The Constitution of Security
The Association of Muslim American Lawyers (AMAL) hosted a forum on racial profiling last Thursday to investigate the “process by which this illegal practice has evolved into a perceived, ‘common sense’ solution to our present day security need.” Thursday’s forum was aimed at examining racial profiling in its newest, post-9/11 context. How and why racial profiling has come to be viewed as a sensible mechanism for securing America’s safety is indeed a worthwhile question for discussion, and the AMAL panel’s approach to the question unwittingly provided many answers. In the various panel presentations and audience comments opposing racial profiling, both implicit and explicit support for the government’s broader security efforts was on display.
Among presentations by staff from the ACLU, Council on American-Islamic Relations (CAIR), the FBI, and civil rights attorneys, perhaps the clearest example of why current opposition to racial profiling will fail to achieve its desired ends came from Shayana Kadidal, a staff attorney at the Center for Constitutional Rights (CCR). Kadidal asserts that the strongest political argument against racial profiling is that the practice is not an effective law enforcement strategy. He maintains that while there are many “moral and ethical” arguments against racial profiling, these will not prove as persuasive as demonstrating that racial profiling is itself futile and counterproductive, that it “makes us less safe.” The general public, he claims, is looking at the question primarily through the lens of efficacy, and thus to convince people that the utility of profiling is zero, or even negative, will sap their support for it.
Kadidal presents two arguments as to why this is so. First, racial profiling serves to alienate minority and immigrant communities that would otherwise cooperate with authorities and would be the most reliable source for terrorist intelligence. Second, racial profiling creates a “false positives” problem, diverting law enforcement resources away from traditional methods that actually work. Of course, implicit in both of these critiques is the assumption that the war on terror project, which law enforcement has been charged with carrying out, is legitimate. Kadidal’s "ineffectiveness" argument reinforces the notion that the only thing wrong with current law enforcement efforts is the possibility of racial profiling.
Indeed, Kadidal spends most of his presentation highlighting the positive role that immigrants and minority groups can play in policing their own communities. As an example of “beneficial” tips that arise from immigrant communities, Kadidal points to the case of the Lackawanna Six. Although Kadidal himself describes the charges in the case as “shady,” and the case was worse than "shady" (see here and here), he states that “whatever you think of the merits,” the example holds because the Buffalo men were turned in to authorities by other Yemenis. Similar tips will not be forthcoming, claims Kadidal, because racial profiling convinces minority and immigrant communities that law enforcement is not a friend.
Beyond Kadidal's appalling brush-off of a bad case, his argument is an utterly pragmatic, defeatist conception of public life. What have we gained if our constitutional order becomes a means by which we are encouraged to look at each other with suspicion, and to fulfill our duties of good citizenship by spying on and turning in our neighbors? Whether or not racial profiling contributes to making us safer should be beside the point for a speaker representing an organization whose mission is to defend constitutional rights. Surely once we are checking over our shoulders or looking to snitch on our neighbors we start undermining the solidarity and trust necessary in a free society, and the Constitution starts to lose its value. Kadidal, his fellow panelists, and the audience Thursday night all insisted that we focus on defending against constitutional violations. Yet these activists seems to have lost sight of the substance of the Constitution (living in a free society) for its form (the law). The Constitution as a legal document will not itself guarantee us freedom; there is much that is constitutional yet antithetical to liberty. If it becomes merely a reason to enforce the law, whatever the law may be, the Constitution loses its vitality and reason. It is as a set of principles that inspire thinking about the free society that the Constitution matters most. Yet Kadidal's defense of the Constitution perversely wishes to set aside the principles of a free society so as to improve law enforcement. By attempting to play it safe, and by making the pragmatic argument, Kadidal and others undermine the free society they think they are defending.
Among presentations by staff from the ACLU, Council on American-Islamic Relations (CAIR), the FBI, and civil rights attorneys, perhaps the clearest example of why current opposition to racial profiling will fail to achieve its desired ends came from Shayana Kadidal, a staff attorney at the Center for Constitutional Rights (CCR). Kadidal asserts that the strongest political argument against racial profiling is that the practice is not an effective law enforcement strategy. He maintains that while there are many “moral and ethical” arguments against racial profiling, these will not prove as persuasive as demonstrating that racial profiling is itself futile and counterproductive, that it “makes us less safe.” The general public, he claims, is looking at the question primarily through the lens of efficacy, and thus to convince people that the utility of profiling is zero, or even negative, will sap their support for it.
Kadidal presents two arguments as to why this is so. First, racial profiling serves to alienate minority and immigrant communities that would otherwise cooperate with authorities and would be the most reliable source for terrorist intelligence. Second, racial profiling creates a “false positives” problem, diverting law enforcement resources away from traditional methods that actually work. Of course, implicit in both of these critiques is the assumption that the war on terror project, which law enforcement has been charged with carrying out, is legitimate. Kadidal’s "ineffectiveness" argument reinforces the notion that the only thing wrong with current law enforcement efforts is the possibility of racial profiling.
Indeed, Kadidal spends most of his presentation highlighting the positive role that immigrants and minority groups can play in policing their own communities. As an example of “beneficial” tips that arise from immigrant communities, Kadidal points to the case of the Lackawanna Six. Although Kadidal himself describes the charges in the case as “shady,” and the case was worse than "shady" (see here and here), he states that “whatever you think of the merits,” the example holds because the Buffalo men were turned in to authorities by other Yemenis. Similar tips will not be forthcoming, claims Kadidal, because racial profiling convinces minority and immigrant communities that law enforcement is not a friend.
Beyond Kadidal's appalling brush-off of a bad case, his argument is an utterly pragmatic, defeatist conception of public life. What have we gained if our constitutional order becomes a means by which we are encouraged to look at each other with suspicion, and to fulfill our duties of good citizenship by spying on and turning in our neighbors? Whether or not racial profiling contributes to making us safer should be beside the point for a speaker representing an organization whose mission is to defend constitutional rights. Surely once we are checking over our shoulders or looking to snitch on our neighbors we start undermining the solidarity and trust necessary in a free society, and the Constitution starts to lose its value. Kadidal, his fellow panelists, and the audience Thursday night all insisted that we focus on defending against constitutional violations. Yet these activists seems to have lost sight of the substance of the Constitution (living in a free society) for its form (the law). The Constitution as a legal document will not itself guarantee us freedom; there is much that is constitutional yet antithetical to liberty. If it becomes merely a reason to enforce the law, whatever the law may be, the Constitution loses its vitality and reason. It is as a set of principles that inspire thinking about the free society that the Constitution matters most. Yet Kadidal's defense of the Constitution perversely wishes to set aside the principles of a free society so as to improve law enforcement. By attempting to play it safe, and by making the pragmatic argument, Kadidal and others undermine the free society they think they are defending.
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