Here is why profiling is so alluring: of the suspected skyjackers responsible for upwards of 6,000 deaths on Sept. 11, 19 out of 19 were Arab. And here is why profiling is anathema to a just society: more than 3 million Arab-Americans live in the United States. Even if the government's worst fears are correct and 50 members of terror cells remain at large, that means that more than 99.99 percent of Arab-Americans are no more connected to terrorism than is the dowager whose ancestors arrived on the Mayflower.
And yet... Last week in Minneapolis, Northwest Airlines officials hauled three Arab-Americans off a flight to Salt Lake City when other passengers refused to fly with them; the men were grilled and allowed to board a later flight. In Trenton, N.J., a nervous driver called authorities when two "suspicious" men speaking "little English" got on his bus; the police held the men at gunpoint before releasing them. Such profiling, which critics say makes a mockery of the constitutional notion of equal protection, is only one of the challenges to civil liberties emerging in the wake of the terrorism attacks. From cops to lawmakers to ordinary citizens, Americans seem more willing to sacrifice civil liberties on the altar of security than we have been at any time since President Lincoln suspended the right of habeas corpus during the Civil War or President Roosevelt rounded up 110,000 Japanese-Americans for preventive detention after Pearl Harbor. The United States, vowed Attorney General John Ashcroft, will "use every legal means at our disposal to prevent further terrorist activity."
In an executive action requiring no congressional approval, the Bush administration is quickly expanding what "legal means" includes. Last week it gave the Immigration and Naturalization Service the power to detain immigrants suspected of crimes, and to hold them indefinitely during an "emergency or other extraordinary circumstance." Before this, the government had had 24 hours to charge immigrants with a crime or visa violation or release them. The administration also requested expanded surveillance authority to tap phones, obtain voice-mail messages, monitor computers and obtain customers' credit-card information from Internet providers with minimal judicial oversight. To coordinate antiterrorism efforts, the president last week created the cabinet-level Office of Homeland Security, to be headed by Pennsylvania Gov. Tom Ridge.
Although Ashcroft promised to "do everything we can to harmonize the constitutional rights of individuals" with the new security push, the civil liberties of nonnaturalized immigrants are in the cross hairs. The 1996 Antiterrorism Act, passed after the Oklahoma City bombing, authorized a new INS court to conduct deportation proceedings against aliens suspected of terrorism. The accused have no right to be informed of the evidence against them. Until Sept. 11, political momentum was building to repeal at least that part of the law: as a candidate, George W. Bush criticized the unfairness of "secret evidence." Last week, however, the administration asked Congress for power to detain and possibly deport terrorism suspects with no evidentiary requirement. It also asked for new powers to detain immigrants on the vague charge of being a risk to national security, and to limit their court appeals. Although civil-liberties advocates call the proposals "unacceptable," as a Senate aide put it, they are drawing support. "It would be nice if we were able to accord extensive due process to noncitizens, but we don't have that luxury right now," says Mark Krikorian of the Center for Immigration Studies. "More than 5,000 people [sic] were blown up by noncitizens."
Yet detaining large masses of people can backfire, as Britain learned when it put Irish Republican Army suspects into preventive detention in the 1970s. "It can be successful in the short term by taking known terrorists off the street," says Andrew Garfield of the International Centre for Security Analysis in London. "But it creates a great deal of animosity. And for younger members of the IRA it was almost like a training camp."
Targeting noncitizens seems likely to include profiling. "If I see someone come in that's got a diaper on his head and a fan belt [wrapped] around [it], that guy needs to be pulled over and checked," Louisiana Rep. John Cooksey told a radio interviewer last week. While the desire for vengeance seems tragically prevalent, as witnessed by the assaults on and even murders of Sikh Americans and Arab-Americans after the terror attacks, crude profiling is largely ineffective. In 1998 the U.S. Customs Service eliminated racial and gender profiling. "What we told people is that broad racial profiling doesn't make sense," says former Customs commissioner Raymond Kelly, now a senior manager for global security at Bear Stearns in New York. Instead, Customs implemented a "passenger analysis" system that scours manifests looking for passengers' embarkation points and their full itineraries. Last year, under the new system, Customs conducted 70 percent fewer searches than it did in the late 1990s but increased its yield of illegal drugs and other contraband 25 percent.
Israel, too, has opted for profiling that goes beyond crude ethnic criteria, but that still tramples American-style civil liberties. Shin Bet, Israel's secret service, handpicks El Al's security personnel, choosing almost no one but former officers of elite combat and undercover units. As soon as someone buys a ticket, explains Defense Ministry spokesman (and former El Al guard) Shlomo Dror, the security service runs his or her name through Interpol. "We're not just looking at Palestinians," says Dror, "but also Japanese Red Army, Kurdish underground--any connection to organizations like these makes them high priority." At the airport, guards routinely question all El Al passengers. Palestinians and Arabs, including Israeli Arabs who have been citizens since birth, are grilled far more intensely than Israeli Jews. So are tourists with little money and no apparent destination, as well as young singles, especially those traveling solo. One American college student, returning home alone after visiting Israel with her parents, was questioned for more than an hour: Where had she stayed? Whom had she met? What was the purpose of her trip? When security forces found a single shoe in her suitcase--she had been so rushed that she left the other in her parents' hotel room--the questioning intensified. Security guards scanned her toothpaste, made her take a photo with her camera to be sure it was real and strip-searched her. If passengers under suspicion are allowed to board, they are often accompanied by undercover guards who watch their every move throughout the flight.
In a world where terrorists communicate via e-mail and mobile phone, the government is making electronic surveillance a key part of its security strategy. A 1998 law already allowed "roving wiretaps," in which authorities receive a warrant to tap not a particular phone but any (mobile or land) that a terrorism suspect uses--or might use. That already subjects unlimited numbers of individuals and conversations to surveillance. But two days after the World Trade Center, Pentagon and Pennsylvania atrocities, the Senate went further. By unanimous voice vote, it approved an amendment allowing the FBI and other law-enforcement agencies to install nationwide "traps and traces," to capture information about both telephone calls and electronic messages with the approval of a single judge. Within hours of the rushed vote, the American Civil Liberties Union got calls from Senate offices asking, "What did we just pass?" Well, says the ACLU's Gregory T. Nojeim, "they enacted an amendment that will basically function like a blank warrant. It writes meaningful judicial oversight out of the process."
The Senate also approved an expansion of the government's power to obtain, from Internet service providers (ISPs), information about e-mail that their subscribers send and receive. When the technology once named Carnivore (and now sanitized to DCS 1000) is attached to an ISP's equipment, it sucks in every customer's Internet activities--e-mail headers, Web-surfing trails, downloads. If it becomes law, the Senate bill would extend Internet surveillance by allowing the government to collect that information through Carnivore without a warrant or subpoena.
Customers' privacy is also being sacrificed to the demands of security. "Some companies have handed over not just customer data but profiling information," says Larry Ponemon, CEO of the consulting firm Privacy Council. One company, he says, handed over its entire customer database in a rush to cooperate in the terror investigation. There's a natural tendency to cooperate. At Hertz, "we have provided all of the information requested by the government," says Rich Broome, vice president of corporate affairs. No subpoena was issued: requests have been coming simply by phone and fax. Broome described the requests as "appropriate and focused ... not a data dump."
There is bitter irony in trying to gain security at the expense of the very liberties that define America. Turning the United States into a near-police state would surely be terrorism's greatest triumph. Now, as the specifics of proposed (and implemented) antiterrorism measures emerge, politicians and activists from across the ideological spectrum are questioning the rush to restrict Americans' freedoms and privacy. "Before we begin dismantling constitutionally protected safeguards and diminishing individual rights to privacy, we should first examine why [the] attacks occurred," said conservative Rep. Bob Barr of Georgia in a letter to Ashcroft: it certainly wasn't because civil liberties require letting people board 767s with knives and box cutters. An ideologically diverse coalition of ethnic, religious, civil-rights and government-watchdog groups is also urging caution. "If we allow our freedoms to be undermined," says Anthony Romero, executive director of the ACLU, "the terrorists will have won." As America launches its domestic counterattack on terrorism, the challenge will be to tighten security without strangling the very values on which the country was built.