The data led to a widespread societal consensus against racial profiling, as well as state laws and police policies barring the practice. In 2003, the Department of Justice issued guidance prohibiting racial and ethnic profiling by federal law enforcement agencies, which it characterized as “invidious discrimination” undermining our commitment to liberty and justice for all.
Since 9/11, law enforcement officials have targeted Muslims for increased scrutiny without any basis to suspect wrongdoing. The New York City Police Department’s (NYPD) years-long operation to map and monitor Muslims’ everyday lives, infiltrate mosques to keep tabs on how Muslims worship, and track Muslim student groups at universities from Yale to Brooklyn College is just the most egregious example. The FBI has conducted similar mapping programs and, as revealed in court cases in New York and California, sent informants to conduct general surveillance at mosques. At the border, customs officials have asked American Muslims returning home questions such as: “What is your religion?” “What mosque do you attend?” “How often do you pray?” “Why did you convert to Islam?” and “Do you recruit people for Islam?”
Such practices appear linked to a belief that religiosity among Muslims is a sign of potential terrorism. Both the NYPD and the FBI have produced analyses that purport to identify behaviors exhibited by individuals on the path to becoming terrorists. Many of these behaviors -- which police are encouraged to look for -- are standard religious practices shared by millions of American Muslims, including growing a beard, frequently attending a mosque, and giving up alcohol and cigarettes.
Like racial profiling, religious profiling is “invidious discrimination” that is inimical to America’s founding principles. The first settlers and many of our ancestors came here fleeing religious persecution, and the free exercise of religion is the first individual right enshrined in the Constitution. But when police openly use the practice of Islam as a proxy for terrorist tendencies, American Muslims hesitate to pray at mosques and sometimes even try to hide their religious identity.
Religious profiling is also ineffective. Terrorists come from diverse backgrounds and, as law enforcement officials acknowledge, are aware of profiles and how to avoid them. As they comprise a miniscule fraction of any given religion or ethnicity, it’s unlikely that programs focusing on entire communities will be successful in identifying terrorists. For example, there is no evidence that the NYPD’s infiltration of mosques uncovered any terrorist plots that did not originate with the police themselves. Moreover, as with racial profiling, religious profiling alienates those profiled -- in this case, American Muslims. This is a step backward for counterterrorism efforts, as the cooperation of Muslim communities has been crucial to foiling some 35 percent of recent terrorist plots.
Religious profiling, like racial profiling, perpetuates negative stereotypes held by the public. In a recent Gallup poll, most Americans held an unfavorable view of Islam. Many state legislatures are considering “anti-Sharia” legislation that would come close to criminalizing the practice of Islam. American Muslims’ efforts to build mosques where their families and communities can gather have encountered protests, lawsuits, and even zoning law changes. Most disturbing, the FBI reports that there were over 1,500 hate crimes against Muslims between 2001 and 2009 -- the brutal murder of Shaima Alawadi, a mother of five, being only the most recent example.
Our law enforcement agencies have a solemn responsibility to keep us safe. Nevertheless religious profiling, like racial profiling, betrays our values without any benefit to our security. Instead of relying on stereotypes, law enforcement officials should focus on signs of actual criminal conduct. And they should build strong, trusting relationships with American Muslim communities -- relationships that will enable us to more effectively fight our common enemy.
Goitein and Patel direct the Liberty & National Security Program at the Brennan Center for Justice at the New York University School of Law.