Unless someone blinks, after May 11 air travel for Mainers will get a lot more complicated. So will entering a federal office building or courthouse. That is the day the Department of Homeland Security institutes new regulations that will gradually turn drivers' licenses into national identification cards.
Whoops. We're not supposed to say that. The new regulations, part of the Real ID program, are supposed to "enhance the integrity and reliability of drivers' licenses and identification cards," according to a press release from the Department of Homeland Security (DHS).
Essentially Real ID sets common standards for all drivers' licenses and state identity cards nationwide and creates the electronic infrastructure that gives states and the federal government access to each other's databases of personal information. Early last year an outraged and skeptical Maine legislature almost unanimously passed a bill opposing the new rules and forbidding the state's participation. Since then at least sixteen other states have passed bills or resolutions similarly opposing.
According to Homeland Security Secretary Michael Chertoff, Real ID will make America safe from terrorists, stop identity theft, and solve the illegal immigration problem. According to its opponents, Real ID is a massive invasion of personal privacy that offers no assurances of safety or security but will impose a multi-billion-dollar unfunded mandate on the states. Once in place, opponents add, Real ID presents the very real opportunity for "mission creep," with its use expanding to include prescription drug purchases, banking, employment, and even access to a voting booth.
"The vote opposing Real ID in the legislature wasn't about the money," Secretary of State Matthew Dunlap explains. "Every caucus, Republican and Democratic, House and Senate, said we don't trust the government to create databases of personal information and controls on how we move around."
"Real ID fundamentally undermines Mainers' privacy and security," declares Shenna Bellows, executive director of the Maine Civil Liberties Union (MCLU). "The federal government is foisting a national identification card on Americans without any debate on the pros or cons."
Opposition to the new regulations has brought together an unusual assortment of players, from the MCLU to George Smith of the Sportsman's Alliance of Maine to legislative leaders of both parties. In truth, it's difficult to find anyone in Maine who supports the measure outside the few dozen members of Mainers for a Sensible Immigration Policy, who hope that Real ID is the solution to the illegal immigration problem.
Maine Senator Susan Collins chaired the Homeland Security Committee when the original Real-ID legislation was passed and today is the ranking Republican member. She gets some of the credit for delaying implementation of the rules, and over the past several months, as public opposition to Real ID has mounted, she has adopted a progressively tougher stance against the program.
Among other points, she notes that in 2004 she and her then-Democratic counterpart on the committee, Senator Joe Lieberman, of Connecticut, had written a bill that called for a collaborative approach between the federal government and the states in developing a new, more secure ID. "Then Real ID was slipped through, and it repealed the language Joe and I had written," she recalls. "We need a tamper-proof ID. We don't need Real ID."
When Collins says Real ID "was slipped through," she isn't exaggerating. A relatively obscure congressman from Wisconsin, F. James Sensenbrenner, Jr., had been promoting Real ID for several years without success until 2005, when he managed to attach the program as a rider to a supplemental military appropriations bill. It sailed through Congress under the radar and without debate.
Originally Real ID was promoted as an anti-terrorist measure, but that argument faltered when opponents pointed out that all of the 9/11 hijackers carried valid identification papers that would have passed the Real ID test. Then supporters argued that it would prevent identity theft - until the DHS' Transportation Security Administration created a Web site that left the personal information of air travelers open to the public.
Now Real ID is being pushed as an anti-illegal immigration program, which makes some people wonder what that has to do with air travel. And since it's a federal program being implemented by state motor vehicle departments, does that also turn drivers' license examiners into immigration agents? Matt Dunlap says that's not in the job description of any of his employees.
Real ID was supposed to be fully implemented by this year, but critics won delays while DHS tried to reduce costs - originally estimated at twenty billion dollars - and answer questions about its effectiveness. If Maine and other recalcitrant states want their licenses and other state-issued IDs to remain valid for air travel after May 11, they must apply for a waiver claiming they need more time to comply.
As it now stands, people born on or after December 1, 1964, will have to obtain the new ID by December 1, 2014. Those born before December 1, 1964, will have until December 1, 2017. "The reason for that," Dunlap says with a laugh, "is that DHS figures that people over fifty years old are less likely to be terrorists. Hello? Anyone care to guess how old Osama Bin Laden is?" (Bin Laden's birth date is generally given as March 10, 1957.)
Collins hopes that Maine applies for the extension, which gives the state until the end of 2009. "The state has many legitimate points about the cost and privacy concerns," she says. "But I don't want to see Maine citizens suffering the consequences of Maine not asking for the extension."
Mainers who cannot produce an acceptable ID after the May 11 deadline - a passport or a military ID card, for example - will face additional screening at airport security checkpoints. "There are practical implications for residents of states that don't participate," acknowledges DHS spokesperson Amy Kudwa. "The IDs of states that opt out are no longer valid for federal purposes. This is the law, and we are the enforcing agency."
"Even if just Maine stays out of the program, it's going to cause chaos at the airports in Portland and Bangor," Dunlap says, "and in Chicago and Boston and Los Angeles, too, because Mainers travel. But it's not just Maine - Montana, Georgia, New Hampshire, all those other states have refused to join the program."
"DHS is trying to scare Maine into backing down," warns the MCLU's Bellows. "What's really going to happen on May 11 is nothing is going to happen. It's hard to believe that DHS is going to prevent the residents of all these states from boarding planes unless they go through enhanced security procedures. It would be a nightmare."
Kudwa says DHS is hanging tough in the expectation that travelers who face the additional hassles will demand that their state governments comply with the program. She dismisses the possibility that citi-zens who already loathe the uncertainty and humiliation of modern air travel might direct their wrath at DHS instead.
There are other issues with Real ID beyond flight delays. Bellows points out that Chertoff could end up explaining himself to a federal judge if citizens are barred from entering a federal courthouse or office building without showing a Real-ID compliant document. "There are serious First Amendment problems relating to the right to assemble and right to petition the government for redress of grievances," she notes. "If people are forced to show a Real ID license to enter a federal building, it imposes an unreasonable restriction on their access to their public servants."
Collins notes that her constituent offices in Bangor and Augusta are both in federal buildings that will require the new identification to enter. "There is a list of alternative acceptable documents," she explains, "but otherwise I do fear there will be inconveniences." Both of Maine's congressmen, Tom Allen and Michael Michaud, have expressed opposition to Real ID, and Senator Olympia Snowe has called for delays to work out a compromise.
Bellows says barring people who lack approved identification could be seen as imposing limits on the right of a federal court defendant to face his or her accuser or the right of a witness to testify. "The regulations do not address the constitutionality issue at all," Bellows notes. "We think Real ID is constitutionally unsound, and the Department of Homeland Security is opening itself to immediate legal challenge."
Dunlap notes that there is already talk of requiring Real ID-compliant identification for voters. "The Carter-Baker Commission on Federal Election Reform included it in their final recommendations," he says. If that happens, the state will not be allowed to charge a fee for a driver's license, because it would be interpreted as a poll tax, which is illegal.
Among the few people publicly supporting the program in Maine is Robert Casimiro, of Bridgton, executive director of Mainers for a Sensible Immigration Policy and a member of the Minutemen, which made headlines last year when its members highlighted illegal immigration by setting up their own patrols of the Mexican border. The Brunswick High School graduate returned to the state a year ago from Massachusetts, where he led a similar organization. Both, he says, are outgrowths of the Federation for American Immigration Reform, itself an offshoot of the bitter battle inside the national Sierra Club in the late 1990s over immigration policy and overpopulation.
"Personally I'm not too thrilled about Real ID," Casimiro admits, "but if it will force Maine to do what it currently is not doing - requiring driver's license applicants to prove they are legal residents of the United States - then I have to support it." Casimiro notes that Vermont and New Hampshire already require proof of legal residence to earn a driver's license. Both also oppose Real ID.
"We're not asking state employees to be immigration agents. But they need to verify that people are who they say they are," he argues. "Right now the rules for getting a hunting license in Maine are much more strict than for getting a driver's license."
George Smith, executive director of the Sportsman's Alliance of Maine, has some experience with that issue. He fears that Real ID is a foot in the door to increasing government surveillance of citizens. "Look what happened with our Social Security numbers," he says. Many older Mainers have Social Security cards from their youth that say prominently "Not to be used for identification." Now the number is required for all sorts of things.
"I was refused a fishing license in Florida and a pheasant hunting license in North Dakota because I refused to give them my Social Security number," Smith recalls. To him Real ID "smacks of needing a passport to travel in your own country."
For now, Mainers can only wait to see if someone blinks. Collins says Chertoff, with whom she speaks frequently on DHS issues, "thinks he already has blinked by allowing the extension to 2009. He's very unhappy with that delay."
By early February, at least, Dunlap was predicting that Maine wouldn't blink, either. "I hate to be alarmist and say our liberty is at stake," he muses, "but we need to have that discussion. We don't need to roll over to a bureaucratic automaton. Justice William O. Douglas once said that oppression doesn't come suddenly, like turning off a light. It comes slowly, like nightfall, just getting darker and darker."