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September|October 2003
The Practitioner By Benjamin Smith
The Real Harm By Gabrielle S. Friedman
Standard bearer By Fred Strebeigh
A Bigger Tent By Katharine Mieszkowski
Profiling's Gender Gap By Daniel Brook
Coming Out to America By Tyler Maroney
The Love Charm A Story By Eugene Volokh
Ex Offender By Robert J.
In Defense Of Prostitution By Heidi Fleiss as told to Nadya Labi
My Gay Divorce By Laurie Essig

Profiling's Gender Gap

If a woman can do anything a man can do, doesn't that include terrorism?

By Daniel Brook

LAST MARCH, YAHYA AND HIFZA JALIL, A PAKISTANI COUPLE, flew into Newark Liberty International Airport after a job-hunting trip in London. Hifza, a student at Drexel University in Philadelphia, glided through immigration, but her husband Yahya, who studies at the University of Pennsylvania's Wharton School, ran into trouble. Officials at the airport told him that he had not properly registered with immigration authorities, as required by the National Security Entry Exit Registration System, or NSEERS (pronounced "EN-seers"), as it's come to be known.

The Justice Department designed the program to keep tabs on individuals already in the United States who fit the profile of the September 11 hijackers. Many of the hijackers were here on student visas, as Yahya Jalil was. NSEERS requires visa holders over 16 years of age from 24 Muslim countries (and North Korea) to register with the Bureau of Citizenship and Immigration Services (BCIS), the federal agency formerly known as the INS.

Jalil had complied with the new regulations and had been duly fingerprinted and interviewed. He had failed, however, to register again before his flight to London, a requirement he claims he was not made aware of. (He blames United Airlines for not properly informing him; airline officials deny having any responsibility to inform him of his responsibilities—they say that's BCIS's job.) After holding him in Newark for several hours, BCIS informed Jalil that he could either go back to London or go to jail in the United States. He chose to go back to London. From there, he returned to Pakistan so he could reapply for a student visa.

Jalil was eventually able to come back to the United States, but only after more than two months of bureaucratic wrangling, leaving him unable to complete his MBA in time for his scheduled May graduation. His wife Hifza, meanwhile, had been readmitted immediately upon arriving back from the London trip—because the NSEERS regulations apply only to men.

Much attention has been paid to racial profiling, both as a police tactic and as a security measure, but gender profiling seems to have avoided similar scrutiny. "I must admit I haven't thought much about it analytically because it seems to me to so inherently make sense," said Paul Rosenzweig, senior legal research fellow at the Heritage Foundation, when asked about NSEERS's men's club. The system, he shrugged, is based on the "factual premise that virtually all terrorists are male."

Yet Justice Department officials won't explicitly say that this is the reason for the gender distinction. Since September 11, the Bush Administration has approached profiling cautiously; the federal ban on racial profiling issued by President Bush in June exempted national security matters, leaving federal agents free to use profiling to investigate terrorism. Authorities have even taken pains to make NSEERS seem like an equal opportunity program, registering non-Muslims as well as Muslims from the specified countries. Christians from countries like Indonesia, for example, must register even though many of them left their homelands to escape the Islamic fundamentalist movements that now concern the United States.

So why did NSEERS leave out women? Bill Strassberger, a spokesman for the Department of Homeland Security, which took over the administration of the program in April, said that "in order to efficiently use the resources available to register people, it was important to focus on those who presented the highest risk based on information that had been developed."

NSEERS HAS SOME STAUNCH OPPONENTS, particularly civil liberties groups such as the ACLU, which condemns profiling of any stripe. "We just feel like the whole concept of profiling is abhorrent all around," said Dalia Hashad, who works at the ACLU's Campaign Against Racial Profiling. The fact that women aren't required to register, she points out, doesn't mean that the policy doesn't affect them: "We're seeing women with the main breadwinner in detention, with the main breadwinner going through deportation hearings." As of this May, 16 percent of the more than 82,000 men who had registered since 2002 had been put into removal proceedings, which almost always result in deportation. The wives of these men have had to decide whether to stay in the United States or to follow their husbands back to the country they've left behind. "There are thousands of women around the nation facing these impossible choices," Hashad said.

David A. Harris, a professor at the University of Toledo College of Law, also objects to gender profiling, primarily because he doesn't think the practice is very effective. Harris, the author of Profiles in Injustice: Why Racial Profiling Cannot Work, has argued that profiling actually makes law enforcement agents less likely to catch criminals. He believes that they are forced to cast too wide a net, so as to scrutinize everyone who fits the profile, and irrationally exclude those who don't fit the profile, whatever it may be. "All those people who fit the profile because of race or ethnicity have to be investigated and that just makes no sense," he said. "We don't have unlimited resources."

Harris cites another instance of gender profiling. In the late 1990s, U.S. Customs, cracking down on drug smuggling, developed a set of search guidelines that in practice caused black women returning from the Caribbean to be stopped more frequently than any other group. After a series of complaints (the search rooms "had more in common with a gynecologist's office than a customs office," according to Harris) and a GAO report detailing the guidelines' undesirable effects, customs agents abandoned them. As a result, they decreased their number of searches by 75 percent and nearly quadrupled their rate of busts. Instead of profiling, customs agents began relying on observation of nervous behavior, bulges in clothing, and drug-sniffing dogs.

A further problem with profiling, critics note, is that once the quarry knows the profile, chances are he will do his best to avoid it. Richard Reid, the Islamic fundamentalist terrorist who tried to detonate a bomb in his shoe in December 2001 on a flight from Paris to Miami, did so as a British subject, not a Middle Easterner on a U.S. student visa. In Israel, Palestinian terrorists have begun disguising themselves as non-Arabs, using Israeli military uniforms or the head-to-toe black garb of ultra-Orthodox Jewish men. Another good way to avoid fitting the profile is by being a woman: Terrorist groups in the Middle East have increasingly been using women as suicide bombers since the start of the latest Intifada three years ago, in large part to avoid detection by police and military patrolmen suspicious of Arab men.

Can U.S. authorities assume from Al Qaeda's fundamentalist ideology that the group would not consider it permissible for women to take part in attacks? Most female suicide bombers in the Middle East are affiliated with secular groups like Fatah, but a few have been recruited by Islamist groups, including Palestinian Islamic Jihad and Hamas, which have ideologies similar to Al Qaeda's. The outlook of a group like Hamas, which requires women to wear the hijab, the traditional Islamic headscarf (and condones assaults on those who don't), does not put them at the forefront of the struggle for women's rights in the Arab world, but these groups have endorsed a woman's equal right to participate in terrorism. As Abdel Aziz Rantisi, a Hamas spokesman, said in an interview on Arabic television, "There is no reason that the perpetration of suicide attacks should be monopolized by men."

Daniel Brook, a staff writer at The Philadelphia City Paper, last wrote for Legal Affairs about faith-based prisons.

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