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NYLS Journal of International and Comparative Law

Racial Profiling and Terrorism

Abstract

This article asks whether terrorism changes the constitutional calculus bearing on racial profiling (and on profiling based on other, comparably troubling grounds, such as religion and gender). While maintaining that domestic racial profiling is indeed unacceptable, I argue that the same is not always true for racialprofiling directed at acts of terrorism. Starting from the premise that the use of race is not automatically forbidden under the constitution, I contend that the prevention of terrorism, in the context of an actual war against terrorism, is a governmental interest of particularly compelling weight. Strict scrutiny analysis tells us that the next question is whether racial profiling is ever necessary, or closely tailored, to achieving this goal. I answer that we do not definitively know whether racial profiling will help, but that it may. We also know that profiling will produce many false positives - searches or stops that have no basis in fact - and that these intrusions may produce stigma, humiliation and resentment, although, again, we do not know just how likely these broader harms are.

How should these uncertainties be balanced? I suggest that in times of terrorist emergency, of substantially based fear of imminent terrorist attack, when everyone must endure some measure of intrusion, the constitutional balance embodied in strict scrutiny allows the use of profiling that is targeted carefully, andconducted with restraint. I go on to argue that the principle of emergency profiling can be extended to another terribly dangerous, though not emergency, context, namely airports. At the same time, I urge that even in the context of terrorism by no means anything goes, and I maintain, for example, that the recent program of mass interviews of predominantly Middle Eastern men present in the United States on student, tourist or business visas was an instance of improper racial profiling.

This article reaches unsettling conclusions and might be seen as endorsing a step drawing us towards the tremendous injustice of our World War II internments of Japanese-Americans. But I argue that the profiling I endorse is a far cry from the cruel programs of World War II, and that it is important for scholars to address, candidly, the impact of the new perils we now face on our constitutional stands. I welcome comments from readers.

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