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Jewish World Review March 11, 2002 / 27 Adar, 5762

Jonathan Turley

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Consumer Reports

Profiling and the
terrorist lottery | LOTTERY systems are simply irresistible for many citizens. While most people realize that playing a lottery is more recreational than rational, it is a small sum to enjoy the fleeting possibility of a windfall fortune. But what if the stakes were increased to play for your life? As bizarre as this suggestion might seem, millions of travelers participate in precisely that type of lottery each month. After Sept. 11th, the airlines decided to rely a random search program rather than using a comprehensive profile selection system. As a result, 40 million air travelers each month, participate in a system that has as low a chance of success as a state lottery with their lives in the balance.

This week, a House Subcommittee took up the issue of passenger profiling ­ the third rail of anti-terrorism legislation. Because of the overwhelming opposition to racial profiling, the use of any profiling system at airports has been viewed as too controversial for both airlines and government agencies. Instead, we routinely search individuals who are the least likely individuals to be a terrorist in a system that places the appearance of security over the reality of security. The airlines use a prescreening computer system called CAPPS, but decided not to incorporate controversial elements like nationality or ethnicity.

Viewed objectively, it is difficult to image how meaningful screening can occur with random selection rather than profiling. This is not to say that random selection can never isolate a guilty party. Rather, random selection rolls the dice on security by selecting an insignificantly small number of the 40 million monthly travelers for special scrutiny. At the beginning of any given monthly cycle, the airlines are facing the same odds as a lottery player in a multi-million-dollar game ­ the same odds in playing the super lotto in California. The airlines have tried to increase these odds with the same strategy as multiple ticket purchasers ­ increasing the number of randomly selected passengers. This difference, however, does not change the overwhelming odds against "winning." This is not to say that an airline cannot hit the jackpot and land a Mohamed Atta. It is simply statistically unlikely that the terrorist lottery will yield a positive result.

Supreme Court cases allow police officers to use their reasonable judgment as to suspicious conduct or appearance. An officer may describe this selection as based on a "hunch" supported by objective criteria, but it is often an informal profile. Ultimately, a profile is the aggregation of the experience of hundreds or thousands of officers into a single list of common criteria. Basic profiles of high-risk travelers (regardless of nationality) are obvious to any booking agent. A passenger traveling without luggage, with a one-way ticket purchased the day of the flight will raise a series of "flags."

Many of the most obvious profile criteria do not involve the controversial elements of nationality or ethnicity. Richard Reid is an example of the obvious value of a general profile in the isolation of particular travelers. Reid was identified by a profile at the Charles de Gaulle airport. Security officials with ICTS, a subcontractor at the American Airlines counter, identified Reid because of (1) lack of a verifiable address; (2) a one-way ticket; (3) no clear travel plan; (4) no luggage; and (5) use of cash to buy his ticket. This led to a stop that led to Reid missing his first flight ­ and quite possibly a successful attempt at terrorism. The failure of the French authorities to completely search Reid, including his shoes, was a case in which a profile was successfully used but undermined by poor security procedures.

Any meaningful profile would need to spot the next generation of terrorist, not simply the last one. The value of nationality or ethnicity is that they are characteristics that are more permanent. While future terrorists are likely to take care to learn from Reidıs experience and follow the profile of a tourist rather than a terrorist, nationality or ethnicity are more difficult to disguise. The danger is that these criteria would become the only criteria or outcome-determinative criteria. The greatest danger is that nationality or ethnicity would be the sole criteria used by an agent, who will simply add "nervous in appearance" as the other reported criteria.

Of course, given our history of abusive racial profiling, we must be cautious. Yet, over seventy percent of African-Americans polled recently stated that they favored profiling at airports and understood the difference between airport and racial profiling.

Congress can help implement a system of monitoring to identify abuses or statistically unsound profiling. This system should include easily available reporting mechanisms at airports for abuses or complaints, mandatory reporting of complaints, expedited review of complaints, active oversight from Congress, and the assignment of supervisory personnel. Regardless of the cost, the costs of continuing the current terrorist lottery are far greater.

JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. He was the lead witness in the recent congrssional hearing on passenger profiling. Comment by clicking here.

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11/19/01: What type of 'creature' would defend bin Laden?
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08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2002, Jonathan Turley