The U.S. Government's announcement Sunday that it would impose stricter airport security on citizens of 14 "nations that are state sponsors of terrorism or other countries of interest" probably wasn't intended as an homage to former Attorney General John Ashcroft.
But strident critics of Ashcroft and even some of his associates said the Obama Administration's move bore strong parallells to the "special registration" or NSEERS ("National Security Entry-Exit Registration System") program President George W. Bush's first attorney general ordered beginning in 2002 which required male nationals of what eventually became 25 countries who were working, visiting or living in the U.S. to report to immigration authorities for fingerprinting and interviews. Critics of the program said it failed to nabbed any terrorists, while about 14,000 of the men were put into deportation proceedings.
Critics contend that the focus on national origin in both programs is simply a proxy for religion. In the Ashcroft immigration program, 24 of the 25 countries were predominantly Muslim. (The exception was North Korea.) In the new airline security program, 13 of the 14 affected countries are largely Muslim. (The exception is Cuba.)
"There are a lot of eerie similarities," said Nawar Shora of the American-Arab Anti-Discrimination Committee. "This takes millions of people and frankly labels them for the general public...You're telling broader society it's okay to treat them different because they are different. Because we have one 23-year-old Nigerian do something very dangerous and stupid, one hundred million nigerians are going to be labeled?"
"There are some similarities," said Michael Sullivan, who took over as the U.S. Attorney for Massachusetts days after 9/11 . "I think the president is doing the right thing by tightening security requirements coming from certain countries where you have your potential greatest risk. It only makes sense from a law enforcement, national security perspective that you focus in on where the greatest risk potentially is coming from....Attorney General [Ashcroft] was trying to do the exact same thing in a climate of great risk of further terrorist attacks."
For its part, TSA denies the new effort amounts to profiling. "TSA does not profile," spokeswoman Sarak Horowitz said. "As is always the case, TSA security measures are based on threat, not ethnic or religious background."
Of course, the two programs are not entirely identical. The TSA 14-countries program involves a brief search that many passengers who aren't from the designated countries will also be subject to. The "special registration" program took hours and sometimes days for people to complete and often wound up with the registrant, who came forward in good faith, being imprisoned and/or deported.
"From a detention perspective, I suppose [the TSA program] is not as bad...It's not as severe. Just an extra pat-down, extra scanning, but the messaging--the labeling is equivalent," said Shora.
While the hue and cry over Special Registration was loud and sustatained, the early reaction to the TSA 14-countries program was more muted. However, the American Civil Liberties Union, the Council on American-Islamic Relations and Muslim Advocates are all publicly questioning the wisdom of the new approach. So too have some terrorism analysts and scholars.
"I see it as a do-something, do-anything response," said Bruce Hoffman of Georgetown. "There is probably a greater threat of Western nationals being co-opted by Al Qaeda. This'll do nothing against them."
"I think this is an ill-considered response that'll do more harm to the United States than it does good," said Edward Alden of the Council on Foreign Relations. "That's a crude sort of measure that is going to alienate a lot of people who are otherwise friendly to the United States."
Some said the new TSA measure will probably do some good, but is far from a major enhancement of security. "You can argue that the bad guys will just find more Richard Reids who carry British passports and have Western names but at least you force them to work a little harder if you don't allow someone named Mohammed from Yemen to get on airplane without going through secondary screening," said a former senior intelligence official who asked not to be named. "You could also argue that it you make it difficult for people from some of these countries to get on airplanes, they might complain about it to their government and you'll have a clamp down there on Al Qaeda."
However, the ex-official said there is little doubt that the tactic amounts to religious and ethnic profiling. "They wont call it that, but, sure, that's what it is," the former official said.
Even TSA's use of the term "countries of interest" evokes one of Ashcroft's most famous phrases, "person of interest." Ashcroft use of that construction in TV interviews and a news conference to describe Dr. Stephen Hatfill's connection to an investigation into the anthrax attacks in 2001. In 2008, the U.S. Government later paid Hatfill $5.8 million to settle a Privacy Act lawsuit claiming that his reputation was damaged by Ashcroft and other officials. Hatfill was never charged in the attacks. The government's investigative focus eventually moved to another scientist, Dr. Bruce Ivins, who killed himself after learning he was about to be indicted in the case.