The Right People: Petit Apartheid, Rational Racism and the Use of Fourth Amendment Exceptions in the Investigations of Muslims

• In Event: The Right People: The Purposive Policing and Correctional Control of People of Color

Abstract

The New America Foundation found, in 2015, roughly the same number of victims of non-Islamist terrorists as for those claiming Islamist inspiration since the September 11, 2001 attacks. Still, a law enforcement framework has built up over fifteen years to combat extremist jihadism, including several strands of legal decisions and practices legitimizing a “petit apartheid” subtly isolating Muslim communities through reduced standards of Fourth Amendment protection—namely the requirement of reasonableness. Whren represented one such reduction—allowing the use of “minor” infractions to justify investigations of criminal activity that officers suspect, but for which they have no probable cause. Lower standards of “reasonableness” where security threats are alleged, the selective use of the “border search exception,” and decisions of the Foreign Intelligence Surveillance Court, combine to provide suspected “terrorists” with little constitutional protection. Meanwhile, “terrorist” is almost exclusively used in reference to Muslims. The building of this legal and operational regime is reminiscent of the rationalized racism used to justify discriminatory practices in more traditional enforcement methods. Using petit apartheid and rational racism theory, I analyze the legitimization of differential treatment of Muslims in terrorism investigations, comparing this with legal rationalizations that support other forms of selective and discriminatory practices.

Author

• Kwan-Lamar Blount-Hill, John Jay College / Graduate Center, CUNY