By Richard Bergeon, February 2005
House bill, HR 418, met a lukewarm reception in the Senate. On February 11, with 95 percent of Republicans betraying their tradition of opposing excessive federal control, the Real ID Act passed in the House 261-161. Introduced Jan. 26, the bill got little deliberation and had no committee hearings.
The American Civil Liberties Union says it is an assault on the rights of immigrants. The Gun Owners of America say the bill opens a "bureaucratic back door to implementation of a national ID card,” and that it would "empower the federal government to determine who can get a driver's license--and under what conditions."
This is hardly the reaction one expects to a bill to increase security and safety by requiring states to issue identification cards that would be both hard to forge and linked to a national database. The ID would be required for access to airplanes, trains, national parks, federal courthouses and other areas controlled by the federal government, and to buy guns. Attached are provisions dictating that the ID replace driver licenses; specifying new documentation requirements for the granting of asylum; adding provisions covering deportation of immigrants; specify sharing of ID holder data with other governments; and giving the Office of Homeland Security authority to erect border barriers at will.
Forgetting that any earnest terrorist would find a way to fabricate a fake ID as easily as they now create fake passports and counterfeit money, the bill is a truly grim intrusion upon everyone's rights.
The bill very specifically identifies the nature and source of the documentation that states must demand in order to issue driver licenses. State motor vehicle agencies would become de facto agents of the federal immigration service. Agency employees, mostly minimally skilled clerical workers totally untrained in federal immigration law, are likely to rely on ethnic profiling. Any decision they made to withhold a license would have to be challenged in court.
Under the bill, the government assumes the power to determine who gets a driver's license, and even when a license can be taken away. The bill would take away licenses from millions of people who cannot provide the required documents, and would allow the feds to revoke your driver's license if they someday decided you once were ever a member of an organization that Homeland Security unilaterally decides is "terrorist." Imagine that, if an organization (such as OCA) opposed an action of Homeland Security, it could be labeled terrorist and all its members' (past as well as present) licenses could be revoked preventing them not only from driving, but also going into a federal building to complain.
In an unconstitutional violation of states' rights, HR 418 forces state agencies to both deny driver's licenses to undocumented immigrants and revoke licenses of others who cannot provide specified documents. Eleven states (including Washington) currently issue licenses without requiring proof of legal residency. The alternative is to force millions of people to drive illegally and without accident insurance. The bill would increase the number of unlicensed drivers, undermining public safety and increasing insurance rates for everyone. States would also lose the ability to suspend a license for infractions because taking the license away would inhibit their freedom of travel and access to government.
The bill says state driver's licenses must have: the traditional name, date of birth, gender, a digital photograph, a residential address, and "a common machine-readable technology, with defined minimum data elements." These features are just the minimum. The act gives unilateral authority to the Secretary of Homeland Security to add future requirements without review or consent of the people. The Secretary might in the future require such things as your fingerprints, a retina scan, your concealed weapon carry status, or a list of your credit cards and bank accounts.
The bill calls for all the data to be put in a national database and shared among many agencies. This personal information could be turned over to a non-secure database accessible to, among others, police forces of other countries.
The bill rewrites asylum law. In a breach of international treaties signed by Washington, refugees would be required to produce corroborative evidence of their claims of persecution, and even then would have to prove that the intent of their persecutors was to punish them for their race, religion or political beliefs. To meet this requirement those committing the persecution would have to provide documents explaining their actions - attest to the intent to kill, torture or otherwise abuse the person applying for asylum. The bill also allows immigration officers and judges to reject asylum claims on entirely subjective grounds. Asylum could be denied based on an assessment of the applicants “demeanor”- the look on their face or tone of their voice.
The bill revokes constitutional protection of free speech for immigrants who have been legally living and working in the US for decades saying people who “endorse or espouse” policies or positions with the aim of inducing others to “support a terrorist organization” are terrorists. The penalty is deportation, and it could be applied for providing nonviolent, humanitarian assistance to organizations labeled “terrorist” by the US government - even if the organizations were not designated as a foreign terrorist organizations at the time entirely legal aid was given. Deportation would also extend to spouses and children - possibly even those born in the U.S.
The bill also places severe limits on the jurisdiction of courts to reverse rulings by immigration officials, and overrides a 2001 US Supreme Court ruling that immigrants have the constitutional right to challenge their deportation and cannot be held without charges.
In March, a case of abuse in a federal detention facility was reported involving one of the Mirmehdi brothers. Mohammed, Mohsen, Mojtaba and Mostafa Mirmehdi have been in immigration detention since Oct. 2, 2001. All the brothers have been denied release because two of them went to a demonstration sponsored by the Iranian opposition group National Council of Resistance of Iran (NCRI) in June 1997, four months before the NCRI and one of its affiliates, the Moujahedeen Khalq (MEK), were named terrorist organizations by the State Department. It does not matter that in 2000, 228 congressional representatives and 31 senators signed on to a letter supporting the NCRI and MEK. Even the attorney general supported the organizations back then.
They are in custody even though the Board of Immigration Appeals ruled they are not a national security threat and can't be sent back to Iran. Under the new rules all the Mirmehdi brothers would be deported though they did nothing wrong. No court could stop the deportation.
Finally, the bill contains an extraordinary passage that grants the Secretary of Homeland Security unilateral power to override all laws-federal, state and local-in order to complete construction of a security fence along a stretch of the US-Mexican border near San Diego, California. Under the rules no court shall have jurisdiction to hear any cause or claim arising from any action undertaken, or order relief for damages. Not only does the act set an unfathomable precedent, it also says government agents could literally shoot anybody offering opposition with impunity.
In short, HR 418 has elements that are unconstitutional, violate treaties, and open the door to abuses of government power and massive identity theft.
© 2005 OCA-Greater Seattle
OCA - GREATER SEATTLE CHAPTER