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With much fanfare and touting as a fulfillment of a campaign promise, President Bush this week signed an Executive Order "banning" racial profiling. Racial profiling is defined as using racial or ethnic stereotypes to target people for law enforcement "attention." Leaving aside for a moment, the absurd exception that the ban creates-for national security-(the exception that moots the rule), let me tell you why I think the order itself is a fraud, and an evil one at that.
It’s because of a document known as The Constitution. And a particular part of that document–The Bill of Rights– the first ten amendments to the Constitution, which was an afterthought to the Constitution that empowered a federal government. According to the Bill of Rights, racial profiling already is illegal. It is unconstitutional, in many ways, including:
The First Amendment protects the freedom to associate with people of your choice, the freedom to worship as you choose, the freedom to speak your mind, and to read what you want to read. It should protect you from being suspected, detained, arrested, and imprisoned because of who your friends are, what religion your practice, where you go to church, what you say about anything, and what you read.
The Fourth Amendment is supposed to protect us from unreasonable searches and seizures, and is supposed to give us the right to be secure in our homes and persons, unless a search warrant issues to invade our homes and bodies, the right not to be detained unreasonably.
The Fifth Amendment gives us due process of law-the right not to be arrested except upon probable cause, the right against self-incrimination.
The Sixth Amendment gives us the right to a fair trial with an impartial jury, the right to confront our accusers, and the right to have counsel represent us.
The Fourteenth Amendment applies all of the first 10 Amendments to the states, meaning, in this context, state law enforcement officers. And nowhere in those amendments will you see a "national security exception."
All of these guarantees have been violated repeatedly, hundreds of times over, since 9/11 and since Bush’s declaration of "war" on terror. Look no further than the report of the Inspector General of the Justice Department to read graphic detail of the nature and extent of these constitutional violations, all of them conducted in the interest of "national security." John Ashcroft’s response to the report was not only to make no apology (why isn’t he impeached?), but also to say that he would do it again!
The Patriot Act circumvents the Constitution by its breathtaking erosions of the Bill of Rights. Subsequent Executive Orders issued by Bush and Ashcroft further abrogated portions of the Bill of Rights, including orders relating to conducting surveillance of attorney-client communications, the detention of people without being charged with any crime and without access to counsel, trials held in secret, and detention of foreign citizens in prison camps (Guantanamo), just to name a few.
The Bush Administration has repeatedly acted unconstitutionally and the courts have repeatedly sanctioned such actions, including this week, when the DC Court of Appeals upheld the secret hearings, detention and deportation of hundreds of people of Middle Eastern, Arab, and Muslim descent after 9/11.
So why the ban on racial profiling, since Bush and Ashcroft are engaging in it wholesale and doing so with judicial sanction? The ban is more than pure politics-pandering to the black and other minority vote, as Bush prepares to fill his "war chest" with hundreds of millions of dollars. It is, in short, an order purporting to transcend, even abrogate, the Constitution. It says, law enforcement cannot engage in "racial profiling," except—-except-to protect national security.
If you have been paying attention for almost two years, you know that nothing is not national security. You know that your email, your mail, your books, your conversations, your prayers may be cause to brand you a terrorist. Because you may be thinking things or reading things that "threaten" national security (as this article, no doubt does, Bush and Ashcroft would argue).
So, in one "order," at once arrogant, bold, and evil, Bush has declared that it is lawful to violate the Constitution when he says it is-if you fit any racial or ethnic stereotype.
And his followers, and most un-thinking Americans, won’t know the difference. They think he did something worth applauding.
The ACLU knows better. The order, they say, is "little more than rhetorical smoke and mirrors that will legitimize and encourage the use of racial profiling at our borders, in our airports and anywhere else federal agent can apply vague and hollow justifications of national security."
George W. Bush, whose very presence in office is a violation of the Constitution in the grandest way-illegally appointed by the judiciary and not elected by the people-has, with one grand, appalling stroke, remanded the Bill of Rights. The Patriot Act was a precursor to this atrocious act. We all should fear what Bush (and Ashcroft) are planning as a curtain call.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch under the auspices of The City Pages. She can be reached at: firstname.lastname@example.org