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Damned If We Do, and Don't


Finally, the mayor says, if racial profiling were legal and practical, for the police to practice it systematically would be so unfair as to be simply wrong, un-American.

In other realms of American life, unfair profiling is routinely performed—young single men are required to pay higher car-insurance premiums—yet no one complains that fundamental principles are being violated. But race is different. Our peculiar national history and diversity, our simultaneous failure and fervent wish to live up to our ideals of equality, make it so. And thus at the end of the nineties, after three black motorists were shot by white New Jersey troopers and the unarmed Amadou Diallo was killed by white NYPD officers, the catchall term “racial profiling” became, for better or worse, the hot new synonym for racism in law enforcement.

The most common form of profiling—pulling over disproportionate numbers of African-Americans on petty motor-vehicle-violation pretexts—is terrible policy on several grounds. A driver’s race is the only cause for the extra scrutiny. The stop is absolutely involuntary. No particular crime is being deterred. The social cost (inequality, cynicism about justice) is high, the principal benefit (seizing drugs) puny.

On the other hand, searching for explosives in the bags of disproportionate numbers of young Middle Eastern and South Asian men would be quite different—practically, morally, maybe legally. The very specific potential crime—mass murder on subways—is the doing of an organized criminal conspiracy that has targeted New York City. And any passenger can walk away and go to a different station, no questions asked.

Still, if it seems like constitutional over-scrupulousness or wasteful p.c. absurdity to check bags randomly, it would nevertheless be ugly and depressing for all of us if ethnic profiling became official and explicit. In the meantime, I found myself relieved by a conversation I had with NYPD deputy commissioner Paul Browne, the department’s chief spokesman and Kelly’s longtime right-hand guy. The absolutely-no-racial-profiling headline is not, it seems, the whole story.

I asked him if the searches (which he says will continue “indefinitely,” at an additional cost of maybe $100 million a year) were robotically random—every fifth or tenth bag checked, period, end of story.

“Yes,” he said, then hedged a bit. “Well . . . that’s one thing. If an individual raises a police officer’s suspicions beyond that, like wearing an overcoat in warm weather . . . the officer always has the prerogative.”

So common sense and human judgment come into play? And the apparent ethnicity of an individual could be one of several legitimate factors a cop might consider?

“I don’t think we’re blinding ourselves to that. The things that would lead you to conclude that racial profiling would be helpful would also involve additional information that when combined together is not racial profiling. Like clenched fists, or a highly perfumed male—all of these things have tracked back to indicators . . . people preparing for another life.” It doesn’t count as profiling, in other words, because race isn’t the only thing considered.

I’d recently read excerpts from a Department of Homeland Security bulletin concerning “suicide bomber indicators,” among them: “May smell of herbal or flower water . . . as they may have sprayed perfume . . . to prepare for Paradise.” The bulletin also said bombers may be “praying fervently.” When I summarized for Browne what I understood he had just told me—that New York police are properly alert to certain telltale signs of Muslim religious piety—his gotcha alarm went off: No, no, not prayer, and as for perfume, it’s apparently used to stabilize certain explosive mixtures . . .

Why not at least give a pass, I suggested to Browne, to the most extremely unlikely suspects—like old black ladies and Wasp bankers? “Is that how you want to live?” he replied, the cop all but calling the journalist a crypto-fascist. “Would that be good?”

No. But when and if an Islamic terrorist’s bomb does go off on a subway here, I expect that such unbudging righteousness will come to seem like an unaffordable luxury.

Even the most expert, subtle forms of racial profiling are imperfect, discriminatory, morally dubious, but probably necessary tools that one hopes are a temporary means to a desirable outcome—like affirmative action in college admissions. No strategy is perfect. Resources are limited. “If you stopped everybody,” the mayor says, “that’s another way to do it. But we just do not have the resources to do that.” Sensible counter-terrorist tactics are therefore all about devoting extra attention to the most attractive targets and (quietly, unofficially) to the most likely attackers. The NYPD focuses, for instance, on the Brooklyn Bridge. Paul Browne reminded me about Iyman Faris, the Al Qaeda recruit who cased the bridge in 2003 and advised his commanders that it had become too well protected. Browne also said that other, unnamed jihadis in custody agreed that New York’s hardening as a target has had a deterrent effect.

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