REAL ID Implementation Embraced by 41 States

By Janice Kephart on April 3, 2011

Janice Kephart is the Director of National Security Policy at the Center for Immigration Studies.

While driver’s licenses and birth certificates remain a tool sought by terrorists to support jihad in the United States, Department of Homeland Security Secretary Janet Napolitano is still pushing for repeal of driver’s license and birth certificate standards supported by 9/11 Commission recommendations. Ironically, Secretary Napolitano continues to assail the REAL ID Act’s standards despite new statistics — still held tightly within DHS — showing that 41 states, plus D.C., have embraced REAL ID implementation even without DHS support or new monies.

The importance of secure identification was re-emphasized just last month in Senate testimony by the former chairman and vice chairman of the 9/11 Commission:

Standardize Secure Identifications

Eighteen of the nineteen 9/11 hijackers obtained 30 state-issued IDs amongst them that enabled them to more easily board planes on the morning of 9/11. Due to the ease with which fraud was used to obtain legitimate IDs that helped the hijackers embed and assimilate in the U.S. for the purpose of carrying out a terrorist act, the 9/11 Commission recommended that ‘The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.’

The REAL ID Act established these standards by statute. In 2008, detailed regulations were issued setting standards and benchmarks for driver’s license issuance. While nearly one-third of the states have complied with the first tier of benchmarks, the deadlines for compliance have been pushed back twice to May 2011, and a recent announcement pushed back compliance again until January 2013. The delay in compliance creates vulnerabilities and makes us less safe. No further delay should be authorized, rather compliance should be accelerated. [Emphasis added.]

Terrorists Still Seek Driver’s Licenses. On February 23, 2011, the FBI filed an extensive, detailed criminal complaint with a tremendous amount of forensic evidence indicating that a Saudi foreign student, Khalid Ali-M Aldawsari, who entered the United States on a student visa, had done so for the sole purpose of using our educational and visa system to commit major terrorist acts. His targets included former President Bush’s home and dams and other key infrastructure, intending to use a variety of homemade car bombs assembled with knowledge gained in chemical engineering classrooms and chemicals and materials purchased here in the United States. What did Aldawsari intend to use in order to embed in the United States and avoid detection? Multiple state-issued driver’s licenses and a U.S. passport based on fake birth certificates, not a particularly dissimilar method to the 19 9/11 terrorists who had 30 state-issued IDs between them and also used fraud to game the driver’s license system. The Khalid Ali-M Aldawsari criminal complaint specifically mentions that his plan for jihad depended in part on well-known terrorist travel methodology:

In a ‘synopsis of important steps,’ ALDAWSARI listed: obtaining a forged US birth certificate; applying for a US passport and driver’s license; traveling to New York for at least a week; renting a car via the Internet; changing clothes and appearance before picking up the car; using a different driver’s license for each car he rents; preparing the bombs for remote detonation; putting the bombs into the cars and taking them to different places during rush hour; and leaving the city for a safe place. [p. 10]

Khalid Ali-M Aldawsari might have been successful but for his dogged determination to accumulate as much precursor chemicals as possible (for the explosives), for which Carolina Biological Supply rightly reported his purchases to law enforcement. The Aldawsari case shows that not much has changed in the world of terrorist travel since the publication of the 9/11 Commission Report and the supporting staff monograph, 9/11 and Terrorist Travel: driver’s licenses are still an important tool in the terrorists’ toolbox, whether a lone actor or a member of a larger organization. Aldawsari is a significant example of why it is important to prevent fake birth certificates and other lies about identity from being used to obtain legitimate state-issued driver’s licenses. It is important to remain vigilant about assuring that people are who they say they are. At its base, that is what the REAL ID Act is about: assuring that driver’s license applicants are who they say they are, from the sum-total of the identity documents they present as applicants.

REAL ID Implementation Embraced. Secretary Napolitano has again extended the deadline for states to comply with the minimum standards of REAL ID, to exactly the time frame she could be leaving office: January 2013. Ironically, however, the states have not paid much attention to Napolitano or to the fact that federal monies for REAL ID have all but dried up. Instead, the states are complying with REAL ID in numbers that exceed what I published in January 2011 in “REAL ID Implementation: Less Expensive, Doable, and Helpful in Reducing Fraud”, which is summarized as follows:

[The] 2005 REAL ID law … based on recommendations of the 9/11 Commission, is proving to be easier to implement and less expensive than critics have alleged for years. In fact, 11 states have already fulfilled the critical first stage of REAL ID compliance — meaning they have fulfilled all 18 REAL ID security benchmarks for material compliance — ahead of the May 2011 deadline. Additionally, many other states have implemented or are in the process of implementing more secure procedures, systems, and documents consistent with the requirements of REAL ID. The next stage requires all individuals under age 50 as of December 1, 2014, to be issued (by that date) a driver’s license or identification card that complies with all of the REAL ID requirements if the document is to be presented for official federal purposes such as boarding a commercial aircraft. The final stage requires all eligible individuals using a state-issued driver’s license or identification card for official federal purposes to be issued REAL ID-compliant licenses by December 1, 2017.

According to internal, official government information which the Department of Homeland Security (DHS) has not shared with Congress beyond the House and Senate appropriators, there are not only 11 states that have fulfilled the first 18 material compliance benchmarks as I reported in January, but another five that have submitted full compliance packages to the DHS, meaning they are asking DHS to certify that the state has met all the criteria for REAL ID, criteria that were not required to be completed even under the old deadline until December 1, 2014. Twelve more states have told DHS they are fully committed to meeting material compliance, but need more time, while another four states have comparable Enhanced Driver’s License programs that former DHS Secretary Chertoff stated were REAL ID-compliant.

Beyond these 32 states that have already met at least REAL ID material compliance, another 12 states have written and assured DHS that they are seeking to meet at least 15 of 18 of the material compliance standards. In total, of the 50 U.S. states and six territories, 44 (41 states and three territories) of them have given DHS the green light that they are on board and working toward REAL ID compliance. Of the remaining nine states and three territories, three of those states have laws banning the state from compliance yet two of them are meeting REAL ID standards without using the REAL ID name. All in all, that leaves only six states that appear to have little interest in REAL ID implementation.

REAL ID Implementation Status State / Territory
Submitted full compliance certification packages to DHS1 Conn., Del., Md., S.D., Tenn. (5)
Self-certified: Issuing materially compliant licenses (meeting the first 18 benchmarks) + compliance mark (gold star) Ala., Fla., Ind., Utah (4)
Self-certified: Issuing materially compliant licenses (meeting the first 18 benchmarks) Ark., D.C., Iowa, Kan., Ky., Miss., N.J. (7)
Committed to meeting material compliance but need time Colo., Hawaii, Ill., Neb., Ohio, Puerto Rico, R.I., Texas, Va., W.Va., Wis., Wyo. (12)
Certifiable Enhanced Driver’s License programs N.Y., Mich, Vt., Wash. (4)
Committed to meeting 15 of 18 benchmarks Ariz., Calif., Ga., Minn, Mo., Nev., N.H., N.C., N.D., Pa., S.C., U.S. Virgin Islands (12)
Will not meet four or more benchmarks in the next 12 months Alaska, American Samoa, Guam, Idaho, La., Maine, Mass., Mont., N.M., Okla., Ore., N. Marianas2 (12)
1 According to DHS, other states have assured DHS that once DHS proves its willingness to certify states’ compliance packages, they will take the extra steps to assemble and submit the required packages.

2 Montana, Oklahoma, and Washington have laws preventing REAL ID implementation, although Washington state has tried to repeal the law, and does have an Enhanced Driver License. Montana has strict issuing standards but they are not intended to be in line with REAL ID.

Birth Certificate Standard Implementation. The 9/11 Commission also recommended minimum standards for birth certificates, for reasons made evident in the above excerpt from the Aldawsari criminal complaint. In February 2011, I updated birth record standardization implementation in “Update on Digitization of Vital Records." The good news is that in the past month, Georgia and New York City have completed installation of the hardware and software necessary to support electronic vital records checks, and Vermont has begun the process (as shown in the updated map below). This means there are now 30 states online ready to perform birth certificate verification for other state DMVs and other users. If states want to shore up against attempts by terrorists such as Aldawsari, criminals, and illegal aliens, they should consider providing DMV connectivity as soon as practicable, even though it is not a strict requirement of REAL ID.

Congressional Annoyance. While the congressional disillusionment with the REAL ID Act that existed from 2005-2009 has now shifted with proof and value of REAL ID implementation, Secretary Napolitano has kept that implementation hidden from view and continued to seek the law’s repeal. She has now extended the compliance deadline of the REAL ID Act rule by 20 months, citing that, “[t]he inability of States to fully comply with the requirements of REAL ID by May 11, 2011, is the result of a number of factors, including diminished State budgets caused by the economic downturn and the uncertainty throughout much of the 111th Congress about Congressional action on the PASS ID Act.” Her statement, as shown in the numbers being held by her own department, implies noncompliance, rather than the truth: “uncertainty” was created by her push for repeal of REAL ID.

Here are some of the secretary’s statements creating that “uncertainty;” note the erroneous assertion that REAL ID repeal meets the intent of 9/11 Commission recommendations regarding the setting minimum standards for driver’s licenses:

April 22, 2009: “And so we’ve been, over the last weeks, meeting with governors of both parties to look at a way to repeal REAL ID and substitute something else that pivots off of the driver’s license but accomplishes some of the same goals.”
Speech delivered before the Anti-Defamation League National Leadership Conference

June 15, 2009: “I am committed to supporting this important bill and it is my hope that Congress will pass it into law as quickly as possible.”
DHS Press Release regarding the PASS ID Act (“Providing Additional Security in the States” )

June 25, 2009: “Now, when I get back, I will turn my attention immediately to a bill that was proposed in the Senate this past week known as PASS ID. PASS ID is a national security measure. It fulfills one of the key recommendations of the 9/11 Commission, which was that the Federal Government set a national standard for identification.”
Remarks at “Pen & Pad” Session with DHS Beat Reporters

July, 15, 2009: “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 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.”
Testimony delivered to the Senate Homeland Security and Government Affairs Committee

July 20, 2009: “Pass ID provides a strong yet flexible framework for states to implement secure identification,” said Secretary Napolitano. “I am proud to join our nation’s governors in supporting Pass ID – a cost-effective, common-sense solution that balances critical security requirements with the input and practical needs of state governments.”
“DHS Press Release, Secretary Napolitano, Governors Show Support for Pass ID in Mississippi

December 2, 2009: “Pass ID helps us meet the 9/11 commission recommendations and at the same time addresses issues that were legitimately raised by the states. And so what I would prefer to urge the Senate to do and use the – this hearing as an opportunity to really urge it to do is to move to floor action and move Pass ID through so we can get it over to the House. I think it could go very quickly over there and we could solve this issue, as opposed to extension after extension, which not only doesn’t deal with the 9/11 commission recommendation but it’s just another year of uncertainty.”
Hearing before the before the Senate Commerce, Science and Transportation Committee

December 9, 2009: “Should Congress not act before it adjourns this year, we have planned for contingencies related to REAL ID implementation to minimize the impact to U.S. citizens. Any of these steps, however, would represent a temporary approach that does not advance our collective security interests over the long-term.”
Testimony delivered before the Senate Judiciary Committee

March 9, 2011: “I would encourage Congress to take a fresh look [at the PASS ID Act].”
Hearing before the Senate Judiciary Committee

Congress has begun to show its annoyance with the secretary’s unwillingness to implement REAL ID as the federal law she has a duty to uphold. No longer does Secretary Napolitano’s PASS ID have champions in either chamber. Moreover, the quiet that permeated both chambers while PASS ID was being considered in 2009 has turned into outright support for REAL ID, especially since publication of facts pertaining to the current status of implementation.

On March 28, Senate Judiciary Committee Ranking Member, Charles Grassley (R-Iowa), and House Judiciary Chairman Lamar Smith (R-Texas) put out a searing press release regarding a letter jointly sent to Secretary Napolitano criticizing the delay in REAL ID implementation by 20 months and yet another call for REAL ID repeal by the secretary. Rep. Smith stated: “To undermine the REAL ID law is to make it easier for terrorists to operate in the U.S. The Administration should stop trying to undercut REAL ID and instead support the full implementation of this critical national security law.” Ranking Member Chuck Grassley was equally pointed:

REAL ID is more than protecting an individual’s identity; it’s about protecting the American people by making sure licenses are secure and impede a terrorist’s ability to carry out attacks. The REAL ID Act was a direct result of the 9/11 Commission Report, and was signed into law to improve our national security and protect the American people from terrorist attacks. It’s clear from recent arrests that terrorists want to exploit our weak identification requirements to carry out attacks on Americans. The administration needs to commit to full implementation of current law, instead of kicking the can down the road.

On March 2, 2011, the House Committee on Appropriations, Subcommittee on Homeland Security, held a hearing on the Department of Homeland Security’s Fiscal year 2012 budget request. Subcommittee Chairman Robert Aderholt (R-Ala.) noted that the “The Department of Homeland Security cannot operate in a world as it would like to be. Instead it must follow the law as it is written. This assertion not only applies to the budget realities I have just outlined but also to areas where this administration has been reluctant to fully engage, such as immigration enforcement, REAL ID, and the biometric exit solution for US-VISIT. These are mandates the Department of Homeland Security must plan for, budget for, and perform.”

Aderholt’s comments were preceded by a February 28, 2011, letter to Secretary Napolitano sent by Republican leadership with jurisdiction over REAL ID implementation, stating that “[r]ather than usurping Congress’s authority in writing policy, DHS should commit to the law and fully support implementation.” The letter was signed by House Judiciary Committee leadership, former Chairman and REAL ID author Rep. James Sensenbrenner (R-Wis.), and Chairman of House Judiciary Lamar Smith (R-Texas), as well as Chairman of the House Homeland Security Committee, Rep. Peter King (R-N.Y.).