Only the government could spend 20 years creating a national ID that nobody wanted and apparently doesn’t even work as a national ID.
But that’s what the federal government has accomplished with REAL ID, which the Department of Homeland Security (DHS) now considers insecure, even though getting one requires providing proof of citizenship or legal status in the country.
In a December 11 file in courtPhilip Lavoie, acting assistant special agent in charge of the DHS Mobile, Alabama office, said “REAL ID can be unreliable for confirming US citizenship.”
Lavoie’s statement was in response to a federal civil rights lawsuit filed in October by the Institute for Justice, a public interest law firm, on behalf of Alabama construction worker Leo Garcia Venegas. Venegas was detained twice in May and June during immigration raids on private construction sites, despite being a US citizen. In both cases, according to Venegas’ lawsuit, masked federal immigration officers entered the private sites without warrants and began detaining workers based on their apparent ethnicity.
And in both cases, officers allegedly recovered Venegas’ real Alabama ID, but claimed it might be fake. Venegas was handcuffed and detained for an hour the first time and “between 20 and 30 minutes” the second time, before officers informed them and released him.
Lavoie’s statement said the agents “had to further verify their US citizenship because each state has its own REAL ID compliance laws that may require the issuance of a REAL ID to an alien, and therefore, based on the training and experience of HSI Special Agents, the REAL ID may be unreliable to confirm US citizenship.”
It’s the punch line to a bad joke with a 20 year slump. When Congress passed the REAL ID Act in 2005. It was sold as a post-9/11 security measure to create uniform standards for state IDs, including clearly listing citizenship or legal immigration status. State IDs that complied would be marked with a star. Contrary to the cheeky first sentence of this story, DHS insists that REAL ID is not a national identification system and does not involve a centralized national database. (Civil liberties groups word amounts to a actually national identity system anyway.)
The problem was that REAL IDs would be required to enter federal property, including, especially for ordinary Americans, airport security checkpoints. But the law was widely unpopular. Compliance was so low on the part of states that implementation was delayed seven times over the years until finally it starts in May.
The project should have been abandoned years ago. America has somehow survived two decades of terror-free air travel without REAL IDs. That Reasonthis is scott shackford written in 2021“The government is asking Americans to give up more privacy from the feds, submit to additional crazy red tape, and carry around proof of citizenship in order to fly, even though none of that makes us any safer.”
And now we find that DHS doesn’t even consider the proof of citizenship thing.
One file in court in response to DHS, the Institute for Justice noted how incredible this position is. “REAL IDs require proof of citizenship or legal status,” the Institute for Justice wrote. “DHS is the very agency responsible for certifying that REAL IDs, including Alabama’s STAR IDs, meet this requirement.”
The law firm argues that DHS’s policy of allowing officers to ignore proof of lawful presence likely violates the Fourth Amendment and DHS’s own regulations.
When asked for comment on Lavoie’s statement, a DHS spokesperson said in a statement to Reason: “INA requires aliens and non-US citizens to have immigration documents. Real IDs are not immigration documents – they make identification harder to fake, thwarting criminals and terrorists.”
But of course, Venegas is a US citizen, so he is not required to have non-existent immigration documents.
DHS statement to Reason When Venegas’ lawsuit was first filed, it insisted that “What makes someone a target for immigration enforcement is whether they are in the U.S. illegally — NOT their color, race, or ethnicity.”
The agency never responded to a follow-up question asking why, then, Venegas was targeted.
That’s two cynical steps the Supreme Court allowed in September overthrow a ruling by the 9th Circuit Court of Appeals that found the Trump administration likely violated citizens’ Fourth Amendment rights by seizing them based solely on factors such as “apparent race or ethnicity.”
Justice Brett Kavanaugh issued a concurring opinion in which he dismissed fears that allowing such profiling would lead to undue harassment of citizens and legal residents.
“With respect to stopping those persons who are in the country lawfully, the questioning in those circumstances is usually brief,” Kavanaugh wrote, “and those persons may be released immediately after they have clarified to immigration officers that they are US citizens or lawfully in the United States.”
But what Lavoie’s statement makes clear — and what should be remembered every time a new national security issue like REAL ID is proposed — is that when our Fourth Amendment rights are eroded, there’s no piece of evidence or piece of plastic that’s enough to overcome an officer’s “reasonable suspicion” once the government decides you’re a target.
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