Damned If We Do, and Don’t

We are all racial profilers.

When the black bus driver, walking alone at night down a block of my Italian neighborhood in Brooklyn, sees three white people walking toward him, he may not even consciously register the fact of their race if the ofays are, say, me and my daughters. But if they’re a pair of bulky, buzz-cut, swaggering teenagers, neighborhood boys, maybe one of them carrying a softball bat, he would be a fool or a saint if he didn’t see them as a pair of tough white kids. Conversely, when it’s me walking alone, I may be very nearly color-blind to the race of the bus driver, but the blackness of two black teenage boys in cornrows and gangsta jeans loping toward me is, sad to say, salient.

In this chockablock city, where we each glance and stare at scores of strangers every day, we are all profiling constantly. It’s mostly a benign, idle urban pastime, rarely a matter of threat assessment: We look and we speculate—based on manner, age, sex, height, weight, voice, clothes, hairstyle, books carried, newspapers read, and ethnicity—about who that other person is. Each of us applies a customized judgmental algorithm to everyone else, and race is inevitably part of the calculus.

But still, I felt a little guilty the other afternoon in Foley Square, walking between two big federal buildings, when I darted off the sidewalk the moment I saw a woman approaching in a full black burka. I wanted to get beyond her killing radius as quickly as I could. It was silly, and slightly shameful, but reflexive: In the summer of 2005 in New York, ostentatiously pious Muslim = potential suicide bomber.

It was the first time since 9/11—when, an hour after the planes hit, I found myself walking down 47th Street between Fifth and Sixth thinking, Uh-oh! Diamond district! Target zone!—that my fear of a terrorist attack had been so adrenalized and … actionable. As it turned out, the same day I skedaddled away from the burka’d lady, cops pulled five British Sikhs off a sightseeing bus because they had seemed “suspicious” to a Gray Line employee. When I was discussing these incidents with one of my daughters, she described an episode last Tuesday on her F-train car: A Hasidic man stepped on, saw two fellow passengers in burkas, then hurriedly got off before the doors closed.

The fear is back, thanks to the bombings in London, which is, of course, what the terrorists intend. And when the New York police responded by announcing they would begin inspecting the bags of subway and bus passengers, it was unclear if it served to reassure us or, like orange alerts, just make us jumpier.

“There will certainly be no racial profiling allowed,” Police Commissioner Ray Kelly rushed to say, and Mayor Bloomberg promised the checks would be “totally random.”

Until then, I hadn’t really stopped to consider how absolutely stigmatized any hint of “racial profiling” had become during the past few years. George Bush condemned it in his very first address to Congress (“We will end it in America”) and in a speech several weeks before 9/11. “I particularly direct you to follow a policy of race neutrality,” Tom Ridge wrote in a memo last year, reiterating that the “Department of Homeland Security’s policy is to prohibit the consideration of race or ethnicity in our daily law enforcement activities,” and his successor agrees. Opposition to racial profiling is perhaps the one issue on which John Ashcroft and Al Sharpton and the ACLU all agree. In the mainstream media, the brave peeps of contrarian candor—as when Maureen Dowd wrote that 9/11 might have been prevented “if the law-enforcement agencies had not been so … timid about racial profiling”—are rare. Absolute con is motherhood and apple pie; full-throated pro is, by definition, a position of right-wing freaks and outliers.

Would that it were as unambiguous as our leaders make out. Racial profiling of any kind, Bloomberg told a caller to his radio show, is unconstitutional, so just forget about it. “The courts will not permit you to do that… . Period, end of story.” Maybe, but not necessarily; given that submitting to one of the few-and-far-between subway checkpoints is consensual, ethnically targeted bag searches might not be found to violate the equal-protection clause of the Fourteenth Amendment.

Well, the mayor says, even if it were legal, it would be impractical, since “you can’t predict what a terrorist looks like … You just can’t go and say everybody who has blue eyes … is a terrorist just because most terrorists that you’ve caught have blue eyes.” Nobody, of course, is saying that every young Arab or Pakistani man is an Islamic terrorist. But it is deeply disingenuous of Bloomberg to deny the fact that not just “most” but nearly every jihadi who has attacked a Western European or American target is a young Arab or Pakistani man. In other words, you can predict with a fair degree of certainty what an Al Qaeda terrorist looks like. Just as we have always known what Mafiosi look like—even as we understand that only an infinitesimal fraction of Italian-Americans are members of the mob.

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.

So, I said, only half in jest, success consists of making bombers go to Chicago instead?

“I don’t want to say that,” Browne replied. The morality of self-preservation is untidy and discomforting. “We hope they go … elsewhere.”

E-mail: emailandersen@aol.com.

Damned If We Do, and Don’t