As policymakers and other inside-the-beltway types return from their summer vacations and begin catching up on what they missed, they should take note of a significant development that occurred in early August. By voice vote at its annual meeting in Chicago, the American Bar Association’s House of Delegates put the ABA on record as opposing religious profiling.
The ABA has long opposed racial and ethnic profiling. Years ago, the organization issued a policy statement urging federal, state and local authorities to enact policies prohibiting the practice. Many law enforcement agencies, including the U.S. Department of Justice, have done just that. These policies reflect a broad societal consensus that racial and ethnic profiling is both unfair and ineffective.
But there is no such consensus against religious profiling. Indeed, Americans did not give religious profiling much thought before the attacks of September 11, 2001. Since then, however, the evidence has mounted that law enforcement agencies are closely scrutinizing American Muslim communities in an effort to find potential terrorists. For instance, both the FBI and the New York City Police Department (NYPD) have reportedly sent informants into mosques without any pre-existing basis for suspicion. And both agencies have pursued programs to “map” the relevant ethnic communities in order to keep tabs on their activities.
Far from decrying such practices, most Americans appear to support them. A Quinnipiac University poll in March found that 58 percent of surveyed New York City voters felt that the NYPD dealt with Muslims appropriately, while only 13 percent believed Muslims had been unfairly targeted. Even in New Jersey, where the NYPD had raised hackles by conducting surveillance without notifying New Jersey officials, 62 percent of surveyed voters supported the police activity.
Support for religious profiling is driven by fear, not logic. Yes, all members of al-Qaeda and its adherents are Muslim. But all white supremacists are white, and there is a long list of criminal gangs whose members belong to a particular race. Broadly monitoring white people in order to find potentially violent white supremacists would be a phenomenally ineffective use of resources. So would monitoring Latinos in order to identify potential members of the Latin Kings, or monitoring Italian-Americans in order to identify potential members of the mafia. Religious profiling is equally illogical because terrorists comprise such a tiny proportion of the several million Muslims in this country.
Moreover, as the ABA found, any marginal benefit that could come from “narrowing” a pool of potential terrorists down to several million people is more than offset by the harms the practice produces. Just like racial profiling, religious profiling unfairly stigmatizes an entire community, feeding into prejudices held by the public. It also alienates the profiled community and makes its members less likely to cooperate with law enforcement. This presents a real threat to counterterrorism efforts, which rely heavily on cooperation from American Muslims. Muslims have provided tips in 35 percent of terrorist plots uncovered by law enforcement in recent years.
A far more effective way to find terrorists — or violent white supremacists, or members of criminal gangs — is to focus on behaviors that may indicate that criminal activity is afoot. For example, if someone reports that his neighbor, who has no garden and no truck, appears to be stockpiling large amounts of fertilizer and drums of diesel fuel, police should take notice. According to a study by the Institute of Homeland Security Solutions, the vast majority of terrorist plots that were derailed in the past decade were foiled using this kind of “old-fashioned” police work.
The ABA is no radical organization. Its policy statements are the product of careful deliberation and are intended to reflect the values and priorities of the legal profession. Its condemnation of religious profiling should be a wake-up call to policymakers and the public alike. Law enforcement agencies should adopt policies that recognize religious profiling for what it is: invidious discrimination that contravenes our nation’s pluralistic principles and leaves us less safe.
Elizabeth Goitein co-directs the Liberty and National Security Program at the Brennan Center for Justice and is vice chair of the national security and civil liberties committee of the American Bar Association’s Section of Individual Rights and Responsibilities. The views expressed in this op-ed are solely her own.