 Through
the Cracks of Security
By Mel Anderson
Saint Mary's University
At the height of World War II, an estimated 115,000 American citizens and non-citizens of Japanese descent were forcibly removed from their homes and placed in relocation camps throughout the United States. On the basis of race alone, these individuals posed a security threat. This mass movement was one of the greatest visible examples of racial profiling in our nation’s history.
The U.S. policy of racial profiling was challenged in the case of Korematsu v. United States and had the distinct challenge of overcoming strict scrutiny, the highest level of scrutiny and the hardest for the government to satisfy. Korematsu stands today as one of very few cases in our nation’s history in which a government interest, in this case national security, was upheld under the application of strict scrutiny.
In Korematsu, the Supreme Court upheld the policy of racial profiling and declared that in the name of national security, race was a legitimate factor in determining likelihood to commit treason. Urgent public necessity justified the civil rights infringement of a single racial group. We were at war with Japan and therefore every person of Japanese descent was a potential enemy.
In hindsight, is it clear that the detention of Japanese Americans did little for national security. Instead of fulfilling the goal of strengthening a nation in crisis, the detainment of these individuals on the basis of race created little more than stigma and resentment.
In the U.S. today, American citizens of Japanese descent are no longer of security concern. Since the tragedy of Sept. 11, the microscope of security has shifted and been placed over individuals of middle eastern descent. We know little of Nidal Milak Hasan other than that he is an Arab-Muslim and that he killed 13 people while the nationality of Michael McLendon, who killed 11 people in a similar shooting spree, was never mentioned.
In recent years, other Supreme Court cases have fortified the discretionary use of racial profiling. In the case of Whren v. United States, the Supreme Court held that any subjective intent on the part of police officers is of no consequence so long as the officer is able to articulate objective reasons for making an initial stop. The officer’s subjective use of race as a factor in making the initial stop is valid so long as other factors are present and can be articulated.
However, despite these decisions, in recent years the Department of Justice has formally declared that racial profiling is not to be tolerated and instituted a ban on the practice. Citing that racial profiling undermines security by breaking the confidence of citizens, the DOJ officially moved away from the practice and even appointed a member of the department to oversee civil rights complaints regarding the use of racial profiling in law enforcement.
However, like all legal rules, there are exceptions. Hard line rules and regulations become less rigid when weighed against national security interests. Racial profiling is legal and permitted in the U.S. when done for the purpose of national security or to prevent terrorism. In these limited situations, racial profiling is legally permissible. National security still outweighs individual liberty.
History is repetitive. The Japanese and Russians of yesterday are the middle easterners of today, and, as in the days of Korematsu, one must ask just how effective racial profiling really is in securing the nation.
On the morning of the Sept. 11 attacks, ten of the terrorists responsible for the attacks were flagged by the airlines for additional screening, two of these because the airport representatives believed they subjectively acted in a suspicious manner and because they did not speak English. Prior to the attacks, the Federal Bureau of Investigation became suspicious of several middle eastern students enrolled in flight courses in Arizona. These students would later carry out the attacks. Clearly, the use of racial profiling in this case could have prevented a major terrorist incident in the United States.
In December of 1999, Ahmed Ressam was foiled in his attempt to bomb Los Angeles International Airport. The security screener initially questioned Ressam purely because he was middle eastern. The questioning continued when Ressam began to act suspiciously. Lives were saved because Ressam was stopped by a security screener.
However, the use of racial profiling, as seen in the past, alienates entire populations in the United States, causing distrust and creating a social divide for suspect ethnicities. In the days following Sept. 11 a letter written to the editor of an Arizona newspaper was published and called for the mass execution of middle easterners. This publication did little more than cause fear and isolation among an entire population.
Beyond that, the use of racial profiling ignores that fact that there are white, American, middle class, blonde-haired, blue-eyed terrorists. In 1995, Timothy McVeigh, a caucasian, blonde-haired, blue-eyed American citizen, bombed the Oklahoma City Murrah Federal building killing 168 innocent men, women and children and injuring more than 300 others.
Clearly in this case, racial profiling in the interest of national security and to protect against terrorism was, and would have been, ineffective.
John Walker Lindh, a young, white, middle class American male, called by the media the American Taliban was convicted of associating with the Taliban and firing on American soldiers in Afghanistan. Lindh breaks all racial stereotypes and defeats racial profiling.
Jose Padilla is a U.S. citizen of hispanic descent. He is currently serving a 20-year prison sentence for charges connected to conspiring to build a dirty bomb in a plot to terrorize New York.
Richard Reid is a British man whose mother is white and father is Jamaican. Reid is the well known shoe bomber who attempted to board and destroy a passenger airplane.
Finally, the FBI is currently offering a one million dollar reward for information leading to the arrest and conviction of Adam Gadahn, born Adam Pearlman, an english speaking, American born, young man who now serves as one of Al-Qaeda’s senior operatives.
In light of these cases, it must be asked whether racial profiling really helps national security or acts as a hindrance, allowing terrorists of non suspect descent to fall through the cracks of security. Are potential terrorists being overlooked because they do not fit the generalized, stereotypical portrait of a terrorist?
Furthermore, one must also ask what it is that fuels racial profiling. Undeniably, fear is a factor; fear of another terrorist attack that claims the lives of hundreds of innocent Americans and fear of seeing, once again, the image of burning buildings, wreckage and death. Perhaps even fear of being left powerless and unable to stop another large-scale crisis.
But, as so wisely declared by Supreme Court Justice Sandra Day O’Connor, “The greatest threats to our constitutional freedoms come in times of crisis.”
About Mel Anderson
Mel Anderson is a second year law student at Saint Mary’s University School of Law and is also a second lieutenant in the United States Army. She currently works as a research fellow at the Center for Terrorism Law. Mel is also a volunteer support group facilitator at the Children’s Bereavement Center of San Antonio. Prior to law school, Mel attended the University of Arizona where she graduated Magna Cum Laude with a bachelor of arts degree in political science and a minor in history. In her spare time Mel writes children’s books. She can be
emailed at murieladdams@gmail.com
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