Public Law & Legal Theory
Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents “just smart law enforcement.” Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and “just nuts.” As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist attacks in the short term, but create the possibility of dangerous substitutions in the long run. Defensive counterterrorism measures are notoriously tricky and can easily backfire. The installation of metal detectors in airports in 1973, for instance, produced a dramatic reduction in the number of airplane hijackings, but also resulted in a proportionally larger increase in bombings, assassinations, and hostage-taking incidents. Target hardening of U.S. embassies and missions abroad produced a transitory reduction in attacks on those sites, but an increase in assassinations. The evidence shows that some defensive counterterrorism measures do not work and others increase the likelihood of terrorist acts. As a practical matter, then, both sides are essentially wrong: racial profiling is neither “just” smart, nor “just” nuts. The truth is, we simply have no idea whether racial profiling would be an effective counterterrorism measure or would lead instead to more terrorist attacks. There is absolutely no empirical evidence on its effectiveness, nor any solid theoretical reason why it would be effective overall. As a result, there is no good reason to make the rights trade-off implicated by a policy of racial profiling in the counterterrorism context.
Bernard E. Harcourt, "Muslim Profiles Post 911: Is Racial Profiling an Effective Counterterrorist Measure and Does it Violate the Right to Be Free from Discrimination?," University of Chicago Public Law & Legal Theory Working Paper, No. 123 (2006).