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Better Safe...? | The Nation

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Diary of a Mad Law Professor

Better Safe...?

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In my last column, I called the expansion of profiling that has occurred since September 11 "equal opportunity." I meant it ironically, but a surprising number of people took me literally. So I want to make clear that I don't consider this upgraded frisking any kind of opportunity, nor do I think that its expansion is really the same as equality. I am also aware, as was pointed out to me, that there are people in the world who might appreciate a good cavity search, confident that this is all for their benefit. And while I understand that we have all become subject to "nothing more than" the same ministrations that visitors to maximum security prisoners go through, the fact that some think this is the best of all possible worlds strikes me as fatuous.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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The billions of dollars currently being pumped into police and surveillance budgets represent an unprecedented investment in a heavily patrolled world. Such an extraordinary buildup will inevitably exacerbate questions about the limits of state force; it will require the greatest vigilance to prevent our turning into not just a police state but one big global military base. Specific categories of us will probably continue to bear a special burden--black women in airports are, according to some figures, searched more than anyone else because I, as Typical Black Everywoman, meet the description of a drug courier better than you--as in You, profiled Nation reader and Typical Ungendered White Person.

Blacks and Latinos are the profiled shape of the "war on drugs," even though the majority of actual drug abusers are young white people like Governor Jeb Bush's poor daughter, Noelle. The "war on terror" promises to be even more sweeping. For the time being, our new international, militarized police force has increased its scrutiny, from black women in airports and black men in cars, to include Middle Eastern men anywhere, Asian people who look vaguely Filipino, as well as ample Minnesota housewives actually armed with sets of silver fondue forks.

Is this better or worse? I think it's a misuse of data, often creating a false sense of security. The kind of profiling that seems to inform the majority of stops and searches is usually based on statistical relations so vague as to be useless. Such profiling, premised on diffuse probabilities about looks and dress, ethnicity or nationality, class or educational status, begs for more analysis. Otherwise it can be defeated on the one hand by guards and gatekeepers whose interpretation of looks or class status is skewed by selective and subjective prejudice and on the other hand by travelers committed to the art of disguise.

The attacks on the Pentagon and the World Trade Center were carried out by deeply rational and well-trained operatives whose tactics defied easy profiling. They looked--and were--well educated; they dressed professionally. The fact that the FBI actually had information that some of them had been involved in terrorist networks counted less in the real world than that they looked good. After all, it is true that in a very large sense sleek, well-dressed professionals commit fewer crimes than the hungry, grumpy lower classes. I have this painful recurring dream of the security guards at Logan on September 11, carelessly waving all eighteen men through, while strip searching long lines of black women having bad hair days.

I worry that we're doing the same thing with shoes: Richard Reid was able to board an airplane because he played against the expectation embedded in profiles. He looked odd enough to have been stopped and questioned, but ultimately looks had little to do with what made him dangerous. Although they were suspicious, security officials did not discover his criminal record, surely better evidence of his propensities than whether he wore a ponytail. He was finally allowed on board; he was a British citizen, and British citizens were not the subject of any profile. They searched his bag but not his shoes, because shoes were not at that point the subject of any profile. Now that we know thick-soled sneakers can be turned into weapons of mass destruction, airports spend a lot of time removing and examining them. It's likely to catch copycats, I suppose, which is not a problem to be ignored, but does anyone really believe that Al Qaeda would use shoes again? In other words, while there is, after Richard Reid, a marginal relation between shoes and bombs, the actual odds of it ever happening precisely like that again are slim to nonexistent. Indeed, what distinguishes professional operatives who calculatedly sow terror is that they take the time to play against type.

So I worry when I hear about plans to expand profiling as we now seem to practice it. I worry when I hear about plans to have our thumb prints taken, our irises scanned, our DNA plotted. How can we be putting all this work into appearances when appearances bear no necessary relation to intent? The risk of this is not just one of diminished dignity or privacy. The problem ought to have been made clear to us in the wake of "accidents" like Amadou Diallo. The problem ought to be apparent in recent news stories about the CIA having flown an unmanned surveillance craft over a street in Afghanistan. It had a night vision camera on it that caught in its scope a group of men conversing who fit a profile because one of their number was unusually tall, as is Osama bin Laden. After some consultation at the remote site where the CIA officers and their telemonitors were located, the CIA decided to bomb the group. The men were killed, but as of this writing, the CIA admits it still doesn't know who the men were. Civilians on the ground claimed that the men were townspeople scavenging for scrap metal.

This death by actuary. This profiled guilt. This trial by night vision drone. Our superlative technology permits us to listen, scan, survey and X-ray anybody and everybody in the world. But a sea of data alone won't help us if there is no higher wisdom in the final analysis. Good "intelligence" means more than eyes and ears--there must be a heart and a brain, or we will never achieve the global stability we all so desperately desire.

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