HAVING THEIR CAKE… AND OUTLAWING IT, TOO:
HOW THE WAR ON TERROR EXPANDS RACIAL PROFILING BY PRETENDING TO ERASE IT
MILES PARKS GRIER•
Is the conventional wisdom correct that counter-terrorism measures announce or respond to an unprecedented moment in US history? Promulgating an affirmative answer through its War on Terror, the Bush administration dismisses some forms of international law, diplomacy, and evidence-based law enforcement as remnants of a pre-9/11 mentality. However, I argue that their alternatives–preemptive war and policing–expand upon programs and tactics from domestic Wars on Drugs and Crime that predate 9/11. What critics of the War on Terror confront, then, is not an innovation or idiosyncrasy of the George W. Bush administration but the proliferation of racial nationalism—with the Islamic enemy defined by his incorrigible, depraved culture and American aggression presented as multiculturalist democracy on the march [1]. To help articulate (to speak and to join) a more comprehensive opposition to the War on Terror, I expose the roots of preemption in the War on Drugs and its signature police method, racial profiling [2]. Such an investigation not only breaches the barricade separating 9/11 from its origins but also unveils the domestic repression that fuels both racial nationalism and foreign occupation [3].
Philosopher and rhetorician Judith Butler identifies and discovers a blockage limiting “what we [in the US] can hear” in the aftermath of 9/11:
In order to condemn [the violence of September 11] as inexcusable, absolutely wrong, in order to sustain the affective structure in which we are, on the on hand, victimized and, on the other, engaged in a righteous cause of rooting out terror, we have to start the story with the experience of violence we suffered [4].
Consequently, in narratives of an American innocence, “there is no relevant prehistory to the events of September 11,” and the horror of that day excuses any potential American response [5]. Butler’s insightful reading of nationalistic rhetoric shows just how important claims about historical change are to the defense of the War on Terror. However, the current anti-war movement adds to the historical silences of the state a blindness to domestic regions of preemptive warfare.
As if restaging the debate over Vietnam but amputating the battles against age, gender, and racial discrimination with which the peace movement was articulated, proponents and opponents of the War on Terror have focused on Afghanistan and Iraq and ushered domestic conflicts offstage. It is true that the 2002 National Security Strategy uses the case of Iraq to make a case in which preemption—the need to “take action before threats have fully materialized”—is the only sensible option [6]. Yet, the depiction of radical Islam and the preemptive strategy deployed against the Muslim enemy owe much to racial profiling techniques from the War on Drugs [7]. Drug traffickers were portrayed as national enemies identifiable by race and depraved culture before the military invasion, torture, surveillance, detention, and deportation that have characterized the War on Terror. And, as we shall see, the criminalization of blacks and Latinos has proceeded apace during the “new” War. To begin to articulate these histories together would increase the comprehensiveness, coordination, agility, legitimacy, and efficacy of anti-war movements.
Those scholars who seek to overcome the intentional amnesia to US foreign policy have done us a service in chronicling the evolving role of the US on the international stage–from Cold War rival of the Soviet Union to lone superpower [8]. Specifically, they have reminded us of the military, political, and economic aims the US has pursued in Central America, the Middle East, Somalia, and Kosovo, to name but a few arenas of intervention since the 1980s. In their concern with the evolution of foreign policy, these commentators subordinate the domestic end of the mutually determining relationship between homefront and warfront [9]. Unfortunately, in paying so little attention to the ways in which law and police practice make domestic enemies, this internationalist work colludes with the notion that domestic law is fairly applied and criminality is an inherent characteristic of criminalized populations [10].
In those investigations that do focus on the homefront, a related blindness is apparent. Work from this location tends to focus its criticism on increases in the frequency and boldness of governmental powers of surveillance, detention, and deportation. Just as work in international relations de-emphasizes fissures within the nation, work on the erosion of civil liberties presents counter-terrorism and terrorist profiling as superseding or overtaking racial profiling of (usually black and Latino) drug trafficking suspects [11]. Unfortunately, to disassociate the array of terrorist profilees from their black and Latino counterparts–and, thereby, the War on Terror from the War on Drugs—is both inaccurate history and ineffective opposition politics, for it colludes with the illusion of a guiltless, unified nation beset by a common enemy on September 11. To counter that history and to help join a comprehensive opposition to the violence of the War on Terror, I present a recent history of racial profiling, or preemptive law enforcement.
In theory, criminal profiling seeks to narrow the field of suspects by comparing data from unsolved crimes to sociological and psychological portraits of perpetrators of similar crimes. Terrorist profiling, on the other hand, enlarges the field of suspects by subjecting large numbers of people identifiable by age, sex, race, and demeanor to collective suspicion for crimes not yet committed. How did we get from the rigors of the former to the excesses of the latter?
Criminal profiling began in the 1940s and 50s and utilized crime statistics, forensic evidence, and behavioral science to pinpoint the type of person and personality most likely to have committed a specific, past crime. As behavioral profiles continued to be pursued, the Supreme Court issued a ruling in 1968 that paved the way for more preventative profiling, possibly to strengthen urban police power at a time of massive unrest and upheaval. The Terry v. Ohio decision allowed police to use discretion to search suspects not involved in a crime, as long as they could articulate facts that led them to believe these suspects would harm them. This ruling relaxed Fourth amendment requirements that police have probable cause and a warrant to execute searches. Although Terry does not use this language, the lower standard has been referred to as one of reasonable suspicion and has allowed the police increased discretion in implementing stop-and-frisk practices [12].
When candidate Nixon sought to switch focus from Vietnam to the domestic scene, he declared war on drugs, which also contributed to the growth of profiling as preventative law enforcement. Surveying the revolts that followed Dr. King’s April 1968 assassination, candidate Nixon asserted that the recurring urban unrest was not protest but merely crime committed by drug users [13]. To pacify urban populations, Nixon and Congress created the Drug Enforcement Agency in 1973, and the DEA cooperated with state police to usher in an era of “preventive detention…‘no knock’ raids… ‘loose search warrants’… and expanded wiretaps [of privileged] conversations” [14]. These practices should strike us as familiar tactics updated for the War on Terror. However, regardless of the technological advancements, a degraded sense of Fourth Amendment protections remains a crucial prerequisite in both periods [15].
As skyjacker profiling (also established during the same period) often uncovered drug traffickers rather than skyjackers, the DEA created the airport drug courier profiling in 1974. Drug courier p
ro
filing brings us closer to what we recognize from the late W
ar on Drugs [16]. Profiles not written or standardized burst with a proliferation of suspicious characteristics. As a result of these often contradictory lists, police had to employ an enlarged senses of discretion in selecting profilees. During Carter’s presidency, the War on Drugs was not a priority. Rejuvenated by the Reagan presidency, the DEA expanded from airports to highways by targeting automobile drivers in south Florida for “investigative stops” related to drug trafficking. This program came to be called Operation Pipeline. Considering Florida’s proximity to the Caribbean and South American sources of drugs, international concerns were clearly in play.
The rejuvenated Nixonite ascription of drug use and crime to urban blacks and Latinos made both groups vulnerable to preemptive policing in the form of stop-and-frisk tactics, absent any demonstrable evidence of criminal offense [17]. When courts rejected investigative traffic stops as failing to meet the requirement for reasonable suspicion, the Florida highway patrol continued its pre-crime efforts by using alleged traffic violations as a pretext to look into drug activity beyond the scope of the initial infraction. Having cleared the hurdle of the Fourth Amendment thusly, the DEA exported the Operation Pipeline template to forty-eight other states in the mid- and late 1980s [18]. Surely, the War on Drugs was waged in Latin America and the Caribbean and in American cities with global populations. But the pervasiveness of Operation Pipeline shows that it also occurred in landlocked states without obvious international populations or trade.
Following challenges to the “ethnic element” in racial profiles, officers have often simply omitted information on race from the testimony in which they articulated their suspicions in accordance with the Terry decision [19]. Nevertheless, opponents of racial profiling had reason for guarded optimism in the summer before 9/11. In the late 1990s, controversy had erupted along the east coast over violent and demeaning stops of African-American motorists on interstate highways. Under pressure, state governments called for studies to confirm or dispel accusations that “Driving While Black or Brown” was a new category of criminal violation. In Maryland, police data from 1995-96 revealed that stops of black motorists were both disproportionate and unwarranted, for these drivers were almost exactly as likely to possess contraband as their white counterparts [20]. A comparable study of police activity on the New Jersey turnpike in 2000 revealed that black and Latino motorists were significantly less likely to carry illegal materials [21]. Nor should we forget the revelations about gun searches of pedestrians in New York City. The Street Crimes Unit of New York City, reported making 45,084 stops of black and Latino pedestrians in 1997-98. This reporting may represent as little as one of ten stops actually made, yet still yielded only 4,000 cases (which is not to say convictions) [22].
In response to these controversies and revelations, even candidate George W. Bush bucked Republican tradition and spoke against racial profiling. Of course, he also insisted, against the evidence we have seen about the propagation of Operation Pipeline, that racial profiling was neither pervasive nor systemic. He further refused to endorse federal oversight of local police [23]. It is this last refusal, especially, that has allowed the Bush administration to have its profiling and outlaw it, too. In 2003, the Department of Justice (DOJ) issued guidelines prohibiting racial profiling by federal agents in traditional criminal situations (i.e. those not related to anti-terrorism) [24]. However, the DOJ lacks jurisdiction to extend these guidelines to local and state police forces. As we would expect, Operation Pipeline strategies—preemptive stops and searches of black and Latino motorists–continue unabated. Indeed, the Bush administration tried to suppress a 2005 report from DOJ statisticians that shows that these motorists are still targeted disproportionately without justification [25].
Nevertheless, the Bush administration touts the federal ban as cause for celebration, despite the fact that federal agents rarely find themselves in the street-level stops of motorists and pedestrians the guidelines prohibit, despite the failure of every Congressional bill that would establish federal oversight to de-fund those departments that engage in anti-drug profiling [26]. Moreover—and here’s the link to terrorist profiling—the guidelines loudly except terrorist profiling from the ban on racial profiling. However, contrary to almost ubiquitous characterizations of post 9/11 profiling, this terrorism exception has allowed for targeting of blacks and Latinos alongside Arabs, South Asians, and Muslims.
In an exceptional report released in February 2003, the Leadership Conference on Civil Rights (LCCR) exposes the hidden joint linking traditional racial and “new” terrorist profiling [27]. Despite the LCCR’s release of “Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001,” many other advocacy groups have still proceeded as if terror suspects shield blacks and Latinos from state racism. This presumption has led them to be unable to articulate a comprehensive opposition to the expanded preemptive violence of the War on Terror.
An ACLU document from September 2003, does attempt to articulate the history of black oppression with the onset of aggressive counter-terrorism [28]. Still, in “A New Era of Racial Discrimination?: Why African-Americans Should Be Alarmed About the Ashcroft Terrorism Laws,” the ACLU respects the centrality of 9/11 as a break in the history of preemptive, race-based policing [29]. Pictures and text juxtapose Herbert Hoover and John Ashcroft; 1960s police brutality is compared to the detention and deportation of Arab, South Asian, and Muslim men. “A New Era” pleads with Black people to show concern because we have at other times been subjected to such aggression and we may again be the victims of the next round of such unconstitutional prosecution.
This is a very curious appeal. First, it entirely avoids the preemptive policies of the War on Drugs that occurred between the tenures of Hoover and Ashcroft. Second, it panders to African-Americans in terms of a crass self-interest. Yet, in its blindness and amnesia, it utterly ignores contemporary abuses of black citizens and shuts out black cultural discourses that speak of the joint far more thoroughly than does their report [30]. Unfortunately, the ACLU missed the opportunity to note several coincidences. Many of the detained Muslims are African and African-American [31]. By the racial reckoning of the US, these suspects are black. Further, as I have been at pains to demonstrate, the unconstitutional prosecution of black folks on drug charges continues during the War on Terror. In fact, there is evidence that counter-terrorism laws are being appropriated for domestic wars on drugs and crime, involving blacks and Latinos accused of gang activity [32].
I offer the preceding not to inaugurate a competition between native-born blacks (long an embodiment of thwarted citizenship) and terror profilees (the current embodiment of the infectious alien element). Rather, I spotlight the demotion of profiling directed at blacks and Latinos to suggest that such a competition has already commenced. This competition has distracted very well-meaning and like-minded parties from articulating a comprehensive movement to counter an expanding threat of preemptive violence. I hope that this contribution aids in securing that joint.
• PhD Student, American Studies Program, Department of Social and Cultural Analysis, New York University. I wish to thank Dawn Peterson, N’Jai-An Patters, Andrew Ross, and Windsor Williams for being demanding, stimulating, and, above all, supportive.
[1] For a thorough and incisive analysis of the way “culture talk” has been use
d to depict political Islam as anti-mode
rn and irrational, see Mahmood Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (New York: Pantheon Books, 2004), Chapter 1. Madhu Dubey provides a useful overview of the ways culture talk has been used, especially since the late 1970s, to mark African-Americans as a criminal sector, meriting tough policing but not government services. See Signs and Cities: Black Literary Postmodernism (Chicago: University of Chicago Press, 2003), 26-27.
I borrow the term “military multiculturalism” from Melani McAlister, who writes of the first Gulf War:
The representations of the military provided the mandate for [US power to intervene in international affairs]: the diversity of its armed forces made the United States a world citizen, with all the races and nations of the globe represented in its population. As the military would represent the diversity of the United States, the United States, as represented in its military, would contain [or conquer] the world.
See Epic Encounters: Culture, Media, and U.S. Interests in the Middle East, 1945-2000 (Berkeley: University of California Press, 2001), 250.
[2]Because President Nixon pronounced the War on Drugs first (citing drug use as the cause of much urban crime) and because subsequent “wars” on crime have prominently featured anti-drug trafficking components, I use the term “War on Drugs” to encompass the whole effort.
[3] Throughout the paper, I use the verb “to articulate” in both its linguistic and anatomical senses: to speak a more comprehensive history of the preemptive War on Terror is also to coordinate (like a joint) the disparate constituencies menaced by its march. See Stuart Hall’s reflections on the term “articulation,” quoted in David Kazanjian The Colonizing Trick: National Culture and Imperial Citizenship in Early America (Minneapolis: University of Minnesota Press, 2003), 14.
[4] Judith Butler, “Explanation and Exoneration, or What We Can Hear,” Social Text 72: 9/11–A Public Emergency?, Vol. 20, No. 3, Fall 2002 (Durham, North Carolina: Duke University Press), 180.
[5] Butler, 180. The “relevant prehistory” to which Butler refers tells us that the US government trained, armed, and funded many of our current “enemies” to oppose Soviet expansion. To her diagnosis of selective hearing, I would add selective vision, since both the “terrorists” and US-led coalition forces have targeted civilians.
[6] Robert J. Pauly and Tom Lansford, Strategic Preemption: U.S. Foreign Policy and the Second Iraq War (Burlington, Vermont: Ashgate Publishing Limited, 2004). President Bush’s movements toward the declaration of preemptive war are highlighted on pp. 20-21, while the quotation from then National Security Advisor Condoleeza Rice is taken from p. 41.
[7] The objectives of the United States—maintaining military superiority and changing political regimes—fit the rubric of preventive action. Yet, the language of a “gathering threat” suggested anticipatory self-defense, or preemption. As a result of this confusion, we cannot dismiss the term preemption unless and until we know that the administration knowingly lied about this threat. As a consequence, this paper employs the term preemption in a less rigid sense, as synonymous with prevention and anticipatory action. For more, see Noam Chomsky, Hegemony or Survival : America’s Quest for Global Dominance (New York: Henry Holt and Company, 2003), 12-14; and Lawrence Freeman, Deterrence (Malden, MA : Polity Press, 2004), 85-86.
[8] Important contributions along these lines include but are not limited to those of Noam Chomsky, Hegemony or Survival; Mahmood Mamdani, Good Muslim, Bad Muslim; and Robert J. Pauly and Tom Lansford, Strategic Preemption. For scholarship that focuses on the ways in which area studies mirrors and informs foreign policy objectives see Ben Wang, “The Cold War, Imperial Aesthetics, and Area Studies,” Ella Shohat, “Area Studies, Gender Studies, and the Cartographies of Knowledge,” and Jasbir K. Puar and Amit S. Rai “Monster, Terrorist, Fag: The War on Terrorism and the Production of Docile Patriots” all in Social Text 72: 9/11–A Public Emergency?
[9] Noam Chomsky indicates this symbiosis when he discusses the propaganda through which Reagan created support for Central American campaigns. See Hegemony or Survival, 5-8.
[10] Here I do not suggest that people of color commit no crimes, rather I point to the ways in which racial, cultural, and environmental factors go into plans to “get tough on” these offenders while rehabilitation and clemency are more available to offenders who better fit the innocence profile. (I borrow this last term from Patricia Williams, “Obstacle Illusions: The Cult of Racial Appearance” in Police Brutality, ed. Jill Nelson. (New York: Norton and Co. 2000), 154.
[11] I will discuss publications of Amnesty International and the American Civil Liberties Union later. At this moment, I would just note two examples from the scholarly literature in which “old” racial profiling has been subordinated to rather than articulated with terrorist profiling. In “Homeland Insecurities,” Muneer Ahmad writes, “Arabs, Muslims, and South Asians abandon[ed] African-Americans and Latinas/os when racial profiling was their issue[;] African-Americans and Latinos/as [are abandoning] Arabs, Muslims, and South Asians now that it no longer is” (Social Text 72, 107). In the same volume, Jasbir Puar and Amit Rai concur that “long-time surveillance of African-American and Caribbean American communities might have let up a bit after September 11.” Yet, they also rightly insist that terrorist profiling constitutes “the legitimation and expansion of techniques of racial profiling that were… perfected on black bodies” (Social Text 72, 140). As a consequence of these histories of persecution, black and brown residents are situated ambivalently in relation to the US state. To capitalize on that latent or suppressed ambivalence should be the aim of a comprehensive movement against preemptive violence.
[12] See Milton Heumann and Lance Cassak. Good Cop, Bad Cop: Racial Profiling and Competing Views of Justice. (New York: Peter Lang Publishing Inc. 2003), 16-22. While the searches have been upheld post-Terry, the courts have never ruled on the constitutionality of the stops that precede the searches.
[13] Heumann and Cassak, 25.
[14] Heumann and Cassak, 28.
[15] While minimizing airplane hijacking, the preventive measures of skyjacker profiling from the Nixon era remained largely within constitutional norms. See Heumann and Cassak, 30-31, for this successful and instructive blend of behaviorist and preventive profiling.
[16] Heumann and Cassak, 41.
[17] Heumann and Cassak quote two police officials who emphasized that a large number of stops was a crucial part of highway profiling strategy. See p. 74.
[18] Heumann and Cassak, ft.6, p. 207-08.
[19] Heumann and Cassak refer repeatedly to recent unwillingness among law enforcement to speak in favor of racial profiling. For one example, see Good Cop, p. 239, note 87. We should not, however, equate the silencing of race with the elimination of racial profiling strategies. After all, police and state government denied the practice even when internal communication revealed racial guilt as the prevailing presumption of anti-drug law enforcement.
[20] Black motorists accounted for only 17 percent of motorists, but accounted for 70 percent of the searches. 28.4 percent of these motorists possessed contraband. 28.8 percent of the white motorists stopped possessed contraband. See David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002), 79-80.
[21] Harris, 80.
[22] See Ron Daniels. “The Crisis of Police Brutality and Misconduct in America: The Causes and the Cure.” in Police
Brutality ed. Jill Nelson (New York: Norton 2002) 244.
[23] See George W. Bush and Albert
Gore’s responses to Jim Lehrer’s questions on racial profiling in transcripts archived at http://www.pbs.org/newshour/bb/election/2000debates/2ndebate3.html .
[24] Department of Justice guidelines from June 2003 condemn racial profiling as unconstitutional, prohibit it in domestic law enforcement, but carve out exceptions for it in issues related to national security. See Department of Justice, “Fact Sheet: Racial Profiling,” June 17, 2003, available at http://www.tsa.gov/interweb/assetlibrary/DOJ_racial_profiling.pdf . The language of the terrorist exception calls to mind Middle Easterners today but is also sufficiently malleable to be fitted to other enemies. I later provide a few examples of the ways in which “gang members,” an enemy from the War on Drugs are now depicted as “terrorists.”
[25] Eric Lichtblau reports:
Once they were stopped, Hispanic drivers were searched or had their vehicles searched by the police 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Blacks and Hispanics were also subjected to force or the threat of force more often than whites, and the police were much more likely to issue tickets to Hispanics rather than simply giving them a warning, the study found.
See “Profiling Report Leads to a Demotion.” The New York Times. August 24, 2005. Also available at http://www.nytimes.com/2005/08/24/politics/24profiling.html . While many states do not collect data on stops concerning the ethnic and religious populations labeled terrorist, some evidence suggests that these drivers are also subjected to the old suspicions for “driving while black or brown.” See Leadership Conference on Civil Rights, “Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001” (Washington DC: February 27,2003). Press release and access to full report available at http://www.civilrights.org/issues/cj/details.cfm?id=11614
[26] Both before and after 9/11, the Racial Profiling Prohibition Act of 2001 (RPPA) and the more recent End Racial Profiling Act of 2004 (ERPA) have failed even to reach the floors of either house for a vote. The President has not lobbied on behalf of these bills that would allow the federal government to withhold funds from states shown to be in violation of constitutional prohibitions against racial discrimination.
[27] “Wrong Then, Wrong Now” is a very useful archive of and argument for the links between racial and terrorist profiling. I am among many who owe the LCCR a debt of gratitude. My work only departs from it in two ways. First, I argue that the Bush administration does not genuinely oppose racial profiling and has always stopped short of proposals that would fully eradicate profiling as it is understood by its victims. Second, I echo the insistence that racial profiling must be banned at all levels of law enforcement—a ban backed up by economic incentives and sanctions from the federal government. But I add that reforms will not be comprehensive absent the better articulation of the related interests of the disparate victims of preemptive policing.
[28] Well, perhaps it is not so surprising, considering that the pamphlet takes the form of an open letter addressed to the black community from Laura W. Murphy, the first black woman to hold the prestigious position of director of the ACLU’s Washington Legislative Office.
[29] “A New Era of Discrimination?: Why African Americans Should Be Alarmed About the Ashcroft Terrorism Laws.” September 2003.
[30] The ACLU was probably responding to polls that showed black support for terrorist profiling. Polls immediately after 9/11 showed that “African-Americans, whose treatment by the criminal justice system gave rise to the phrase ‘racial profiling’ are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month’s terrorist attacks.” See Ann Scales, “Polls say Blacks Tend to Favor Checks” Boston Globe Boston, Mass. :Sep 30, 2001. p. A.16. In a longer version of this essay, I discuss the ambivalence that saturates black comedy’s depiction of Muslims as black and not-black. That such comedy is easily recognized by a wide swath of its black audience suggests that black folks know that 9/11 makes us complicit in and victimized preemptive violence directed against Islam.
[31] See, for but one example, Eric Lichtblau “Four Men in California Accused of Plotting Terrorist Attacks.” The New York Times, September 1, 2005. www.nytimes.com/2005/09/01/national/01terror.html . This article indicates that three of the accused are African-American inmates in California state prison. I say “indicates” because the article does not identify the three US citizens as black, but the names (Kevin James, Levar Washington, and Gregory Patterson), the prison context, and the inmates’ conversion to Islam suggest African-Americans to those familiar with blacks’ implication with the criminal justice system. In another famous case, the Nuyorican (New York/Puerto Rican) Jose Padilla’s career includes gang membership before conversion to Islam in prison and alleged terrorist activity in Pakistan. See http://news.bbc.co.uk/1/hi/world/americas/2037444.stm .
[32] See Michelle Garcia, “N.Y. Using Terrorism Law to Prosecute Street Gang,” The Washington Post, February 1, 2005; Page A03. Available at http://www.washingtonpost.com/wp-dyn/articles/A52504-2005Jan31.html?sub+AR .
Miles Parks Grier: Having Their Cake… And Outlawing It, Too
HAVING THEIR CAKE… AND OUTLAWING IT, TOO:
HOW THE WAR ON TERROR EXPANDS RACIAL PROFILING BY PRETENDING TO ERASE IT
MILES PARKS GRIER•
Is the conventional wisdom correct that counter-terrorism measures announce or respond to an unprecedented moment in US history? Promulgating an affirmative answer through its War on Terror, the Bush administration dismisses some forms of international law, diplomacy, and evidence-based law enforcement as remnants of a pre-9/11 mentality. However, I argue that their alternatives–preemptive war and policing–expand upon programs and tactics from domestic Wars on Drugs and Crime that predate 9/11. What critics of the War on Terror confront, then, is not an innovation or idiosyncrasy of the George W. Bush administration but the proliferation of racial nationalism—with the Islamic enemy defined by his incorrigible, depraved culture and American aggression presented as multiculturalist democracy on the march [1]. To help articulate (to speak and to join) a more comprehensive opposition to the War on Terror, I expose the roots of preemption in the War on Drugs and its signature police method, racial profiling [2]. Such an investigation not only breaches the barricade separating 9/11 from its origins but also unveils the domestic repression that fuels both racial nationalism and foreign occupation [3].
Philosopher and rhetorician Judith Butler identifies and discovers a blockage limiting “what we [in the US] can hear” in the aftermath of 9/11:
In order to condemn [the violence of September 11] as inexcusable, absolutely wrong, in order to sustain the affective structure in which we are, on the on hand, victimized and, on the other, engaged in a righteous cause of rooting out terror, we have to start the story with the experience of violence we suffered [4].
Consequently, in narratives of an American innocence, “there is no relevant prehistory to the events of September 11,” and the horror of that day excuses any potential American response [5]. Butler’s insightful reading of nationalistic rhetoric shows just how important claims about historical change are to the defense of the War on Terror. However, the current anti-war movement adds to the historical silences of the state a blindness to domestic regions of preemptive warfare.
As if restaging the debate over Vietnam but amputating the battles against age, gender, and racial discrimination with which the peace movement was articulated, proponents and opponents of the War on Terror have focused on Afghanistan and Iraq and ushered domestic conflicts offstage. It is true that the 2002 National Security Strategy uses the case of Iraq to make a case in which preemption—the need to “take action before threats have fully materialized”—is the only sensible option [6]. Yet, the depiction of radical Islam and the preemptive strategy deployed against the Muslim enemy owe much to racial profiling techniques from the War on Drugs [7]. Drug traffickers were portrayed as national enemies identifiable by race and depraved culture before the military invasion, torture, surveillance, detention, and deportation that have characterized the War on Terror. And, as we shall see, the criminalization of blacks and Latinos has proceeded apace during the “new” War. To begin to articulate these histories together would increase the comprehensiveness, coordination, agility, legitimacy, and efficacy of anti-war movements.
Those scholars who seek to overcome the intentional amnesia to US foreign policy have done us a service in chronicling the evolving role of the US on the international stage–from Cold War rival of the Soviet Union to lone superpower [8]. Specifically, they have reminded us of the military, political, and economic aims the US has pursued in Central America, the Middle East, Somalia, and Kosovo, to name but a few arenas of intervention since the 1980s. In their concern with the evolution of foreign policy, these commentators subordinate the domestic end of the mutually determining relationship between homefront and warfront [9]. Unfortunately, in paying so little attention to the ways in which law and police practice make domestic enemies, this internationalist work colludes with the notion that domestic law is fairly applied and criminality is an inherent characteristic of criminalized populations [10].
In those investigations that do focus on the homefront, a related blindness is apparent. Work from this location tends to focus its criticism on increases in the frequency and boldness of governmental powers of surveillance, detention, and deportation. Just as work in international relations de-emphasizes fissures within the nation, work on the erosion of civil liberties presents counter-terrorism and terrorist profiling as superseding or overtaking racial profiling of (usually black and Latino) drug trafficking suspects [11]. Unfortunately, to disassociate the array of terrorist profilees from their black and Latino counterparts–and, thereby, the War on Terror from the War on Drugs—is both inaccurate history and ineffective opposition politics, for it colludes with the illusion of a guiltless, unified nation beset by a common enemy on September 11. To counter that history and to help join a comprehensive opposition to the violence of the War on Terror, I present a recent history of racial profiling, or preemptive law enforcement.
In theory, criminal profiling seeks to narrow the field of suspects by comparing data from unsolved crimes to sociological and psychological portraits of perpetrators of similar crimes. Terrorist profiling, on the other hand, enlarges the field of suspects by subjecting large numbers of people identifiable by age, sex, race, and demeanor to collective suspicion for crimes not yet committed. How did we get from the rigors of the former to the excesses of the latter?
Criminal profiling began in the 1940s and 50s and utilized crime statistics, forensic evidence, and behavioral science to pinpoint the type of person and personality most likely to have committed a specific, past crime. As behavioral profiles continued to be pursued, the Supreme Court issued a ruling in 1968 that paved the way for more preventative profiling, possibly to strengthen urban police power at a time of massive unrest and upheaval. The Terry v. Ohio decision allowed police to use discretion to search suspects not involved in a crime, as long as they could articulate facts that led them to believe these suspects would harm them. This ruling relaxed Fourth amendment requirements that police have probable cause and a warrant to execute searches. Although Terry does not use this language, the lower standard has been referred to as one of reasonable suspicion and has allowed the police increased discretion in implementing stop-and-frisk practices [12].
When candidate Nixon sought to switch focus from Vietnam to the domestic scene, he declared war on drugs, which also contributed to the growth of profiling as preventative law enforcement. Surveying the revolts that followed Dr. King’s April 1968 assassination, candidate Nixon asserted that the recurring urban unrest was not protest but merely crime committed by drug users [13]. To pacify urban populations, Nixon and Congress created the Drug Enforcement Agency in 1973, and the DEA cooperated with state police to usher in an era of “preventive detention…‘no knock’ raids… ‘loose search warrants’… and expanded wiretaps [of privileged] conversations” [14]. These practices should strike us as familiar tactics updated for the War on Terror. However, regardless of the technological advancements, a degraded sense of Fourth Amendment protections remains a crucial prerequisite in both periods [15].
As skyjacker profiling (also established during the same period) often uncovered drug traffickers rather than skyjackers, the DEA created the airport drug courier profiling in 1974. Drug courier p
ro
filing brings us closer to what we recognize from the late W
ar on Drugs [16]. Profiles not written or standardized burst with a proliferation of suspicious characteristics. As a result of these often contradictory lists, police had to employ an enlarged senses of discretion in selecting profilees. During Carter’s presidency, the War on Drugs was not a priority. Rejuvenated by the Reagan presidency, the DEA expanded from airports to highways by targeting automobile drivers in south Florida for “investigative stops” related to drug trafficking. This program came to be called Operation Pipeline. Considering Florida’s proximity to the Caribbean and South American sources of drugs, international concerns were clearly in play.
The rejuvenated Nixonite ascription of drug use and crime to urban blacks and Latinos made both groups vulnerable to preemptive policing in the form of stop-and-frisk tactics, absent any demonstrable evidence of criminal offense [17]. When courts rejected investigative traffic stops as failing to meet the requirement for reasonable suspicion, the Florida highway patrol continued its pre-crime efforts by using alleged traffic violations as a pretext to look into drug activity beyond the scope of the initial infraction. Having cleared the hurdle of the Fourth Amendment thusly, the DEA exported the Operation Pipeline template to forty-eight other states in the mid- and late 1980s [18]. Surely, the War on Drugs was waged in Latin America and the Caribbean and in American cities with global populations. But the pervasiveness of Operation Pipeline shows that it also occurred in landlocked states without obvious international populations or trade.
Following challenges to the “ethnic element” in racial profiles, officers have often simply omitted information on race from the testimony in which they articulated their suspicions in accordance with the Terry decision [19]. Nevertheless, opponents of racial profiling had reason for guarded optimism in the summer before 9/11. In the late 1990s, controversy had erupted along the east coast over violent and demeaning stops of African-American motorists on interstate highways. Under pressure, state governments called for studies to confirm or dispel accusations that “Driving While Black or Brown” was a new category of criminal violation. In Maryland, police data from 1995-96 revealed that stops of black motorists were both disproportionate and unwarranted, for these drivers were almost exactly as likely to possess contraband as their white counterparts [20]. A comparable study of police activity on the New Jersey turnpike in 2000 revealed that black and Latino motorists were significantly less likely to carry illegal materials [21]. Nor should we forget the revelations about gun searches of pedestrians in New York City. The Street Crimes Unit of New York City, reported making 45,084 stops of black and Latino pedestrians in 1997-98. This reporting may represent as little as one of ten stops actually made, yet still yielded only 4,000 cases (which is not to say convictions) [22].
In response to these controversies and revelations, even candidate George W. Bush bucked Republican tradition and spoke against racial profiling. Of course, he also insisted, against the evidence we have seen about the propagation of Operation Pipeline, that racial profiling was neither pervasive nor systemic. He further refused to endorse federal oversight of local police [23]. It is this last refusal, especially, that has allowed the Bush administration to have its profiling and outlaw it, too. In 2003, the Department of Justice (DOJ) issued guidelines prohibiting racial profiling by federal agents in traditional criminal situations (i.e. those not related to anti-terrorism) [24]. However, the DOJ lacks jurisdiction to extend these guidelines to local and state police forces. As we would expect, Operation Pipeline strategies—preemptive stops and searches of black and Latino motorists–continue unabated. Indeed, the Bush administration tried to suppress a 2005 report from DOJ statisticians that shows that these motorists are still targeted disproportionately without justification [25].
Nevertheless, the Bush administration touts the federal ban as cause for celebration, despite the fact that federal agents rarely find themselves in the street-level stops of motorists and pedestrians the guidelines prohibit, despite the failure of every Congressional bill that would establish federal oversight to de-fund those departments that engage in anti-drug profiling [26]. Moreover—and here’s the link to terrorist profiling—the guidelines loudly except terrorist profiling from the ban on racial profiling. However, contrary to almost ubiquitous characterizations of post 9/11 profiling, this terrorism exception has allowed for targeting of blacks and Latinos alongside Arabs, South Asians, and Muslims.
In an exceptional report released in February 2003, the Leadership Conference on Civil Rights (LCCR) exposes the hidden joint linking traditional racial and “new” terrorist profiling [27]. Despite the LCCR’s release of “Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001,” many other advocacy groups have still proceeded as if terror suspects shield blacks and Latinos from state racism. This presumption has led them to be unable to articulate a comprehensive opposition to the expanded preemptive violence of the War on Terror.
An ACLU document from September 2003, does attempt to articulate the history of black oppression with the onset of aggressive counter-terrorism [28]. Still, in “A New Era of Racial Discrimination?: Why African-Americans Should Be Alarmed About the Ashcroft Terrorism Laws,” the ACLU respects the centrality of 9/11 as a break in the history of preemptive, race-based policing [29]. Pictures and text juxtapose Herbert Hoover and John Ashcroft; 1960s police brutality is compared to the detention and deportation of Arab, South Asian, and Muslim men. “A New Era” pleads with Black people to show concern because we have at other times been subjected to such aggression and we may again be the victims of the next round of such unconstitutional prosecution.
This is a very curious appeal. First, it entirely avoids the preemptive policies of the War on Drugs that occurred between the tenures of Hoover and Ashcroft. Second, it panders to African-Americans in terms of a crass self-interest. Yet, in its blindness and amnesia, it utterly ignores contemporary abuses of black citizens and shuts out black cultural discourses that speak of the joint far more thoroughly than does their report [30]. Unfortunately, the ACLU missed the opportunity to note several coincidences. Many of the detained Muslims are African and African-American [31]. By the racial reckoning of the US, these suspects are black. Further, as I have been at pains to demonstrate, the unconstitutional prosecution of black folks on drug charges continues during the War on Terror. In fact, there is evidence that counter-terrorism laws are being appropriated for domestic wars on drugs and crime, involving blacks and Latinos accused of gang activity [32].
I offer the preceding not to inaugurate a competition between native-born blacks (long an embodiment of thwarted citizenship) and terror profilees (the current embodiment of the infectious alien element). Rather, I spotlight the demotion of profiling directed at blacks and Latinos to suggest that such a competition has already commenced. This competition has distracted very well-meaning and like-minded parties from articulating a comprehensive movement to counter an expanding threat of preemptive violence. I hope that this contribution aids in securing that joint.
• PhD Student, American Studies Program, Department of Social and Cultural Analysis, New York University. I wish to thank Dawn Peterson, N’Jai-An Patters, Andrew Ross, and Windsor Williams for being demanding, stimulating, and, above all, supportive.
[1] For a thorough and incisive analysis of the way “culture talk” has been use
d to depict political Islam as anti-mode
rn and irrational, see Mahmood Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (New York: Pantheon Books, 2004), Chapter 1. Madhu Dubey provides a useful overview of the ways culture talk has been used, especially since the late 1970s, to mark African-Americans as a criminal sector, meriting tough policing but not government services. See Signs and Cities: Black Literary Postmodernism (Chicago: University of Chicago Press, 2003), 26-27.
I borrow the term “military multiculturalism” from Melani McAlister, who writes of the first Gulf War:
The representations of the military provided the mandate for [US power to intervene in international affairs]: the diversity of its armed forces made the United States a world citizen, with all the races and nations of the globe represented in its population. As the military would represent the diversity of the United States, the United States, as represented in its military, would contain [or conquer] the world.
See Epic Encounters: Culture, Media, and U.S. Interests in the Middle East, 1945-2000 (Berkeley: University of California Press, 2001), 250.
[2]Because President Nixon pronounced the War on Drugs first (citing drug use as the cause of much urban crime) and because subsequent “wars” on crime have prominently featured anti-drug trafficking components, I use the term “War on Drugs” to encompass the whole effort.
[3] Throughout the paper, I use the verb “to articulate” in both its linguistic and anatomical senses: to speak a more comprehensive history of the preemptive War on Terror is also to coordinate (like a joint) the disparate constituencies menaced by its march. See Stuart Hall’s reflections on the term “articulation,” quoted in David Kazanjian The Colonizing Trick: National Culture and Imperial Citizenship in Early America (Minneapolis: University of Minnesota Press, 2003), 14.
[4] Judith Butler, “Explanation and Exoneration, or What We Can Hear,” Social Text 72: 9/11–A Public Emergency?, Vol. 20, No. 3, Fall 2002 (Durham, North Carolina: Duke University Press), 180.
[5] Butler, 180. The “relevant prehistory” to which Butler refers tells us that the US government trained, armed, and funded many of our current “enemies” to oppose Soviet expansion. To her diagnosis of selective hearing, I would add selective vision, since both the “terrorists” and US-led coalition forces have targeted civilians.
[6] Robert J. Pauly and Tom Lansford, Strategic Preemption: U.S. Foreign Policy and the Second Iraq War (Burlington, Vermont: Ashgate Publishing Limited, 2004). President Bush’s movements toward the declaration of preemptive war are highlighted on pp. 20-21, while the quotation from then National Security Advisor Condoleeza Rice is taken from p. 41.
[7] The objectives of the United States—maintaining military superiority and changing political regimes—fit the rubric of preventive action. Yet, the language of a “gathering threat” suggested anticipatory self-defense, or preemption. As a result of this confusion, we cannot dismiss the term preemption unless and until we know that the administration knowingly lied about this threat. As a consequence, this paper employs the term preemption in a less rigid sense, as synonymous with prevention and anticipatory action. For more, see Noam Chomsky, Hegemony or Survival : America’s Quest for Global Dominance (New York: Henry Holt and Company, 2003), 12-14; and Lawrence Freeman, Deterrence (Malden, MA : Polity Press, 2004), 85-86.
[8] Important contributions along these lines include but are not limited to those of Noam Chomsky, Hegemony or Survival; Mahmood Mamdani, Good Muslim, Bad Muslim; and Robert J. Pauly and Tom Lansford, Strategic Preemption. For scholarship that focuses on the ways in which area studies mirrors and informs foreign policy objectives see Ben Wang, “The Cold War, Imperial Aesthetics, and Area Studies,” Ella Shohat, “Area Studies, Gender Studies, and the Cartographies of Knowledge,” and Jasbir K. Puar and Amit S. Rai “Monster, Terrorist, Fag: The War on Terrorism and the Production of Docile Patriots” all in Social Text 72: 9/11–A Public Emergency?
[9] Noam Chomsky indicates this symbiosis when he discusses the propaganda through which Reagan created support for Central American campaigns. See Hegemony or Survival, 5-8.
[10] Here I do not suggest that people of color commit no crimes, rather I point to the ways in which racial, cultural, and environmental factors go into plans to “get tough on” these offenders while rehabilitation and clemency are more available to offenders who better fit the innocence profile. (I borrow this last term from Patricia Williams, “Obstacle Illusions: The Cult of Racial Appearance” in Police Brutality, ed. Jill Nelson. (New York: Norton and Co. 2000), 154.
[11] I will discuss publications of Amnesty International and the American Civil Liberties Union later. At this moment, I would just note two examples from the scholarly literature in which “old” racial profiling has been subordinated to rather than articulated with terrorist profiling. In “Homeland Insecurities,” Muneer Ahmad writes, “Arabs, Muslims, and South Asians abandon[ed] African-Americans and Latinas/os when racial profiling was their issue[;] African-Americans and Latinos/as [are abandoning] Arabs, Muslims, and South Asians now that it no longer is” (Social Text 72, 107). In the same volume, Jasbir Puar and Amit Rai concur that “long-time surveillance of African-American and Caribbean American communities might have let up a bit after September 11.” Yet, they also rightly insist that terrorist profiling constitutes “the legitimation and expansion of techniques of racial profiling that were… perfected on black bodies” (Social Text 72, 140). As a consequence of these histories of persecution, black and brown residents are situated ambivalently in relation to the US state. To capitalize on that latent or suppressed ambivalence should be the aim of a comprehensive movement against preemptive violence.
[12] See Milton Heumann and Lance Cassak. Good Cop, Bad Cop: Racial Profiling and Competing Views of Justice. (New York: Peter Lang Publishing Inc. 2003), 16-22. While the searches have been upheld post-Terry, the courts have never ruled on the constitutionality of the stops that precede the searches.
[13] Heumann and Cassak, 25.
[14] Heumann and Cassak, 28.
[15] While minimizing airplane hijacking, the preventive measures of skyjacker profiling from the Nixon era remained largely within constitutional norms. See Heumann and Cassak, 30-31, for this successful and instructive blend of behaviorist and preventive profiling.
[16] Heumann and Cassak, 41.
[17] Heumann and Cassak quote two police officials who emphasized that a large number of stops was a crucial part of highway profiling strategy. See p. 74.
[18] Heumann and Cassak, ft.6, p. 207-08.
[19] Heumann and Cassak refer repeatedly to recent unwillingness among law enforcement to speak in favor of racial profiling. For one example, see Good Cop, p. 239, note 87. We should not, however, equate the silencing of race with the elimination of racial profiling strategies. After all, police and state government denied the practice even when internal communication revealed racial guilt as the prevailing presumption of anti-drug law enforcement.
[20] Black motorists accounted for only 17 percent of motorists, but accounted for 70 percent of the searches. 28.4 percent of these motorists possessed contraband. 28.8 percent of the white motorists stopped possessed contraband. See David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002), 79-80.
[21] Harris, 80.
[22] See Ron Daniels. “The Crisis of Police Brutality and Misconduct in America: The Causes and the Cure.” in Police
Brutality ed. Jill Nelson (New York: Norton 2002) 244.
[23] See George W. Bush and Albert
Gore’s responses to Jim Lehrer’s questions on racial profiling in transcripts archived at http://www.pbs.org/newshour/bb/election/2000debates/2ndebate3.html .
[24] Department of Justice guidelines from June 2003 condemn racial profiling as unconstitutional, prohibit it in domestic law enforcement, but carve out exceptions for it in issues related to national security. See Department of Justice, “Fact Sheet: Racial Profiling,” June 17, 2003, available at http://www.tsa.gov/interweb/assetlibrary/DOJ_racial_profiling.pdf . The language of the terrorist exception calls to mind Middle Easterners today but is also sufficiently malleable to be fitted to other enemies. I later provide a few examples of the ways in which “gang members,” an enemy from the War on Drugs are now depicted as “terrorists.”
[25] Eric Lichtblau reports:
Once they were stopped, Hispanic drivers were searched or had their vehicles searched by the police 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Blacks and Hispanics were also subjected to force or the threat of force more often than whites, and the police were much more likely to issue tickets to Hispanics rather than simply giving them a warning, the study found.
See “Profiling Report Leads to a Demotion.” The New York Times. August 24, 2005. Also available at http://www.nytimes.com/2005/08/24/politics/24profiling.html . While many states do not collect data on stops concerning the ethnic and religious populations labeled terrorist, some evidence suggests that these drivers are also subjected to the old suspicions for “driving while black or brown.” See Leadership Conference on Civil Rights, “Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001” (Washington DC: February 27,2003). Press release and access to full report available at http://www.civilrights.org/issues/cj/details.cfm?id=11614
[26] Both before and after 9/11, the Racial Profiling Prohibition Act of 2001 (RPPA) and the more recent End Racial Profiling Act of 2004 (ERPA) have failed even to reach the floors of either house for a vote. The President has not lobbied on behalf of these bills that would allow the federal government to withhold funds from states shown to be in violation of constitutional prohibitions against racial discrimination.
[27] “Wrong Then, Wrong Now” is a very useful archive of and argument for the links between racial and terrorist profiling. I am among many who owe the LCCR a debt of gratitude. My work only departs from it in two ways. First, I argue that the Bush administration does not genuinely oppose racial profiling and has always stopped short of proposals that would fully eradicate profiling as it is understood by its victims. Second, I echo the insistence that racial profiling must be banned at all levels of law enforcement—a ban backed up by economic incentives and sanctions from the federal government. But I add that reforms will not be comprehensive absent the better articulation of the related interests of the disparate victims of preemptive policing.
[28] Well, perhaps it is not so surprising, considering that the pamphlet takes the form of an open letter addressed to the black community from Laura W. Murphy, the first black woman to hold the prestigious position of director of the ACLU’s Washington Legislative Office.
[29] “A New Era of Discrimination?: Why African Americans Should Be Alarmed About the Ashcroft Terrorism Laws.” September 2003.
[30] The ACLU was probably responding to polls that showed black support for terrorist profiling. Polls immediately after 9/11 showed that “African-Americans, whose treatment by the criminal justice system gave rise to the phrase ‘racial profiling’ are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month’s terrorist attacks.” See Ann Scales, “Polls say Blacks Tend to Favor Checks” Boston Globe Boston, Mass. :Sep 30, 2001. p. A.16. In a longer version of this essay, I discuss the ambivalence that saturates black comedy’s depiction of Muslims as black and not-black. That such comedy is easily recognized by a wide swath of its black audience suggests that black folks know that 9/11 makes us complicit in and victimized preemptive violence directed against Islam.
[31] See, for but one example, Eric Lichtblau “Four Men in California Accused of Plotting Terrorist Attacks.” The New York Times, September 1, 2005. www.nytimes.com/2005/09/01/national/01terror.html . This article indicates that three of the accused are African-American inmates in California state prison. I say “indicates” because the article does not identify the three US citizens as black, but the names (Kevin James, Levar Washington, and Gregory Patterson), the prison context, and the inmates’ conversion to Islam suggest African-Americans to those familiar with blacks’ implication with the criminal justice system. In another famous case, the Nuyorican (New York/Puerto Rican) Jose Padilla’s career includes gang membership before conversion to Islam in prison and alleged terrorist activity in Pakistan. See http://news.bbc.co.uk/1/hi/world/americas/2037444.stm .
[32] See Michelle Garcia, “N.Y. Using Terrorism Law to Prosecute Street Gang,” The Washington Post, February 1, 2005; Page A03. Available at http://www.washingtonpost.com/wp-dyn/articles/A52504-2005Jan31.html?sub+AR .