May 12, 2009 | Commentary on National Security and Defense

A REAL Homeland Security Test

Congressional commissions come and go. Few make history. The 9/11 Commission was a remarkable exception. Its report became a bestseller. Its recommendations became "the" top priorities for the new, Democratic-led Congress.

In 2007, House Speaker Nancy Pelosi declared it was essential for the House to "keep the promise to the 9/11 families and honor the work of the 9/11 Commission."

But Congress did not have to address one key recommendation ... because it was already on the books. Passed in 2005 with bipartisan support, the REAL ID Act sets national security standards for driver's licenses.

One provision requires states to assure that any identity cards used for a federal purpose (like passing through a Transportation Security Administration security checkpoint before boarding a plane) be issued only to individuals who are lawfully present in the United States. The law also prompts states to adopt best practices to provide better information protection and combat identity theft, fraud, and trafficking in counterfeit IDs.

Now, however, a draft bill known as the PASS ID Act is floating around Congress. If passed, it would roll back all these security improvements.

REAL ID has been under constant assault since its inception. The criticisms have always been off-base.

  • There were claims it requires a "national identity" card. It does not. No new identity credentials are established.
  • There were complaints it was "mandatory." It is not. States can opt out. Indeed, several have said they don't want to participate.
  • It was portrayed as a threat to civil liberties. In fact, REAL ID standards for protecting individual privacy are more rigorous than previous standards in many states. Moreover, they do not require states to provide any additional information to Washington.
  • Finally, critics labeled REAL ID an "unfunded mandate." Wrong! The federal government twice postponed implementation to ease pressure on the states, then negotiated a phase-in of requirements. Additionally, it has provided grants to help states implement the program. No cram-down here!

With all these issues asked and answered there is no need for Congress to wade in with new legislation. Still, it may do so anyway at the behest of states that declined to participate in the program. These states have a key ally, Homeland Security Secretary Janet Napolitano. As governor of Arizona, she vociferously opposed REAL ID.

Congressional committee staffs are still hammering out the final language for the PASS ID bill, but so far the draft looks pretty daft. It would repeal standards for secure drivers' licenses, but not repeal the financial aid to help states meet those standards. Instead, it would divert the money to a new slush fund that any state could tap for almost anything related to driver licensure.

It could have been worse. The original draft called for outright repeal of the REAL ID act. That would have killed all of its security provisions--not just those pertaining to identification documents.

For example, REAL ID authorizes environmental waivers to build barriers and other infrastructure along the border to prevent illegal border crossing. It also allows the government to deport individuals for providing material support to terrorists. Full repeal would have eliminated that authority.

While the final draft avoids those pernicious effects, it still reads as an initiative designed to pave the way for granting a general amnesty to illegal immigrants. One reading of the PASS ID Act suggests it may establish a federal requirement, as part of "legalization," that states must issue drivers' licenses to everyone here illegally.

It cannot be a coincidence that the strongest advocates for amnesty are also among the harshest congressional critics of REAL ID. For years, they have been "finding" all kinds of concerns, problems, challenges, costs they didn't happen to notice when Congress first passed the law. Now, they say, we must pass a new law to "fix" these imaginary shortcomings.

Before doing anything else with the PASS ID Act, Congress needs to take a hard look at what is in it. They must be careful not to violate Speaker Pelosi's dictum that Congress "keep the promise to the 9/11 families and honor the work of the 9/11 Commission."

James Jay Carafano is Senior Research Fellow in national security policy at The Heritage Foundation.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow

First Appeared in the Washington Examiner