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Thursday, July 28, 2005

Race, Liberalism and Backpacks

As this is my first experience in blogging, I approach this note with more than a little anxiety.  In particular, quickly putting together one’s thoughts on sensitive and complex subjects nearly assures all sorts of mistakes.

That said, among the topics of the day is the interesting conversation surrounding the beginning of random bag searches for portions of the New York subway.  Daniel Solove and Dave Hoffman have already begun an intelligent conversation here regarding the efficacy of such searches.  I have little to add to the topics they have already discussed; I largely share Solove’s suspicions that these measures will be ineffective and are largely cosmetic. 

One point they both set aside, however, deserves more attention.  Specifically, Solove writes, “Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random.  If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.”  This comment speeds by one of the most sensitive issues raised by, though obviously not limited to, these searches. 

I am particularly sensitive to this particular “cost”.  Like nearly all Black people, I am familiar with the impossible to describe feeling of being suspected, dismissed or belittled in numerous little ways due to one’s race.  To submit untold numbers of Middle-Eastern or South-Asians, as is likely in this case, to the same feeling and to transform New York into an officially sanctioned racial hierarchy, is a deeply offensive thought.  And so, we probably all are sympathetic to the Times editorial cautioning against allowing the violation of constitutional rights by targeting racial groups. 

That said, it is too much to ignore the potential tension between profiling and law enforcement effectiveness.  It is unknown to me how much racial profiling in this, and other cases that in the last few years have been brought to the fore, contributes to law enforcement effectiveness.  It is possible, perhaps even likely, that given the sheer number of any given group, the difficulty in intelligently identifying members combined with the low number of offenders, racial profiling has little or no effectiveness.  Because the benefit is trivial, any tension becomes negligible and our commitment to equal treatment and dignity means we obviously discard the profiling. 

However, the real test comes

where profiling can lead to greater effectiveness against a genuine harm.  It seems likely (though McVeigh reminds us not certain) that the next terrorist attack will come from a radical Muslim.  This at least introduces the tension raised earlier. Let us set aside, momentarily, whether one could intelligently identify Muslims, especially one in a city like New York who was committed to blending in, even while acknowledging that this issue may be dispositive.

We can imagine a world in which our effectiveness of preventing attacks would increase by targeting those identified as Muslims.  Where then is the locus of our objection to profiling, whether the objection is Constitutional or on other moral grounds?  Further, is our objection subject to weighing or is it an (near) absolute ban?

Our objection, obviously, is not merely in the pragmatic harm caused.  This is true even where that burden rises to very high levels.  Nor does the intuitive answer, that one is being punished for who they are and not what they have done provide the complete answer.  Imagine that we found that we had preliminary evidence that Dutch citizens in New York were carry a virus dangerous to the general population.  Though the burden greater and the trait equally inherent, many more, I suspect, would be comfortable with the idea of a quarantine of the Dutch population of New York in such a case. 

The immediate observation will be that one action seems like quasi-criminal/police action or punishment, and the other, while burdensome, is not.  Without entering into the thick jurisprudence exploring the nature of punishment, this intuition seems to best capture our objection to subjecting a particular group to a form of police monitoring.  More subtly, it focuses on the difference in how the state regards its citizens in the two above examples.  In one example, the state’s quarantine of potential virus carries lacks the disapprobation of decreeing a portion of the population as potential terrorists or criminals.  It is both what the action communicates about and how the state treats its citizens which is critical.   For the state to officially decree that one group of citizens ought to be treated as potential criminals, even where there may be factual reason to do so, is an attack on a citizen’s equality and dignity we are loathe to bear.

So it is obvious that it is not the burden itself but rather the nature of targeted searches that makes them objectionable.  The tension which tests this commitment is our commitment to equality is at odds with more effectively acting, in this case, more effectively preventing another terrorist attack.  Is our commitment to equality absolute or does it allow for some measure of weighing? And if we must weigh this commitment and in some cases surrender it, has our commitment to liberalism failed?

It bears repeating that I do not support targeted searches on the New York subways.  As mentioned above, the benefits are almost certainly too trivial to sacrifice such a deeply held value.  Further, in nearly all cases, there seems to me ways of balancing both effectiveness and our concern to equality, even if at the cost of greater resources.  This illustrates that the weight we give to a citizen’s claim of equality is so great, it commands great deference before it is set aside. 

Still, I cannot be certain that our commitment is one that does not allow for any weighing.  There must be certain situations where the perfect storm of circumstances may require the imposition of unequal treatment of some in order to respect the claim to equal consideration by others; in this case for their safety.  Without knowing the details (a dangerous platform from which to continue) border searches of suspected attackers in high-risk zones (Israel comes immediately to mind) does not immediately appear illegitimate. 

What then does this mean for our concept of the state’s duty of equal respect and our commitment to this liberal ideal?  Political philosophers, notably Kymlicka, have struggled with this question.  I once suspected that where a society was forced to surrender portions of their basic liberal commitments, in this case, the equal treatment of all citizens, the liberal experiment had failed.  My position has since changed.  It occurs to me that if a society, committed to its liberal commitments, surrenders only the smallest necessary portion in order to ensure the survival of the society itself, its liberal nature is not erased.  Rather, it has simply reached those outmost bounds of its liberal ideals possible at the time.  The charge, of course, is the continual examination that each inch surrendered is absolutely necessary, and the relentless drive to realize, as early as possible, those liberal ideals we hold dear.

Posted by ekowyankah on July 28, 2005 at 08:45 AM in Law and Politics | Permalink


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Wow. Dense comments on this hyar blawg.

Here's what I wrote to Mark AR Kleiman about this very issue; it's a grave tactical as well as pragmatic error to think "fight terrorism, target Arabic or South Asian males":

Folks have been mulling over the statistics, the assumptions, and the likely outcomes of the random search proposal. Mostly with adequate humility for our own ignorance at this point.

My beef:

"focusing on young men of middle-eastern extraction" - explicit racial and gender and age profiling, in other words. Mark... I know why you went there, but you're making a Maginot mistake, fighting the last war. Who was Reid? Who are the bombers in Israel nowadays? Who will the *next* bomber be? Hint: Not middle-eastern, Jamaican. Not black, white. Not male, female. Not young, old. Whatever it is that we are looking for, they will recruit and aim and detonate someone else. Jerkoff Republicans snarling about grandmothers being searched by TSA will suddenly shut up, ashen, the first time a saintly-looking grandmother sets off a bomb- or worse- in mass transit or in public. Don't think it can happen? Well, how many grandmothers have lost grandsons? The enemy is not "young male Arabs" - it's extremist fanatics with a taste for kamikaze. And I don't know yet what they'll look like when they come.

I was afraid of men with beards, abstractly, around 1993 and earlier. But the 9/11 folks shaved, and dressed western-style, and went to strip clubs, and drank booze.

Don't fight the _last_ battle, and don't piss off the Arabic speakers we so desperately need to fight _this_ war - I mean, Eternal Battle Against Whatever.

Posted by: Eh Nonymous | Jul 28, 2005 3:05:19 PM

Another point. I think that many people logically comprehend the dangers of nuclear terrorism, but somehow think that, even if it seems logically likely, the world would not face something so terrible simply because of how terrible it is. Many people probably believe this for religious or semi-religious reasons (How could God let so many people die so tragically?).

People that think this way forget their history, as such destruction has happened before. Nagasaki and Hiroshima are obvious examples. Russia losses in World War 2 (if I remember correctly, they lost some 20 million) were horrendous. Millions were also killed in China during the Great Leap Forward. Each of those instances probably saw death figures that would equal or exceed those from a small nuclear device's explosion in a major US city. And many other times in history, larger percentages of inidividual populations have been decimated; the Thirty Years War saw a loss of 15-30% of the population of Germany, the plague killed 1/3-1/2 of Europe's population (or maybe 25 million), and the Holocaust killed 1/3 of the world's jews.

In general, I think Americans tend to think that the world is more peaceful than it actually is. Such a tendency comes from the fact that we haven't had a war with a foreign power fought on our soil since the War of 1812. Also, I think we have been a little overly optimistic in our prediction that the current 50 year absence of great power war will continue. Such absences of conflict have happened in the past; each time, civilians most likely have thought that they have seen "the end of war." And each time, war rears its ugly head again. I think that our irrational optimism about the possibility of terrorist attacks on our soil is a subset of this greater irrational optimism. But enough gloominess for one day. Ironically enough, I now have to go pack to get ready to move to New York city for law school.

Posted by: Jeff V. | Jul 28, 2005 10:34:48 AM


I think your assessments are overly optimistic.

1) 9/11 did hasten a recession that was underway in 2001. There definitely was an economic effect, even if it did not by itself cause the recession. I believe that another attack would be worse, because psychologically it would signal the beginning of an era where large-scale terrorist attacks will happen regularly. 9/11 was so shocking that people didn't really know how to react to it, and markets were probably more positive about our recovery than they will be next time. Also, our economy is on shakey ground as it is. (As for your comparisons to Oklahhoma city and the other WTC bombing, those simply aren't on the type of scale that 9/11 was... I'm talking major 9/11 style attacks).

A deep recession paired with a major attack would cause huge cutbacks in government spending. We already are running a sizeable defecit, but in the event of a recession/attack, the government's income would plummet (as it always does in a recession), and foreign investors might start to lose confidence in the US economy. That would lessen our ability to introduce debt, and force us to cut way back on either social or military spending. Our decision of what to cut would be influenced by who's in office ... but cutting back on the social spending would be a fiscal shock, which would cause further economic contraction (much like the tax raises favored in pre-WW2 panics tended to worsen their economic problems). Ultimately, if enough confidence is lost in the US economy, our economy would sour to the point where we would want to cut back military spending. Our troops in Iraq, which cost billions of dollars a month, would be the first to go. Eventually, we would have to pull out of much of the rest of the world. Our military is supported by a strong economy. When that economy goes, so does our ability to play world police-man (as happened to the British and French after WW2).

2) Access to nuclear material isn't as tightly controlled as one would think. There are many reports of former Soviet materials that have inexplicably vanished already (this comes up in google: http://abcnews.go.com/WNT/story?id=506177&page=1 ). Security around most soviet nuclear depositories is minimal (this is a good article... and read his book, it is even more freaky: http://www.foreignaffairs.org/20040101faessay83107/graham-allison/how-to-stop-nuclear-terror.html ). And many impoverished soviet nuclear scientists/warehouse guards put nuclear materials on the market (I can't remember where I read the story on this, but undercover US agents have bought such black market nuclear material before).

Also, as time passes, the information needed to make a nuclear bomb is becoming more and more widespread. In fact, many US officials estimate that that information is pretty much all over the internet, and that the hardest part about building a low-tech nuclear bomb is just getting enough of the nuclear material (note that you wouldn't have to have many of the more time-consuming/expensive pieces, like centrifuges, if you can get a hold of the already-enriched uranium or weapons grade plutonium).

While you are right to note that many countries have had problems building nuclear weapons, you have to remember that 1) those difficulties haven't prevented them from actually making the weapons, in the case of North Korea, or coming very close, in the case of Iran, and 2) Al Qaeda could use a more crude weapon than a country, because it would use low-tech methods of delivery. To North Korea, a nuclear bomb that is deliverable by truck is worthless, because the whole reason it needs nuclear weapons is to deter the US from attacking it. In the event of a confrontation between the two countries, a nuclear-tipped missile could reach the US, but anything else would not. A plane would be shot down, and we could guard against nuclear-carrying boats/trucks because we would know that something could be coming and could take the appropriate measures (closing ports or requiring inspections, etc). By contrast, al Qaeda would not warn the US in advance of its nuclear strike, so it wouldn't need a very high-tech weapon. Building such a weapon is infintely simpler than building one that would be useful to a country against another country (the same logic explains why al Qaeda wouldn't need to test a weapon before its use, as testing is only useful in its enhancement of nuclear deterrance).

CIA and other orgnanizations have estimated that al Qaeda is defnitely capable of using a nuclear weapon ( http://www.washtimes.com/national/20030603-122052-2698r.htm ).

Posted by: Jeff V. | Jul 28, 2005 10:17:43 AM

IRS, IRA... same difference...

Posted by: Paul Gowder | Jul 28, 2005 8:59:44 AM

Jeff: 9/11 didn't cause a depression or a recession, and it certainly didn't force troop withdrawals! Neither did Oklahoma city, nor the first WTC attack, nor have any of the counteless attacks in the U.K. not just by al qaeda but the IRS over the years... Why do you believe one more attack would do so?

In terms of nuclear attack, my intuition is that such an attack is very unlikely. I could be wrong, and it's always prudent to do as much as possible to protect against such a horror, but lets look at what goes into a nuclear attack:

- Access to fissile materials, which is heavily monitored, albeit not as well monitored as it should be post-Soviet Union
- Access to trained nuclear scientists, which is also fairly difficult -- it's not like training an airplane pilot
- Access to facilities with things like serious precision machinery for making the detonator, very serious centerfuges if you don't already have weapons grade material, and other sorts of things which are also export controlled, tracked, etc., as well as very expensive and easy to spot by spies/satellites.
- Plenty of time uninterrupted by the Special Forces
- Ideally, an opportunity to test this massive scientific achievement to make sure it works before trying it and possibly inviting inhuman retaliation for no gain whatsoever. That, of course, is simply impossible for any terrorist group: nuclear tests do not go undetected by satellites etc.

And this is just for normal nukes. For fantastical suitcase bombs, quadruple the engineering skill and precision machinery needed...

There are nation-states that want them that have trouble getting them, or that take many years to get them. Terrorist groups, even rich terrorist groups, have less wherewithal than even the weakest of nation-states.

Posted by: Paul Gowder | Jul 28, 2005 8:58:25 AM

I think the idea that our society, if it were to disavow racial profiling completely, would have attained the "liberal ideal" of treating each person equally regardless of their skin color/race/group/sexuality/etc is unrealistic. Many subtler forms of differential treatment based on race exist, including racial districting and affirmative action. And other "group-based" discrimination is also common, whether it be against women, homosexuals, etc. So I think we don't have to pretend that the US, without racial profiling, would be some idealic realization of the liberal ideal ... or that, with the introduction of some kind of racial profiling, we would suddenly have fallen from this great ideal to something infinitely worse. It seems, from your post, that you would agree with the idea that our country, with or without racial profiling, is somewhere on a sliding scale between ideal and non-ideal.

That said, I think there is a sad political truth regarding the future of racial profiling as it applies to muslims in America. That sad truth is that the current political forces that have worked to limit racial profiling against Muslims will be blown to smithereens in the event of another 9/11-scale attack.

The previous poster mentioned that terrorism is not an exestential threat to America. I think this is wrong. Should another 9/11 style attack hit the country, our economy will probably suffer from a deep recession or Depression, and we will be forced to either cut way back on social spending or recall much of our military presence from the world. The combination of a global military pullback and the global recession that would follow from the US' economic downturn would cause significant global instability.

Of course, the US would still exist as a country in this scenario, but its place in the world would be drastically altered. Presumably, we would withdraw our forces from Iraq and the rest of the Middle East. Israel would face a renewed environment of conflict, uncertain of support from its traditional ally. China might take advantage of the momentary US weakness to attack Taiwan. Depression and recession would pressure dozens of fragile democracies in Latin America and Eastern Europe into collapsing back to dictatorship.

And this is not the worst case-scenario. What would happen to the US if UBL and his associates managed to detonate a nuclear weapon in a major city? UBL has repeatedly mentioned this as a major objective of al Qaeda. This, my friend, is an existential threat to the United States.

I get ahead of myself. My original point was that, given the dangers posed to the US by another terrorist attack of equal or greater scale to 9/11, in the event of such an attack, the current political balance that limits racial profiling of muslims will be inverted. Racial profiling will ensue, as might more drastic action, including perhaps internment or even forced deportation. Of course, you might not think this is relevant if you don't believe that another terrorist attack is likely. Many in the foreign policy would not share such optimism, however.

Posted by: Jeff V. | Jul 28, 2005 1:50:53 AM

I don't know if I have any disagreement with your position or not, but something in the end makes me worry. You talk about sacrificing the smallest necessary portion of liberty "in order to ensure the survival of the society itself". But surely we don't now face anything like that. However serious and awful terrorist attacks on the US or Europe might be they surely are not an existential threat to our society _unless we make them one_. That is, we might act hysterically and destroy our liberal (in the broad sense) ideals ourselves in reaction to what are simply not existential threats to our country or society. We are not facing invasion or subjucation or destruction. There are surely threats to lives, and they should be met and dealt with as best we can, and minimized, but these are not threats to liberal society, surely. If there is a threat to that, it's us. Are you meaning to disagree? I'm not sure.

Posted by: Matt | Jul 28, 2005 12:58:47 AM

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