TSA Stepping Up Religious/Ethnic Profiling, Legally -- But It's Ineffective

The TSA has just taken a further step in legally using religious and ethnic profiling to help stop terrorists ["terrorist profiling"], but because it's mostly indirect, it's still very ineffective from both mathematical and real world perspectives.
By: Law Professor John Banzhaf
Jan. 6, 2010 - PRLog -- TSA Stepping Up Religious/Ethnic Profiling, Legally
But It's Indirect, Denied and Disguised, So It's Ineffective

The TSA has just taken a further step in legally using religious and ethnic profiling to help stop terrorists ["terrorist profiling"], but because it's mostly indirect, it's still very ineffective from both mathematical and real world perspectives, says mathematically-trained public interest law professor John Banzhaf, the creator of the "Banzhaf Index" who has been recognized for his work in game theory, and who has testified as an expert witness.  Here's why, he explains.

First, the recent inadvertent disclosure of the TSA's procedures manual showed that the agency was then indirectly profiling on the basis of religion by automatically selecting for secondary screening all passengers from 12 named countries.  Aside from 2 Communist nations, all of the others have large Muslim populations, including 8 which are at least 90% Muslim. This obviously isn't due to mere coincidence, he says, but rather represents indirect screening based upon religion.  Mathematicians and statisticians describe this procedure as using the factor of national origin as a "proxy" -- or proxy variable -- for the underlying factor of religion.

Second, under new procedures triggered by the Christmas bomber, international passengers flying or holding passports from 14 countries -- now including Nigeria and Yemen -- will all be automatically selected for secondary screening.  Aside from Cuba, all are Muslim, with most of the 13 having a Muslim population of at least 90%.  Also, 8 of the 13 are also regarded as Arabic countries.  Thus the inference of TSA profiling based upon both religion and ethnicity is even stronger.

Both CAIR and the ACLU have called it "religious and ethnic profiling," but TSA denies this, claiming:  "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background."  Prof. Banzhaf agrees that it is profiling, but argues that it's perfectly legal and constitutional, and that refusal to do so openly and more effectively amounts to a continuing "screw up" in the words of President Obama, and sacrificing effective national security and anti-terrorism on the alter of political correctness.

Third, the Washington Post has just reported that, "under the new guidelines, if foreigners' names are on a catchall terrorism-related list and they fit certain age and nationality criteria, their names could be added to the government's master watch list, which would prompt further scrutiny." This move explicitly adds age to the list of profiling factors upon which security decisions will be made, and possibly lead to their being denied entry into the U.S., or even being able to fly.

It only makes sense to use factors like religion, ethnicity, age, and gender (since most airline terrorists have been male) in selecting or profiling candidates for secondary screening, since these factors very substantially increase the probability of passengers in the group being terrorists, says Banzhaf.  A recent mathematical study shows that providing more attention to those with the highest probability of being bomb-carriers is the only way TSA screenings can be conducted effectively.

He notes that while we readily accept that passengers with certain other characteristics (e.g., paying cash for one-way tickets) should be selected for secondary screening with a much higher probability -- even though the great majority of them are not terrorists -- we have trouble realizing that the same argument should apply to young men who are Muslims and/or Arabs.  Some think it may be illegal to single them out, but the TSA is already doing this indirectly and in an ineffective disguised manner, and the Justice Department has ruled that it is constitutional to consider factors like race and ethnicity, provided other factors are also utilized.

One reason the new screening protocols for passengers flying from foreign countries is ineffective is that they are over-inclusive, says Prof. Banzhaf.  Scarce valuable resources (e.g., body imaging devices, "puffer" explosives detectors, and even body searching by hand) are employed on mothers with infants, toddlers, and elderly women from those 14 countries, even though the probability of any of them being bomb-carrying terrorists is very small.

On the other hand, the new rules are ineffective because they are very under inclusive.  They do not require a higher probability of secondary screening for young Arab or Muslim males from countries other than the suspect 14, even if -- like Great Britain, France, and many other nations -- there has been considerable terrorist activity there.  The new rules also apparently do not apply to any passenger -- including young Arab males, Nigerians, Yemenis, etc. -- who are already in the U.S. and flying domestically.  Thus there's little chance they would be detected smuggling non-metallic bombs and explosives onto domestic flights.

Public interest law professor John Banzhaf has, among other things, brought and won more than 100 legal actions against illegal discrimination, including one involving discrimination against citizens of Iran.  "I've fought illegal discrimination all my life, but recognize that discrimination in some instances is both perfectly legal and absolutely necessary, something even Muslims are beginning to understand and accept," he says.

For example, Khalid Mahmood, the Labour MP for Birmingham Perry Barr, agreed that it had become necessary to 'profile' passengers from certain racial and religious groups in order to weed out possible terror suspects. "I think most people would rather be profiled than blown up. . . . Profiling may have to be the price we have to pay. The fact is the majority of people who have carried out or planned these terror attacks have been Muslims."

Banzhaf also notes that his university, like many others, engages in racial profiling by giving preference in student admissions to blacks and Hispanics over whites and Asians.  But the U.S. Supreme Court has ruled that it is constitutional to do this to help achieve a compelling governmental interest: a more diverse student body.

Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
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Tags:Racial Profiling, Tsa, Terrorism, Screening, Banzhaf, Bomb, Airline, Airport, Discrimination, Cair, Aclu, Procedures
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