HARVARD – GOVT E-1045

Moral Reasoning 22: Justice – Fall 2005 – Prof. Michael Sandel

_Is it wrong for law enforcement officials to use racial, ethnic, or religious profiling in deciding whom to search in airports, train stations, and subways?

Answer with reference to the arguments presented in Paul Sperry, “It‘s the Age of Terror: What Would You Do?”, and in Colbert I. King, “A Shameful Hypocrisy”_.

Racial, ethnic, or religious profiling in transportation “security searches” is a practical mistake and a very simplistic approach to security enhancement and to the overall problem of terrorism. A simple analysis of terrorists‘ modus operandi and the lack of results that this approach has obtained reveal the flaws with that logic. But most importantly, it is wrong from a moral, ethical, and philosophical point of view, for it calls for negative discrimination and prejudism, and in doing so breaks the law and attacks individual freedom, equality, justice, and rights.

Let‘s discuss Paul Sperry‘s defense of profiling from a practical point of view first, and then try to understand the philosophical implications of it.

“From everything we know about the terrorists who may be taking aim at our transportation system, they are most likely to be young Muslim men.” However cautiously phrased, this assumption is very wrong, but it is key to Sperry‘s argument.

From old caucasian men in Chechnya, to young boys in Palestine, or women in the Vasque Country, terrorism can be carried out by anyone. A specific age, ethnic background, skin color, height, or any other physical characteristic is no detriment for the criminals to carry out their attack. Perhaps affiliation to some line of thought (wether it be belonging to a particular political party, following a particular sect/religion, or be member of a particular gang) could be defined as a “possible” or “probable” common trait that may be inherent to some terrorist (although let‘s remember that acts of terrorism carried out for the most obscure, individual, independent, and incomprehensible reasons do also happen, like the unabomber case). But then again, mental states or philosophical following can not be determined a priori.

Mr. Sperry, anticipating a first line of criticism states “Critics protest that profiling is prejudicial. In fact, it‘s based on statistics. Insurance companies profile policyholders based on probability of risk. That‘s just smart business. Likewise, profiling passengers based on proven security risk is just smart law enforcement.” A big and blunt mistake is obvious here also. While insurance companies are private companies, and they may conduct their business however they like (as long as they do not breach the law), searches are carried out by law enforcement officials. We are talking about Government, not private companies. Likewise, we are talking about Citizens, not customers. If you do not like how a company carries out their business, you can simply walk out. But a Government should reflect the wishes of a majority, while taking into consideration the needs of minorities, and most importantly, while respecting the rights of its citizens. And one last comment: “proven security risk” is wrong, as we have just seen, and “smart business” is not the same as “smart law enforcement”.

One last particular sentence I want to analyze from Mr. Sperry‘s essay is this: “with the system as it stands, […] terrorist could easily slip in through the numerical window of random security screening”, which brings me to my proposed solution. Random searches have proven a perfect balance between security, citizen rights, and efficiency in airports throughout the world for decades. Let‘s remember that the effectiveness of random searches lies not in its “numerical” value (for only a 100% of searches would then be deemed as valid), but in its deterrent value. The mere thought that he might “get caught” makes the terrorist avoid that option and seek an alternative. If searches can be absolutely avoided by sending a female terrorist (or an older one, or a fair skinned one) then the terrorist will find the person that fits that description and go through security without any problem. But random searches are unavoidable because they are unpredictable, therefore they are the best option, for they provide the best balance.

And balance is the key term when analyzing the philosophical implications of this debate.

While Mr. King points out very important factors (key, in fact) that should be reminded when considering the profiling option (such as its unconstitutionality, or the fact that it is against the law, and against law enforcement and U.S. Justice Department regulations), his closing paragraph sums up the fundamental element of philosophical debate in this issue: “it should be the conservative commentators who decry the notion of group blame or praise. How can they, of all people, argue that the government, in the name of fighting terrorism, should judge individuals differently on account of their national origin, ethnicity, religion or race? Is it because they know it won‘t be their ox that gets gored?”

Tangencial (although important) issues like “belonging” could be debated (in fact, Timothy McVeight‘s attack was the worst terrorist attack the US has suffered before September 11, and he was an anglo-saxon white young American male), but I want to focus my attention on the issue of conservative/liberal, and the issue of Government and Citizen rights and duties, and by extension the right/good dilemma, all embodied in the concept of “justice”.

Consequentialist and Teleologist views aside (I have argued against them in previous papers and posts), the Deontological Liberalism‘s primacy of justice is a traditional and well established theory. But I agree with Professor Sandel and his view of the conceptual limits of justice (see “Introduction: Liberalism and the Primacy of Justice” in “Liberalism and the Limits of Justice”, coursepack p. 203-215).

While Kant and Rawls propose a view of justice that seems balanced and optimal, it is their presuppositions and assumptions (necessary to achieve the full potential of their philosophies) of man as abstract entity (in the case of Kant) or independent from attachments (in the case of Rawls), which makes them unrealistic if not detached from reality.

On the other hand, defending individual rights (J. S. Mill‘s “natural rights”, or Hayek and Nozick‘s Libertarian Liberalism) above and before everything and anything does not seem completely conformant with societal interests, one of which is public security, the supposed objective of profile searches.

As I mentioned before, balance sounds like the right way to achieve both justice and equality, freedom and security, right and good. But in order to have balance, the institutions that maintain it (separation of powers, Constitution, law, civil liberties, personal rights, etc) must be respected.

Profile searches are against the law, against the Constitution, against civil liberties, and against personal rights. It is not even the best way to achieve the supposed objective (we have discussed random searches as a more practical and balanced way to achieve this). But most importantly, allowing profile searches is to instaurate inequality, and prejudism, thus bowing in to undesirable philosophical options such as utilitarianism, or even worse, legitimising an unbalance that could scalate and permit such atrocities as detention camps, torture, the executive branch assuming judicial and legislative powers, and a progressive reduction of citizens‘ rights and liberties. All in the name of fighting drug trafficking, organised crime, terrorism, communism… or in order to try to arrest Bin Laden, Escobar, Noriega, Stalin, or Goldstein. But then again, this is what is happening, right?

[January 9th update.- Grade on this paper: B]