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"Distinctions between citizens solely because
of their ancestry are by their very nature odious to a
free people whose institutions are founded upon the doctrine
of equality."
Harlan Stone, Hirabayashi v. United States,
320 U.S. 81 (1943).
The tragic events of September
11 have left an indelible scar of sadness, fear, and anger on
the psyche of many Americans who watched and listened in horror
and disbelief as our homeland was repeatedly violated by extremists.
Since that dreadful day, there has been a lot of discussion around
the watercooler about what should be our response to those who
clearly mean us nothing but harm. Not surprisingly, with emotions
running especially high at this time, there are those who believe
we should obliterate any person or country that can be deemed
"against us." On the opposite end of the spectrum
there are those who feel it would be imprudent for America to
take any military action that could possibly escalate
the situation. As part of this national debate, some have suggested
that we should also use "ethnic profiling" here at
home to combat terrorism by "them." I must confess
that I often find myself wondering who do we mean by "them"?
In only weeks after September 11, it has become politically correct
and even fashionable in some circles to discuss using ethnic
profiling as a legitimate and societal tool to combat terrorism.
When we talk about getting "them" by using ethnic profiling
here at home, whom do we think we are talking about? Immigrants?
Muslims? The over 3 million Arab-Americans that call the United
States home? While I, for one, would strongly support any reasonable,
targeted, and measured external response by the United States
against terrorism, it seems to me that we should be extremely
leery of any proposals that risk pitting American citizens against
other American citizens based solely upon their ancestry or physical
appearance.
Even if we wanted to implement such a policy, based on our fears
and anger, how we do we identify "them"? The senseless
and random shooting and harassment over the last few weeks across
this country of brown-skinned Americans who supposedly look
to be Arab shows that we can't tell an Arab from an East Indian.
If we were to ethnically target Arab-Americans, would we distinguish
those whose faith is Muslim (23%) from those of the Roman Catholic
faith (42%), or the Protestant faith (12%)? Or, would we dispense
with these obstacles by simply casting a broad net and subjecting
all brown-skinned Americans and non-Americans to ethnic profiling
if they even remotely appear to be from the Middle East or Central
Asia?
Legally and institutionally sanctioning ethnic profiling is one
of the surest ways to divide Americans against Americans and
plays directly into the hands of those who hate our way of life.
Ethnic profiling, along with racial profiling, is nothing less
than an affront and assault on our principles of equality, fair
play, and justice. I see nothing good coming from having a United
States Congressman in his statewide radio address talking about
ethnically profiling all Americans with "…a fan belt
around the diaper on their head." Or, having Americans
vote other Americans off an airplane solely because of their
physical features. This type of talk and policy only feeds into
the hands of those who would divide us and has the unintended
effect of once again creating second-class American citizens
based solely upon their race, religion, or ancestry.
As a country, we should avoid repeating the ill-guided past of
using ethnic and racial profiling as a branding iron to separate
good Americans from evil Americans. To understand how misguided
ethnic profiling is, we need look no further than the internment
of over 100,000 Japanese-Americans right after the bombing of
Pearl Harbor. Many of those imprisoned were born here and lived
here all their lives. Then, as now, people claimed that ethnic
profiling was necessary for our national security. If that was
the case, I can't help but wonder why German-Americans and Italian-Americans
were not also interned since the United States was also at war
with Germany and its ally, Italy. Why the double standard?
Forty years later, the Commission on Wartime Relocation and Internment
of Civilians concluded that a "grave injustice" was
perpetrated on Japanese-Americans. As lawyers, we must be willing
to stand up and guard against, our own fears and anger, that
would allow us to repeat our historical mistake and create second-class
American citizens.
There are obviously no easy answers to the legitimate question
of how do we go about aggressively protecting ourselves from
those who are willing to do anything to destroy our way of life.
However, I do know that the answer does not lie in repeating
history, turning on ourselves, and treating those who look different
from us as the enemy. The only thing I know for certain is that
we need our government to develop and implement national policies
that protect us against all forms of terrorism regardless
of the person's ethnic, racial, or religious background. When
I get on an airplane or enter a large public building, I want
to know that our government has taken every reasonable precaution
to protect us against the Mohamed Attas of the world as well
as, equally, the Timothy McVeighs!
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JARVIS C. JONES is president
of the Minnesota State Bar Association. An attorney with experience
in business and in private practice, he now serves as an executive
with the St. Paul Companies, where he is responsible for a new
start-up business.
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