“We’re allowing these people to come into our country and destroy our country, and make it unsafe for people. We don’t want to do any profiling. If somebody looks like he’s got a massive bomb on his back, we won’t go up to that person … because if he looks like he comes from that part of the world, we’re not allowed to profile. Give me a break.”
— Donald Trump, interview on “Fox and Friends, Sept. 19, 2016
After the explosions in New York, Donald Trump complained about restrictive policies that he said do not allow “profiling” of potential terrorists on ethnic grounds. Under profiling, law enforcement officers target people based on their race or ethnicity or other factors on the grounds that certain minority groups are more likely to commit crimes.
Oddly, as our colleagues at PolitiFact found, Trump has also falsely claimed that he never said he wanted to profile Muslims, just “people that maybe look suspicious.” Trump also approvingly cites Israeli policies, which allows for the profiling of Arabs and also Ethiopian Jews, but Israel, a much smaller country, has a serious problem with Palestinian terrorism. So he’s being inconsistent, as he’s either for profiling of Muslims (the Israeli model) or not.
But Trump also gets the rules wrong. Profiling to prevent terrorism is permitted, with some restrictions, under policies first set by President George W. Bush and affirmed by President Obama.
First of all, if someone is carrying what looks like “a massive bomb” on their back, police are going to ask questions. There is no need for profiling in the first place. There is a clear basis for approaching a person who appears to be carrying a bomb, no matter what the ethnicity, religion or race.
If there is just a person with a backpack, and no credible information suggesting such a threat was unfolding in a particular area, it would be more difficult to make the case that a person must be stopped because they appear to be from a particular ethnic group. But presumably that’s not what Trump is talking about. (As usual, his campaign did not respond to a query for an explanation of his remarks.)
As the Congressional Research Service noted in a 2012 report, the Fourth Amendment of the U.S. Constitution, prohibiting unreasonable search and seizure, and the 14th Amendment, allowing for equal protection under the law, have led to court rulings that have limited the use of profiling against racial and ethnic groups. However, exceptions have developed.
In 2001, shortly after taking office and before the Sept. 11 attacks, Bush ordered a review by the Justice Department on how to end racial profiling. In 2003, Bush issued a ban on the practice by federal agencies – with the exception of using profiling to combat terrorism and to screen airline passengers and people at border crossings and immigration checkpoints.
In 2014, Obama issued his own policy, broadening the definition of racial profiling to include such characteristics as sexual orientation and gender identity. But he kept the carve-out to combat terrorist threats, screen airline passengers and people at border crossings and immigration checkpoints.
So a listed characteristic cannot be used by a police officer as a factor to pull over a car. But there are three factors that can allow the use of generalized stereotypes:
- The information must be relevant to the locality or time frame of the criminal activity, threat to national or homeland security, violation of federal immigration law or authorized intelligence activity.
- The information must be trustworthy.
- The information concerning identifying listed characteristics must be tied to a particular criminal incident, a particular criminal scheme, a particular criminal organization, a threat to national or homeland security, a violation of federal immigration law or an authorized intelligence activity.
The Justice Department guidance gives specific examples, such as tracking members of an ethnic insurgent group present in the United States after receiving reliable information that the group plans an attack.
The Pinocchio Test
As usual, Trump’s actual policy position is a bit of fog. He denies he wants to profile Muslims, while at the same time says the model for the United States should be Israel, which profiles Arabs. (Wink, wink.)
But Trump also wrongly claims that that the United States does not allow profiling. In fact, profiling is permitted to screen airline passengers and immigrants – and law enforcement can use it to combat terrorist threats. From the context of his remarks, those are the situations that he is describing when he says profiling is not permitted. We wavered between Three Pinocchio and Four Pinocchios, but ultimately tipped to Four, given the inability of his staff to explain what he has in mind.
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