Sunday, August 14, 2005

Let's Not Spite Our Face With Profiling

By Hussein Ibish

Hussein Ibish is the vice chair of the Progressive Muslim Union of North America. This commentary appeared in The Daily Star newspaper in Beirut.

If anyone ever wondered what demons lurking in American culture might have possessed the singer Michael Jackson to bleach his skin and destroy his once-noble African features through a series of bizarre plastic surgeries - to literally cut off his nose to spite his face - all they need to do is cast their attention on the debate that has ensued in recent weeks in the United States about "racial profiling."

Racial profiling is a long-discredited American law-enforcement technique whereby police identify individuals as suspects based on their apparent race, ethnicity, age, and other simple identity criteria. This was a central feature of abuse against African-American and Latino populations throughout the country, but is now illegal and has few defenders. Except where Arabs and Muslims are concerned.

Following the attacks on the London mass transport system, the New York City subway instituted random searches of passengers, as a reassurance to the public and a deterrent to terrorists. Many American commentators have condemned this policy, as well as the U.S. government's entire counterterrorism strategy, for not engaging in racial profiling against Arab and Muslim Americans.

Many Americans are used to thinking in simplistic terms about race and ethnicity, of living in a world divided between black and white in which identity is obvious from pigmentation and can be discerned at a glance. Proponents of profiling have proven amazingly resistant to understanding that identifying Arab and Muslim Americans based on appearance is simply impossible.

Leaving aside the fact that over half of the Arabs in the United States are Christians, Arabs can resemble almost any group of southern Europeans, Latin Americans, Central and South Asians, or Africans.

Even more preposterous would be any attempt to identify Muslims by appearance, since Muslims come from almost every part of the world, and constitute a fifth of humanity. And, since about a third of American Muslims are African-Americans, any futile attempt at profiling of Muslims, especially in urban areas such as New York City, would immediately degenerate into yet another way of profiling black people.

Washington Post columnist Charles Krauthammer wants racial profiling but would "immediately exempt Hispanics, Scandinavians and East Asians," as if Hispanics were readily distinguishable from Arabs and South Asians. And, as his Washington Post colleague Colby King pointed out, "by eliminating Scandinavians from his list of obvious terror suspects, Krauthammer would have authorities give a pass to all white people."

Supporters of racial profiling cling to the idea that you can tell who is an Arab, and even a Muslim, just by looking at them. I was on a CNN debate recently with a profiling supporter who, when confronted with the facts, resorted to holding up the photos of the 19 hijackers of September 11, 2001, and insisting: "They all look alike."

The tragic shooting of Jean Charles de Menezes in the London subway could have been based in part on his dress and behavior, as British authorities maintain. But almost certainly Menezes would not been shot eight times in the head had he not been a young, brown-skinned man. British police looked at a Brazilian electrician and saw a Pakistani suicide-bomber.

Not that all the London bombers were of Pakistani origin - a fourth man was Jamaican. The failed bombers in the second group were all East Africans. And then you have Richard Reid, John Walker Lindh and Jose Padilla, to mention but a few. But it's okay, "they all look alike."

Brooklyn Assemblyman Dov Hikind has also demanded that New York police use ethnic profiling in the subway searches, maintaining that "the London suicide bombers on July 7 and July 21 fit a very precise intelligence profile." He also found that "[T]hey all look a certain way." The police replied "racial profiling is illegal, of doubtful effectiveness, and against department policy."

Demagogues who call for profiling against American Muslims need to drop the pretence that this could be based on appearances or names. It would require Americans to carry identity documents confirming their official religious designation. And even if it were possible to profile Arabs or Muslims by sight, or Muslims were forced to carry religious identification to be produced on demand, the effect would still be to cast an impossibly wide pool of suspects and distract attention from behavioral and other contingent factors that may actually point to a potential threat.

Race, ethnicity and religious affiliation, even when accurately identified, are widely recognized by law enforcement and counter-terrorism officials as false leads, which in themselves say nothing relevant about whether or not an individual may be about to commit a crime.

Only two approaches in dealing with mass groups of people make sense: comprehensiveness, as at airports; or randomness, as in subways - anything in between serves less as a deterrent to terrorists and more as a tipping of the authorities' hand and a helpful hint for how not to get caught.

When U.S. airport security was based on a supposedly neutral, secret computer profiling system, dating from 1996 and leading up to September 11, 2001, the evidence strongly suggested that it resulted in widespread discrimination against Arab and Muslim travelers. However, it did not prevent the September 11 attacks.

The intensified post-September 11 airport security regime has been both more thorough and more equitable, despite the ongoing bureaucratic nightmare of "no-fly" lists. There was more evidence of intentional discrimination against Arabs and Muslims in domestic air travel before September 11 than after, precisely because the U.S. government has had to accept that serious security threats require policies that do not boil down to crude stereotypes or rely on subjective judgments about ethnicity.

Toward the end of his tenure as the first secretary of homeland security, Tom Ridge, explained to Americans: "There was a legitimate concern right after 9/11 that the face of international terrorism was basically from the Middle East. We know differently. We don't have the luxury of kidding ourselves that there is an ethnic or racial or country profile."

Most Americans understand that fighting terrorism with racism is repugnant to their values and won't work. And most people have enough sense not to cut off their nose to spite their face. But not everyone.


By William Fisher

As whistleblower Sibel Edmonds asked the Supreme Court to review her dismissed case against the Federal Bureau of Investigation (FBI), mainstream media continues to refer to the government’s defense – the so-called State Secrets Privilege – as “rarely used”. In fact it has been used over sixty times since its creation in the 1950s.

The State Secrets Privilege is a series of American legal precedents allowing
the federal government the ability to dismiss legal cases that it claims would
threaten foreign policy, military intelligence or national security.

A relic of the Cold War, it has been invoked several times since the Sept 11th 2001 attacks on the World Trade Center and the Pentagon. Judges have denied the privilege on only five occasions.

It was used against Sibel Edmonds, a former FBI translator, who was fired in retaliation for reporting security breaches and possible espionage within the Bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the state secrets privilege.

The American Civil Liberties Union (ACLU), which has filed a friend-of-the-court brief in the Edmonds case, says there is an “acute” need for clarification of the state secrets doctrine “because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court.”

The first case in which the state secrets privilege was invoked came in 1953. Widows of airmen killed in the crash of a military aircraft sued the government for details. The government claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security.

It was not until nearly 50 years later, in 2004, that it was revealed that the accident report contained no state secrets, but instead confirmed that the cause of the crash was faulty maintenance of the B-29 fleet.

The state secrets privilege was used again in 2002 in the case of Notra Trulock, who launched a defamation suit against Los Alamos scientist Wen Ho Lee, a Taiwanese American computer scientist who had been charged with stealing nuclear secrets for China from the Los Alamos National Laboratory in New Mexico.

President George W. Bush said national security would be compromised if Trulock were allowed to seek damages from Lee. Though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh for interfering and falsely invoking the State Secrets Privilege.

Reluctant to go to trial, the government worked out a plea bargain with Lee, who had been imprisoned for 278 days in solitary confinement. Lee pled guilty to improper handling of classified data and cleared of all charges relating to espionage. Lee was arrested in December 1999 and freed in August 2000.

Judge James A. Parker offered an apology to Lee for what he called "abuse of power" by the federal government.

The government invoked the privilege again in the case of Maher Arar, a Canadian citizen who sought to sue then Attorney General John Ashcroft for his role in rendering Arar to Syria to face torture and extract false confessions.

Former Deputy Attorney General James B. Comey said in legal papers filed at the time that “Litigating [the] plaintiff's complaint would necessitate disclosure of classified information."

Arar, who was born in Syria, was detained at New York John F. Kennedy Airport in 2002, on his way back to Canada from North Africa. He was held incommunicado by U.S. immigration authorities, and eventually “rendered” to Syria, where he was imprisoned for close to a year and claims he was tortured. He was released without charges.

The Arar case is being appealed to the U.S. Supreme Court, and is also being investigated by an independent Canadian commission, with which the U.S. has refused to cooperate.

Barbara Olshansky, the assistant legal director of the Center for Constitutional Rights, which is representing Arar, said that government lawyers “are saying this case can’t be tried, and the classified information on which they’re basing this argument can’t even be shared with the opposing lawyers. It’s the height of arrogance—they think they can do anything they want in the name of the global war on terrorism.”

Again, in August 2005, a Federal Appeals Court affirmed the dismissal of a racial discrimination lawsuit against the Central Intelligence Agency (CIA) based on the Government’s invocation of the state secrets privilege.

Jeffrey Sterling, an Operations Officer with the CIA in its Near East and South Asia Division from 1993-2001, claimed he was told he was “too big and black” to receive certain CIA assignments, and that CIA management placed expectations on him “far above those required of non-African-American Operations Officers.” He also contended he was retaliated against for using the CIA’s internal equal employment opportunity process.

However, the court noted, “There is no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim.”

The privilege was first invoked against Sibel Edmonds to prevent her from testifying that the Federal Government knew that Al-Qaeda intended to use airliners to attack the United States in 2001. The case was a $100 trillion action filed in 2002 by six hundred victim's families against officials of the Saudi government and prominent Saudi citizens.

Edmonds, a former Middle Eastern language specialist hired by the FBI shortly after 9/11, was fired in 2002 and filed a lawsuit later that year challenging the retaliatory dismissal. An unclassified public report by the Department of Justice (DOJ) Inspector General contains much of the information the DOJ now seeks to block. The report concluded that Edmonds' whistleblower allegations were "the most significant factor" in the FBI's decision to terminate her.

Steven Aftergood, who heads the Project on Government Secrecy for the American Federation of Scientists, says, “Once rarely invoked, the state secrets privilege is now increasingly used by the government as a "get out of jail free" card to block unwanted litigation. The idea that courts cannot handle national security cases involving classified information is simply false. Classified information often figures in criminal espionage cases, and even occasionally in Freedom of Information Act cases. There are procedures for in camera review, protective orders, non-disclosure agreements, and so on.”

He adds, “In the same way, sensitive classified information could be protected in the current cases where the state secrets privilege has been invoked -- without shutting down the entire proceeding. As a society we should be seeking to expand the rule of law, not to carve out more areas where the government is immune to judicial review.”