Round up the usual suspects

How far should ethnic profiling go in the quest to nab the World Trade Center terrorists?

By Damien Cave

Published September 15, 2001 12:32AM (EDT)

Several weary passengers were trying to fly home from John F. Kennedy International Airport Thursday when a band of gun-wielding FBI agents boarded their San Jose-bound flight. The agents had a specific target: one Arab man who supposedly had a false pilot's license. But their investigative sweep extended far beyond that individual.

As one passenger, Mike Glass, told the New York Times, "Anyone with dark skin or who spoke with an accent was taken aside and searched. Then they went to any male with too much facial hair."

The sweep largely failed. Officials, who pulled passengers from several planes, ended up with at least 12 detainees, but only one of them, apparently, could be related to Tuesday's horrific attacks on New York and Washington -- the FBI released everyone except man with the pilot's license.

The worldwide investigation has led to other mistaken arrests too. On Wednesday, German police arrested an Arab man who was supposedly involved in the terrorist plot only to release him, while on Friday, the Coast Guard detained two people coming off a four-day cruise. Officials wouldn't say whether their actions were related to Tuesday's attacks, but the association seems likely.

Any investigation as urgent and massive as this week's is bound to chase down a lot of blind alleys. But is there ever a time when it's appropriate to treat anyone with dark features, an accent and travel plans as a terrorism suspect? Does this extraordinarily vicious attack justify especially broad police action?

This issue -- a tug of war between civil liberties and national security -- is hardly unique to this crisis. Since 1861, when Abraham Lincoln suspended the principle of habeas corpus during the Civil War, giving police power to imprison people without a trial, America has struggled with how to both protect and serve its citizens in the midst of a national emergency. There have been plenty of mistakes: The Espionage Act of 1917 was used to unfairly silence antiwar sentiment during World War I, and during World War II, police imprisoned thousands of Japanese Americans in internment camps without any signs of treason.

But history may not repeat itself. While warning that limits need to be put in place to ensure that law enforcement keeps itself in check, Arab-Americans and analysts predict that a moderate balance between rights and security will likely win out.

"There's going to be an impact on people's freedom of movement, but I'm not sure it will go beyond that," says David Bennett, professor of U.S. history at Syracuse University, who specializes in right-wing movements. "People who fear a complete or substantial loss of civil liberties are overreacting."

So far, the Arab community has treated the detainments and unwarranted arrests with forbearance. Though "one could be upset about [the arrests based on ethnicity], the authorities deserve the benefit of the doubt," says Hussein Ibish of the American-Arab Anti-Discrimination Committee. "There's been a gigantic attack, and there's a gigantic conspiracy that needs to be rooted out." Given the circumstances, he says, "Profiling is warranted."

"We in the Arab community need to have a little bit of forbearance, a little bit of patience," he adds. "We should be slightly more tolerant than usual."

The tolerance, however, may wear out over time. If profiling extends beyond the crisis -- if in six months or a year, no Arab can cross an American border or get on a plane without being strip-searched -- then support for the law-and-order cause will likely diminish.

"These were terrible crimes, but they don't justify shredding the Constitution," he says. "Sooner rather than later, we need to remember that."

Widespread profiling does have its advocates. "It's what we need to do," says Ed Badolato, president of Contingency Management Services, an international security management firm. "Remember the old saying, 'I'd rather let one bad guy go than harass 1000 people'? Well, that equation is turned on its head. We cannot allow ourselves to keep thinking that way if we're going to have confidence in our transportation system."

Other experts argue that the Department of Justice needs to study and explicitly state how the investigation will move. Sam Skinner, former transportation secretary under George Bush Sr. -- and the man who handled enhanced air security protocols after Pan Am flight 103 was shot down -- argues that policymakers should put in place specific guidelines for the investigation to protect against unjust enforcement.

"They should put in place procedures that are followed according to circumstance," he says. "You can't just give every agent blanket authority to do whatever they want."

First off, he suggests, the FBI should find a way to make sure that investigators focus on more than just ethnicity. There should be other extenuating circumstances to justify an arrest or detainment.

"If someone from a Mideast background who has a U.S. passport, who has lived here for 10 years, and has a relationship to this country, is being detained simply because of ethnic origin, then you've got problems," he says. "If profiling becomes a way of life, people would have substantial objections that the courts would sustain."

But even with specific guidelines, Arabs may not be in the clear. Arab-Americans have largely been encouraged by the words trickling out of Washington, by President Bush's calls for tolerance. But the country will probably take its cue less from words than from actions, says Bruce Cain, director of the Institute of Governmental Studies at Berkeley.

"A lot of this will depend on how Bush defines the mission of retaliation," he says. "If the administration keeps it focused narrowly on bin Laden, it will help tamp down the hysteria and the call for curtailing Arab-American rights. But if the scope continues to expand to a point where we're taking on Iraq, Syria and others in the Arab world, then the problems for Arab-Americans are just going to multiply."

Then there's the immigration issue. After the 1993 World Trade Center attack, anti-Arab sentiment grew, and in 1996, Congress passed two laws that restricted immigrants' rights.

Both of the new laws -- the Illegal Immigration Reform and Immigrant Responsibility Act and the Antiterrorism and Effective Death Penalty Act -- treat all immigrants alike, regardless of their native origin. But some advocates fear that they will be used to target Arabs like never before.

The Antiterrorism Act seems particularly dangerous. "It goes against all American principles of justice," explains Carol Khawly," an immigration attorney with the ADC. "It allows the INS to deport and detain people based on secret evidence. Neither the detainee nor the attorney gets to see what the prosecutors have, so there's no way for the alien or detainee to defend themselves."

The law has already been used against about 20 Arab immigrants, Khawly says. And while all but a few of the cases were dropped, many of the immigrants spent three to four years in prison waiting for their cases to be resolved. Before this week's attack, the ADC had been lobbying Congress to repeal the law. But the climate has radically changed. Repealing any law with "antiterrorist" in the title seems unlikely. "We won't be bringing it up anytime soon," Khawly says. "We're going to fight each case individually."

Khawly says she's been encouraged by the words and actions of people like Sen. Tom Harkin (D-Iowa), who issued a resolution calling for strict protection of civil liberties. "This is something we didn't see before, after the World Trade Center bombing in 1993," she says. "It gives us hope -- hope that we won't be targeted as a community."

Damien Cave

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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