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House Republicans attempt to revive Real ID

GOP leaders want "immediate" implementation of controversial ID plan that would make it more difficult for many Americans to travel by air or enter federal buildings.

Real ID Act

If you're a resident of one of at least 24 states including Arizona, Georgia, and Washington, your driver's license may no longer be valid for boarding an airplane or entering federal buildings as of May 11, 2011.

That's the deadline that senior House Republicans are calling on the Obama administration to impose, saying states must be required to comply with so-called Real ID rules creating a standardized digital identity card that critics have likened to a national ID.

The political problem for the GOP committee chairmen is that the 2005 Real ID Act has proven to be anything but popular: legislatures of two dozen states have voted to reject its requirements, and in the Michigan and Pennsylvania legislatures one chamber has done so.

That didn't stop the House Republicans from saying in a letter this week to Homeland Security Secretary Janet Napolitano that "any further extension of Real ID threatens the security of the United States." Unless Homeland Security grants an extension, the law's requirements take effect on May 11.

"If they don't, people won't be able to use their driver's licenses to get on airplanes," says Molly Ramsdell, who oversees state-federal affairs for the National Conference of State Legislatures. "They can use a military ID. They can use some other federal ID. But they won't be able to use a driver's license." (See CNET's FAQ.)

The situation represents a setback to Rep. F. James Sensenbrenner (R-Wisc.), who championed Real ID as a way to identify terrorists and criminals. But instead of what supporters hoped would be a seamless shift to a nationalized ID card, the requirements have created a confusing patchwork of state responses--with some legislatures forbidding their motor vehicle administration from participating--and could herald chaos at airports unrivaled by any other recent change to federal law.

Sensenbrenner and two colleagues, House Judiciary Chairman Lamar Smith (R-Texas) and Homeland Security Chairman Peter King (R-N.Y.), said in their letter that "until Real ID is fully implemented, terrorists will continue to exploit this vulnerability to accomplish heinous purposes. The "importance of the immediate implementation of Real ID" is paramount, they said, and warned Napolitano not to extend the May 11 deadline.

ACLU's chart shows status of the Real ID rebellion among individual states as of 2009, with states shown in white not objecting.
ACLU's chart shows status of the Real ID rebellion among individual states as of 2009. ACLU

If Napolitano does not, air travelers from non-Real ID states would at least be subjected to what Homeland Security delicately calls "delays" and "enhanced security screening," or perhaps even be denied boarding. In addition, driver's licenses from non-Real ID states could no longer be used to access "federal facilities," including military academies, the Pentagon, Treasury Department, the U.S. Capitol, Veterans Affairs hospitals, and some federal courthouses.

"Individuals with a driver's license from a state that is not materially compliant with Real ID would need to go through a secondary screening" at airports, Wendy Riemann, Sensenbrenner's communications director, told CNET yesterday. "I'm told this is what happens now if you were on vacation and lost your wallet and had to board a plane." Riemann declined to answer what would happen inside federal buildings and courthouses, saying "I'm not about to get into hypotheticals."

From the House Republicans' perspective, the rules are clear: Real ID was signed on May 11, 2005, by President Bush, and federal agencies have had nearly six years to comply. The vote in Congress was overwhelmingly in favor of the law, part of a broader "war on terror" spending and tsunami relief bill that was approved unanimously by the Senate and by a vote of 368 to 58 in the House of Representatives. (Real ID cleared the House by a 261 to 161 vote as a standalone bill without hearings or debate.)

Since its enactment, its backers have been aggressively defending Real ID, noting that many of the hijackers on September 11, 2001, were able to fraudulently obtain U.S. driver's licenses. Because Real ID links state DMV databases, establishes a standard bar code that can be digitally scanned, and mandates that original documents such as birth certificates be verified, backers claim the benefits extend beyond antiterror and ID fraud cases. (Extending it to firearm and prescription drug sales has not been ruled out.)

Many state governments have seen it differently and have responded by flatly refusing to abide by the federal requirements on privacy, federalism, and funding grounds. What started in early 2006 with a revolt in New Hampshire morphed into a full-scale rebellion, with dozens of states adoption opting out.

A chart (PDF) updated last month by the National Conference of State Legislatures lists 16 states with laws forbidding compliance with Real ID and eight states including Colorado, Hawaii, and Illinois that have enacted resolutions opposing it.

NCSL's Ramsdell says, however, that those numbers are a low estimate. "The question is: How many states DHS has deemed to be in compliance? At this point the answer is none," she says.

Complicating the situation is that, during the Bush administration, Homeland Security was an unabashed champion of Real ID. But under the Obama administration, the department has been far less effusive in its support of the law, and Napolitano has been quoted as talking about repealing Real ID in hopes of replacing it with something that "accomplishes some of the same goals." (As Arizona governor, Napolitano signed a law forbidding the state from complying with Real ID.)

Another delay is what Sensenbrenner, Smith, and King are worried about--which is effectively what happened just before a May 11, 2008, deadline. Their letter argues that last week's arrest in Texas of Khalid Aldawsari on charges of attempted use of a weapon of mass destruction "underscores the importance" of implementing Real ID immediately.

A criminal complaint (PDF) against Aldawsari alleges that he created a "synopsis of important steps" that included obtaining a forged U.S. birth certificate and obtaining a driver's license. Those documents could be used to rent cars and place explosives. But there's no evidence Aldawsari actually began the process of obtaining fraudulent documents or would have succeeded.

The practical difficulties of implementing Real ID in only 10 weeks makes the House Republicans' letter political posturing, says Jim Harper, director of information policy studies at the libertarian Cato Institute.

"Real ID was an unserious law, passed without a hearing in the House or Senate," Harper said. "This is an unserious letter, sent without regard for the consequences if the DHS did what they ask."