Terrorist `lottery' offers no security

it's time to profile

March 06, 2002|By Jonathan Turley

WASHINGTON - Lottery games are simply irresistible for many citizens. While most people realize that playing the lottery is more recreational than rational, it's a small sum to spend 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. 11, the airlines decided to rely on 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.

Last week, a House subcommittee took up the issue of passenger profiling, the third rail of anti-terrorism legislation. Because of overwhelming opposition to racial profiling, the use of any profiling system at airports has been viewed as too controversial by both airlines and government agencies.

Instead, we routinely search individuals who are the least likely people to be a terrorist in a system that emphasizes the appearance of security over the reality of security. The airlines use their Computer Assisted Passenger Prescreening System (CAPPS), but they decided not to incorporate controversial elements such as nationality or ethnicity.

Viewed objectively, it's difficult to imagine 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.

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 red 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.

Mr. Reid was identified by a profile at the Charles de Gaulle Airport near Paris. Security officials with ICTS, a subcontractor at the American Airlines counter, identified Mr. Reid because of his one-way ticket, his use of cash to buy the ticket and his lack of a clear travel plan, luggage or a verifiable address.

This led to a stop that caused Mr. Reid to miss his first flight and, quite possibly, a successful attempt at terrorism. The failure of French authorities to completely search Mr. 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 Mr. Reid's 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. The greatest danger is that nationality or ethnicity would be the sole criteria used by an agent, who would simply add "nervous in appearance" as the other reported criteria.

Of course, given our history of abusive racial profiling, we must be cautious. Yet more than 75 percent of African-Americans polled recently said 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.

Such a program might be costly, but the costs of continuing the current terrorist lottery are far greater.

Jonathan Turley is a constitutional law professor at George Washington University and was the lead witness in last week's hearing on passenger profiling.

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