IN LATE SEPTEMBER three men of Middle Eastern origin had tickets on Northwest Airlines out of Minneapolis. They were set to board when other passengers–presumably not of Middle Eastern origin–objected. Their objection was sustained. The Middle Eastern men took a later flight on Delta. Once upon a time an episode like this might have drawn loud objections from coast to coast. Indeed, can you remember who said, during the second presidential debate in 2000, that “Arab-Americans are racially profiled in what’s called secret evidence. People are stopped, and we’ve got to do something about that”? Yep, that was George W. Bush, and last June his Transportation Department did something about ethnic profiling by beginning a study of whether Arab-American airline passengers were unfairly targeted for security screenings at Detroit Metropolitan Airport. That study is “presently on hold,” a Transportation spokesman told me this week. On hold, I’d say, and unlikely to be resumed, at least not during the protracted war against terrorism. It’s an overstatement to say that the war has changed everything. But it has changed the president’s keen determination to do something about ethnic profiling. The Transportation Department isn’t the only agency affected. During the summer the Justice Department, given the lead role in attacking racial profiling, drafted an executive order prohibiting federal law enforcement agencies from using race to identify suspects in criminal investigations. The order was ready to be sent to the president for his signature when September 11 arrived. Justice Department lawyers doubt that there will be any such executive order–at least not while we are at war. It is the war, of course, that has changed the analysis of ethnic profiling. We have been attacked, and we could well be attacked again (this week maybe, the FBI said Monday afternoon). And we know that all of the 19 dead terrorists who hijacked planes on September 11 were of Middle Eastern origin (from countries such as Saudi Arabia, Egypt, Yemen, and Lebanon). The Constitution frowns on government distinctions based on race or ethnicity. But there is a notable exception. “It is obvious and unarguable,” the Supreme Court has said, “that no governmental interest is more compelling than the security of the nation.” When such a compelling interest is at stake, government may distinguish on the basis of race or ethnicity provided it has no better, non-racial or non-ethnic means of achieving the interest–of protecting the nation. To translate the legal jargon, we are in unusual circumstances in which law enforcement may, even must, focus intently on people of Middle Eastern origin. The administration hasn’t explained how the war has changed the relevance of what was once a well-publicized policy initiative. Nor is it eager to say it is actually engaging in ethnic profiling as it hunts for those who helped in the mass murders of September 11 and those who would commit further acts of terrorism. But of course the administration is doing just that. As FBI director Bob Mueller has said, “We do not, have not, will not target people based solely on their ethnicity, period.” Maybe not “solely” on that basis, but on that basis nonetheless. Terry Eastland is publisher of The Weekly Standard.
