Profiling airline passengers is constitutional and effective

Daniel Huff Contributor
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Last Christmas, it looked like TSA might finally be getting serious.

That day, Umar Abdulmutallab very nearly brought down a jetliner using explosives hidden in his underwear. The agency’s response was swift and two-fold.

Body scanners would become the norm in major airports. When TSA first proposed this, prior to the attack, the plan faced fierce opposition. Legislation was even introduced to prohibit it. The near-miss changed the mood. Suddenly, as a former security official put it, critics of the technology had “some explaining to do.”

In addition, TSA implemented nationality profiling. US-bound passengers from 14 terrorism-prone countries were automatically subjected to extra screening. This second security protocol was critical because it justified the first. Seeing the government so worried that it began dropping the taboo on profiling made it easier for the public to accept the necessity of full-body scans.

That is why it is so frustrating that TSA continues pressuring passengers to accept scanners despite reneging on its commitment to nationality profiling.

When TSA introduced nationality profiling, it called it “long-term” and “sustainable.” However, the policy came under increasing attack from Islamic groups such as the Muslim Public Affairs Council, and on April 2, the Obama administration announced it would be scrapped.

If the public is not angrier about this, it is probably because it has been indoctrinated to believe that profiling is unconstitutional.

In actuality, the Supreme Court resoundingly affirmed the basic premise underlying profiling in 1996. The context was a black defendant claiming selective prosecution for dealing crack cocaine. The 9thCircuit agreed, noting all recent prosecutions for that particular crime were of black defendants. It did not demand proof that there were “similarly situated” non-black defendants committing the same crime who went unpunished. The Supreme Court reversed:

The Court of Appeals reached its decision in part because it started “with the presumption that people of all races commit all types of crimes — not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, 93.4% of convicted LSD dealers were white and 91% of those convicted for pornography or prostitution were white. Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.

Indeed, in 2008, in the first post-9/11 case to address the issue, government lawyers argued that Arab ethnicity was relevant to establishing probable cause because “all of the persons who participated in the 9/11 terrorist attacks were Middle Eastern males.”

The district court disagreed, saying, “even assuming … that a large proportion of would-be anti-American terrorists are Arabs, the likelihood that any given airline passenger of Arab ethnicity is a terrorist is so negligible that Arab ethnicity has no probative value….”

The error in that argument is that it is equally true of non-Arabs and non-Muslims, so why check anyone. TSA’s costly, cumbersome security apparatus is predicated on the belief that terrorists are trying to infiltrate airports. Accordingly, the relevant statistic is not the probability that a random Muslim traveler is a terrorist, which is, of course, small. Rather, it’s what statisticians call the conditional probability: Given that a terrorist is attempting to penetrate airport security, what is the probability that he is Muslim. That figure is much higher.

Since the 9/11 attack that spawned TSA, most, if not all, attempted airplane bombings have been perpetrated by individuals claiming to act in the name of Islam. This result is consistent with the suspect profile provided by bin Laden, who characterized would-be bombers as “soldiers of Allah.”

The objections from Islamic activists may not even represent broader Muslim opinion. Thanksgiving travelers largely ignored calls for a scanner boycott. In the same spirit, many Muslims may concede profiling is logical and submit to the relatively minor inconvenience of heightened screening in the interest of everyone’s safety including their own.

That said, perhaps Thanksgiving travelers should not have been so complacent about body scans. While the weight of the authority insists the technology is safe, it is unsettling that prominent experts remain unconvinced and believe more research is required. These include Dr. David Brenner, director of Columbia University’s Center for Radiological Research, who told NPR that there is “convincing evidence” that “there will be some cancers induced…by these X-ray devices.”

Scanners may not be the answer, but TSA cannot rely on religious profiling alone. A passenger’s religion is not always obvious. Even solid indicators like name and nationality might miss radicalized converts like shoe bomber Richard Reid who traveled under his English name. To account for such cases, profiling must be used in concert with existing screening protocols including random checks.

TSA has to decide whether it’s serious or not. If it is, it needs to break the taboo on profiling. Otherwise, it needs to stop annoying air travelers. As the president said in the context of the debate on stem cell research, decisions need to be based on “facts, not ideology.”

Daniel Huff is Director of the Legal Project at the Middle East Forum and a former counsel to the Senate Judiciary Committee.