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May 30th, 2010

Can We Use Racial Profiling to Stop Terrorists?

By Nathan Tucker

Political correctness seems to have run amuck lately in Washington over who exactly the terrorists really are.  In his recent testimony before the House Judiciary Committee, Attorney General Eric Holder had a hard time even admitting that radical Islam could have contributed towards the recent acts of terrorism—the Fort Hood Shooting, the unsuccessful Christmas Day bomber, and the failed Time’s Square bomber—in this country.

In the aftermath of the Fort Hood massacre, both the Obama Administration and the mainstream media tried to paint Nidal Malik Hasan as mentally unstable rather than a devout Muslim.

New York City Mayor Bloomberg, commenting on the possible identity of the would-be Time’s Square bomber before his eventual arrest, stated that it was likely “a mentally deranged person or somebody with a political agenda that doesn’t like the health-care bill or something.”

These remarks seem absurd given the nature of the war on terror we are currently engaged in; a conflict begun by radical Muslims in which most, if not all, of those who have attacked us at home and abroad are Muslim Arabs.

But what role, if any, can race and religion play in the efforts of law enforcement?  If we are supposed to be a color-blind society, how can we countenance racial or religious profiling by our government?

How can those of us who oppose affirmative action programs as a violation of equal protection also support the use of race by law enforcement officers?  It has been argued, “[w]e conservatives can’t have it both ways: either we’re for race-neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.”

However, unlike affirmative action, the Supreme Court has traditionally held that there is only one valid exception to race-neutral policies—when national security demands it.  As the Court put it in Korematsu v. United States (1944), “[p]ressing public necessity may sometimes justify the existence of [racial discrimination], racial antagonism never can.”

The federal government had, in the months after the Japanese attack at Pearl Harbor, temporarily excluded Korematsu and others of Japanese descent from portions of the West Coast out of fear of espionage and sabotage.  The Court ruled that this was constitutional “because we are at war with the Japanese Empire [and] because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures.”

Today we are at war not with the Japanese Empire, but with radical Muslims from the Middle East.  This war, unfortunately, is not easily defined, has no obvious battle ground, and has an indefinite duration.  Because of the sporadic nature of the war on terror, the government would not be justified in using the expansive use of race that was upheld in Korematsu.

The ongoing threat to national security posed by terrorists, however, would justify the limited use of race by law enforcement.  A country cannot effectively fight and win a war if it must pretend that it doesn’t know who its enemy is.  If Britain had to pretend that the IRA was not Irish, or Israel that the PLO was not Arab, many innocent civilians would have perished from the subsequent inability of those governments to foil terrorist attacks.

We know who our enemy is, and we know most of them are from the Middle East and must find a way to enter our country, legally or otherwise, to commit terrorist attacks on our soil.  Therefore, border and customs agents must be able to use race as one of several factors (example—race plus mildly suspicious behavior) when determining possible threats.

Likewise, we know that terrorists have an insatiable appetite for airplanes, and therefore those tasked with airline security are justified in using race as one of several factors when looking for possible suspects.  The same could be said for officers patrolling the streets of Manhattan, which has proven to be a repeated target for terrorists.

This does not apply to local law enforcement officers, or even to federal agents generally.  Instead, it only applies to those officers on “the front lines” of the battle against terrorism in our country.  This limited and judicious use of race as one of several factors by “front line” officers is not only constitutional, but essential to our country’s national security.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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