GWEN IFILL: So is this racial profiling or reasonable investigation?
We ask four people who specialize in civil rights, terrorism and the law. Juliette Kayyem is executive director of the Domestic Preparedness Session at Harvard University's Kennedy School of Government; Frank Wu is a professor at Howard University Law School, he is the author of Yellow: Race in America Beyond Black and White; Stuart Taylor is a columnist for the National Journal and Newsweek; and Gail Heriot is a law professor at the University of California at San Diego.
GWEN IFILL: Juliet Kayyem, you're an Arab-American woman. Do you believe at any time that racial profiling can be acceptable?
JULIETTE KAYYEM: The easy answer to your question is no. It can't be. And it's not simply for the legal issues that will probably get into or the ethical issues. As a person in the terrorism business, I think it's completely ineffective.
It's ineffective with the specific problem we're dealing with here. We have the Al-Qaeda group, we know they're in 40 countries, from Malaysia to the Philippines to Latin America, so Arab looking people won't satisfy, if you look for Arabs you're not going to satisfy it.
But secondly I think it's ineffective because we have a huge problem in law enforcement and intelligence right now, and that is simply we have no one to translate any of the information that we have. We have, we're starting to hear hints that we knew something was going on at least a few weeks before this, and we're still trying to translate some of that information.
If we continue to sort of intimidate and interrogate an entire community, and I should point out that most Arab Americans are Christians, not Muslims in America, we will not get the kind of cooperation we need.
GWEN IFILL: Stuart Taylor, when can racial profiling ever be acceptable?
STUART TAYLOR: I think what -- a form of racial profiling, depending how you define it, at airports, people getting on airplanes, or giving special scrutiny to people who look Arab, for a limited time may be a justifiable exception to the general rule I would apply against racial profiling. As a general matter, I deplore racial profiling.
I think people getting on airliners are a very special case. Unless you can thoroughly search everyone, which would be great, but it would take hours and hours and hours, it makes sense to search with special care those people who look like all of the mass murder suicide hijackers who did the deeds on September 11th.
The fact is that although obviously many people might be hijackers, the only mass movement in the world that we know of that includes a number of numerous people who are interested in mass murdering Americans by hijacking airplanes and crashing them and committing suicide in the process, are adherence to this perversion of Islam that centers in the Middle East.
GWEN IFILL: Frank Wu, what about that, special cases should be allowed here?
FRANK WU: Well, once you allow it in one instance, you start sliding down that slippery slope.
Civil rights shouldn't be a matter of cost benefit analysis. It's clear -- we have to fight back. But when we fight back we shouldn't lash out at ourselves, and that's what Arab Americans are, they're part of our society, they live here, they're part of our way of life. And who could be better to help us in this war than individuals who understand the cultural background that we're contending with.
During World War II Japanese Americans formed the intelligence units that did the translation and did much of the intelligence work behind our effort to fight Japan, because there you had a group - and even though it was interned, proved itself loyal and aided the U.S. war effort.
I wish to add too that Stuart Taylor commits a classic logical flaw. Even if every single terrorist involved is of Arab ancestry, that doesn't mean everyone of Arab ancestry is a terrorist. Even if we were to take an absurd number, let's say a thousand people of Arab descent within the United States are terrorists, that's still a fraction of 1% of the Arab population. The other 99 per cent are law-abiding citizens like you or me. Having racial profiling sweeps too broadly using race, it's simply wrong.
GWEN IFILL: Stuart, you can have a chance to respond.
STUART TAYLOR: I agree we're talking about a tiny, tiny fraction of Arab looking people. I don't think that's inconsistent with my point.
If you want to make very sure that nobody smuggles a box cutter or small knife onto an airplane, and does what was done on September 11th, you're going to have to either search everybody very, very thoroughly, or search some of the people very, very thoroughly. And when in that particular context you're figuring on some of the people, I think people who look like those hijackers are among those who need special scrutiny.
GWEN IFILL: Professor Heriot, where do you fall down on this argument?
GAIL HERIOT: Well, let me start out by saying that in general I oppose racial and ethnic profiling. Race and ethnicity are rightly very, very touchy issues in America. But then they're touchy issues everywhere, not just in America but all around the world.
I've thought about the issue though, and I have to say that I agree with Stuart, that I'm not willing to categorically rule out racial or ethnic profiling in this very specialized context. When it's used, however, it has to be used with the lightest of possible touches.
GWEN IFILL: Is it because wartime is different? Is that why the distinction that you draw here?
GAIL HERIOT: Well, I wouldn't necessarily call it a wartime/peacetime distinction. But we do have a very special situation going on now, where we can by using very small measures, measures like perhaps searching the baggage of certain passengers extremely carefully, impose not very great costs upon those passengers, but on the other side of the balance, we have thousands and thousands of lives at stake.
GWEN IFILL: Who gets to decide the threat?
GAIL HERIOT: I'm sorry?
GWEN IFILL: Who gets to decide that someone is a threat?
GAIL HERIOT: Well, that's a difficult question, and in fact the questions are difficult generally here. But I think we're going to have to rely upon those people who are expert in airport security for trying to come up with the least intrusive system possible that will allow us to ensure an adequate level of safety in airplanes.
Of course this is also to the benefit not just of ordinary passengers, but also of Arab American passengers and Middle Easterners generally and people who just happen to look Middle Eastern. There's a certain cost to being let onto an airplane and seeing a large number of passengers staring at you with fear. If the searches are done more systematically, at least other passengers will be assured what the people who do get on do not pose a threat.
GWEN IFILL: Let me ask Juliet Kayyem to respond to that.
JULIETTE KAYYEM: Well, the argument is incredible in that it's so vague in terms of the kind of discretion that both of them are talking about.
First of all, Arab looking? I'm not quite sure how you qualify that or who you determine - and then we know that the personnel who are in these airline securities, how do you define things like suspicious, they were doing things suspiciously?
And how do you do this in a manner that doesn't totally intimidate Arabs and Muslims, who I should say are suffering enough discrimination from the private sector, it's sort of not a good thing to tell the government it's okay to do this.
But finally, I just, no one is making the case that this is an effective counter terrorism measure, except for what happened on September 11th to the extent it involved not Arab Americans, let's be clear here, Arabs and who were Muslims who hijacked all four planes, how it's going to help us in the future is entirely unclear.
And I want to go back to a point that Stuart made. It is possible to frisk or screen people who may pose a threat without using ethnic qualities. We have systems in place, and one in particular the computerized airline security system, which I think is at least in place in Detroit, in which there are criteria which are nonracial, which sort of raise a bell. Did you buy the ticket one way, did you buy it in cash, did you buy it yesterday -- those kinds of things that should raise someone's barometer in terms of is this person a security threat -- not are they Arab looking.
GWEN IFILL: Stuart, how about this effectiveness question, is this effective - a profile system?
STUART TAYLOR: Certainly this alone is not effective, and I hope that if we have effective ways of searching everybody, such as better X-ray machines, and if we had guards on planes with guns and if we had impregnable pilot doors and the risk of a repetition of September 11th were prevented in an airtight way, then you wouldn't need this.
I think a lot of people, and a lot of liberals, by the way, Floyd Abrams, the New York lawyer; Lawrence Tribe, the Harvard Law Professor, have either said or suggested that for now, it would be crazy to sort of ignore the danger of a repetition by people who look like the people who did it the last time.
The other thing I'd like to quickly refer to is the slippery slope that Frank Wu referred to. I think he's right to worry about a slippery slope; it's a danger. I think there's another danger though; I think that racial profiling as I define it of people getting on airplanes is going to be done, whether or not it done openly. If it's done and it's lied about, that will send a message to police around the country that racial profiling is okay as long as you lie about it. I think it's better to articulate a general rule against racial profiling and a very narrow exception for people getting on airplanes.
GWEN IFILL: How about that, Frank Wu?
FRANK WU: What would be best is if we didn't engage in it at all. There are other effective measures. We all recognize that in this time of crisis, our society has to bear a burden, each and every one of us.
But we shouldn't purchase national unity by ostracizing one group. This asks one discreet identifiable minority group to be singled out. What we should do instead is ask the government to protect that minority group, especially when you listen to what Stuart Taylor was talking about, all Arab looking persons.
Well, one of the groups that's most heavily hit by this backlash is Indian Sikhs; they're not Arab, they're not Muslim, they just happen to look Arab and Muslim. So they look suspicious. But the very first person who was killed by someone who was a self-proclaimed patriot, was someone who is Indian and Sikh. That's not just a hypothetical law professor case, that's what's really happening out there.
GWEN IFILL: Professor Heriot, assume this is something, as Stuart Taylor says, that's going to happen. How do you craft a racial profiling or whatever you want to call it, policy that doesn't take away people's rights -- the 99 per cent of people of Arab Americans who are Arabs who are not terrorists, for instance?
GAIL HERIOT: I think again we have to use the lightest possible touch here. No one is talking about banning Arab Americans or anyone from the nation's skies. But it may be in order at least in the very short run before other methods can be developed to take special care in searching people who are more likely to be Middle Eastern than it would be, than others. But it's not just a question of ethnic profiling.
There are lots of things that might raise suspicion. Juliet mentioned several that of course should be used.
If we find someone has purchased a one-way ticket, if I were to get onto an American Airlines flight from Paris -- and my passport said that I had spent the last six months in Afghanistan, I would expect, and, in fact, I'd be troubled if it didn't happen, to be searched much more carefully than the average passenger. And these are things that we may just have to put up with in the short run. I'm hoping this won't last long, and I think that Frank is quite right that we have to be especially on guard for the slippery slope problem. At the same time, again, thousands of lives are in the balance.
GWEN IFILL: Stuart Taylor, one final question. The FBI already has had profiles, perhaps not ethnic or racial, but profiles of people they should be on the watch for.
Those profiles show that people were young, were single, were poor, poorly dressed, and that didn't fit the profile of any of the people who are suspected of having been the terrorists in this case. So how does profiling help?
STUART TAYLOR: Profiling is a very imperfect way of trying to prevent danger. But it's better than nothing. And they obviously need to revise their profiles to take account of what we learned September 11th.
But on the Arab American point, yes, these people were not Arab Americans, but identification documents are so easily forged in this country that you cannot assume that because somebody presents a drivers license that says he's an Arab American that that's true.
Lastly, I think it's really quite wrong to associate the deplorable acts of bigotry that we've heard about with efforts by rational security people to prevent mass murder.
GWEN IFILL: Juliette Kayyem, there's time for a quick response from you.
JULIETTE KAYYEM: Well, everyone is for preventing mass murder. And the question here - I mean clearly we all are - the question is: how do we do that? And we've already seen as Stuart says, well-trained personnel from the airlines taking people off of planes for no reason whatsoever. And unless Stuart sort of has in his mind massive training for all these people, the standards he proposes, I think the cost is borne on a particular community and we have to take that into account.
GWEN IFILL: Well, we're go to have to let and you Stuart settle that some other time. We're out of time.
Thank you all for joining us.