Who Killed Real ID?
An unlikely coalition wins a post-9/11 victory for civil liberties
September 11? Don't get Karen Johnson started about September 11. "I simply don't buy that terrorists took the twin towers down," says the Arizona state senator, a 12-year Republican veteran of the legislature. Johnson laughs and sighs. "Come on! World Trade Center Building Seven wasn't even hit by an airplane! To me, 9/11 was a big cover-up."
It's the afternoon of June 18, and Johnson has been having a pretty good day. Hours earlier, Democratic Gov. Janet Napolitano signed House Bill 2677 into law, making Arizona the 20th state to adopt a resolution or statute opting out of the Real ID Act of 2005, which mandated that all 50 states and the District of Columbia switch to a standardized, database-compatible driver's license by May 11, 2008.
Arizona's anti-ID law, penned by Johnson, has teeth. State bureaucrats are required to "report to the governor and the legislature any attempt by agencies or agents" of the Department of Homeland Security (DHS) to cajole some kind of compliance. Gov. Napolitano, elected in 2002, is a rising Democratic star who was reportedly vetted by Barack Obama's campaign as a potential vice president. Johnson's relationship with her own party is somewhat less cozy. She voted against John McCain, Arizona's favorite son, in the state presidential primary and endorsed Ron Paul instead. She has been pilloried for her connections to the ultraconservative John Birch Society and for her very public suggestions—one of them made on the floor of the state Senate—that 9/11 was an inside job. The anti-conspiracy Web site Screw Loose Change calls her a "kook." Johnson can take it: She calls herself a "rightwing nut."
Deride them all you want, but the nuts are winning real victories for liberty, assembling a ragtag coalition that has managed to beat back one of the most egregious recent assaults on individual privacy. "I think Real ID is done in Arizona," says Mary Lunetta, an American Civil Liberties Union (ACLU) liaison who worked with Johnson on HB 2677. "It's over." Michael Hough, a coordinator for the conservative American Legislative Exchange Council, thinks Real ID will meet a similar fate at the federal level. "Even the administration has backed off of implementing Real ID," Hough says. "It's not going to happen as it stands now."
The left/right, mainstream/fringe hydra of a movement to defeat Real ID in Arizona is a template that has worked in state after state. These strange, sweet victories are a sign that the United States is rediscovering its civil libertarian roots after the momentous disruption of 9/11.
A Skeptical Tradition
Americans probably would never have suffered through a debate over national ID cards—much less a bill mandating them—but for the attacks of September 11, 2001. Biometric identification cards have been rejected by panel after panel, pol after pol, pitchfork-wielding mob after pitchforkwielding mob, ever since the technology came online. In 1973, the year that the 12-digit Universal Product Code made its debut, the House of Representatives' Health, Education, and Welfare Advisory Committee rejected a national ID system on the grounds that it "would enhance the likelihood of arbitrary or uncontrolled linkage of records about people."
As the years passed, the consensus held. In 1977 the congressionally mandated Privacy Protection Study Commission, confronting the problem of identity theft, warned that a national ID and database of personal information would create more problems than they solved. It recommended that bureaucrats "halt the incremental drift toward creation of a standard universal label and central population register" until legislators found a way to keep the information secure.
In part, the commission's reluctance reflected the post-Watergate cynicism and paranoia of the 1970s. But its decision was also rooted in a historical and uniquely American aversion to having the central government issue—and demand on request—uniform ID cards. That cantankerous tradition flared up again in the early 1990s, when the Clinton administration's health care plan was attached to a system of biometric cards. Add to that the objections by affected interests such as state governments and "sin" industries, and opposition to a national ID scheme seemed etched in concrete.
Then came 9/11. During 2004 hearings held by the congressionally created National Commission on Terrorist Attacks upon the United States, centralized ID made a comeback. The 9/11 commission ended up recommending some sort of biometric standardization of identification to prevent terrorists from collecting fake IDs the way some of the 19 hijackers had, although that recommendation was one of the few that didn't make into the December 2004 Intelligence Reform and Terrorist Prevention Act. The law did, however, authorize a Real ID Advisory Committee to research possibilities for national standards. States, tech companies, and congressional staffs started cobbling together ideas.
"This was a state function that we were trying to keep a state function, albeit with national standards," recalls David Quam, a researcher at the National Governors Association who worked on the project. Other advocates shared Quam's localist approach. "The goal was to put the states in charge," says Brian Zimmer, who ran interference on the project between states and legislators on behalf of the House Judiciary Committee before becoming president of the lobbying group the Coalition for a Secure National ID. "The Department of Homeland Security, ideally, wouldn't even be involved with this."
But then the House of Representatives circumvented the process by pushing Real ID to the front of the legislative line. The impetus had little to do with terrorism and much to do with the incendiary politics of immigration.
Swept in by a Tsunami
In January 2005, Rep. David Dreier (R-Calif.) called for a Social Security card that would contain a biometric photo ID to prevent illegal immigrant day laborers from using bogus Social Security numbers to get jobs. Dreier, a powerful and telegenic congressman first elected back in 1980, had nearly lost his long-safe seat two months earlier thanks to a national anti-immigration backlash headquartered in his own Orange County district. Chastened, he vowed to crack down on illegal immigrants by making Social Security cards much harder to get, although not, he promised, to the point of transforming them into national ID cards. To allay such fears, Dreier promised to stamp them with a disclaimer: "This is not a national ID card."
The proposal didn't make it to a vote, but the idea wasn't dead. House Judiciary Committee Chairman James Sensenbrenner (R-Wis.) had a more effective strategy. In January 2005 he introduced the Real ID Act, watched it pass the House by a vote of 261 to 161, but saw it die on the way to the Senate. So Sensenbrenner, who had been pushing for some sort of biometric national ID card since the 1990s, attached Real ID to an $83.6 billion March 2005 emergency supplemental spending bill to fund relief in Pacific nations devastated by the December 2004 tsunami. The House passed the package by a vote of 388 to 43, the Senate authorized a version by a vote of 99 to 0, and within two short months Real ID was signed into law by President George Bush. States had three years to develop IDs with machine-readable data (such as a bar code), verified by local departments of motor vehicles, linked together with databases that could be accessed by all other states.
Real ID had problems unrelated to civil liberties. It demanded compliance from the states on a series of hard, nonnegotiable deadlines, the first one coming in May 2008, when citizens of states with below-compliance IDs would run into problems when they boarded planes or crossed state lines. It mandated a national database of biometric information, a technical undertaking for which no federal agency was ready. There was never any serious estimate of how much money states would have to spend to bring their driver's licenses into compliance, and no federal money was allocated for the purpose. States would have to dig into their own funds to radically reform their own ID systems.
Two days after Bush signed the law, the National Governors Association, which had long been lobbying for a national ID card, came out against it. "Several of the requirements included in the Emergency Supplemental," it complained in a statement, "particularly those having to do with verification of documents used to acquire an ID, are either technologically or fiscally prohibitive." The National Conference of State Legislators weighed in against the law too. So the two largest associations of politicians who would have to implement Real ID had hardened into dedicated opponents.
Sensenbrenner, the DHS, and their allies in the tech industry still seemed to have the upper hand. The tone of the press coverage, like the mood among state legislators, was resigned. "Like it or Not, National IDs Are Coming," read a typical headline in the Austin-American Statesman. A Connecticut woman named Mary Long wrote to USA Today in favor of the idea, saying, "I certainly don't mind standing in line longer or providing multiple documents to obtain my driver's license in the interest of a more secure country."
But the new system required more than slightly longer lines. Congress had not appropriated the money needed to initiate the transition from many divergent state IDs to one national standard, a change requiring the root-and-branch transformation of thousands of motor vehicle departments. "The government had no idea what it was getting into," says Quam. "They thought this would cost $100 million, total, and they didn't even give confidence that the money would be coming soon."
Live Free or Die
At the beginning of 2006, the Department of Homeland Security offered New Hampshire and Tennessee $3 million each for a test of Real ID. New Hampshire was exactly the wrong place to begin. The Live Free or Die state, home to the libertarian Free State Project, was rife with anti-Real ID activists. The Granite State ID Coalition, a grab bag of groups ranging from the state Libertarian Party to the liberal Democracy for New Hampshire (founded by the remnants of Howard Dean's presidential campaign), had launched a word-of-mouth effort against the law. Among the gaggle of local libertarian-leaning politicians, it seemed likely that one would arise to carry the anti-Real ID standard.
In March, Rep. Neal Kurk (R-Weare), already a Real ID skeptic, was strolling between the State Capitol in Concord and his office when he ran into a fellow Republican, Rep. Richard Marple of Hookset. "He was an oddball," Kurk remembers, "but I overheard him talking about the Real ID Act and asked what he was working on." Marple showed Kurk his draft of an anti-Real ID bill, a rambling document that listed all of Marple's constitutional objections to the law. "I explained to him that this would never pass," Kurk says, "and that if he wanted it to, I should rewrite it."
Kurk composed a bill opting the state out of Real ID and turning down the $3 million grant—"the bribe," he called it. In committee, his proposal failed by a vote of 12 to 1. On April 14, when the bill was scheduled to be read in the House (despite the vote), Kurk took to the floor to make his pitch.
Yes, he acknowledged, if the Real ID deadline passed without New Hampshire's compliance, the federal government might make good on its threat to bar residents from traveling on airplanes using their driver's licenses for identification. Yes, the state would be turning down a sizable pile of money. "I don't believe that the people of New Hampshire elected us to help the federal government create a national identification card," he said. "We care more for our liberties than to meekly hand over to the federal government the potential to enumerate, track, identify, and eventually control us."
The speech was effective. On May 3, 2006, the New Hampshire legislature passed HB 1582, a bill creating "a commission to study" Real ID and prohibiting compliance until the study was completed. "That $3 million bribe was tempting," says state Sen. Peter Burling (D-Cornish), who sponsored the Senate version of the bill. Later that month, Kurk and his allies got a hallelujah from U.S. Sen. John Sununu (R-N.H.). "The REAL ID Act replaced sound policy with bad policy," Sununu wrote in a column for the conservative Manchester Union Leader.
Kurk's success emboldened the nation's Real ID opponents, who had been nervous about responding to federal threats with constitutional arguments. "I'd point to that speech as the turning point," says Jim Harper, the director of information policy studies at the libertarian Cato Institute, and a key player in barnstorming against the law. "It was a good speech," Kurk says today. "I freely admit that. But don't give me all the credit!"
Noam Biale, a lawyer who helped launch the ACLU's anti-Real ID project in late 2005, says the measure had "two Achilles' heels." The first was the cost on the federal level. "The second," Biale says, "was state implementation, which gets thorny for a number of reasons, and the civil liberties issue was the big one." In its search for allies, the mostly liberal ACLU often found that activists on the right had started the work already.
The Revolt Spreads
Before Neal Kurk's rebellion began—even before Real ID became a law—a more marginalized segment of the coalition was emerging. Endtime magazine, a 35,000-circulation, Dallas-based periodical published by the eschatological Endtime Ministries, had been churning out cautionary articles about computer ID chips for years. When Real ID passed, Endtime clicked into high gear. "The Real ID card," says Endtime Managing Editor Craig Treadwell, "plays right into the hands of the Beast."
According to Treadwell's apocalyptic theology, during the end days a "mark of the beast" will be forced onto mankind. Millions of Christians avidly believe in this; fear of the mark has girded opposition to UPC symbols, to health ID cards, and to any proposal for a global or national ID card. In mid-2006, Endtime printed a special issue that went well beyond its subscription base. Copies, Treadwell says, were mailed to every member of Congress and every state legislator in the nation. In Oklahoma one copy went to state Sen. Randy Brogdon (R-Owasso), who soon found some secular reasons to oppose Real ID.
"Congress has no authority over what we do with our driver's licenses," Brogdon says today. "It's a flagrant violation of the 10th Amendment. And it blows away the First Amendment rights of my constituents. I have constituents who believe that in the end times, we will have to bear a special mark that will be foisted upon us by the government."
Brogdon's party wasn't very supportive at first. Former Oklahoma Rep. Ernest Istook, a Republican who lost the race for governor in 2006 and then found a sinecure at the Heritage Foundation, attacked politicians who wanted to opt out of Real ID. "When you are out of step with the rest of the country," Istook said in January 2007, "it is not reasonable to think Congress is going to change the law just for you."
Brogdon sold statehouse members on opting out of Real ID by pushing a combination of fiscal concerns and privacy fears. "Congress passed this thing without any debate," he argues. "I just think that's despicable." Even as the state was passing an anti-illegal immigration bill, Brogdon's Real ID revolt sailed through.
From state to state, the same pattern emerged. In Idaho, Republican Rep. Phil Hart, based in the rural area around Coeur d'Alene, was already getting "incredibly negative" feedback from his constituents about the law. To build support for his opt-out bill, Hart invited Cato's Jim Harper to a public forum. Harper took his seat and listened to the speaker before him, state Homeland Security Director Bill Bishop. Harper was stunned.
"I'm there, dressed to the nines to give this speech based on material I've worked on for months," Harper says. "Here's this guy—a great Western guy, with a sheriff mustache—saying it all. Cost overruns. Civil liberties. The flawed national database. That was a point when I realized how pervasive the understanding of this issue was, and how oppositional it was."
The ACLU and Cato became the public face of Real ID opposition, but much of the grunt work was done by activists on the political fringes. Katherine Albrecht is a conservative long active in opposing radio frequency identification (RFID) chips—electronic tracking gizmos that can be implanted in virtually anything. When Albrecht heard about the Real ID Act, she hit the campaign trail, writing articles for websites and magazines like Endtime, giving anti-Real ID presentations to legislatures in states as far-flung as Alaska. "I got a lot of 'wow' and 'that can't be true' kind of reactions," she remembers. The John Birch Society contacted its members in every state, provided information for them to dog their legislators, and published anti-Real ID journalism in its New American magazine.
Not even James Sensenbrenner's Wisconsin stomping grounds were safe from Real ID rebels. Republicans controlled the state legislature, but state Rep. Jeff Wood (R-Chippewa Falls) was against Real ID from the start. "I thought it did nothing to prevent terrorism," Wood says. "The only thing you can ever predict is bad legislation, and this took the cake as far as that's concerned."
Wood found a liberal ally in state Rep. Louis Molepske (D-Stevens Point), whose initial worries about Real ID grew as he talked to federal officials. "I was on a conference call with the undersecretary of DHS," he remembers, "and I asked pointed questions he could not answer." Molepske was prodded by his left-leaning constituents to research Real ID and to pass a corrective bill. "I'm blessed to represent a district with a university, with a lot of really smart people who educated me," he says.
Wood and Molepske drafted legislation that took Wisconsin out of Real ID. Sensenbrenner, fuming, said he would travel district to district and campaign against any Republican who opposed the federal law. "I said 'go ahead,'" says Wood. "I offered to pay for his gas." Wood and Molepske aren't feeling much heat before their September primaries; by the time Sensenbrenner made his threat, no one could mistake which way the wind was blowing.
The Governors' Rebellion
By the start of 2008, 18 states—Arkansas, Colorado, Georgia, Hawaii, Idaho, Illinois, Maine, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee, and Washington—had passed laws opting out of Real ID or demanding extensions past the May deadline. The Bush administration responded by buckling. On January 11 DHS pushed back the final deadline for compliance by five years, from 2012 to 2017. The central concept of a national database was scrapped for financial and technological reasons: It was just too much for the department to manage, even if a full-scale revolt hadn't been thwarting it at every step.
But Montana Gov. Brian Schweitzer, a Democrat, wasn't satisfied. On February 11 he sent (and made public) a letter to 12 fellow governors. The message: Hang tough. "Please do not accept the Faustian bargain of applying for the DHS extension," Schweitzer wrote. "If we stand together, either DHS will blink or Congress will have to act to avoid havoc at our nation's airports and federal courthouses."
South Carolina Gov. Mark Sanford, a Republican, didn't need the pep talk. He had opposed a national ID card for years, starting when he was a congressman in the mid-1990s. "Illegal immigration was used as the trojan horse back then," Sanford remembers. "The new ingredient is post-9/11 fears."
On May 31 Sanford sent DHS his own seven-page letter excoriating the program. Like Schweitzer, he made it public. "Does it make any sense to begin a de facto national ID system without debate?" Sanford wrote. "As a practical matter, this sensitive subject received far less debate than steroid use in baseball." He concluded by telling DHS to be "mindful not to fight yesterday's battle and to always remember that America's greatest homeland security rests in liberty."
DHS responded by pretending Sanford had said something else entirely. "Based on your assurances," Homeland Security Secretary Michael Chertoff wrote, "it seems clear that South Carolina is well on the way to meeting requirements comparable to those required by the final Real ID regulation. I will therefore treat your letter as a basis for an extension and hereby grant it."
It was all that Chertoff could do. The May 11 deadline for Real ID compliance had come and gone, and all 50 states had missed it. At the Wisconsin GOP's annual convention in May, Sensenbrenner (who declined to be interviewed for this article) delivered a petulant attack against Assembly Speaker Michael Huebsch (R-West Salem) for stopping Real ID compliance in the state. "We need to act like Republicans and vote like Republicans," Sensenbrenner said. Huebsch, speaking a little later, referred to the Real ID author only obliquely. "We as Republicans," he said, "do not place our faith in government but in each other."
Bucking the System
Arizona didn't play a special role in the death of Real ID. It looked like the other rebellious states; when the momentum shifted from the go-along, get-along ID supporters to people like Karen Johnson, it merely echoed what was happening elsewhere. But it was in Arizona where Real ID opponents proved they'd achieved the upper hand in this debate.
Johnson's coalition brought together every group in the sprawling pro-privacy tent. The ACLU sent letters imploring its 3,000 state members to lobby for an opt-out bill. Bryan Turner, an organizer for the John Birch Society, talked to his own members and twisted arms on Capitol Hill. Citizens who walked into a March 2008 town hall meeting at the University of Arizona heard the ACLU and Katherine Albrecht join Johnson in making the point-by-point, they're-coming-for-your-rights case against Real ID. "It was a wonderful cross-party kind of union," remembers Mary Lunetta, the state ACLU's activism director.
How much of the rebels' victory was their own, and how much was due to the federal government's poor sales pitch? Real ID opponents readily admit that the failure of the feds to offer grants to pay for compliance proved crucial. The feds ultimately offered Arizona $90 million, but it came much too late, the day after the governor signed the noncompliance bill. Johnson doesn't think it would have been enough to change the outcome. "It wouldn't [have been] unanimous anymore," she says. "But we'd still have the majority."
Johnson and others who defeated Real ID have confronted the national security state before and lost, badly. They've watched other unfunded mandates get forced onto states as legislators and governors grumbled, then meekly assented. But this time the states didn't assent.
"This is a major shift we've been seeing," says the ACLU's Noam Biale. "We saw this kind of resistance first with the PATRIOT Act, but this was bigger, and this was more successful. There is a willingness to challenge the national security state that wasn't there six years ago." To the surprise of Biale, it was a challenge that came from libertarians and the religious right as much as—maybe more than—the left.
"We're not Russia," says Neal Kurk, the New Hampshire Republican who played a crucial role in the Real ID fight. "We're not Germany. We're not Japan. There are too many people in this country who buck the system for a scheme like this to succeed."
David Weigel is an associate editor of reason.