THE BLOG
01/09/2015 05:16 am ET Updated Mar 11, 2015

Did Religious Profiling Allow Paris Terrorists to Proceed Undetected?

Terrorism aims to invoke mass havoc and fear. Recent attacks in Western cities involved bombings of public buildings, transportation, and marathons, or mass shootings of civilians, conducted by amateur lone wolves.

For this reason the calculated assassination of France's best satirists raises serious concerns about the focus of French counterterrorism strategy. As they enlarge the blanket scrutiny of Muslims without individualized suspicion, French law enforcement is more likely to waste resources investigating innocent people. Meanwhile, the guilty have more opportunity to plot undetected.

That French officials were unaware of this premeditated murder plot, notwithstanding numerous threats to Charlie Hebdo cartoonists over the years, evinces a breakdown in anti-terrorism enforcement. Specifically, one cannot help but wonder if the conflation of Muslims with terrorism may have distracted law enforcement from focusing on the predicate acts leading up to these murders.

Terrorism comes in various forms, ranging from lone wolves to militant groups, all in pursuit of a violent political agenda. In the United States, known attempted terrorist attacks by perpetrators identifying as Muslim have been lone wolves, either acting alone or caught in an FBI sting operation. Other than the 9/11 attacks, no known plots were attempted by organized and trained militant groups. Had that been the case, their communications and preparatory acts would have been more likely detected by law enforcement and intelligence agencies. This is why the French attacks are so peculiar.

In the post-9/11 era, nearly every Western nation has ratcheted up its intelligence capabilities, expanded its counterterrorism forces, and adopted aggressive anti-terrorism laws, often at the expense of civil liberties. France is no exception.

French counterterrorism law mirrors the U.S.'s broad RICO statute by authorizing arrest and prosecution of any individual who plays a role, however minimal or remote, in a terrorist plot. In addition, France has constructed a robust surveillance network that targets French Muslims in counterterrorism. Indeed, the absence of post-9/11 terrorist attacks for nearly 10 years in France was attributed to its experienced and well-established counterterrorism apparatus and expansive anti-terrorism laws, making the Charlie Hebdo assassinations all the more alarming.

The sense that this was a sophisticated assassination is bolstered by witness accounts that the shooters called out the names of the cartoonists as they shot them methodically. Experts have also noted that the killings were executed more like a military operation than the amateur plots in the London subway and at the Boston marathon and the attempted Christmas Day bombing in Detroit.

All of this raises the question of why this well-planned crime was not detected by France's experienced intelligence community. Either the gunmen outsmarted law enforcement or France's counterterrorism strategies have fallen prey to the trappings of religious and ethnic profiling. In its attempts to determine if the nearly 1,000 French citizens who joined ISIS have returned, France should look to articulable suspicions based on predicate acts of a crime rather than cast a wide net on France's more than 2 million Muslims.

Time and again, law-enforcement experts and civil-liberties advocates have warned about the perils of profiling based on religion or ethnicity. It goes without saying that it is morally wrong to impose guilt on individuals who happen to share the same immutable characteristics or religious faith as a criminal. But it also poses serious dangers to society.

No doubt the murders of the Charlie Hebdo cartoonists were a cowardly and terrorist act. But the fact that they were planned by well-trained gunmen undetected by law enforcement, notwithstanding France's aggressive surveillance of its Muslim communities and expansive anti-terrorism laws, shows something is amiss.

In determining what went wrong, the French government would be well advised to reconsider its use of ethnic and religious profiling as a counterterrorism tool. Terrorism can be prevented. Focusing on illegal activity rather than religious practices is the first step.

Sahar Aziz is an associate professor at Texas A&M School of Law, where she teaches national-security and civil-rights law, and is the author of Policing Terrorists in the Community. She formerly served as a senior policy advisor to the Office for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security.