Afghan Provision in Must-Pass Legislation Puts U.S. National Security Last

Lowering ID standards for nationals of a country with ‘a dynamic terrorism landscape’ is a bad idea

By Andrew R. Arthur on September 30, 2021

Congressional leadership is pushing hard to pass H.R. 5304, the “continuing resolution” (CR), to fund the federal government (temporarily) after the fiscal year ends on September 30. It does much more than that, however, as it permanently waives a key national-security protection implemented in the wake of September 11th for Afghans paroled into the United States.

CRs are “must-pass” bills because they provide money allowing the federal government to run its operations and pay government benefits to Americans (both U.S. citizens and lawful immigrants).

If you go to p. 82 of that bill, section 2502, you will find an unnamed provision that provides lavish benefits to Afghan nationals who are or will be paroled into the United States between the end of July 2021 and the end of September 2022; as well as the spouses, children, parents, or legal guardians of those individuals who are paroled thereafter.

I will leave it up to others to decide whether giving massive amounts of cash to aliens who have no real status in the United States is a good idea or not. My main concern is the fact the CR makes paroled Afghan nationals eligible for driver’s licenses and identification cards, even if they are barred from receiving them under a law passed to protect the American people against national-security risks.

The law in question is the REAL ID Act of 2005, and whether you are familiar with it or not, you have likely had to comply with it. It’s why, when you go to the local DMV to renew your license, you are required to bring certain documents with you to prove who you are and that you have lawful status.

By way of background, section 202 of the REAL ID Act of 2005 mandated minimum security standards for the issuance of state driver's licenses and identification cards. Under that provision, federal agencies are prohibited from accepting "for any official purpose" state driver's licenses or identification cards unless those documents meet the standards set forth therein.

DHS explains these "official purposes" include "accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft."

The REAL ID Act was signed into law on May 11, 2005, and although states were given three years from that date to comply, it took more than 15 years for all of them to do so.

What do driver’s licenses have to do with protecting the American people? As the Center has noted, section 202 of the REAL ID Act was an explicit recommendation of the 9/11 Commission, one it deemed crucial to protect the national security.

In its final report, the Commission reported: “All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud. Acquisition of these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities.”

Accordingly, it recommended:

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. [Emphasis added.]

Section 202(b)(2)(C) of the REAL ID Act requires states to ensure that applicants for driver’s licenses have lawful status in the United States (including citizenship or a green card). Section 2502 in the CR would explicitly waive that requirement — not for you, or for those green card holders — but rather exclusively for paroled Afghan nationals.

I am not saying that most, all, some, or any of those Afghan nationals are terrorists or otherwise pose a threat to the national security of the United States. But neither are hardly any of the U.S. citizens and lawful permanent residents who must comply with the license-issuance standards in section 202 of the REAL ID Act.

That provision exists to set strict standards on license and ID issuance to ensure that the bearers of those documents — when they are being used to board airliners, access federal facilities, or enter nuclear power plants (to name a few) — are who they say they are, so they can be identified, and their intentions assessed.

Again, I know nothing about any of the Afghans who have already been paroled into the United States, or any who will follow. That said, you know who else knows little about many of them, either? The federal officials who are allowing them to fly to the United States and are paroling them into this country.

The Washington Post reported on September 5 that many of the Afghans flown to this country (in what the Wall Street Journal described as “the chaotic and rushed operation” to bring them out of Afghanistan) have “minimal identification and did not appear to have worked closely with the United States”.

That has been seconded by centrist Sen. Rob Portman (R-Ohio), who noted “it is becoming abundantly clear that the majority of those being processed are Afghan evacuees without a record of supporting our efforts.”

That means that the U.S. government will have to assess who they are and what intentions they have here.

DHS Secretary Alejandro Mayorkas has promised to “use multiple databases and a multilayered approach” to vet those Afghans, but I explained on September 8 that such vetting is only as good as the “minimal identification” documents those parolees present and whatever information our intelligence agencies have access to.

As former FBI Director James Comey explained in discussing the vetting of Syrian refugees in October 2015:

We can only query against that which we have collected. ... If someone has never made a ripple in the pond in Syria in a way that would get their identity or their interest reflected in our database, we can query our database until the cows come home but we are not going to — there will be nothing show up because we have no record on that person.

Let’s not forget either that the license and ID standards in the REAL Act were implemented in response to September 11th. No Afghan nationals carried out those attacks, but the attacks were planned by al-Qaeda and its Saudi-national leader, Osama Bin Laden, in Afghanistan. He was living there under the protection of the Taliban, who currently run the country once more.

In September, the U.S. Military Academy’s Combating Terrorism Center published a paper explaining:

The Taliban’s return to power has exacerbated the terrorism threat beyond the level that existed when the decision to withdraw the U.S. forces was made. A close look at Afghanistan reveals that the United States has left the country with a dynamic terrorism landscape posing local, regional, and transnational threats.

I was acting chief terrorism prosecutor at the former INS (before September 11th; I left out of concern we weren’t doing enough to combat foreign terror threats), and staff director for the House National Security Subcommittee, so you can trust me: Lowering identification standards for nationals of a country with “a dynamic terrorism landscape posing ... transnational threats” is a bad idea.

This is not to say that Afghan parolees should never be allowed to have unrestricted IDs. Rather, they should apply for them under the same standards every U.S. citizen and other aliens must meet, set forth in the REAL ID Act. Protecting the national security is why those standards exist.