Topic: Foreign Policy and National Security

REAL ID Update

Lots of interesting things continue to happen with the REAL ID Act, America’s faltering national ID law. Passed in May 2005, it would have states issue drivers’ licenses and IDs to federal standards by May of next year.

The count of states rejecting implementation of this federal surveillance mandate has now reached 11, with Missouri, Georgia, and Nevada most recently joining the list of states opposed.

Interestingly, Department of Motor Vehicle bureaucrats in Nevada continue to move forward with REAL ID planning, despite the opinions of the state’s legislature. According to a Federal Computer Week article posted today, “Nevada’s Department of Motor Vehicles … is investigating facial recognition and various methods for sharing driver’s license information with other states and the federal government.” This, despite the legislature consistently cutting funding for implementation and passing legislation urging Congress to repeal REAL ID. But what’s a legislature to stand in the way of bureaucrats doing what they want to do?

Activity in other states continues. In Michigan, Rep. Paul Opsommer (R-DeWitt) has introduced a resolution urging Congress to repeal REAL ID. This has earned him plaudits from Lansing State Journal columnist Derek Melot, whose recent blog post about Opsommer’s bill was called “Somebody gets it.” Indeed Opsommer does. (Be sure to read the comments. Someone with behind-the-scenes knowledge has offered his take.)

At the federal level, Title III of the ballyhooed immigration reform bill might as well be called REAL ID II. It would spend $300 million trying to get states to implement the REAL ID Act. (This is both too much and too little. Too much, because REAL ID shouldn’t be implemented. Too little because implementation will cost the states and people over $17 billion dollars.) Most importantly, possession of a REAL ID-compliant license or ID card will be a condition of getting federal permission for working if Title III passes as written. The Department of Homeland Security is using immigration reform to try to resurrect its failed national ID plan, described by Senate Homeland Security Chairman Lieberman as “unworkable” when it originally passed.

Ashcroft: Closet Civil Libertarian?

A piece in yesterday’s Post points out that, contrary to John Ashcroft’s reputation as a lockstep defender of the administration’s war-on-terror policies, as attorney general, Ashcroft “at times resisted what he saw as radical overreaching”:

In addition to rejecting to the most expansive version of the warrantless eavesdropping program, the officials said, Ashcroft also opposed holding detainees indefinitely at the U.S. military base at Guantanamo Bay, Cuba, without some form of due process. He fought to guarantee some rights for those to be tried by newly created military commissions. And he insisted that Zacarias Moussaoui, accused of conspiring with the Sept. 11 hijackers, be prosecuted in a civilian court.

All true, but the article leaves out one of the most important occasions on which Ashcroft pushed back.  In 2002, the adminstration seriously contemplated extending the Jose Padilla treatment–that is, indefinite confinement at the will of the president, without charges or access to counsel–to all Americans suspected of terrorist activity.  As Michael Isikoff and Daniel Klaidman reported in Newsweek three years ago, in addition to Padilla, “officials privately debated whether to name more Americans as enemy combatants—including a truck driver from Ohio and a group of men from Portland, Ore.,” as well as the Lackawanna Six

For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. That’s what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing “material support” to Al Qaeda. 

Indeed, though Ashcroft seemed to have been on board with the transfer of Padilla out of civilian custody, he apparently helped prevent a much broader assault on the rule of law. 

Now I think calling John Ashcroft a civil libertarian for this would be setting the bar pretty low.  But after nearly six years of radical overreaching, it’s hard not to fall victim to the “soft bigotry of low expectations.” 

Immigration Reform = National ID?

Yesterday’s “breakthrough” on comprehensive immigration reform is indeed salutary. But as the Washington Post editorializes this morning, “It’s critical that in addressing one set of immigration problems, the legislation doesn’t create a new set.”

One potential problem is the creation of a national ID in the process of expanding worker surveillance for intensified internal enforcement. This was the subject of a hearing in the House Immigration Subcommittee at which I recently testified.

Like many, I’ll be watching carefully to see if a national ID system is part of the ineluctable logic of the immigration reform deal that has been struck. Ineluctably, I’ll be calling it like I see it.

REAL ID Is a Dead Letter

Ten states have now passed legislation rejecting the REAL ID Act, the national ID law Congress passed without a hearing in May 2005.

Massachusetts may be next. According to the Boston Globe, the registrar of motor vehicles in that state issued scathing comments to the DHS on the regulations implementing the law. Apparently, there were 12,000 comments in total – quite a few of them negative, I’ll wager.

I have testified on REAL ID twice in the U.S. Senate, both times calling the law a “dead letter” – once in the Committee on Homeland Security and Governmental Affairs and once in the Judiciary Committee.

Gonzales’s Gambit

Still more reasons why Gonzales needs to go.

When Attorney General John Ashcroft and FBI Director Robert Mueller are threatening to resign because then-White House Counsel Gonzales is seeking surveillance powers that go “too far” …  you start to get a sense as to Gonzales’s views on state power.  

Cato will be hosting a debate on the NSA surveillance program and more next week.  For additional background, read this.

The White House Privacy Board Hasn’t Gotten Everything Right

In a recent post, I lauded the White House Privacy Board for its use of an analytical framework similar to the one I helped produce for the DHS Privacy Committee. It wasn’t a total endorsement, and I covered my … tracks by saying, “This doesn’t mean the White House Privacy Board has gotten everything right, of course. I have no doubt that they could have done better.”

Someone else shares that view, someone who should know. Lanny Davis, the lone Democrat on the Board, has resigned. Newsweek reports that he complains of “substantial” edits of the board’s report in his resignation letter.

Davis charged that the White House sought to remove an extensive discussion of recent findings by the Justice Department’s inspector general of FBI abuses in the uses of so-called “national security letters” to obtain personal data on U.S. citizens without a court order. He also charged that the White House counsel’s office wanted to strike language stating that the panel planned to investigate complaints from civil liberties groups that the Justice Department had improperly used a “material witness statute” to lock up terror suspects for lengthy periods of time without charging them with any crimes.

I am not a bit surprised. Serving as I do on a similar board, I am keenly aware of the pressures to conform the group’s findings to the prevailing view at the sponsoring agency. So far, the DHS Privacy Committee has been pretty good at resisting that, but it is not fully independent by any stretch.

This all is a reminder: Privacy will never be protected by government-constituted boards or officials. It is a product of individuals having the power to control information about themselves and exercising that control consistent with their interests and values. Don’t ever think you’ve got privacy because there is a White House Privacy Board or a DHS Privacy Committee.

As If Canada Were a Separate Country

Jim Harper adequately documents (1) how the State Department is bungling my wife’s application for a new passport, which one now needs to fly to Montreal (for some reason), and (2) my appeal to the opposite sex. 

I would add only that, while David Boaz is correct that a fence between the U.S. and Mexico is not exactly Berlin Wall-esque (“The Berlin Wall was designed to keep citizens in”), this bone-headed rule that one cannot fly to Canada without a passport might be: it actually does make it more difficult for American citizens to leave.