In Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, Murad Hussain moves beyond the longstanding concern with governmental profiling on the basis of racial or religious group status. Hussain contends that antiterrorism profiling on the basis of religiously inspired conduct or cultural practices may also inflict “pervasive dignitary and stigmatic harms upon the Muslim American community.” Hussain proposes a doctrinal remedy for courts’ failure to address such group harms.

Hussain’s insightful analysis is far-reaching. But it does not reach far enough. He does not acknowledge that Muslim Americans may be substantially burdened even by investigative practices that do not entail any form of profiling. Moreover, his proposed doctrinal fix fails to recognize the legitimate anxiety about the judicial role that may underlie courts’ disinclination to invalidate antiterrorism measures that impose group harms.

I. Group Harms Beyond Profiling

Hussain usefully moves the analysis beyond the well-documented harms of status-based profiling. He shows that even antiterrorism practices that do not rely on status-based profiling may burden the Muslim community. For example, government investigation of individuals who participate in certain Muslim religious rituals would not constitute status-based profiling, but it could pressure many Muslims to avoid expressions of religious commitment and incline non-Muslims to view devout Muslims with suspicion. Such conduct-based profiling, when widely used in various settings, can stigmatize Muslim identity and religious practices, nourishing among Muslim Americans feelings of resentment and bitterness and creating a climate conducive to the many acts of anti-Muslim violence since 9/11. The fact that nearly all of the Muslims investigated are innocent would not reduce the stigma if their having been investigated remains more salient in the public mind than their eventual exoneration.

However, such group harms might arise even if government agents do not engage in any sort of profiling. Suppose that airline security personnel intensively question those individuals who match some key aspects of descriptions of known or suspected terrorists—for example, sex, surname, and nationality. This sort of suspect selection process is a long way from a paradigmatic instance of profiling. The government agents would not be relying on any stereotype of Muslims as terrorists, nor on any analogous presumption about particular cultural or religious practices. Rather, the agents would be using descriptions of suspected terrorists in order to apprehend them. In previous work, I have described this sort of practice as suspect description reliance.

Any practice in which the authorities are attempting to locate specific individuals may be viewed as a species of suspect description reliance. Consider the investigation that gave rise to Tabbaa v. Chertoff, in which government agents questioned attendees at a number of Muslim conferences. If antiterrorism agents knew that a suspected terrorist would be at a particular Muslim conference, would the questioning of a large number of conference attendees constitute profiling? No more so than would the questioning of attendees at a State Fair if the authorities had information that a terrorist cell would be meeting there.

One response to this claim would be to argue that the questioning of attendees at a Muslim conference is “really” a form of religious profiling, not suspect description reliance. There is little to be gained, though, from trying to figure out to which category a specific practice belongs. Group harms may arise from either type of practice and are no less burdensome if they result from suspect description reliance than from profiling. Just as conduct-based profiling may impose the sort of group harms typically associated with status-based profiling, so too may suspect description reliance. There is little reason to only discuss, or be concerned about, such harms when they result from some form of profiling. Analyzing group harms as though they are confined to profiling makes them seem less pervasive and intractable than they in fact are. What matters are the group burdens themselves, not whether they result from profiling or suspect description reliance.

The harms that concern Hussain in fact reflect a dilemma not limited to profiling. Whenever government agents cannot identify wrongdoers with certainty, innocent people will be burdened. Whenever the authorities attempt to apprehend a large number of wrongdoers who are members of the same social group, then innocent members of that social group will be disproportionately burdened. Stigma, stereotypes, and bitterness may all be exacerbated. In the antiterrorism context, uncertainty is inevitable, and the costs of that uncertainty will fall especially harshly on Muslim Americans. Muslims will be especially burdened by antiterrorism efforts because although few Muslims are terrorists, practically all the terrorists (at least the ones of which we are aware) are Muslim. Group burdens are lamentable, but they are also often the result of rational investigative practices.

II. The Boundaries of the Judicial Role

Courts’ evaluation of the constitutionality of antiterrorism measures focus on discrete individual rights, a calculus in which group harms tend not to figure prominently. There is good reason to be troubled by courts’ failure to recognize the group harms of antiterrorism efforts. Judicial silence may make it seem as though such harms do not exist. The judicial eclipse of group harms may, in turn, buttress the facile assumption that if no individual rights are violated, then there could be no plausible claim that a challenged practice is unfair. Judicial silence thus may paradoxically render the group harms of antiterrorism efforts both invisible and seemingly legitimate.

Yet such judicial passivity is far from a simple and remediable feature of constitutional doctrine. It reflects a deeper, and legitimate, anxiety about the limits of judicial competence. Evaluating group harms is tricky because however real such harms may be, they are also unquestionably difficult to quantify. A court that acknowledges the existence of such harms would then have to make some assessment of their magnitude. A further complication is that group harms often result not from a single practice so much as the cumulative effect of a multitude of government measures. A practice whose harm, in isolation, might seem de minimis could interact with other practices in a way that substantially burdens the Muslim community. Thus, a diligent judge who wants to take full account of group harms would consider the interplay of the challenged practice with myriad other governmental practices over which the court is powerless. The empirical challenges are daunting. A court would have to consider the extent to which a challenged practice combines with other practices to contribute to the stigmatization of Muslims and to social division.

Burdens, of course, are only a part of the calculus, as courts would also need to weigh the benefits of the challenged practice. Such an inquiry would entail evaluation not only of the efficacy of the specific practice at issue, but also an assessment of the weightiness of the government interests that the practice purportedly furthers. In a case like Tabbaa v. Chertoff, the court would need to determine both the likelihood that the questioning of conference attendees would lead to the apprehension of a suspected terrorist, as well as the importance of apprehension. This would be a complicated empirical inquiry.

Balancing such costs and benefits would also demand normative judgments. Even if a court could define precisely the benefits and burdens of a challenged practice, the court would still need some formula for factoring group harms into the calculus. The court would have to decide when the concentration of the costs on one particular group is too great to justify the practice. Would a challenged practice be absolutely precluded once group harms exceed a certain threshold? Or would the fact that the burdens are concentrated on Muslim Americans simply be accorded some extra weight in the calculus?

It is easy to see why courts might be hesitant to undertake this sort of balancing test. Do judges have the tools to evaluate the social consequences of the interaction of a wide assortment of governmental antiterrorism measures? And on what basis might a judge decide how much group harm is sufficient to warrant invalidation of a governmental practice whose purpose is unquestionably legitimate and weighty? Such inquiries may seem more the function of a legislative or administrative body than a judicial one.

One need not have an especially narrow conception of the judicial role to think that courts should not be making these sorts of decisions. There would be no way for a court to invalidate a practice due to its group harms without, implicitly at least, having decided both the weight of an unquestionably legitimate governmental interest and the extent to which a particular group can, in fairness, be asked to bear the burden of realizing that collective goal. Because such judgments approach the principled and pragmatic limits of judicial decision making, courts are understandably disinclined to invalidate practices on the basis of their group harms. One virtue of the individual rights emphasis of constitutional criminal procedure and of equal protection doctrine is that it frames judicial decision making in a way that assuages anxiety about the judicial role.

III. Our Challenge

To say that courts should not be prohibiting antiterrorism practices based on their assessment of the relevant costs and benefits is not to suggest that group-based harms are either trivial or irrelevant. Quite the contrary, our great challenge—one that must be confronted by policymakers and an engaged citizenry, as well as the courts—is to successfully avert future acts of terrorism while heeding Hussain’s plea to do so “without branding a single segment of society as presumptively disloyal.” If we cannot accomplish that task, then we will have sacrificed one of the ideals that, ultimately, we should be fighting to preserve.

R. Richard Banks is Jackson Eli Reynolds Professor of Law at Stanford law School. He has written and lectured widely about racial profiling, both in drug interdiction and antiterrorism contexts.

Preferred Citation: R. Richard Banks, Group Harms in Antiterrorism Efforts: A Pervasive Problem with No Simple Solution, 117 Yale L.J. Pocket Part 198 (2008), http://yalelawjournal.org/forum/group-harms-in-antiterrorism-efforts-a-pervasive-problem-with-no-simple-solution.