Earl Warren, 14th Chief Justice of the United States, has become an icon to generations of Americans who believe in the gains for civil rights and personal freedom that were the hallmark of his tenure on the Supreme Court. In 1940, Earl Warren was the attorney general of California, and he delivered a speech where he cautioned against bigotry based upon national origin. He said,
It should be remembered that practically all aliens have come to this country because they like our land and our institutions better than those from whence they came. They have attached themselves to the life of this country in a manner that they would hate to change and the vast majority of them will, if given a chance, remain the same good neighbors that they have been in the past regardless of what difficulties our nation may have with the country of their birth. History proves this to be true . . . .We must see to it that no race prejudices develop and that there are no petty persecutions of law-abiding people.
Then, in the wake of the attack on Pearl Harbor, by January and February 1942, Attorney General Warren directed the preparation of maps showing all Japanese-owned lands in California, called upon the state's district attorneys to enforce the Alien Land Law against Japanese landowners, and said the presence of Japanese in California provided the opportunity for a repetition of Pearl Harbor. And by March he advocated the exclusion of all Japanese from within 200 miles of the California coast.
Following the attack on Pearl Harbor, the interest in preserving the safety and security of the nation was put in direct conflict with the American democratic ideal of racial equality. The noble cause of equality in that circumstance yielded to our concern for security. Subsequent experience shows that exclusion to be one of the great injustices of WWII visited upon American residents. Congress has since passed laws ordering reparations from those American residents separated from their homes, businesses and lands. Although the Supreme Court's holding in Korematsu, that the Government in time of war had justified racial discrimination in the name of national security is still the law of the land, many lower courts have recognized the injustice wrought by the Japanese internment and we should not forget it.
It is against this historical backdrop that we encounter post-9/11 efforts to combat terrorist acts on American soil, and examine the role that race should play in an effective effort to deter future attacks. But before assessing whether our government's response to the events of 9/11 betray a pattern of racial profiling, I first want to identify what it is.
In 1968, the Supreme Court decided the landmark case of Terry v. Ohio. Then Chief Justice Warren, joined by seven other members of the Court, held that it is not a violation of the Fourth Amendment for an officer to detain and search a man's person for a weapon in absence of a search warrant, so long as the officer acts upon a reasonable belief based upon objective factors that the man is armed and dangerous. The Court's decision in Terry has been interpreted by lower courts countless times over the years to allow the brief detention and search of persons by law enforcement officials when officers are acting upon reasonable suspicion that criminality is afoot. The lexicon of the criminal justice community now refers very casually to such stop and frisk encounters as "Terry" stops, and over the years these brief detentions have been relied upon by officers with ever increasing frequency to stop and investigate suspicious characters. In 1996 in Whren v. United States, amid growing concern over the use of Terry stops as a prophylactic law enforcement tool, the Supreme Court reiterated the objective nature of the inquiry into a law officer's basis for a Terry stop. The Court held that an officer's subjective motivation has no part to play in the Fourth Amendment analysis of justification for a stop and search when the officer can articulate objective reasons.
Out of the Terry line of cases, as fortified by the Court's decision in Whren, law enforcement agencies all over the country advocated pre-textual stops and encounters with citizens as good proactive policing. The practices are most often deployed through a casual traffic stop occasioned by a burned out taillight or some other minor vehicle code violation. But in recent years, at first anecdotally, then more empirically, it has been demonstrated that the Terry procedure has been used disparately to detain and interrogate black or brown people. In late 1999, the New Jersey state police became the first major law enforcement agency to admit to the stop and detention of disproportionate numbers of black men. Since then, state legislatures all over the country have wrestled with legislation aimed at banning racial profiling, and there has been tremendous outcry to study its effect and occurrence among major law enforcement agencies. For example, the LAPD has been required as part of a consent decree with the USDOJ to collect data that may reveal patterns of racial profiling by officers in traffic stops. Just this year Governor Davis vetoed a bill designed to require local police agencies to report statistics on traffic stops in order to detect patterns of racial profiling. After litigation was field by the ACLU over the veto of this bill, the Governor and Highway Patrol have instituted the program by executive order. As recently as March 2001, Attorney General Ashcroft condemned racial profiling as "[A]n unconstitutional deprivation of equal protection under our Constitution."
So, racial profiling as the term has been employed in recent public debate, refers to government activity directed at a suspect or group of suspects because of their race, whether intentional or because of the disproportionate numbers of contacts based upon other pre-textual reasons. Under Fourth Amendment analysis, objective factors measure whether law enforcement action is constitutional, and under the Fourteenth Amendment challenges to the practice are assessed under the customary strict scrutiny test for racial classifications. It is against this historical and legal backdrop that we should take a look at our law enforcement and internal domestic security response to the horrific acts of September 11th.
In the weeks following September 11, federal, state and local law enforcement officials worked feverishly to investigate those responsible for the most reprehensible crime on American Soil and to assess our state of vulnerability to further acts of terrorism. As part of those efforts conclusions about the ethnicity and national origin of the prime suspects was inescapable. This crime was committed by a group of foreign nationals of middle eastern descent.
Immediately law enforcement officials focused special investigative efforts upon foreign nationals from middle eastern countries, often in disregard of any other factors warranting suspicion. In December, federal investigators began voluntary interviews with more than 5,000 young middle eastern men who entered the United States within the last two years from countries that were linked to terrorism. Federal officials have contacted administrators at more than two hundred colleges and universities to gain information about students from middle eastern countries. What are their majors? Where do they live? How often do they miss class? They have followed up these efforts with unannounced visits and interviews with the students. Some local police chiefs who have worked hard to rebut concerns over racial profiling have resisted cooperation with these federal efforts on the ground that the interviews appear to violate departmental policy or state and local laws.
In California, by September 25, 2001, the governor and attorney general along with the Highway Patrol and the Office of Emergency Services formed the California Anti-Terrorism Information Center. The Center is created to analyze and process the thousands of tips and leads of suspicious activity that began pouring into state law enforcement agencies in the days following September 11th. The effort has been to separate the wheat from the chaff and disseminate to law enforcement information that truly reflects suspicious activity or reliably warrants concern. In just January and February of this year, 1,615 subjects were reported to the database. Two Hundred and twenty eight of them had criminal histories and 330 were the subjects of ongoing investigations. The center services an average of 56 law enforcement agencies per week, and monitors 40 open anti-terrorist investigations.
Significant information continues to be received by the Center every day reporting the conduct of males of apparent middle east extraction that hardly qualifies for the designation of suspicious or dangerous activity. The job of responsible law enforcement officials is to cull form the many innocuous reports received by the center, those that combine ethnic or national origin with a multiple of indicators to reveal persons who may be a concern or possible threat.
The U.S. Congress, in the days following September 11th, passed The USA Patriot Act, an omnibus bill containing numerous reforms to federal criminal procedure, laws relating to foreign intelligence surveillance, wiretaps and interception of electronic communications, laws relating to the gathering of documentary evidence, and DNA and immigration laws. In a very general sense, the Act makes it easier for federal investigative agencies to obtain wiretaps on multiple electronic devices, and procure electronic and documentary evidence from sources like internet service providers and cable and telephone companies. It also relaxes prohibitions on the sharing of information obtained in investigations by different federal agencies. While the latitude afforded law enforcement activities under the act and relaxed standards for information sharing may give rise to concern for the protection of civil liberties, the provisions most relevant to our discussion today are in the area of immigration and naturalization.
Section 412 of the Patriot Act permits the attorney general of the United States to detain aliens he certifies as threats to national security for up to seven days without bringing charges. The standard to establish grounds for detention is the familiar reasonable suspicion standard enunciated by the Supreme Court in Terry. The certification by the attorney general must set forth that he has "reasonable grounds to believe" the person being detained will commit espionage or sabotage, try to overthrow the government, commit terrorist acts, or otherwise engage in acts that would endanger national security. At the conclusion of seven days, the detention may continue in the event the alien is charged with a crime or violation of visa conditions. But if circumstances prohibit the repatriation of a person for an immigration offense, the detention may continue indefinitely so long as certified by the attorney general every six months. Under the USA Patriot Act, the prospect exists that a person who is confined for a violation of conditions of entry into the US, but cannot be deported to his or her country of origin, may be indefinitely confined here without criminal charges ever filed against them.
Thurgood Marshall wrote that, "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." Recent surveys indicate that 66% of whites and 71% of African-Americans support the ethnic profiling of people who look to be of middle-eastern descent. But we also know that hate motivated violence against middle eastern people and members of California's sikh community, often mistakenly thought to be Arabs, spiked in the weeks after the September 11th attack. There are currently 150 open federal hate crime investigations for incidents following the September 11th attack.
The mission of responsible law enforcement officials in combating domestic terrorism is to take what they know to be true about the ethnic identity of the September 11th assailants, and combine it with other factors developed through investigation and analysis to focus investigative efforts and avoid casting a net too wide. Have the subjects passed bad checks? Do they multiple forms of identification with different names? Do they live in groups with no visible means of support? Does a subject use credit cards with different names on them? Ethnicity alone is not enough. If ethnic profiling of middle eastern men is enough to warrant disparate treatment, we accept that all or most middle eastern men have a proclivity for terrorism, just as during World War II all resident Japanese had a proclivity for espionage.
The Israeli airline El Al has a policy of singling out young Arabs for extensive search procedures, but is quick to point out that, in spite of ongoing war in the middle east, it has not had a hijacking in over thirty years. Perhaps there is a need to adjust our expectations in a time of national emergency. Con. Richard Gephardt has said of post-September 11th America that, "We're in a new world where we have to rebalance freedom and security." And Sen. Trent Lott said that, "When you're in this type of conflict, when you're at war, civil liberties are treated differently." The real question for us is how differently and whether differently for all or only a select few.
I agree with the sentiments of Walter Dellinger, former Acting Solicitor General during the Clinton Administration, "I am more willing to entertain restrictions that affect all of us like identity cards and more intrusive X-ray procedures at airports - and am somewhat more skeptical of restrictions that affect only some of us, like those that focus on immigrants or single out people by nationality." It will be impossible to physically protect every location that could be the subject of a terrorist attack. Protection is going to have to be accomplished through infiltration and surveillance, so all of us have to get used to new levels of government intrusion.
Chief Deputy Attorney General for the State of California Peter Siggins presented this talk for a Markkula Center for Applied Ethics forum March 12, 2002, co-sponsored by the SCU School of Law.