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592 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
for Border Patrol officers to consider when determining whether to
conduct an investigatory traffic stop. 157
Senator Feingold insists that September 11th “cannot be an excuse
for continued delay in dealing with the problem of racial profiling.”
158 However, the federal response to the attacks of September
11th was to systematically profile men of Middle Eastern or South
Asian origin. 159 This set back the achievements of those opposed to
racial profiling and indirectly encouraged private discrimination
against these targeted communities. 160 Under the heightened threat of
terrorism, many scholars and advocates fear that the public considers
freedom from racial profiling to be a civil liberty it can live
without. 161
The ERPA, however, has not lost its popularity with human
rights and civil liberties organizations. 162 This is undoubtedly because
studies confirm that African Americans are routinely stopped for
157. None of the versions of the ERPA or the subcommittee hearing mentions an
allowance for consideration of racial appearance in decisions whether to make a stop.
See ERPA of 2007, S. 2481; ERPA of 2005, S. 2138; ERPA of 2004, S. 2132; ERPA
of 2001, S. 989; ERPA Hearing, supra note 94. See generally Brignoni-Ponce, 422 R
U.S. at 886–87.
158. Russell Feingold, Op-Ed., Congress Must Devote More Energy to Civil Rights,
ATLANTA J.-CONST., Dec. 24, 2002, at A15 (“We need improved intelligence and law
enforcement, not racial stereotypes, to protect our nation from future terrorist
attacks.”).
159. See Akram & Johnson, supra note 102, at 295–96; Bali, supra note 64, at 164. R
For example, in 2002, Attorney John Ashcroft implemented “special registration” requirements
for non-immigrant aliens (such as people in the United States on a student,
business, or tourist visa) from certain designated countries. Registration and Fingerprinting,
8 C.F.R. 264.1(f) (2008). Citizens of the following countries were required
to register: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia,
Iran, Iraq, Jordan, Kuwait, Libya, Lebanon, Morocco, North Korea, Oman, Pakistan,
Qatar, Somalia, Saudi Arabia, Sudan, Syria, Tunisia, United Arab Emirates, and
Yemen. Immigration and Customs Enforcement, Dep’t of Homeland Sec., Changes
to National Security Entry/Exit Registration System (NSEERS), http://www.ice.gov/
pi/news/factsheets/nseersFS120103.htm, last visited (June 17, 2008).
160. Akram & Johnson, supra note 102, at 296 (“Immediately after September 11, R
hate crimes against Arabs, Muslims, and others rose precipitously.”); Bali, supra note
64, at 164. R
161. See Bali, supra note 64, at 164; Johnson, Challenging Racial Profiling, supra R
note 29, at 351 n.56. R
162. See AM. CIVIL LIBERTIES UNION, DIMMING THE BEACON OF FREEDOM: U.S.
VIOLATIONS OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 17,
109 (2006) [hereinafter ACLU ICCPR REPORT]; ERPA Hearing, supra note 94, at 80 R
(statement of Laura W. Murphy, Director, American Civil Liberties Union, Washington,
D.C.); id. at 118 (statement of National Council of La Raza); Amnesty International
USA: Race Profiling, http://www.amnestyusa.org/Domestic_Human_Rights/
Racial_Profiling/page.do?id=1106650&n1=3&n2=850&n3=1298 (last visited May
10, 2007).