What kinds of sacrifices?

Posted: Sep 24, 2001 12:00 AM
The president's speech was effective in part because he told Americans that the challenge would require sacrifices. It is a part of human nature to express its commitment to a cause by making sacrifices. These can take many forms. We have seen Americans in New York attacking rubble, giving blood, holding hands, kneeling down in church.

The sacrifices Mr. Bush has asked for are not yet specified, but one of them will surely be ideological: the sacrifice of what John Derbyshire, writing last February in National Review, termed "a fanatical egalitarianism, a grim determination not to face up to the realities of group differences, a theological attachment to the doctrine that the sole and sufficient explanation for all such differences is 'racism' -- which is to say, the malice and cruelty of white people -- and a nursed and petted guilt toward the behavior of our ancestors."

Back then, the author was defending some police practices categorically condemned as racial profiling. The author's point was that, informed by reality, policemen sometimes sniff more readily when looking for plausible crime suspects. And of course the classical expression of this was made by Jesse Jackson, who in 1993 confessed that "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery, then look around and see somebody white and feel relieved."

Now here is the constitutional challenge we are looking at. When airport security sees someone coming through whose ethnic background is the same as that of the 19 hijackers whose faces we have become familiar with, is security defensibly more curious than in inspecting others? The most recent holding was that of a San Francisco court. It held that to detain someone with unequal regularity is OK provided that the person's race is not the only reason to focus on him.

If the Rev. Jackson was apprehensive looking behind him and seeing that he was being followed by young black males, we can imagine that he might feel apprehensive on boarding a plane in which there were a dozen men of Arab features.

Rep. John Conyers, D-Mich., has introduced a bill to force police agencies to keep detailed information about traffic stops. The presumed idea would be to document that the incidence of cars and trucks stopped reflected the demographic scale. So (theoretically) if 100 drivers were stopped for routine inspection, no more than 13 could be black, or, perhaps, not more than 50 male.

The dean of academic anti-profiling is Randall Kennedy of Harvard. He is a law professor who has acknowledged that outlawing racial profiling will reduce the efficiency of police work. Even so, for constitutional and moral reasons, we should outlaw the practice. If this means extra-burdensome law enforcement, well, "racial equality, like all good things in life, costs something; it does not come for free."

Neither does airport security come free. So that it is appropriate to ask whether one of the sacrifices President Bush calls on us to make would include an activation of ethnic stereotypes. We are all accustomed to equality in airplane security practices, where old ladies and little children equally are made to pass through the X-ray stations again and again when the buzzer sounds, until the compact or water pistol is unearthed and found nonlethal.

But airport security people are talking about imitating the practices of other airports. In Tel Aviv, for instance, as also in Stockholm, rigorous questioning takes place. I have seen it operate, and the questioner takes his/her time over it, satisfying whatever curiosity is stimulated.

Question before the court: If an Arab passenger is detained longer than others, and a pattern of profiling emerges, how will the courts rule on the question? What will airport security adduce, as a reason other than ethnic background, to justify special curiosity? How will the government defend the practice? Will the government be permitted to say that a profile of known hijackers informs us that 90 percent of them were of Arab racial background? Can the security practitioners inquire into the religious affiliation of the passenger? "Mr. Atta, you are a Moslem? ... What Moslem sect do you belong to? ... Have you ever had training in self-defense? Training with weapons? Have you ever used knives other than to eat with?" And so on.

Distasteful. But 30 minutes from now, all those people are going to be in the airplane at 30,000 feet above the ground; above where the police are; out of reach of the ACLU. We will be hoping for, and expecting, a safe landing. But we will be counting on sensible security procedures to maximize that possibility.