New York's 'Green Light' To Crime and Terrorism

So easy, a 'barely literate' homicidal maniac could exploit it

By Andrew R. Arthur on February 12, 2020
  • The 9/11 Commission, which was established to address the weaknesses that facilitated the 9/11 attacks, made clear that border security is a crucial element of national security. The "Green-Light" law significantly undermines the federal government's efforts to secure our borders, and to identify aliens unlawfully present in the United States.
  • The commission also found that ensuring the validity of domestic identification documents is crucial to identifying terrorists before they act. The Green-Light law removes protections that ensure that an individual who receives a driver's license or learner's permit thereunder that is "not valid for federal purposes" is who they say they are. Applicants for those documents can create brand-new, "clean" identities with documents that will make it easier for them to act on their nefarious intentions.
  • Modern technology makes it easy for applicants for those driver's licenses and learner's permits to fabricate fraudulent documents that will enable them to obtain those forms of identification.
  • The 9/11 Commission concluded that information-sharing among and between all law-enforcement and intelligence agencies in the United States — federal, state, and local — is key to preventing another September 11. Despite the fact that New York City itself recognizes that it is a terrorist target, the Green-Light law throws up an insurmountable barrier to prevent the two agencies that play the primary role in that fight from obtaining essential information from the NYDMV they cannot operate without.
  • The Green-Light law also endangers ICE and CBP agents in performing their duties by blocking such information-sharing.
  • In response to the Green-Light law, DHS has barred New York residents from applying for or renewing their enrollment in CBP programs that facilitate cross-border movement without a passport, a significant impediment given New York's proximity to Canada. New York has stated that it will sue to prevent that action.

In a February 7 post, I began my analysis of New York's new "Driver's License Access and Privacy Act", commonly known as the "Green-Light law". That law does provide a green light to crime and terrorism.

As the Center has previously explained:

The Green-Light law undermines U.S. security in the following ways:

  • It provides aliens illegally in the United States and/or others with nefarious intentions a method to obtain a legitimate, state-issued document for identification;
  • It requires New York State to issue an identity document based upon information provided by a foreign government with no provision to verify the accuracy of the information;
  • It prohibits Immigration and Customs Enforcement and Customs and Border Protection from using information maintained by NYDMV; and
  • It creates numerous paradoxical law enforcement relationships that inhibit public safety and immigration enforcement.

In so doing, the law flies in the face of the express findings of the 9/11 Commission and its staff, making New York's passage of this law particularly senseless, given the fact that, of the 2,977 victims of terrorism on September 11, 2001, 2,753 died in lower Manhattan during the attacks on the twin towers of the World Trade Center.

The 9/11 Commission Report runs 567 pages, and includes information on the foundations of that terrorist threat, the events of that day, the backgrounds of the 19 hijackers, how those hijackers were able to exploit flaws in our security system to carry out those attacks, and proposals for how to fix those flaws. It was an exhaustive report written by serious people.

I have worked with that document for almost 16 years and, in my work, the most important passage can be found on p. 385:

When people travel internationally, they usually move through defined channels, or portals. They may seek to acquire a passport. They may apply for a visa. They stop at ticket counters, gates, and exit controls at airports and seaports. Upon arrival, they pass through inspection points. They may transit to another gate to get on an airplane. Once inside the country, they may seek another form of identification and try to enter a government or private facility. They may seek to change immigration status in order to remain.

Each of these checkpoints or portals is a screening — a chance to establish that people are who they say they are and are seeking access for their stated purpose, to intercept identifiable suspects, and to take effective action. [Emphasis added.]

Those two paragraphs point to the best solution to prevent another tragedy like 9/11: Those who seek to do harm to the United States will have to move through checkpoints to do so, and the government (federal, state, and local) working together can use those checkpoints to identify those malefactors. But how can government officials in the United States — federal, state, and local — do so?

It is not as easy as it sounds. As the commission noted: "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."

The best opportunity to identify potential terrorists is when they pass through one of those checkpoints, as the commission stated. But if that potential terrorist has fraudulently obtained a valid identification document, not only will the opportunity to identify that potential terrorist be lost, but the potential terrorist will be that much closer to reaching his or her ultimate goal: the terrorist act itself.

The commission made the following recommendation to prevent such fraud: "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 driver's licenses." Congress passed, and in May 2005 President George W. Bush signed, the REAL ID Act of 2005 to comply with this specific recommendation.

Section 202(b) of the REAL ID Act contains the minimum number of identifiers (such as name, date of birth, gender, and address of the holder, etc.) that any state driver's license and identification card must include to be accepted by any federal agency for any official purpose. Section 202(c) of that act lists the minimum standards that must be met for the issuance of such documents if they are to be accepted by any federal agency for any official purpose.

Specifically, under subclause 202(c)(2)(B):

A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person—

(i) is a citizen or national of the United States;

(ii) is an alien lawfully admitted for permanent or temporary residence in the United States;

(iii) has conditional permanent resident status in the United States;

(iv) has an approved application for asylum in the United States or has entered into the United States in refugee status;

(v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States;

(vi) has a pending application for asylum in the United States;

(vii) has a pending or approved application for temporary protected status in the United States;

(viii) has approved deferred action status; or

(ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

In other words, proof that the applicant for such a document has lawful (or quasi-lawful) status in the United States.

Why is that information necessary? As the commission stated:

It is elemental to border security to know who is coming into the country. Today more than 9 million people are in the United States outside the legal immigration system. We must also be able to monitor and respond to entrances between our ports of entry, working with Canada and Mexico as much as possible.

Preventing illegal aliens from obtaining valid identification documents is key to that effort, because without those documents, it will be difficult, if not impossible, for those aliens to live in the United States illegally, and knowing "who is coming into the country" "is elemental to border security." Keep in mind: The United States has no idea of who is coming into the United States illegally, and no idea of what their intentions are once they are here.

This is not 1984 (the novel by George Orwell, not the album by Van Halen, but it is not that either). Understand — if you were born in the United States, naturalized as a United States citizen, or even entered legally as an alien, the United States government already has a large volume of information on you already.

For example: The government knows where I was born, where I live, where I went to school, what vaccinations I have received, and even my voter affiliation. Because I have worked for the federal government, they have my fingerprints and vast amounts of information about my prior activities in the United States.

Because I have enrolled in DHS's Trusted Traveler program (which I highly recommend, and which I will discuss below), they again have my fingerprints and have checked my criminal (and driving) record.

And because I previously lived in the state of Maryland, I had to obtain a Handgun Qualification License from the State Police to exercise the rights guaranteed to me under the Second Amendment to the Constitution. This required, again, fingerprinting and an exhaustive background check (which, with all due respect, took way too long — approximately 60 days if my memory is correct).

Under the Green-Light law, an applicant can receive a driver's license or learner's permit that does not comply with the REAL ID Act. Rather, applicants for such identification can provide, at a minimum:

[A] valid, unexpired foreign passport issued by the applicant's country of citizenship ... a valid, unexpired consular identification document issued by a consulate from the applicant's country of citizenship, or a valid foreign driver's license that includes a photo image of the applicant and which is unexpired or expired for less than twenty-four months of its date of expiration.

Why do I say "at a minimum"? Because the law states that "acceptable proof of identity shall ... include, but not be limited to" the documents listed above. That would logically include birth certificates, internal passports from countries that issue them, and even baptismal certificates (which I have actually seen used in the past for proof of birth). The list is, literally, endless, and subject to only the applicant's imagination.

Unless New York plans on conducting overseas investigations of those documents, and/or has exemplars of any possible document that could be accepted, it would be simple for an applicant to concoct a document that will get him or her a real New York State driver's license or learner's permit.

Which brings me back to a person whom I referred to in my last post: John Allen Muhammad, the Beltway sniper. For those who have forgotten, as CNN reported at the time of his execution in November 2009:

During three weeks in October 2002, Muhammad and accomplice Lee Boyd Malvo, then 17, killed 10 people and wounded three, while taunting police with written messages and phoned-in threats and demands.

That was not the extent of his illegal activities:

Sniper suspect John Allen Muhammad made more than $60,000 by selling forged U.S. identification documents during the 14 months he lived on the Caribbean island of Antigua, according to a report released Monday by the Antiguan government.

The report said that Muhammad is believed to have sold at least 20 sets of bogus U.S. driver's licenses and birth certificates, mostly to Jamaican immigrants in Antigua who were eager to come to the United States, and that he charged about $3,000 per set.

Some of the fake documents were purchased by two or three Antiguans and one person of Middle Eastern descent, according to John Fuller, the chairman of the government-appointed commission that prepared the report and issued the findings to the attorney general of Antigua and Barbuda.

Not that Muhammad was a criminal mastermind. Fuller told the House Judiciary Committee's Subcommittee on Immigration, Border Security, and Claims in May 2003:

Not withstanding the fact that Mohammad seems to have [been] barely literate, between April 2000 and March 2001 he systematically engaged in the production and sale of U.S. driving licenses with photographs and corresponding birth certificates. He was aided and abetted in this activity by an individual who was (and is) extremely computer literate. The production of these documents does not seem to have been extremely difficult or requiring [sic] high skills. Two examples of his handiwork are now produced. All that seems to be required are:

  1. A computer and scanner.
  2. A template for the driving license and for the birth certificate.
  3. A photograph.
  4. A laminating machine.
  5. A harassed and/or gullible immigration officer whose first language is not English. [Emphasis added.]

The fifth point relates to the fact that, as noted above, Muhammad sold those documents to aliens who wanted to enter the United States from abroad. At the time of his actions, passports were not required for U.S. citizens and nationals who sought to enter the United States from the Caribbean. That loophole was closed (with exceptions) by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). It was replaced under IRTPA by the Western Hemisphere Travel Initiative (WHTI), which I will discuss further below.

Keep in mind that Muhammad ran his document-falsification business almost 20 years ago, and printer technology (and quality) has increased exponentially since then. What that "barely literate" individual was able to do in April 2000 with help most 12-year-olds could do today by themselves. As could any criminal or terrorist who wanted to obtain a genuine identification document from the state of New York.

Did I mention the fact that the driver's licenses and learner's permits issued by the Empire State are not significantly different (in design and by design) from documents that are acceptable for federal purposes? Here is what the Green-Light law actually says:

Non-commercial drivers' licenses and learners' permits which do not meet federal standards for identification shall be issued in such form as the commissioner shall determine, provided that such licenses and permits shall be visually identical to non-commercial drivers' licenses and learners' permits which do meet federal standards for identification except that such licenses and permits may state "Not for Federal Purposes". [Emphasis added.]

Keep in mind that the driver's license requirements in the REAL ID Act were implemented in accordance with the findings of a commission that was established to identify the weaknesses that led to a terrorist attack that killed 2,753 people in New York City. New York State wants to ensure, in essence, that no stigma is attached to a document that does not comply with those requirements. God forbid you be treated differently simply because you have no right to be in the United States to begin with.

I will note that the Green-Light law does contain the following proviso in this regard: "[T]he commissioner may promulgate regulations providing for additional design or color indicators for both such non-commercial drivers' licenses and learners' permits if required to comply with federal law." So, New York does not want to comply with federal law, but it wants to shift the onus for protecting the American people from criminals and terrorists over to the federal government. Nice.

In essence, it can say that when someone with one of these non-compliant documents does something bad with it that "It's not New York's fault." No — it is.

Let me ask you a question: Would you be able to quickly scan a driver's license and determine whether it complied with federal law or not — even if it stated "Not for Federal Purposes"? Probably not, because the concept and wording are each vague. "Of course this document is 'not for federal purposes' — it is a driver's license, and the federal government is not in the business of issuing driver's licenses." Would you even know what those federal purposes were?

I will also note that the terrorist threat has shifted to conform to the steps the federal government has taken to confront it. Airplanes and the interiors of federal buildings are more or less secure, so those seeking to do harm now use rental trucks to mow down pedestrians, suicide vests, and truck bombs in public places that "could have killed thousands". All in Manhattan, alone.

Not that New York City does not appreciate the fact that it was, and is, ground zero for a terrorist attempt. After the attempted suicide bombing referenced above (on a below-ground walkway "near 42nd Street and Eighth Avenue" in Manhattan in December 2017), New York City Mayor Bill DiBlasio was quoted as stating:

The choice of New York is for a reason. We are a beacon to the world and we actually show that a society of many faiths and many backgrounds can work. ... The terrorists want to undermine that. So they yearn to attack New York City.

Yes, they do. So, why does New York want to hinder the federal government in identifying potential terrorist aliens? Because the Green-Light law does that, as well, and not just for those who have driver's licenses that are "not for federal purposes".

As the Center has explained:

In addition to licensing illegal aliens, the Green-Light law codifies New York's intent to shield the licensees from detection by immigration enforcement agencies. There are four elements to this section:

  • ICE and CBP are statutorily prohibited from accessing information maintained by NYDMV.
  • The only narrow exception is "unless the commissioner is presented with a lawful court order or judicial warrant signed by a judge appointed pursuant to article III of the United States constitution."
  • NYDMV is required to disclose to the license holder any court orders seeking information served on it.
  • Other agencies receiving information from NYDMV must first certify that this information will not be shared with ICE or CBP or otherwise used to enforce the immigration laws.

The first two of the above-mentioned issues are covered by Section 12 (a) of the Green-Light law. Specifically, the law states:

Except as required for the commissioner to issue or renew a driver's license or learner's permit that meets federal standards for identification, the commissioner, and any agent or employee of the commissioner, shall not disclose or make accessible in any manner records or information that he or she maintains, to any agency that primarily enforces immigration law or to any employee or agent of such agency, unless the commissioner is presented with a lawful court order or judicial warrant signed by a judge appointed pursuant to article III of the United States constitution.

The new law is clear. The DMV commissioner is prohibited from disclosing to ICE or CBP anything from DMV records. This straightforward reading would include all vehicle and vessel registrations, too.

Subsection 12(c) specifically states: "For purposes of this subdivision, the term 'agency that primarily enforces immigration law' shall include, but not be limited to, United States immigration and customs enforcement [sic (ICE)] and United States customs and border protection [sic (CBP)] and any successor agencies having similar duties." The lack of capitalization is in text, as if those agencies are the subject of such disdain that they do not deserve to be properly grammatically identified.

So, to recap, aliens have carried out terrorist attacks in New York City, and the mayor has recognized that terrorists "yearn to attack New York City", and ICE and CBP are charged with enforcing the immigration laws, but New York wants to specifically prevent those agencies from accessing the state DMV database. I can now answer my own question: New York City does have a "Death Wish".

But they want to share the risk with all of us. The fact that there were barriers to sharing information across the government was identified by the 9/11 Commission as a key factor that allowed the 19 hijackers to carry out those attacks. Its report specifically states, on p. 88:

Despite the problems that technology creates, Americans' love affair with it leads them to also regard it as the solution. But technology produces its best results when an organization has the doctrine, structure, and incentives to exploit it. For example, even the best information technology will not improve information sharing so long as the intelligence agencies' personnel and security systems reward protecting information rather than disseminating it. [Emphasis added.]

Remember how the commission explicitly found that: "It is elemental to border security to know who is coming into the country"? What about how: "We must ... be able to monitor and respond to entrances between our ports of entry"? To paraphrase a famous headline from the New York Daily News: "New York to 9/11 Commission: Drop Dead."

Of course, this law endangers ICE and CBP officers, as well. How are they supposed to know whether a car with New York plates is being driven by someone who poses a danger to those law-enforcement officers? They don't — that is the federal government's problem, not the problem of the smug and sanctimonious grandees in Albany.

So, DHS had no choice but to act, if only to save its own agents and officers, and New York from itself.

Remember the WHTI, referred to above, which regulates passage into and out of the United States? Its "goal is to strengthen border security while facilitating entry into the United States for U.S. citizens and legitimate international travelers, making the process more efficient and convenient."

So, in certain instances, a passport is not required for travel, as its website explains:

U.S. citizens [entering by land and sea] can present a valid: U.S. Passport; Passport Card; Enhanced Driver's License; Trusted Traveler Program card (NEXUS, SENTRI or FAST); U.S. Military identification card when traveling on official orders; U.S. Merchant Mariner document when traveling in conjunction with official maritime business; or Form I-872 American Indian Card, or (when available) Enhanced Tribal Card.

In a February 6, 2020, press release, the department announced that "New York residents will no longer be eligible to apply for or renew their enrollment in certain Trusted Traveler Programs like Global Entry." As Acting Secretary Chad Wolf stated:

CBP ... uses [NYDMV] data for national security purposes and to ensure safe and lawful trade and travel. Specifically, CBP is able to offer Trusted Traveler Programs like Global Entry because we are able to use DMV data to make an evidence-based assessment that those individuals who seek this benefit are low risk and meet the eligibility requirements. Without the DMV information we aren't able to make that assessment. DHS notified New York DMV that New York residents can no longer enroll or re-enroll in these trusted traveler programs because we no longer have access to data to ensure that New York residents meet those programs requirements. We must do our job.

The press release explains:

Customs and Border Protection (CBP) runs Trusted Traveler Programs like Global Entry, FAST, SENTRI and NEXUS which rely on access to DMV data to determine whether the person is who they say they are and if they have a criminal record. When that data is denied, the security is compromised. CBP expects the move to affect up to 150,000-200,000 New York residents who seek to renew membership in a CBP Trusted Traveler Programs this fiscal year. There are almost 30,000 commercial truck drivers enrolled in the FAST program at four New York-Canada ports of entry.

Additionally, because the law hinders DHS from validating documents used to establish vehicle ownership, the exporting of used vehicles titled and registered in New York State will be significantly delayed and could also be costlier. [Emphasis added.]

Want to go to Canada? Bring your passport (if you have one), New Yorkers. Your enhanced New York driver's license will no longer do. It could create quite the wait. That said, however, New York residents are still eligible to apply for TSA Pre-Check, allowing them to bypass the full inspection line at U.S. airports to get to their gates more quickly. But still, if you have ever waited in line at Peace Bridge or Rainbow Bridge in the summer, you can imagine the hassle this will create. Want to ship your car abroad? Good luck.

Of course, New York plans to sue to block these necessary changes. As Politico reported:

New York officials confirmed on Friday that they will sue the Department of Homeland Security over its decision to block state residents from participating in expedited border-crossing programs.

"This is political retribution, plain and simple, and while the president may want to punish New York for standing up to his xenophobic policies, we will not back down," Attorney General Tish James said in a release. "We will not allow New Yorkers to be targeted or bullied by an authoritarian thug."

Respectfully, Attorney General James: You started it. And there is nothing "xenophobic" about enforcing the immigration laws against aliens who are unlawfully present in the United States. DHS's actions are a necessary response to a political stunt by people who should know better.

The 9/11 Commission made clear that border security is a crucial element of national security. The Green-Light law significantly undermines that effort. If I were a terrorist, or even a criminal on the run, the NYDMV would be my first stop.

The commission also made clear that ensuring the validity of identification documents is crucial to identifying terrorists before they act. The Green-Light law removes all protections that could ensure that an individual who receives a driver's license or learner's permit thereunder that is "not valid for federal purposes" is who they say they are. Applicants for those documents can create brand-new, "clean" identities with documents that will facilitate their nefarious deeds.

Finally, it is pellucid from that commission's report that information sharing among and between all law-enforcement and intelligence agencies in the United States — federal, state, and local — is key to preventing another September 11. The Green-Light law throws up an insurmountable barrier to prevent the two agencies that play the primary role in that fight from obtaining essential information from the NYDMV they cannot do without.

New York, the target of so many terrorist attacks, should know better. They don't.