Harvard law professor Randall Kennedy’s book, Race, Crime and the Law, contains important insights. Even though Professor Kennedy’s words were written prior to September 11, 2001, his analysis is more timely than ever. Professor Kennedy argued that the “inherited debates” on race and civil rights “have become increasingly sterile.”8 He asserted that “useful prescriptions for problems as complex as those generated by the imperatives of law enforcement in our large, rambunctious, multiracial society can arise only from thinking that frees itself of reflexive obedi- ence to familiar signals.”9
There has been, and will continue to be, a great deal of dis- cussion about America’s civil liberties record throughout the war on terror. This analysis is welcome, and, indeed, critical. But the analysis must be constructive-in addition to criticism, thought- ful policy recommendations must be offered. The analysis also must explicitly recognize the grave national security threat that America faces. Perhaps more than anything, those who debate these issues must become excellent listeners if we are to move beyond the sterile debates of the past. This is, of course, antithet- ical to the soundbite media culture. But respectfully listening to the opinions of others with views on these issues, and lowering the decibel level of criticisms, is absolutely critical to building partnerships to resolve the challenges that face us in this new century.
6. New State Ice Co. v. Iiebmann, 285 U.S. 262, 311 (1932). 7. AMERICA’S CHALLENGE, supra note 4, at 6. 8. RANDALL KENNEDY, RACE, CRIME AND THE LAw x (1998). 9. Id.
HOMELAND SECURITY AND CIVIL LIBERTIES
One concrete example of an innovative approach to difficult
issues is in the area of racial profiling, which has been an issue in
the law enforcement arena for many years. The use of race or
ethnicity in law enforcement, aviation security, border policing, intelligence gathering, and national security matters remains a
constant issue in homeland security. The difficulty is that while
everyone-commentators, political leaders, advocacy groups, and law enforcement-opposes “racial profiling,” neither the
courts nor commentators have proved able to define it suffi-
ciently or to offer specific guidance on how to avoid it. Of
course, the issue became much more complicated after the Sep-
tember 11 attacks, which were executed by a group of men from
one particular area of the world.
President Bush was determined to address constructively
these gaps between our values, our rhetoric, and our daily reality.
In his first State of the Union message, President Bush stated that
racial profiling “is wrong and we will end it in America.”‘ 0 He
directed the Attorney General to study the extent of the problem
and then to issue specific guidance to federal law enforcement agencies.
In June 2003, the Department of Justice released Guidance
Regarding the Use of Race by Federal Law Enforcement Agencies.” The
Guidance is an excellent effort to constructively and innovatively
resolve a relevant issue and therefore serves as a useful model for
discussing the full range of issues at the intersection of homeland
security and civil liberties. It provides strong general statements
of direction, solid legal analysis, and specific direction for law
enforcement through fourteen hypothetical fact patterns that
operators in the field can understand. The Guidance begins by
defining the term “racial profiling”:
Racial profiling at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops,
searches and other law enforcement investigative proce-
dures. It is premised on the erroneous assumption that
any particular individual of one race or ethnicity is more
10. President George W. Bush, Address of the President to the Joint Ses-
sion of Congress (Feb. 27, 2001), available at http://www.whitehouse.gov/
news/releases/2001/02/20010 2 2 8.html (on file with the Notre Dame Journal
of Law, Ethics & Public Policy).
11. U.S. DEP’T OF JUsTIcE, GUIDANCE REGARDING THE USE OF RACE BY LAW
ENFORCEMENT AGENCIES (2003), http://www.usdoj.gov/crt/split/documents/
guidance onrace.htm (on file with the Notre Dame Journal of Law, Ethics &
Public Policy) [hereinafter GUIDANCE].
20051
294 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
likely to engage in misconduct than any particular individ- ual of another race or ethnicity. 1
2
The Guidance then lays out a strong case that racial profiling is wrong. Targeting individuals based on their perceived race or ethnicity is wrong for our country, as it undermines our core val- ues of fairness and justice. Moreover, it is ineffective, as law enforcement officers who look no further than a person’s per- ceived race or ethnicity are not considering objective indicators of criminal behavior. As a result, racial profiling leads to errors, causing law enforcement to expend limited resources investigat- ing the wrong people. Furthermore, targeting based on race or ethnicity can undermine the credibility of the entire law enforce- ment process, jeopardizing public confidence in one of the most important functions of our government. This lack of confidence may be manifested injury nullification, in dangerous and heated encounters at traffic stops, and in general community hostility toward law enforcement officers. Finally, under certain circum- stances, racial profiling may also amount to a violation of the Constitution. The Supreme Court has held that, “[T] he Consti- tution prohibits selective enforcement of the law based on con- siderations such as race,”1 3 and the Court of Appeals for the Seventh Circuit has held that any general policy of “utiliz[ing] impermissible racial classifications in determining whom to stop, detain and search” violates the Equal Protection Clause.’ 4 In short, racial profiling is wrong-it undermines our Constitution and our values and simultaneously dilutes our enforcement efforts.
The Guidance makes clear that in traditional law enforce- ment activities, federal law enforcement officers may not use the perceived race or ethnicity of an individual as even one factor among many when deciding whether to stop, question, or detain that individual:
In making routine or spontaneous law enforcement deci- sions, such as ordinary traffic stops, Federal law enforce- ment officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a spe- cific suspect description. This prohibition applies even where the use of race or ethnicity might otherwise be lawful.15
12. Id. at]. 13. Whren v. United States, 517 U.S. 806, 813 (1996). 14. Chavez v. Illinois State Police, 251 F.3d 612, 635 (7th Cir. 2001). 15. GUIDANCE, supra note 11, at 2.
HOMELAND SECURTY AND CIVIL LIBERTIES
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