Racial Profiling & Transportation Security - Learning From the Israeli Experience

The failure of the American intelligence agencies to prevent the attempted bombing of Northwest Airlines Flight 253 on Christmas day is mind-boggling. Given that the Nigerian terrorist raised so many red flags in advance of his actual boarding, the failure of American authorities to stop Umar Farouk Abdulmutallab from boarding the airplane is a shanda.

Among the many redolent clues lying about before the plane took off were the following facts:

• Abdulmutallab's father - a prominent Nigerian banker - warned the State Department that his son is being radicalized and had gone to Yemen;
• British authorities rejected his visa renewal request, and put him on a watch list;
• Abdulmutallab purchased a one-way ticket with cash;
• no luggage;
• An intercepted communication that US authorities had concerning a plot involving "the Nigerian" in Yemen.

Yet despite these warning signs, the American authorities and Northwest airlines allowed him to board a US-bound airplane. What gives serious cause for concern is not so much the now-famous "failure to connect the dots" (endorsed by President Obama), but the systemic failure of American law enforcement agencies to implement proper security policies and procedures. Because some law enforcement agencies are investing their resources in the wrong places and focusing on imaginary enemies, it is not surprising that they failed to focus on the real enemies.

It is time that American authorities consider what the Israeli security forces have long been implementing - unofficial, subtle profiling based on experience, logic and common sense. It is well-known that Israelis are world experts in transportation security. What is less obvious is that they use a variety of overt and covert methods, including the "politically-incorrect" racial profiling, to provide the best security procedures. Because they are also sensitive to privacy and civil rights issues, Israeli authorities often have to balance between security demands and civil rights and equality concerns, but they always prefer to err on the side of caution.

The Israeli law enforcement and intelligence agencies apply the following operating principles:

• Keep policies and procedures confidential because making them public automatically allows the terrorists to figure out ways to circumvent the system.
• Maintain a highly-trained security and intelligence apparatus, and allow security personnel wide discretion, including to conduct strip-searches, but not without supervision.
• Ask tons of questions, including what the Americans would consider "politically-incorrect" questions dealing with the person's background, education, previous travels, associations, and political activities.
• When in doubt, there is no doubt, i.e. prevent entrance/boarding first, and continue further questioning later. If it later becomes clear the person was denied boarding with no basis - they can be compensated monetarily.

Indeed, as an Israeli attorney, I represented a Jewish client who was denied boarding to an El Al flight based on her associations with Palestinian activists. We filed suit in an Israeli court. Realizing that a misunderstanding occurred, El Al settled and compensated her nicely. It turns out that the El Al security officials acted in a cautious way, perhaps overly cautious, but definitely legal. One cannot blame El Al officials for giving more weight to the security of the hundreds of passengers than to the possible civil rights concerns of one passenger who had some issues. And whatever anguish and inconvenience was suffered by my client was later remedied by significant monetary compensation without much legal hassle.

In May 2007, the Association for Civil Rights in Israel filed a petition to the High Court of Justice (HCJ 4797/07) requesting the Court to issue an injuction directed at the Israel Airports Authority and the Shin Bet Security Services "to cease determining the extent and scope of security checks that an Israeli citizen must undergo at airports based on the person's ethnic or national origin" (read the petition in Hebrew here).

The State Attorney justifiably refused to publicly release the procedures of the Israeli security agencies. As a result, this petition has been hanging in the Court for years without going anywhere. While the petition raises many valid arguments, claiming that the balance of interests in light of Basic Law: Human Dignity and Liberty must tilt toward eliminating racial profiling, I believe the Court will reject the petition. My prediction is that:
a) the Court will not force the Israeli intelligence and security agencies to reveal their methods and procedures, and
b) to the extent that the publicly-available evidence suggests there is racial profiling, the Justices will hold that as long as the questioning and searches, including strip-searches, are conducted in private and with utmost respect and dignity, they will not prohibit employing these practices based on racial profiling, and refuse to second-guess the security personnel on issues that are paramount to insure the safety of millions of passengers.