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Testimony of Secretary Napolitano on the Identification Security: Reevaluating the Real ID Act

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Testimony of Secretary Napolitano before the Senate Committee on Homeland Security and Governmental Affairs, "Identification Security: Reevaluating the Real ID Act"

Chairman Lieberman, Senator Collins, and members of the Committee: Thank you for your leadership on homeland security issues, and thank you for holding this important hearing today on how the passage of the Providing Additional Security in States' Identification Act of 2009, also called PASS ID, will enhance our Nation's security. The Department of Homeland Security (DHS) provided technical assistance to PASS ID's Senate sponsors in drafting this bill, and we look forward to continue working with Congress on the bill as it moves through the legislative process. I urge this Committee to mark up PASS ID promptly so it can be considered by both houses of Congress and signed into law this calendar year.

PASS ID is a critical piece of national security legislation that will fix the REAL ID Act of 2005 and institute strong security standards for government-issued identification. PASS ID will fulfill a key recommendation of the 9/11 Commission, that the federal government set standards for identification such as driver's licenses and nondriver identification cards and this bill will do so in a way that states will implement, rather than disregard. PASS ID will enact the same strong security standards set out by REAL ID as quickly as REAL ID but, critically, this bill provides a workable way to get there.

We must work to keep terrorists and other criminals from obtaining false identification nd in order to do that, we need to have consistent, strong standards for identification ocuments that all states can implement. The 9/11 Commission was clear about this. But the EAL ID Act is unlikely to be implemented by the states as Congress intended, and a new pproach is needed if we are to accomplish the law's goals.

As a former Governor and former chair of the National Governors Association, I can attest that the states strongly support the goals of the REAL ID Act, but many feel that they didn't have an adequate opportunity to help shape the law, and find it fundamentally flawed. Indeed, 12 states have so far passed legislation outright rejecting it, two states have passed legislation refusing to implement it without significant conditions being met, 11 states have passed resolutions opposing it, and many other states are refusing to implement it.1 PASS ID was built with the states, maintaining strong security standards and introducing enough changes in implementing those same standards as to provide states a system in which they will participate. This, unlike the status quo, will yield the progress we need on secure identification.

PASS ID's Senate sponsors Senators Akaka, Voinovich, Baucus, Carper, Leahy and Tester along with the Department of Homeland Security and the National Governors Association (NGA), collaborated with state and local governments and law enforcement to draft a bill to fix REAL ID and institute strong standards for secure identification. PASS ID enjoys the support of Democrats and Republicans in Congress, Governors and state legislators throughout the country, and state, local and federal law enforcement groups. Governor Jim Douglas of Vermont, the incoming Chair of the NGA, and Sheriff Lee Baca from Los Angeles County are here to discuss the reasons why PASS ID has won support from the states and the law enforcement community.

The need for Congress to fix REAL ID is urgent. If Congress fails to enact new legislation, we will continue to have a law on the books that does not meet the security needs of our Nation. We cannot leave an important recommendation of the 9/11 Commission unfulfilled.

There is another urgent reason for acting quickly. As it currently stands, the next stage of REAL ID implementation scheduled for the end of 2009 would result in major complications for the residents of 12 states with anti-REAL ID laws, as well as for residents of other states that could refuse to implement REAL ID. The more than 40 million people living in those 12 states would be unable to use their driver's licenses for official purposes such as boarding an airplane, even though no state will have issued a REAL ID-compliant document by that time.

In order to solve the problems of REAL ID, it is imperative that this Committee, and Congress as a whole, heed the call of Governors and law enforcement to enact the PASS ID Act promptly.

Why We Need Secure Identification

The ability to obtain fraudulent identification documents presents an opportunity for terrorists and other violent criminals to board airplanes, rent cars, open bank accounts, or conduct other activities without being detected. Law enforcement must be able to rely on government-issued identification documents. An officer must be able to know that the bearer of a government-issued ID is who he or she claims to be, and must have the ability to identify a fraudulent ID quickly.

We need nationwide standards because states vary widely in how they issue driver's licenses and non-driver's license identification cards produced by states' motor vehicle departments, the two types of identification to which both REAL ID and PASS ID apply. (For shorthand, when I refer to "driver's licenses" in this testimony, I mean both of those types of identification.) Nationwide security standards for IDs would give law enforcement officials the assurance that all IDs meet a high threshold of security. While fraudulent IDs play a major role in identity theft, illegal employment, and border crime, the most immediate reason we need to secure government-issued IDs is to thwart potential terrorists.

As you know, the ability of terrorists to obtain government-issued IDs played a significant role in the events leading to the attacks of September 11, 2001. According to the 9/11 Commission Report, "All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud."2 Preventing terrorists from obtaining these documents is critical to securing America against terrorism. As the 9/11 Commission noted, "For terrorists, travel documents are as important as weapons."3

The 9/11 Commission recommended that the federal government work with other layers of government to solidify the security of government-issued IDs:

Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.4

Improving government-issued IDs alone will not thwart every planned terrorist attack, but it presents an important obstacle to any potential terrorist operating in the United States and could aid law enforcement in stopping terrorist plots. Securing IDs is a common-sense national security imperative. The 9/11 Commission spelled out the need for the federal government and the states to take action together on this issue a process that has been unduly hampered by the REAL ID Act.

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Lawrence J. Gist II is a dedicated pro bono attorney and counselor at law, adjunct professor of legal studies at Mount St. Mary's College in Los Angeles, CA, a member of the board of directors of the Institute of Indigenous Knowledges, and a veteran (more...)
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