The Department of Homeland Security (“Department”) is aggressively implementing the Guidance. The President’s prohi- bition of racial profiling, as described by the Guidance, has been communicated to Department personnel, has been inserted in policy manuals, and is being included in the curriculum at law enforcement training academies. In addition, the Department adopted a policy establishing a commitment to race-neutrality in law enforcement activities:
“Racial profiling” at its core concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches and other law enforcement activities. It is pre- mised on the erroneous assumption that any particular individual or one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity. DHS explicitly adopts the Department of Justice’s “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” issued in June 2003. It is the policy of the Department of Homeland Security to prohibit the consideration of race or ethnicity in our daily law enforcement activities in all but the most exceptional cir- cumstances, as defined in the DOJ Guidance. DHS person- nel may use race or ethnicity only when a compelling governmental interest is present. Rather than relying on race or ethnicity, it is permissible and indeed advisable to consider an individual’s connections to countries that are associated with significant terrorist activity. Of course, race- or ethnicity-based information that is specific to par- ticular suspects or incidents, or ongoing criminal activities, schemes or enterprises, may be considered, as stated in the DOJ Guidance.
2 6
Some commentators argue that when federal officials develop a list of countries that merit special attention, and target individuals who have connections with those countries, those officials engage in “racial profiling.” The argument is that if fed- eral officials target individuals with connections to particular countries, there may be a disparate impact on the racial and eth- nic groups who live in those countries. However, both strategic
25. Id. at 9. 26. Secretary Tom Ridge, The Department of Homeland Security’s Com-
mitment to Race Neutrality in Law Enforcement Activities (June 1, 2004) (on file with the Notre Dame Journal of Law, Ethics & Public Policy).
HOMELAND SECURITY AND CIIL LIBERTIES
and legal considerations show that this argument is not persua-
sive in a post 9/11 world.
We know that terrorist activity flourishes in certain geo-
graphic areas. For example, the 9/11 Commission found,
“Almost all the 9/11 attackers traveled the north-south nexus of
Kandahar-Quetta-Karachi [Pakistan].”27 It is therefore natural
that the government has an interest in people who have connec-
tions with particular geographic areas. In fact, it would be negli-
gent not to consider these factors when deciding which
individuals should be subjected to heightened scrutiny. These
geographically-oriented security measures would direct height-
ened scrutiny toward such individuals as the September 11 attackers, John Walker Lindh, and Jose Padilla.
Moreover, the legal argument for targeting based on con-
nections to countries in which terrorism flourishes is solid.
Courts defer to the executive branch in the arenas of foreign pol-
icy and in shaping our national security. Safeguarding America’s borders falls under this broad area of discretion as it directly
relates to U.S. foreign policy and is an integral part of national security. Therefore, many courts have upheld the use of country
lists by the executive branch, so long as the executive branch has a rational basis for singling out specific countries.
28 The war on
terror, in which thousands of Americans have died on U.S. and
foreign soil, clearly would be considered to constitute a rational
basis for creating such distinctions. As the Fourth Circuit has
held, the United States, “is not bound to treat the nationals of
27. 9/11 COMMISSION REPORT, supra note 2, at 368.
28. Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (stating that
immigration policies are “intricately interwoven” with foreign affairs and “are so
exclusively entrusted to the political branches of government as to be largely
immune from judicial inquiry or interference”); Fiallo v. Bell, 430 U.S. 787, 792
(1977) (classifications among aliens based on gender is consistent with due pro-
cess if supported by “facially legitimate and bona fide reason”); Malek-Marzban
v. Immigration and Naturalization Service, 653 F.2d 113, 116 (4th Cir. 1981)
(rejecting the equal protection argument of petitioners, Iranian nationals sin-
gled out for scrutiny by the Attorney General during the hostage crisis, and
confirming that classification of aliens by a nationality was sustainable if it had a
rational basis); Nademi v. Immigration and Naturalization Service, 679 F.2d
811, 814-15 (10th Cir. 1982) (agreeing with Fourth Circuit’s opinion in Malek-
Marzban); Dunn v. Immigration and Naturalization Service, 499 F.2d 856, 858
(9th Cir. 1974) (responding to an allegation that a federal policy treated aliens
from Western Hemisphere countries less favorably than others, and holding
that it was not unconstitutional to deny eligibility for an adjustment of alien
status to natives of the Western Hemisphere because Congress has the authority
to exclude any class of aliens from the United States).
2005]
300 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 19
unfriendly powers with the same courtesy and consideration it extends to nationals of friendly powers.”2 9
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