Is Racial, Ethnic, or Religious Profiling the Key to Airline Safety?

     Profiling is one element of airport screening intended to keep us safe, but it is not a magic bullet.  In light of what we learned from the attempted airliner bombing over Detroit on Christmas day, profiling is nowhere near sufficient to ensure airline safety.

     In the wake of the attempted bombing of the Northwestern flight on descent into Detroit on Christmas day, former House Speaker Newt Gingrich authored an article published in Human Events calling upon our government to use racial profiling in combatting terrorism, specifically in the screening of airline passengers.  Instead of grappling with the hard questions that profiling presents, Gingrich elects to demogogue the issue.  He states:

Once again, instead of targeting the source of the threats, our politically correct government decides to make life more miserable for the travelling public by imposing hopelessly meaningless rules such as not allowing passengers to leave their seats in the last hour of the flight. Bound by cultural sensitivities, the default reaction of the bureaucracy is to review the procedures and wring its hands ineffectively.

Today, because our elites fear politically incorrect honesty, they believe that it is better to harass the innocent, delay the harmless, and risk the lives of every American than to do the obvious, the effective, and the necessary.

     Gingrich's rhetoric is a seed that lands on fertile ground.  We are all angry that a few murderous zealots make us go to the expense and trouble of ensuring airline safety, and we all worry when we or our loved ones fly- particularly overseas, to or from countries that may not be as vigilant against terrorism as we are.  And I am sure that Gingrich himself, as a frequent flyer, has had to endure more than the average share of inconvenience and delay as a result of the precautions that have been adopted.  But that does not excuse demogoguery or reasoning based on unfounded assumptions.

     The foundation of Gingrich's argument rests on the assumption that airport screeners do not presently engage in profiling on the basis or race, religion, or national origin.  That assumption is false. 

     In July of 2003 the Department of Justice issued an official policy statement entitled "Guidance Regarding Use of Race by Federal Law Enforcement Agencies."  In this statement the Department distinguished between routine criminal investigations such as traffic stops, where racial profiling is forbidden (thus confirming that "driving while black" through a white neighborhood is not evidence of a crime), and situations where federal authorities are responsible for ensuring national security or preventing a catastrophic event.  In those settings – at border crossings or airport screenings – the race, religion, or national origin of a person may be taken into account as one factor warranting further security procedures. 

     A person's race, religion, or national origin is not sufficient to bar a person from flying altogether.  See Shqeirat v. United Airlines Group, Inc., 515 F.Supp. 984 (D. Minn. 2007) involving a group of Muslim imams who were removed from an airplane, where the court stated:

a refusal to board a passenger that is motivated by a passenger's race is inherently arbitrary and capricious.

     However, additional screening procedures are far less intrusive, and may be triggered based on far less evidence, than being barred from flight.   

     Furthermore, Gingrich's sarcastic reference to "elites" is obviously a partisan attack on an issue where there is no partisan divide.  There is widespread agreement among both liberals and conservatives that profiling is permissible during the airport screening process.  Paul Taylor, Chief Republican Counsel for the Constitution Subcommittee of the House Judiciary Committee, discusses this subject in his article entitled "The Risks Posed to National Security and Other Programs by Proposals to Authorize Private Disparate Impact Claims Under Title VI," published recently by the Harvard Journal on Legislation.  In footnote 65 of his article Taylor cites numerous authorities, including Representative Barney Franks (D-MA) and Professor Jonathan Turley (a commentator for MSNBC), agreeing that racial or ethnic profiling plays an appropriate role in screening for airline safety. 

     My personal experience and that of friends confirm that airport screeners do engage in profiling.  I have witnessed many persons of Near Eastern descent be pulled aside for individual screening, and friends whose ancestry trace to that region of the world tell me that they are frequently interviewed or searched. 

     The larger question is whether profiling is as efficacious as Gringrich believes.  In my opinion the evidence indicates that racial profiling is not at all sufficient to protect us from terrorists.  Richard Colvin Reid, who was stopped from igniting a device in his shoe on an American Airlines flight from Paris to Miami on December 22, 2001, and who is currently serving a life sentence in a supermax prison, was born in England and is half-English, half-Jamaican.  Umar Farouk Abdulmutallab, the would-be Detroit Chrismas bomber, is a Nigerian who lived an upper-middle class life in London and who acquired an American visa eighteen months ago.  Ethnic profiling of Arabs, Iranians, and Pakistanis would not have singled out either Reid or Abdulmutallab for specific attention.  We could, of course, profile all Muslims – but given the difficulty of ascertaining any specific person's individual religious beliefs, coupled with the fact that Muslims comprise more than one-fifth of the world's population, such profiling would not seem to be feasible, at least on many international flights.

     There was a serious security failure in the Detroit case.  Abdulmutallab's father had warned the U.S. that his son was a threat, but Umar's American visa was not revoked.  I assume that the C.I.A.'s failure to share or flag that information will be addressed.  But there is an even more significant risk to the public highlighted by this case, and that is the possibility that al-Qaeda is close to developing a bomb that is undetectable.  This report by Duncan Gardham of The Telegraph shows a picture of the bomb in Abdulmutallab's underpants and states:

Investigators believe Abdulmutallab came very close to making his device work and security officials are worried that al-Qaeda has come close to producing an undetectable bomb.

     An ABC News story by Richard Esposito and Brian Ross quotes antiterrorism expert Richard Clarke as stating that existing equipment cannot detect these bombs, and that airports will have to install machines capable of performing full body scans:

"We've known for a long time that this is possible," said Richard Clarke, former counterterrorism czar and ABC News consultant, "and that we really have to replace our scanning devices with more modern systems."

Clarke said full body scans were needed, "but they're expensive and they're intrusive. They invade people's privacy."

     That is frightening – that bombs can be created that current devices cannot detect – that can only be discovered by complete bag and body searches.  As a consequence I come to the opposite conclusion as Newt Gingrich.  In my opinion it will be necessary to ramp up searches of all passengers and luggage to ensure airline safety, even if these measures do "harass the innocent" and "delay the harmless."

Tagged as: airport screening, barney franks, ethnic profiling, gingrich, jonathan turley, national origin, newt gingrich, paul taylor, profiling, racial profiling, religious profiling