MacDonald on Rational Profiling

In my last post I noted Michelle Malkin’s exhaustive response to Eric Muller’s criticism of her book In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror and compared the internment of the Japanese in WWII as analyzed in Malkin’s book and response to Muller to Spencer MacDonald’s BYU Journal of Public Law article on rational profiling in America’s airports after 9/11 (in which, as Spencer has noted, he also made a brief comparison between the internment and profiling in airports).

In re-reading Spencer’s article, I was reminded of Spencer’s great example from Harrison Ford’s character in The Fugitive:

II. Richard Kimble: A Profiling Example

In the 1993 movie The Fugitive, Harrison Ford played Dr. Richard Kimble, an affluent Chicago surgeon who returns home one night to find his wife murdered and her murderer – a one-armed man – escaping. Kimble is charged with the crime, convicted, sent to prison, then escapes and spends the rest of the movie tracking down the one-armed man using a fairly straightforward methodology. First, he compares the type of prosthetic arm he had seen the murderer wearing to a hospital’s database and compiles a list of people who had been fitted with such a device. Kimble then uses other factors (such as the age of the patient, whether the prosthetic arm was on the right or left-hand, etc.) to narrow the list to five candidates. He then tracks down each candidate, one of whom turns out to be his wife’s murderer. The one-armed man is arrested and Kimble exonerated.

Perhaps Richard Kimble was on to something. Imagine what would have happened had Kimble conducted his search without considering “the one identifiable fact [he] knew about [the murderer].” He would have spent years searching the entire population of Chicago, two-armed and one-armed alike, male and female, young and old, black, white, Hispanic, Asian, and so on. Faced with such a daunting task, he likely would have given up his search and turned himself in to the U.S. Marshals.

Consider this example in light of the September 11 attacks. All nineteen hijackers were adult males of middle-eastern ethnicity. What might happen if America ignores the identifiable facts we know about hijackers? The FTSA must decide whether to modify current profiling procedures to include consideration of race, gender, and age. The following sections will discuss some of the legal arguments for and against such a policy, compare and contrast airport profiling to other instances of profiling, and explain current airport profiling procedures.

R. Spencer MacDonald, Rational Profiling in America’s Airports, 17 BYU J. Pub. L. 113, 115-16 (2002).

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