any of the strangers around us, so we tend to think in broad categories. It is a natural human reaction to fear to make judgments concerning our safety based on these broad categories, and to avoid those who arouse fear in us. This may translate easily into a type of racial and ethnic profiling, in which - as has been reported in the last few weeks - passengers on airliners refuse to fly with other passengers who have a Middle Eastern appearance.

Use of Race and Ethnic Appearance in Law Enforcement

The far more worrying development, however, is the possibility that profiling of Arabs and Muslims will become standard procedure in law enforcement. Again, it is not hard to understand the impulse; we want to catch and stop these suicidal hijackers, every one of whom fits the description of Arab or Muslim. So we stop, question, and search more of these people because we believe it's a way to play the odds. If all the September 11 terrorists were Middle Easterners, then we get the biggest bang for the enforcement buck by questioning, searching, and screening as many Middle Easterners as possible. This should give us the best chance of finding those who helped the terrorists or those bent on creating further havoc.

But as we embark in this new world, a world changed so drastically by the events of September 11, we need to be conscious of some of the things that we have learned over the last few years in the ongoing racial profiling controversy. Using race or ethnic appearance as part of a description of particular suspects may indeed help an investigation; using race or ethnic appearance as a broad predictor of who is involved in crime or terrorism will likely hurt our investigative efforts. All the evidence indicates that profiling Arab Americans or Muslims would be an ineffective waste of law enforcement resources that would damage our intelligence efforts while it compromises basic civil liberties. If we want to do everything we can to secure our country, we have to be smart about the steps we take.

As we think about the possible profiling of Arabs and Muslims, recall that much the same argument has been made for years about domestic efforts against drugs and crime. African Americans and Latinos are disproportionately involved in drug crime, the reasoning goes; therefore concentrate on them. Many state and local police agencies, led by the federal Drug Enforcement Administration, did exactly that from the late 1980s on. We now know that police departments in many jurisdictions used racial profiling, especially in efforts to get drugs and guns off the highways and out of the cities. But as we look back, what really stands out is how ineffective this profile-based law enforcement was. In departments that focused on African Americans, Latinos, and other minorities, the "hit rates" - the rates of successful searches - were actually lower for minorities than they were for whites, who were not apprehended by using a racial or ethnic profile. That's right: when these agencies used race or ethnic appearance as a factor - not as the only factor but one factor among many - they did not get the higher returns on their enforcement efforts that they were expecting.

This is because race and ethnic appearance are very poor predictors of behavior. Race and ethnicity describe people well, and there is absolutely nothing wrong with using skin color or other features to describe known suspects. But since only a very small percentage of African Americans and Latinos participate in the drug trade, race and ethnic appearance do a bad job identifying the particular African Americans and Latinos in whom police should be interested. Racial and ethnic profiling caused police to spread their enforcement net far too widely and indiscriminately.

The results of this misguided effort have been disastrous for law enforcement: constant efforts to stop, question, and search people who "look like" suspects, the vast majority of whom are hard working, tax paying citizens. This treatment has alienated African Americans, Latinos, and other minorities from the police - a critical strategic loss in the fight against crime, since police can only win this fight if they have the full cooperation and support of those they serve. And it is precisely this lesson we ought to think about now, as the cry goes up to use profiling and intensive searches against people who look Middle Eastern or Muslim.

Even if the hijackers share a particular ethnic appearance or background, subjecting all Middle Easterners to intrusive questioning, stops, or searches will have a perverse and unexpected effect: it will spread our enforcement and detection efforts over a huge pool of people who we would not otherwise think worthy of any police attention. Profiling will drain enforcement efforts and resources away from more worthy investigative efforts and tactics that focus on the close observation of behavior -- like the buying of expensive one-way tickets with cash just a short time before takeoff, as some of the World Trade Center hijackers did. Focusing on race and ethnicity keeps police attention on a set of surface details that tell us very little, and draw officers' attention away from what is much more important and concrete: conduct.

At least as important, one of the most crucial tools we can use against terrorism is intelligence. And if we are concerned about terrorists of Middle Eastern origin, among the most fertile places from which to gather intelligence will the Arab American and Muslim communities. If we adopt a security policy that stigmatizes every member of these groups in airports and other public places with intrusive stops, questioning, and searches, we will alienate them from the enforcement efforts at precisely the time we need them most. And the larger the population we subject to this treatment, the greater the total amount of damage we inflict on law-abiding persons.

And of course the profiling of Arabs and Muslims assumes that we need worry about only one type of terrorist. We must not forget that, prior to the attacks on September 11, the most deadly terrorist attack on American soil was carried out not by Middle Easterners with Arabic names and accents, but by two very average American white men: Timothy McVeigh, a U.S. Army veteran from upstate New York, and Terry Nichols, a farmer from Michigan. Yet we were smart enough in the wake of McVeigh and Nichols' crime not to call for a profile emphasizing the fact that the perpetrators were white males. The unhappy truth is that we just don't know what the next group of terrorists might look like.

Treatment of Immigrants

The numbers from the 2000 census of our country's population tell us that the 1990s were a time of considerable immigration to the United States. Some of this immigration came from Asia and the Middle East. These immigrants helped many of our older cities make population gains not seen in some time, and helped the American economy to achieve unprecedented growth and prosperity. This was especially true in the high technology sector, which has become a crucial mainstay of growth over the last ten years despite a shortage of American workers to fill computer-oriented positions. Immigrants stepped into the breach for us, bolstering our high-tech labor force just when we needed it.

Yet under the antiterrorism proposal now circulating in the U.S. Senate, immigrants could suffer treatment that smacks strongly of racial profiling and associated practices. Popularly referred to as the USA Act, S. 1510 allows the unlimited detention of noncitizens whom the Attorney General moves to deport or charge criminally, when the Attorney General "reasonably believes" these noncitizens to be engaged in certain terrorist activities. If none of the specifically mentioned activities applies, the Attorney General can still detain the noncitizens based on his or her own determination that the noncitizen "is engaged in any other activity that endangers the national security of the United States." Section 412 of S. 1510 reads, in pertinent part:

(a) DETENTION OF TERRORIST ALIENS-

 

(1) CUSTODY- The Attorney General shall take into custody any alien who is certified under paragraph (3).

(2) RELEASE- Except as provided in paragraph (5), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3).

(3) CERTIFICATION- The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien-

 

(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); or

(B) is engaged in any other activity that endangers the national security of the United States.

(4) NONDELEGATION- The Attorney General may delegate the authority provided under paragraph (3) only to the Commissioner. The Commissioner may not delegate such authority.

(5) COMMENCEMENT OF PROCEEDINGS- The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien.

(b) HABEAS CORPUS AND JUDICIAL REVIEW- Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3)) is available exclusively in habeas corpus proceedings in the United States District Court for the District of Columbia. Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, except as provided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision.

The Attorney General is empowered to hold these noncitizens even in the face of a court's determination that they are not terrorists. And if the government attempts to deport them and no nation will take them, the legislation appears to allow the Attorney General to detain them indefinitely. The slippery slope here is obvious; the dangers of abuse are easy to see. The basic structure of Section 412 allows the Attorney General to make the decision of who is a terrorist suspect, and to continue to detain these people even in the face of contrary judicial review. The checks and balances built into our basic system of government vanish under this scheme - a worrisome development under any circumstances.

Conclusion

The terrorist attacks in New York and Washington present us with many difficult choices that will test our resolve and our abilities. We must find effective ways to secure ourselves without giving up what is best about our country; the proper balance will often be difficult to discern. But we should not simply repeat the mistakes of the past as we take on this new challenge. Nobody would gain from that - except those who would destroy us.