of activities and authorized that are designed to identify suspects, prevent crime or lead to an arrest. this bill would ban many of these types of methods. therefore, a whole range of legitimate law enforcement methods would be prohibited beyond the unconstitutional purely race-based activity. the legislation also threatens to personalize local and state law enforcement agencies by withholding federal law enforcement funding unless these agencies comply with the requirements of the bill to provide all officers training on racial profiling officers. collect racial and other sociology logical data in accordance with federal regulation and establish an administrative complaint procedure or independent audit program to ensure an appropriate response to allegations of racial profiling. the fop has testified before you about the entire and dangerous consequences of budget cutbacks for law enforcement in the past. how can we fight the battle if we also propose to deny these funds to agencies that need them because they cannot afford new training or new personnel to

document allegations of racial profiling issues? how can we achieve a colorblind society if the policies of the federal law require the detailed recording of race when it comes to something as common as a traffic stop. will police officers now be required to ask for driver's license, registration and proof of ethnicity, please? at a time when citizens are concerned about protecting their identification, it seems at variance with common sense and public policy to collect racial or other personal data and turn that data over to the federal government for analysis. why would something as simple and routine as a traffic stop require such an extraordinary imposition on a driver? i smut to this subcommittee that we do have a problem in our nation today. the lack of trust and respect

for our police officers, police officers have a problem in that they have lost the trust and respect and cooperation of the minority community. this is tragic. because as we have already discussed, it is minorities in our country most hurt by crime and violence. this, however, is not the conclusion. it will make matters worse, not better. for these reasons, the fraternal order of police strongly opposes the bill and i urge this subcommittee to reject it. thank you for the opportunity to appear before the subcommittee. >> thank you very much, officer gale, for being here. roger craig is the next witness. he's held a number of senior positions including deputy assistant attorney general and deputy assistant attorney general in the environment resources division acting as attorney general in the office of legal policy. he was a graduate of yale university law school.

thank you for being here, mr. clag. please proceed. if you would, turn your microphone on. it's in that box in front of you. >> thank you very much, senator durbin, for inviting me here today. i'm delighted to be here. let me just summarize briefly my written statement. the first point i make is that here has to be taken in defining the term "racial profiling." and in particular, i think that it's important to bear in mind that racial profiling is disprit treatment on the basis of race. good police activities that happen to have a basic impact on race are not racial profiling. the second point i make is that the amount of racial profiling that occurs is frequently exaggerated and that care needs to be taken in analyzing the data in this area. all that said, racial profiling, as i define it, is a bad policy.

and i oppose it for the reasons that a many of my copanelists here are giving. there is one possible exception that i would make, and that is in the anti-terrorism context. in brief, i think that it is quite plausible to me that in the war on terror where we are fighting an enemy that has a particular geopolitical and perverted religious agenda, that it may make sense in some circumstances to look at organizations that have particular religious and geopolitical ties. i'm not happy about that. i think it should be done as little as possible. but the stakes are so high that i am not willing to real it out altogether. the last point i would make is that there are problems with

trying to legislate in this area in general. and i think that the end racial profiling act in particular is very problematic. i don't think that this is an easy area for congress to legislate a one-size fits all policy that's going to apply to all law enforcement agencies at all levels of government at all times in all kinds of investigations. and i think it's also a bad idea to encourage heavy judicial involvement in this area. and these are things that the end racial profiling act does. let me also say that i think that chief gale does a very good job of identifying some additional costs in the end racial profiling act, the fact that it is insulting, the data collection is time consuming, and that inevitably, we're going to either have to guess on --

inaccurately on people's racial and ethnic background or else train the police on how to identify people racially, which is a pretty creepy enterprise. with respect to my other panelist testimony, i would say briefly in the terrorism and border security context, as i read some of this testimony, they would equate racial profiling with taking a particular look at visitors from particular countries, at considering immigration and citizenship status and at considering language. i don't consider any of those things to be racial profiling. let me make one last point. i think that this is an important point to make whenever we're talking about racial disparities. as i said, mr. chairman, i am opposed to profiling,

particularly to profiling in the traditional law enforcement context where frequently it is african-americans who are the victims of that profiling. i'm against that. nonetheless, i think we have to recognize that it's going to be attempting for the police and individuals to profile, so long as a disproportionate amount of street crime is committed by african-americans and there will be a disproportionate amount of street crime committed by african-americans for so long as more than seven out of ten african-americans are being born out of wedlock. i know this is not a popular thing to say, but i think whenever we are discussing racial disparities in the united states, that is the elephant in the room and it has to be addressed. so ultimately, people like me and everything else i think in this audience who don't like racial profiling is going to have to face up this problem. >> i would ask those in attendance here to please maintain order.

>> thank you, mr. chairman. i think i'm at the end of my five minutes, anyway. >> thank you, mr. clay. david harris, associate dean for research at the university of pittsburgh law school. he's one of the nation's leading scholars on racial profiling. and in 2005, "good cops, kay case point of view for preventive policing." professor harris appeared at both of the previous senator hearings on racial profiling. so welcome back. thank you very much, senator durbin, members of the subcommittee. i'm grateful for the chance to talk to you today. senator durbin's statement opened by recalling for us president bush's promise that racial profiling, quote, is wrong and we will end it in america. sad to say that that promise remains as of yet unfulfilled. instead, we have a continuation of profiling as it existed then

with a new overlapping second wave of profiling in the wake of september 11th, as other witnesses have described. directed mostly at arab americans and muslims. now we have a third overlapping wave of profiling, this one with undocumented immigrants. but the context and the mission of whatever these law enforcement actions are does not change these fundamentals. the fundamentals are these. racial profiling does not work to create greater safety or security. instead, racial profiling ethnic profiling, religious profiling all makes our police and security personnel less effective and less accurate in doing their very difficult job. i would define racial profiling as the use of racial, et nick,

religious, national origin or other physical characteristics as one factor, among others, used to decide the question, frisk, search or take other routine law enforcement action. this is very close if you look at it to the definition of the profiling guidance of the justice department. and i would note that it does not include actions based upon description. description of a known suspect, a person who has been seen by a witness. that is not profiling. that is good police work. all profiling falls on the same set of data, data from across the country, different law enforcement agencies, different missions. when we talk about effectiveness, what we're asked is what is the rate at which police officers and security officers succeed or hit when they use race, ethnic

appearance, religious appearance as opposed to when they do not? and the evidence, the data on this question is unequivocal. it comes from all over the country. when police use race or ethnic appearance this way, they do not become more accurate. in fact, they don't even stay as accurate. they become less accurate than police officers and security agents who do not use these practices. in other words, racial profiling gets us fewer bad guys. why is this? a lot of people find this counterintuitive. there are two big reasons. number one, profiling is the opposite of what we need to do in order to address asset unknown crimes by asset unknown suspects. that is addressed most effectively through the observation, careful observation of behavior. and when you introduce race,

even as just one factor into the mix, what happens as the option of behavior becomes less accurate? measurably so, by police officers efforts are damaged and wasted. second, using profiling effects our ability to gather crucial intelligence and information from communities on the ground. and this is true, whatever the context is in which profiling is used. particularly in a national security context, this is absolutely critical. if we are in danger, if there is a threat from international terrorists and if, as some say those international terrorists may be hiding in communities, the people we need right now is our partners like we have never needed other partners are people in those arab american and muslim communities. and i want to say that those communities have been strong, effective, continuously helpful

partners to law enforcement in case after case across the country. these communities have helped. but if we put the target of profiling on these whole communities, we will damage our ability to collect intelligence from them because fear will replace trust. in response to some of the comments made by my fellow panelists, a bill like f-1670 which deserves support is not insulting to law enforcement. it's all about accountability. and everybody who is in law enforcement or any other pursuit needs accountability just like i do as a professor, just like everybody else does. racial identification is not an issue. you will not have police officers asking people what their race or neglect nick group is. in fact, that's not what we would want at all because it's all about the perception of the officer. that's all that would have to be

recorded. and black street crime is not the issue. the issue is how we deploy our law enforcement officers in ways that are effective, fair and carry out the most important ideals of our society. so for those reasons, i would support any efforts to pass f-1670, the end racial profiling act and to revise the department of justice's profiling guidance. i thank you very much for the opportunity to talk to you and i look forward to the committee's questions. thank you. >> thank you very much, professor harris. chief davis, you spent your lifetime in law enforcement and you've heard the testimony of officer gale that suggested in various strong and pointed language that raising this question, racial profiling, really -- he says unless you believe police are racist, he suggests this is unnecessary. so what is your answer to this?

as i said at the outset, you trust, we trust these men in uniform, women, as well, who risk their lives every day for us. and the question he's raised is if we cannot trust their judgment and assume that they are going to violate the constitution and the law, then we are suspicious of them when we should be more trusting. >> thank you, mr. chairman, for the question. i completely disagree with my colleague. the idea that a police officer or police department should not be held accountable is counter to the idea of democracy. if any group should be held accountable, it might be the police. we have awesome power and possibility. the power to take life and the power to take freedom. the idea that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial principals. we collect data every day. we collect data on crime. we collect data for budget purposes. we collect data for our very justification and existence.

we use it to tell you that you need on increase budgets to the state. we use crime to justify why we deplete resources. intelligence led policing prevent the need to do guesswork or by state policing. and so where i do appreciate the notion that we should respect law enforcement, as a law enforcement officers, i think there is no more profession that the idea that i'm exempt is counter to why i got into the job. i don't think it's insulting. i think what is insulting is to allow police officers to come under the threats of accusations of racial profiling and not be in a counter to counter it, not be in a position to make sure that your own policies and practices does not make them unintentionally engage in this practice. laws are designed to set standards, to hold us accountability and to set a clear message. i think that's what we're doing. >> before i turn to officer gale, i'd like to note that this celebrated case involving

trayvon martin involved a person being accused who was not a law enforcement official, per se. he was an individual citizen as part of a neighborhood watch. 49 states now, my own state being the only exception, have concealed carry law which allows individuals under some circumstances to legally carry a firearm. in this case, i don't know if mr. zimmerman complied with florida law. that will come out, i'm sure, in terms of what it took to have a concealed weapon. but it certainly raises a question that wasn't before us as many ten years ago. we are not just talking about professionalizing law enforcement and holding them accountable. we are talking about a new group of americans who are being empowered to carry deadly weapons and to make decisions on the spot about the protection of their homes and communities. which i think makes this a far more complex challenge than it was ten years ago. i'd like your response. >> yes, sir.

i agree, the issue for california, we have st issue of open carry, carrying of loaded firearmses with very limited requirement. i think the idea that people should be held accountable including our community is very real. the issue of racial profiling is in many cases, and maybe the trayvon martin case gets into the role law enforcement plays with its community. and so when people call the police and say there's a suspicious person walking in my neighborhood, what makes that person suspicious? and the police must ask those question. and the idea we simply respond and stop without inquiring why the person's position? is it their behavior, is it because they were engaged in community and is it because they're not wearing a hoodie or because they're black? this is where we need a justification with the law to stand firm and tell community members, i'm not going to stop

this person. law enforcement not only enforces the law, they set in many way egz the moral enforcement in the community of how to react with each other. >> officer gale, your statement was very strong. but the conclusion identity raised a question. and i don't have it in front of me, but as i recall -- and is tell me if i'm stating this correctly. you said many members of the law enforcement community were not trusted in the minority communities. can you explain that? you need to turn the microphone on, please. >> my apologies. i think it's pretty clear from what we've seen in media reports recently, especially, but over the course of several years that there's work to be done by law enforcement in the minority community. rebuild that trust. and i say that -- i say that openly. i think the to be acknowledges that and, in fact, we are engaged in activities where we are attempt to go help law enforcement officers and agencies do just that through community work. so i think that's an important piece. you know, i think the professor

talked about the fact that a lot of times in minority communities you have people in those communities that are a valuable resource to law enforcement. i agree with that. in the aspect of law enforcement and the profession of law enforcement, it's necessary to have people in community where crime is occurring assist you with the enforcement activities. and so he think the problem has become we seem to blame the enforcers to everything that goes wrong. the enforcers show up on the scene to deal with the information that they have available to them at the time. and our job, when we show up, is to stabilize the situation. >> but you don't coral with -- i hope you don't kwarel with chief davis' premise that the law enforcement community has extraordinary power in the moment, the power to arrest, the power to detain, the power to embarrass. and holding them accountable to use that power in a responsible,

legal, constitutional way, you don't quarrel with that premise, do you? >> i don't think the fop quarrels with the fact that law enforcement officers have that power, nor do we quarrel with the fact that law enforcement officers are held accountable. in fact, we are accountable. the court in ruled that officers had to be accountable in issues of race and rewe accept that and embrace it because we believe it's proper. we believe it's appropriate. >> mr. clay said a number of things which caught my attention. and you said that you thought the war on terror justified some measure of profiling. >> well -- >> well, let me come to the question and then you can certainly explain your position. and i wrote notes as quickly as i could. we need to look at organizations with geopolitical and political ties i think is something that you said in the course of that.

you've heard testimony here from congressman elison and others about what is happening to muslim americans across the board and many of them are not affiliated with any specific organization. they are affiliated with a faith. and it appears that that has become a premise for surveillance and investigation. i worry, as an amateur student of history how you could television what you just said from what happened to japanese american in world war ii where 120,000 were rounded up with no suspicion of any danger to the united states and their property taken from them, detained and confined because they happen to be part of an ethic group which just attacked the united states, the japanese, i should say, attacked the united states and, therefore, they were branded as possibly being a danger in the second world war because of some connection they have with a political or geopolitical group.

how do you make that distinction? >> no, i don't. and when i say that in some limited circumstances some consideration of individuals or organizations, geography and religion can be justified in the war on terror, i am not saying that that means that any consideration under any circumstances of ethnic profiling and religious profiling is okay. all i'm saying is that i am unwilling to say that it can never be used. and i'll give you examples in my testimony. for instance, you know, suppose

that on 9/11 the fbi had gotten reliable information that an individual on one of the grounded airplanes, one of the grounded jets, jet liners had a backup plane. and that he was going to fly a private plane into a -- >> but there's a clear distinction and let's make that for the record a predictor and a scripter. >> no, no, no -- >> when you talk about the class of people guilty for 9/11 and say why wouldn't we go after that class of people in training to fly and so forth and so on, that sa scripter that law enforcement can use. but when you conclude that because they were all muslim, we should take a look at all muslims in america across the line. >> well, i didn't say that. and i think that the line that you are drawing between predictor and scripter is inevitably a gray one. this is one reason why i think legislation in this area is a

bad idea. isn't it predictive when the fbi, in my hypothetical, says, you know, the individual who is going to fly this plane into a skyscraper is not on somebody -- it hasn't already been done. you know, we are trying to predict who it's going to be. and we are going to look at the passenger list on the grounded airplanes and we have only limited resources and limited time. we're working against the clock here and we are going to start by looking at individuals with arabic names. that is racial profiling, according to your bill. but i think it would be imminentment reasonable. >> i certainly disagree. >> you don't think it would be reasonable? >> no, i don't. when you start going that far afield, why do you stop with

arabic names? why don't you include all of muslim regions? that strikes me as if very core of the reason why we are gathering today. if we are going to say to people across america, you have certain rights and freedoms because you live in america and we have certain values, that it does create perhaps more of a challenge to law enforcement. police state may be much more efficient in those respects, but it isn't america. >> listen, in my testimony, my organization's whole focus is on the principal of e.plueribus unum. i take that very seriously. but what i'm saying is there are going to be some circumstances where i think it would be very unwise for congress to say that law enforcement agencies cannot give some limited consideration to an individual or an organization's geopolitical and, you know, religious background. >> i'd like to defer now to

senator graham who has patiently waited for his opportunity. >> thank you all. i guess what we're trying to highlight, in fact, complicated this issue is mr. gale, do you think you've ever been racially profiled? >> probably. yeah, i -- i can't say i understand because i don't. i've never been in that situation. but the fact that you're a law enforcement officer and you probably, sometime in your life, have been viewed with suspicion by police makes your testimony pretty persuasive to me in the sense that you're now sitting in the role of a law enforcement official, trying to protect the community. and the zimmerman case is a private individual, not a law enforcement organization. and i just really -- i think i understand the problem. i just don't know where the line between good law enforcement and racial profiling ends and begins

because let me tell you one thing about congress. we'll be the first one to jump on you when you're wrong. when you get a phone call that somebody looks suspicious in the neighborhood and you ask a bunch of questions, well, that doesn't seem to justify us going in and that person winds up killing somebody, or robbing or raping somebody, we'll be the first ones to mrai blame you. so you're in an untenable situation. and when it comes to the war on terror, i couldn't agree with you more. the reality of the fact is, i wish we had done more, not less. there's some websites out there that i'm glad we're monitoring. there's some groups within america the that are saying some pretty radical things. and i hope we follow the leaders of these groups to find out what they're up to because homegrown terrorism is on the rise. how do you fight it without fighting a religion? how do you fight homegrown

terrorism without fighting people who are local to america who belong to a particular faith? i don't know. but i know this. if the law enforcement community in this country fails to find out about the major hasans, we're the first one to be on your case. why didn't you follow this website? he said these things in these meetings and why didn't the supervisor tell the wing commander you've got somebody who is really out of sorts here? and as an air force officers, when do you go though your wing commander and say, this person says something that makes me feel uncomfortable and you do so at your only peril? so i just don't know what the answer is. i know what the problem is. and i think in the last decade, we've made some progress, chief davis, and maybe having lenlis lagz that makes us focus on this problem more might make some ns