Shift in Emphasis Seems Only Logical, and Also Constitutional - Expert
The Department of Justice has for years, in many different documents, recognized that race or religion may be considered in countering terrorism, even though such factors generally cannot be used in routine law enforcement activities such as traffic stops of stop-and-frisk programs.
For example the agency has determined that "in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement should not be expected to disregard such facts in taking investigative or preventive steps aimed at the organization's activities."
"A terrorist organization that is made up of members of a particular ethnicity sets off a bomb in a foreign country. There is no specific information that the organization is currently a threat to the United States. To gain intelligence on the evolving threat posed by the organization, and to gain insight into its intentions regarding the U.S. homeland and U.S. interests, the FBI may properly consider ethnicity when developing sources with information that could assist the FBI in mitigating any potential threat from the organization."
Previously the Justice Department wrote that "in investigating or preventing threats to national security or other catastrophic events . . . Federal law enforcement officers may consider race except in narrow situations where the Constitution prohibits it."
Government agencies have frequently set up separate entities to concentrate specific law enforcement skills (e.g., language fluency), contacts among the relevant groups (e.g., Colombian drug smugglers), background knowledge and other resources related to specific groups such as the Italian Mafia, Chinese Triads, Japanese Yakuza, Mexican gangs, etc.
Whether they do it as separate entities (e.g. task forces) within a larger department, or refer to them as separate programs with different names, seems to make little legal difference, suggests Banzhaf.
Even though both white nationalist and radical Islamist groups have engaged in terrorist acts, those conducted by the latter seems to be more deadly and dangerous, especially if one considers the many foreign countries with which we cooperate and exchange terrorist information.
So it would not be illogical or illegal for the president to decide to concentrate on one, even to the temporary exclusion of another, says Banzhaf.
Going even further, it would be quite illogical to have the same program trying to prevent terrorism by both radical Islamists and white nationalists, suggests Banzhaf.
The former tasks would require many people fluent in Arabic who also understand the Koran.
Very different agents who understand the ideology and beliefs of white supremacists would be required for effective investigation of the latter, he says.
So a program focused on what many believe is the most dangerous threat would be both legal and logical he concludes, although there may be arguments of policy and practicality against it.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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