To Profile or Not to Profile? [The Abdullah al-Kidd Case]
by Daniel Pipes
Translations of this item:
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.
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.
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:
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.
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