It has been reported that the Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing. The FBI would be permitted to rely on a terrorist profile. There is concern among civil rights groups that this type of profiling could be used to single out Muslims, Arabs and other racial and ethnic groups. Does the compelling government interest to stop terrorists before they strike outweigh our constitutional right pursuant to the Equal Protection Clause of the 14th Amendment not to be singled out due to fixed characteristics? According the a Associated Press story, the current FBI standard is as follows:

Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious.

Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person’s race or ethnicity…

The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.

Caroline Fredrickson of the American Civil Liberties Union(ACLU) had this to say:

“The FBI will be allowed to begin investigations simply “by assuming that everyone’s a suspect, and then you weed out the innocent”

How could it ever be proven that an FBI investigation into a terror suspect started the with person’s race or ethnic makeup? How can a wrongly accused terrorism target ever prove that it was? Except for the most egregious cases, the laws regarding pre-text based arrests and illegal 4th Amendment searches make the burden very difficult.

The obvious concern here is that this is a back door to ethnic and racial profiling. Racial profiling while long held to be unconstitutional under the 14th Amendment is often used in both the law enforcement and civil sector. It is very difficult to prove as you are primarily looking into the subjective intent of the offending person. It is further complicated by the fact that large groups of similarly targeted individuals in a ethnic or racial class are needed to prove racial profiling. Selective profiling of small groups of individuals based on a terror profile that has ethnicity or race as the starting point would be almost impossible to prove. This type of activity became rampant in the knee-jerk hysteria after 9-11 in both law enforcement and the private sector.

Is racial or ethnic profiling ever acceptable? The answer is not as black and white as it would seem. While these cases are in a different context they give you a glimpse as to how the Supreme Court views these issues.

In April 2008, the Supreme Court decided the case of Virgina v. Moore. This case has been a rallying cry by civil rights activists that the Supreme Court has sanctioned racial profiling. David L. Moore , an African American, was arrested for driving on a suspended license. He was subsequently searched and found with crack. VA law mandated that he should have been issued a citation and not arrested. The search was therefore was conducted without probably cause. The Supreme Court unanimously upheld the evidence anyway, finding that when officers have valid probable cause to believe a crime has been committed, they may arrest and search the suspect, even if state laws prohibit arrests for that particular offense. The racial profiling argument is that the police can now use any offense that would normally not mandate detention as an excuse to search. The example I have seen thrown is is as follows: The Federal Government suspects someone of being a terrorist. Part of the profile is that the person is of Middle Eastern decent. The FBI has local police arrest the person for jaywalking and conduct a full search pursuant to Virgina Moore. Does Virginia v. Moore permit this to happen? If you look at Moore in conjunction with the Supreme Court case of of Whren v. United States and you are a minority, you have reason to be nervous. In Whren he police officers observed the defendant violating several technical traffic violations in violation of state law. The defendant argued that he stop was in fact racially motivated. Here is where it gets muddy. The Supreme Court held that while the Constitution prohibits selective enforcement of the law based on considerations such as race.”, the subjective intent of the law enforcement officer is irrelevant. The court further stated that the proper argument against such conduct is pursuant to the Equal Protection Clause of the Fourteenth Amendment as compared to the Fourth Amendment.

Can ethnic terror profiling be Constitutional? If the Supreme Court said yes, it would not be the first time they have done so when it was deemed that national security concerns outweighed individual rights.

The most infamous example being the case Korematsu v. United States (1944) which legitimized the internment of Japanese Americans during World War II. If the Supreme Court had not limited the Bush Administration’s attempt to suspend habeas corpus, the “Korematsu Effect” theoretically could have become a harsh reality for those of Middle Eastern descent and other minorities. If the court ever went that far again it would be life imitating art. Who has seen the movie ” The Siege“? Does this new program put the Constitution under Siege?

What do you think?