Should law enforcement profile Muslims?
Amnesty International USA answers emphatically no. It asserts in a report issued last week that "law enforcement's use of race, religion, country of origin, or ethnic and religious appearance as a proxy for criminal suspicion" has harmed some 32 million persons in the United States. It even claims that this practice "undermines national security."
Law enforcement, of course, categorically denies any form of profiling. But I agree with Amnesty that profiling takes place. Specifically, it has held terrorist suspects for whom there is no probable cause to arrest by calling them "material witnesses" to a crime.
Abdullah al-Kidd, held by the U.S. government as a material witness, then released.
- Mr. Kidd's having listed on a Web site jihad as an interest; the FBI interpreted this as a reference to a holy war.
- Mr. Kidd's having "sold tapes and books containing the teachings of radical sheikhs" when he lived in Idaho.
- Mr. Kidd's owning a video that "had to do with the hijacking and terrorist events on September. 11, 2001."
But I, a specialist on militant Islam, engage on a routine basis in all three of Mr. Kidd's "red-flag" activities. My website discloses a keen interest in jihad; I have personally and institutionally disseminated the teachings of radical sheikhs; and I have assembled an archive of materials about 9/11. As a non-Muslim, however, these activities have (so far) not aroused suspicions.
Clearly, Mr. Kidd was held in part because of his Islamic identity. Nor was he the only Muslim in America whose religion was a factor in his arrest.
- Ayub Ali Khan and Jaweed Azmath, two Indian Muslims, were men arrested on 9/12 while riding a train and carrying about $5,000 in cash, black hair dye and boxcutters were detained for a year on suspicion of being part of the 9/11 operation. Eventually exonerated and freed, they claimed to have been profiled. This is self-evidently correct: Had the two not been Muslim, the police would have had little interest in them and their boxcutters.
- Brandon Mayfield: the FBI had fifteen fingerprints that it thought might match the one sent from Spain and connected to the bombings there on March 11, 2004. Of the 15 potential suspects, it zeroed in on the Muslim, namely Mr. Mayfield, perhaps because of his multiple connections to Islamists and jihadists. Mr. Mayfield was released after 14 days in prison, when the fingerprint match proved faulty.
- Abdallah Higazy: suspected with owning an air-to-ground transceiver found in a hotel across the street from the fallen World Trade Center, he was detained for a month before a pilot claimed the transceiver.
More broadly, Anjana Malhotra notes that of the 57 people detained as material witnesses in connection with terrorism investigations, "All but one of the material witness arrests were of Muslims." In the murky area of pre-empting terrorism, in short, it matters who one is.
So, yes, profiling emphatically does take place. Which is how it should be. The 9/11 commission noted that Islamist terrorism is the "catastrophic threat" facing America and, with the very rarest of exceptions, only Muslims engage in Islamist terrorism. It would therefore be a mistake to devote as much attention to non-Muslims as to Muslims.
Further, Amnesty International ignores that some instances of preemptive jailing have worked. It has foiled terrorism (Mohammed Junaid Babar, Maher Hawash, Zakaria Soubra, James Ujaama) and dealt with other crimes (Mohdar Abdullah, Nabil Almarabh, Omar Bakarbashat, Soliman S. Biheiri, Muhammad Al-Qudhai'een).
Plenty of material witness cases have yet to be decided, such as those of Ismael Selim Elbarasse, Mohamad Kamal Elzahabi, Ali Saleh Kahlah al-Marri, Jose Padilla, Uzair Paracha, and Mohammed Abdullah Warsame, and could lead to convictions.
Amnesty International has laid down the gauntlet, placing a higher priority on civil liberties than on protection from Islamist terrorism. In contrast, I worry more about mega-terrorism – say, a dirty bomb in midtown Manhattan – than an innocent person spending time in jail.
Profiling is emerging as the single-most contentious issue in the current war. Western governmental authorities need to stop hiding behind pious denials and candidly address this issue.
Feb. 6, 2008 update: Five years after his brief jailing, Abdullah al-Kidd finds himself ordered by U.S. District Judge Mikel Williams to engage in settlement talks with the U.S. government over his suing it for wrongful detention case. Kidd alleges that he was falsely imprisoned and that the government violated due process, using material witness laws to arrest, detain and investigate individuals without first proving probable cause. The government maintains that it did nothing wrong.
Comments: (1) As in the Brandon Mayfield case, I am totally opposed to payouts for these good-faith mistakes. Law enforcement needs to be able to protect us through these sort of material witness incarcerations, even if most of them turn out to be false leads. (2) Mayfield got $2 million for his two weeks behind bars, or $100 a minute. What will Kidd make out with from the taxpayer?
Mar. 19, 2008 update: Those court-ordered talks ended without a settlement, so Kidd is going to court to seek unspecified damages.
Feb. 27, 2011 update:The Kidd case keeps rolling along. For the latest, see the Associated Press today, "US citizen recalls 'humiliating' post-9/11 arrest."
May 31, 2011 update:The Supreme Court unanimously rejected Kidd's appeal and returned his case to federal court. Michael Doyle writes for the McClatchy Newspapers:
In a case that united the Bush and Obama administrations, the court concluded that [former Attorney General John] Ashcroft deserved immunity because he had not violated any laws in the jailing of U.S. citizen Abdullah al-Kidd. Federal authorities held al-Kidd for 16 days as a potential witness before releasing him without ever calling him as a witness.
"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions," Justice Antonin Scalia wrote for the majority. ...
Al-Kidd argued that the FBI was using the material-witness law as a pretext for holding individuals against whom authorities lacked other evidence. The court didn't buy this pretext-based argument. "Efficient and even-handed application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer," Scalia wrote.
Apr. 8, 2012 update: The paradox of an anti-jihadi like me having the same materials on the computer as a jihadi like Kidd has manifested in a lawsuit by Pascal Abidor, an non-Muslim doctoral student in Islamic studies at McGill University whose electronics were confiscated by U.S. border agents as he crossed into the country from Canada, prompting a lawsuit on his part. For details, see the Canadian Press story today by Benjamin Shingler.
Sep. 29, 2012 update: Almost a decade has passed but the Kidd case continues: a federal judge, Edward J. Lodge, has permitted Kidd to sue the government for his 16-day detention on the grounds that the affidavit for his arrest in 2003 "evidences a reckless disregard for the truth."
Jan. 16, 2015 update: Kidd and the U.S. government have settled; the latter offers its regrets and pays him $385,000 to compensate for his 16 days in detention. Over $20,000 is fine pay – but only a fraction of Brandon Mayfield's $2 million for about the same time behind bars.