instead, racial profiling, ethnic profiling, religious profiling all make our police and security personnel less effective and less accurate in doing their difficult jobs. i would define racial profiling as the use of racial, ethnic, religious, national origin or other physical characteristics as one factor, not the sole factor, but one factor, among the others used to decide whether to stop, question, frisk, search or take other routine law enforcement actions. 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, and it's all about hit rates. 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 or linl yus 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 as yet unknown crimes by as yet 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 observation of behavior becomes less accurate. measurably so and police officer efforts are damaged and wasted. second, using profiling effects our ability to gather crucial intelligence and information from communities on the ground. our ability to gather crucial intelligence and information from communities on the ground. our ability to gather crucial intelligence and information from communities on the ground. 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, arab-americans and muslims, 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 s-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 ethnic 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, respectfully, i have to disgreeshgs 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 s-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.ut be the

police. we have awesome power and possibilitst 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 to increase budgets to the state. we use crime to justify why we deplete resources. the idea of using data means you're using intelligence and suggests the need to do policing and 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 noble a profession, but the idea i am 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 position to counter it or to be in a position to make sure your own policies and practices does not make them unintentionally engage in this practice. laws are designed to set standards, to hold us accountable 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 much 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 the issue of open carry, carrying of loaded firearms 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 so important and why we need the data is in many cases, and maybe the trayvon martin case will bring this out later. 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 suspicious, is it their behavior or is it because they were engaged in a criminal activity or is it because they are wearing a hoodie and 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 because he or she has done nothing. law enforcement not only enforces the law, they set in many ways the moral enforcement in the community of how to react with each other. >> officer gale, your statement was very strong. but the conclusion 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 fop knowledges that. in fact, we are engaged in activities where we are attempting to help law enforcement 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 communities where crime is occurring assist you with the an enforcement activities. and so he think the problem has become we seem to blame the enforcers for everything that goes wrong. the problem with that is 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 quarrel, i hope you don't quarrel with chief davis' protectionism yeas that 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 should be held accountable. in fact, we are accountable. my testimony illustrated situations where the court had ruled that officers had to be accountable in issues of race. we accept that and embrace it because we believe it's proper. we believe it's appropriate. >> mr. clegg, you said a number of things that 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 ellison 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 distinguish what you just said from what happened to japanese americans 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 ethnic 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 geopolitical or political group. how would you make that distinction or do you think japanese internment camps were justifiable? >> 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, jetliners had a backup plan. and that he was going to fly a private plane filled with explosives onto a skyscraper. >> but there's a clear distinction and let's make that for the record a predictor and a desccriptoy. >> 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 is a decrypt -- descriptor 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 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 imminently reasonable. >> i certainly disagree. >> you don't think it would be reasonable? >> no, i don't. i really think that when you start going that far afield, why do you stop with arabic names? why wouldn't you include all of muslim religions then? 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 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 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 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 very loyal 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 assans, we're the first 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 officer, 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 legislation that makes us focus on this problem more might make some sense, quite frankly. maybe we would look at redefining it and collecting information to show exactly what happens day in and day out in america so we can act logically on it. i know you want to say something, mr. clegg. but you know when it comes to fighting the war on terror, the fact of the matter is that great britain and france are going through this similar situation right now where they have groups within the countries that are he's pousing radical ideas. they just expelled someone, i think, great britain, today, yesterday. i don't know when national security starts and individual

liberties begin. what's your thought? >> i want to endorse what some of my co-panelists have said that it's very important in the war on terror that we have the cooperation of the overwhelming majority of individual americans, arab americans and muslim americans. >> don't you think one of the greatest strengths of our country is that even though home grown terrorism is on the rides, generally speaking, american muslims have assimilated in our society and our culture, thousands serve in the military, and that we're actually an example in the world how you assimilate? >> no, i think that's right. stereotyping is very dangerous in this area. most arab americans are not muslims. they're christian. you can't just look at somebody's name and conclude things about them.

as my co-panelist said, it's very important to have the cooperation and the trust of the arab american community. so i don't want to give the impression that i think it should be, you know, open season on anyone on account of their ethnicity or their religion. i'm simply saying there are going to be circumstances -- >> what we should be looking for is actions by individuals within groups, statements made that send signals that this is not where practicing religion should be taken on, it's the activity on the internet. >> well, as professor harris said -- >> that's what we are talking about. how you do that is very complicated. so maybe you catch some innocent conversation so having judicial oversight i think is important. but i guess that's what i'm

looking for is sort of objective indicators of, you know, this is getting out of bounds here. >> senator graham, you're absolutely right. it is about behavior. that's the key to everything and making statements, whether out loud or on the internet, that's action. that's behavior. >> and here is the problem we have. if you're an air force member and you have an american muslim in the group and they say something that alarms you, you have to think, well, if i say something, am i going to get myself in trouble? >> but, senator, if i may object, i think part of the challenge we have in a country that's dedicated to free speech is how you draw that line well in a way that doesn't quell speech we want to protect. i know perhaps my organization and you have different points of view on abortion, for instance. yet i think you and i would

completely coincide from the moments i shared with you, i know you and i would completely coincide that anyone who dares up to blow up an abortion clinic is a criminal. >> that's not speech. >> then would you feel comfortable surveilling the anti-abortion website for individuals who perhaps would be willing to blow up an abortion clinic just because they may share the points of view the radicals who would blow up a clinic? i know you would not feel comfortable if i put the words in your mouth. >> i know exactly what you're saying. >> so the context is not that different than the speech we find odious or perhaps we find difficult, but that is what america is about with. democracy is a great many things, but it should never be quiet. but if we all agree it's not the america we all know and love, sir. >> i guess this is where maybe legislation could happen. having thoughts against the government or expressing yourself in an aggressive way, you can be radically pro-choice,

radically against abortion. you can feel the way would you like to feel. you can speak your mind, but there comes a point in time when the rest of us have to defend ourselves and our way of life. and what i hope we'll do in this discussion is not ignore the threats that do exist. there is a lurking, looming threat against this country. and against our way of life. and i hope we will not get so sensitive to this dilemma that we will basically unilaterally disarm ourselves. and when it comes to basically the immigration issue, if there was ever a reason to fix our immigration system, this hearing highlights it. you've got millions of people here undocumented, illegal, and i would just be greatly offended if i were a corporal coming back from afghanistan who happened to have an hispanic last name and

got stopped because somebody thinks i'm here illegally. i could be greatly offended. but the fact of the matter is there's a downside of illegal immigration in terms of crime and the way to solve that for me is a comprehensive immigration reform. thank you very much. i hope we can find something more bipartisan. >> mr. chairman, can i just answer one question? you asked captain gale had he ever been profiled. i'll take a shot at that. unequivocally, yes. but not only that, but as a law enforcement officer, i have profiled. that's the part that we bring to the table that in many cases may be implicit by us. it may be no malice intended. but at the end of the day, the result is you have a disparity effect on the people of color that you need most to address some of the issues that were addressed at the table. so i think for us not to acknowledge that it exists, to acknowledge implicit bias is a

human behavior, that no one is exempt from, that we be trained it in and hold ourselves accountable is wal we are talking about. it's easy to focus on the small percentage. i agree with the opening statement. only a small percentage are racists. if it were as simple as racism, this would be a much bigger issue and we have to tackle at that level. >> thank you senator graham. i'm going to take an extraordinary risk here and put this committee in the hands of senator franken. in all seriousness, we're in a roll call vote and senator graham and i have to vote and senator franken, i recognize you and i'll let you monitor your own time used and watch senator blumenthal proceed and then i'll return. >> thank you. >> you may regret this. i have the gavel. in that case, i'll turn it over to senator blumenthal.

>> i have a -- if i may, i have a question, chief, to follow up on the remark that you made at the close of senator graham's questions. under what circumstances have you profiled and if you could, talk a little bit more about what limiting principles you think should apply to profiling when it is used legitimately, if it can be used legitimately, in your view. >> yes. the example that stands out for me when i was a police officer in oakland, you would have an area that we would identify as high crime. this area was very accessible to the freeway so we had customers from out of town coming in to buy narcotics, and quite often, they were actually white. so the presumption on my part and others was that any white person in the neighborhood would be buying narcotics.

the problem with that assessment, it attaches criminality to the entire neighborhood. that means you're criminalizing everyone that lives there. two, that suggested that the only reason why a white person to visit was to buy drugs. besides being insulting to the neighborhood, it just didn't work. so as we got better, we learned how to watch behaviors. somebody leaning in a car, somebody exchanging money, somebody yelling signals that a drug buy was to take place or that a police officer was coming works better. the circumstances in which i think profiling would work would be under the category of criminal profiling would be the behavior aspects of what a person is doing. in other words, people when they are selling drugs, they engage in certain behaviors. whether it's how they drive or something specific to their actions. i cannot think of any context in which race is appropriate, other than when you're describing someone that's committed a crime.