Counterterrorism: Legalities of Profiling

What are the legal ramifications of racial and religious profiling to combat terrorism? Scott Simon asks two experts. Richard Jerome oversaw the civil rights division — and police accountability — while at the Justice Dept. Paul Rosenzweig, a former federal prosecutor, is a senior research fellow at the Heritage Foundation.

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SCOTT SIMON, host:

This is WEEKEND EDITION from NPR News. I'm Scott Simon.

Coming up, Isaac Hayes. Say no more.

But first, in recent weeks we've been exploring the issue of profiling to try to combat terrorism, and especially whether racial or religious profiling is ever prudent, legal or helpful. We conclude this week with the perspectives of two former Justice Department officials. Paul Rosenzweig was a federal prosecutor and is now senior research fellow at The Heritage Foundation.

Thank you very much for being with us.

Mr. PAUL ROSENZWEIG (The Heritage Foundation): Thank you.

SIMON: And Richard Jerome oversaw the work of the civil rights division and also police accountability at the Department of Justice. He's now a consultant specializing in police reform and civil rights.

Mr. Jerome, thank you for being with us.

Mr. RICHARD JEROME (Consultant): It's my pleasure.

SIMON: And let me ask you both at the beginning--I guess, Mr. Rosenzweig, then Mr. Jerome--let's say you're trying to draw a profile of a potential terrorist bomber. Is there any profile you can draw that will include both Mohamed Atta and Timothy McVeigh?

Mr. ROSENZWEIG: It's unlikely that you can draw that profile, but I suspect that if you were trying, it would involve not physical characteristics, but characteristics of mental belief--kind of an adherence to fanaticism, if you will--which, of course, is an extremely hard thing to see when you're looking at a man on the street.

SIMON: And Mr. Jerome, does that suggest that there are limits to how effective profiling can be?

Mr. JEROME: There are certainly are limits. You want to be as effective as possible. There is a connection--certainly both are male. The problem, of course, with saying `We're only going to be looking for males if we're looking for suicide bombers or terrorists' is that that's not going to work since we know the Chechnya terrorists have also used female suicide bombers.

SIMON: What does the law permit where profiling is concerned?

Mr. JEROME: Well, certainly there is the 14th Amendment, which prohibits intentional discrimination. And to the extent that a law enforcement officer is equating race or ethnicity or religion with increased criminality, that is discrimination and would be illegal. So you have both the 14th Amendment and then you also have the Fourth Amendment, which requires officers engaging in police activity to have a reasonable suspicion for a stop or for arrest: probable cause. And there again, you need to assess whether the information that the officer is using to make his stop, or deciding who to stop and who to interact with, was reasonable.

Mr. ROSENZWEIG: Yeah, I would agree. I guess I would overlay onto that only that there's a structure of foreign counterintelligence, foreign counterterrorism under the Foreign Intelligence Surveillance Act that structure the times at which police officers or law enforcement officers or intelligence officers may interact with people to a different standard. It's not probable cause to believe that there's a crime or a reasonable suspicion. It's more probably cause to believe that somebody is an agent of a foreign power, which relates to their external affiliations. But again, that by itself, I think, really doesn't turn on physical characteristics; this tends to turn much more on things we know about a person or a group of people who are suspected of connections to overseas groups like al-Qaeda.

SIMON: But how does a free society prevent its liberties from being taken advantage of by people who want to destroy it?

Mr. JEROME: I think probably the best way to do that is by an expansion and a encouragement of our values in societies in the world. And so to the extent that we are a freedom-based and a freedom-loving society--to the extent that we put a great deal of emphasis on civil liberties and civil rights--when we, I think, promote those ideals in the world, I think that is helpful--much better than the sense that Muslim communities, Arab communities might have that they are being targeted because of their ethnicity.

SIMON: The young man who is our translator for NPR in Afghanistan is now working out in South Dakota on a dig. He is a geology student at Amherst. He was stopped by a sheriff out there the other day. Apparently there was a phone call. Someone thought he looked like, I don't know, one of the guys whose picture was shown in the London bombings or something, and he was interrogated by the sheriff's police department there. He found it humiliating, demeaning and degrading, in part because he was a victim of the Taliban. Now no sheriff who's acting on somebody's so-called tip can know his history. But it raises a real question.

Mr. ROSENZWEIG: I'm sure that he felt terrible, but it would have been utterly irresponsible of the South Dakota sheriff not to respond if, in fact, somebody said, `I think I see somebody who I've seen on the TV from London.' I mean, you know, to--for this sheriff not to do that would be irresponsible. It seems to me that those who are the receiving end sort of have to at least acknowledge some of the bona fides on the other side.

SIMON: Does a citizen who's stopped for scrutiny have any rights at that point? I mean, they have rights if it gets into court, but, I mean, do they--can they say, `I refuse to be searched. I won't walk down the street. I refuse to let you search me.'

Mr. JEROME: If someone's stopped by a law enforcement official, by a police officer, generally in many states they do have to provide identification and answer questions if the officer has a reasonable basis for making that stop.

SIMON: And is there such a thing as an unreasonable question, somebody who's just fishing? Is there a difference between someone who says--between an officer who says `Oh, you're a student. Where are you a student?'--and they might have to demonstrate that--and someone who would say, `Are you a devout Muslim?'

Mr. ROSENZWEIG: It's actually the way you phrase this question brought to mind an interesting case that's proceeding out in California. A man named Gilmore has sued for the right to travel on airplanes without showing a government ID--in essence, asserting a right to travel anonymously. Thus far, he has been unsuccessful in that suit. The district court said, not unreasonably, that, you know, in this time and space you can't just pay cash and show up. You've got to identify yourself. And so that's on appeal. But it's kind of the very extreme end of testing that question. Do you we have a right to go through life anonymously? And the answer is: at least not in the use of public services. Perhaps otherwise, but not then.

SIMON: Gentlemen, thank you both for being with us.

Mr. JEROME: It's my pleasure. Thank you.

Mr. ROSENZWEIG: Thank you.

SIMON: Richard Jerome, consultant on police reform and civil rights and is a former deputy associate attorney general. Paul Rosenzweig is a senior research fellow for legal and judicial studies at The Heritage Foundation. He was a trial attorney at Justice.

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