The new TSA security directive following the failed Christmas Day terrorist attack on a flight from Amsterdam to Detroit raises the specter of ethnic and religious profiling in the most direct way since the 9/11 attacks. The first thing that needs to be acknowledged is that the primary blame for all kinds of negative fallout from terrorist attacks — whether they succeed in killing the innocent or, as in this case, are simply a halfwit setting fire to his own trousers — belongs squarely with the terrorists themselves and with their sympathizers. Other than the individuals directly affected by these attacks and their families, the maximum negative impact stemming from violent outrages by self-described “salafist-jihadist” groups like Al Qaeda, or solo actors imbued with their ideology like the Fort Hood murderer Maj. Hasan is borne by the Arab and Muslim American communities. Just as these dangerous extremists are the single greatest threat to Arab and other Muslim societies in Asia and Africa at the present moment, they and their supporters also pose the most serious dangers to Arab and Muslim Americans and their ability to thrive in the United States and other Western societies.

Ever since the 9/11 attacks, a veritable cottage industry of self-appointed “terrorism experts,” grandstanding members of Congress, right-wing ideologues, anti-Arab racists and Islamophobic bigots have been demanding that the government institute systematic discrimination against people of Arab ethnic origin or Muslim religious affiliation. The government’s response has been complex. With the exception of a couple of short-lived policies, broadbrush profiling that would affect US citizens has heretofore been rejected by the government as unworkable and ineffective. Indeed, it’s extremely revealing that there was probably more profiling going on at airports before the 9/11 attacks than afterwards, largely because the authorities suddenly had to take airport security much more seriously and therefore recognize that crude ethnic profiling is absolutely pointless.

However, the government did institute a large number of policies regarding immigration and immigration law enforcement that discriminate against, or rather between, non-US citizens on a whole range of subjects. Courts have historically held that immigration policy and law enforcement are essentially branches of foreign policy, subject to the discretionary authority of the executive. Citizens of different states may therefore be treated very differently simply on the basis of their nationality (it is unconscionable but not unconstitutional that historically and typically refugees from Cuba have been virtually guaranteed green cards and eventual citizenship while refugees from Haiti have frequently found themselves in mass detention centers). The post-9/11 restructuring of US immigration policy and law enforcement without question dragged the United States into levels of discrimination that had not been seen for many decades, however these policies were strictly limited to affecting foreign nationals and not US citizens.

The new security directive holds that any individual traveling from or through a list of 14 countries — Cuba, Iran, Sudan, Syria, Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen — will be subjected to as yet not fully specified enhanced security scrutiny and measures. The first question worth asking is, does this mean a return to crude forms of profiling by the federal government? I think the answer is, not quite. But it’s certainly the most dramatic step in that direction in the past 10 years and therefore quite troubling. There is an argument, of course, that the new policies do in fact rise to the level of profiling: there is no question there will be disparate impact for people with origins in those societies, therefore the policy is plainly discriminatory. In addition, the list of countries is fairly homogenous: with the exception of Cuba, all of them are Muslim-majority states (or, in the cases of Nigeria and Lebanon, Muslim-plurality states). Therefore, it might be argued with some justification that this list of countries uses national origin as a proxy for religious affiliation.

On the other hand, it might be pointed out that the policy apparently does not distinguish between which kinds of travelers traveling from or through the countries in question will be subjected to the new measures. The disparate impact is unavoidable, but in theory the policy ought to apply to everyone traveling from or through these destinations, thereby mitigating the overt discrimination built into the policy. More tellingly, the policy does not apply to most Muslim-majority states, or most Arab states for that matter. Therefore, disparate impact and discrimination are not tied simply to ethnicity or religious affiliation, or to national origin or nationality as such, but to the act of traveling from or through certain states. This may be cold comfort regarding a policy that is plainly going to be discriminatory and involve disparate impact on specific groups (especially Arabs), but I don’t think this policy can be described accurately as involving profiling as such. It is definitely a major step in that direction, but it hasn’t arrived there quite yet.

The worst aspect of the new directive, of course, is that it will almost certainly be completely useless as a security and counterterrorism measure. It’s often an unrecognized reality among Arab and Muslim Americans that our communities have an almost incalculable stake in effective security and counterterrorism policies, since it is our communities that suffer most directly from the social and political consequences of the words and deeds of Muslim extremists. All such policies need to be examined carefully on a case-by-case basis in order to determine first of all if they will actually make anybody any safer, as well as whether they are consistent with American laws and core values. The new directive is almost certainly consistent with the law, and enjoys an uneasy relationship with core American values as it will have a discriminatory impact, but it crucially and definitively fails the test of effectiveness. It can’t possibly make us safer, and I think almost everyone who is serious about security and counterterrorism understands this.

As with so much of post-9/11 air travel security measures, the new policy seems designed to mollify the public and allow the government to claim that they are taking dramatic and effective action. There is no basis whatsoever for thinking that enhanced measures for anyone traveling from or through this, not exactly random but certainly somewhat arbitrary, list of countries is actually going to make anybody any safer or make it more difficult for terrorists to attempt to murder people on airplanes. True enough, the malevolent clown who set his pants on fire on Christmas Day began his journey in Lagos, but he was passing through Amsterdam. Like the 9/11 attacks themselves that were cooked up in Hamburg, a huge percentage of terrorism from Muslim extremists aimed at the United States seems to have its origins in Western Europe. But, of course, it wouldn’t make any more sense if Germany, Britain, Holland, Spain and so forth were added to the list either. It is extremely helpful that virtually all serious security and counterterrorism experts who have opined on the new policy have expressed a negative opinion, ranging from serious doubts about its efficacy to outright scorn at the foolishness and wastefulness of such a silly approach. Since the policy appears to have virtually no support from the experts and professionals, its long-term future is questionable. We’ve already seen a number of ill-conceived post-9/11 security measures shelved because they proved even more idiotic in practice than they looked on paper.

So there is no doubt that the TSA is instituting a policy that is both discriminatory and extremely silly, but I really don’t think it can honestly be described as fully-fledged profiling either. I understand the political motivation for labeling what is a foolish and in effect discriminatory policy as “profiling,” since this term is often used as a synonym for all kinds of forms of discrimination that are not, in fact, profiling as such. But I think it’s probably more useful to try to develop accurate, precise language to describe a troubling and wrongheaded new policy, and that an effective critique is better based on careful accuracy rather than emotional appeals. In fact, widespread, systematic profiling on the basis of Arab ethnicity or Muslim religious affiliation, including US citizens, is unlikely to emerge in the foreseeable future, first because it would be a huge waste of resources which all serious people would readily understand would be totally ineffective, and second because as a practical matter there is no method for distinguishing who is an Arab or, even more absurdly, who is a Muslim. Obviously it would be a tragicomedy of errors and absurdities if thousands of TSA and other security employees were to try to distinguish who is an Arab or Muslim based on appearance or name. Quite simply it can’t be done, even if there were an argument for doing it (which there isn’t).

The proponents of profiling don’t recognize this, of course. Many of them seem to live in an imaginary world where you can simply look at someone or read someone’s name and instantly and accurately distinguish who is an Arab and/or a Muslim. This is obviously a holdover from the historic cultural attitudes in the United States that were shaped by a society generally divided between black and white Americans with the false assumption that the distinctions were readily apparent on sight. There are also proponents of profiling who understand this problem but choose to ignore it because they realize that it makes their arguments completely untenable. But obviously the first question to be asked of anyone who proposes crude ethnic or religious profiling is, how will your average security agent accurately identify the targeted profile? As yet, I have not encountered a proponent of profiling who had a reasonable answer to this most obvious question, and the provisions of the new directive only emphasize these difficulties by creating a blanket category based on the objective and easily determinable fact that someone has traveled from or through a very specific set of countries.

Finally, for all those who worry about the adoption in the United States of systematic ethnic or religious profiling against Arabs and/or Muslims, there is therefore an obvious trigger for major concern that such a policy may actually be emerging. The day that policy advocates, security experts, counterterrorism professionals, members of Congress and so forth actually begin seriously discussing the need for new compulsory national identification cards or a national database that identifies people on the basis of their ethnicity and/or religious affiliation is the day that serious, systematic profiling becomes a real threat in the United States. Such a system of classification is the sine qua non for any really existing program of broad-based profiling, although implementing it would almost certainly be unconstitutional. But as long as people are talking in vague terms about ethnic or religious profiling without any system for identifying the targets of a profile, we are in the realm of grandstanding, balderdash and the imaginary. That the TSA’s new directive is discriminatory because it will have a disparate impact on numerous Arabs and Muslims who travel most frequently to the listed countries is unquestionable. That it will fail to enhance airline security is also unfortunately almost certain. But until we begin to move in the direction of the government systematically classifying people on the basis of ethnicity and/or religion, an actual system of profiling Arabs and Muslims in general will remain the fantasy of bigots and not the policy of the state.