9/11 Commission Implementation Bill Passed Without Draconian Dl Provisions

IMMIGRATION LAW & POLICY

Congressional Developments

9/11 Commission implementation bill passed without draconian DL provisions
Immigrants' Rights Update, Vol. 18, No. 8, December 22, 2004

After much wrangling, Congress has passed and the president signed intelligence reform legislation that contains provisions requiring the U.S. Dept. of Transportation (DOT), through a negotiated rulemaking process, to set standards regarding the acceptance of identity documents that applicants present when they apply for a driver’s license or state-issued ID card, the verifiability of such documents’ authenticity, fraud prevention, and security feature standards for license and ID cards. The legislation was drafted and passed to implement recommendations made by the National Commission on Terrorist Attacks upon the United States (also known as the 9/11 Commission).

However, Rep. James Sensenbrenner (R-WI), the powerful chair of the House Judiciary Committee, has vowed to introduce legislation in early January that would, in effect, replace provisions that were in the version of the intelligence reform bill that was passed by the House of Representatives but not included in the compromise bill that Congress passed and the president signed on Dec. 17. (For more on these provisions, see “Immigration Provisions a Sticking Point in Attempt to Reconcile 9/11 Commission Implementation Bills; DL Provisions Also Troublesome,” Immigrants’ Rights Update, Nov. 8, 2004, p. 1.)

After the House of Representatives and the Senate each passed an intelligence reform bill in early October, a conference committee made up of members of both chambers finally reached an agreement on a compromise bill on Nov. 20. However, the House leadership pulled the conference report from the House floor soon after Sensenbrenner and Rep. Duncan Hunter (R-CA), the chair of the House Armed Services Committee, announced their opposition to it. Though the two men eventually were persuaded to refrain from blocking a vote on the bill, Sensenbrenner has denounced the compromise bill’s driver’s license–related provisions as being inadequate.

The driver’s license provisions that were in the bill passed by the House—and that Sensenbrenner wanted reinstated in the conference report—would have, in effect, forbidden states from issuing driver’s licenses to undocumented immigrants, put restrictions on licenses granted to non–U.S. citizens other than lawful permanent residents, set strict standards for license issuance, and prevented license applicants from presenting foreign documents other than passports when applying for a license.

Though Sensenbrenner was unsuccessful in persuading the conference committee to agree to wholesale revisions in the driver’s license provisions, at his insistence the committee agreed to two last-minute changes to the conference report. A provision requiring that the DOT standards protect the civil and due process rights of noncitizens was removed (leaving intact a provision that their privacy rights be protected); and a change was made in the reference to the “interested parties” that the DOT must consult as part of the negotiated rulemaking process. The previous version of this provision provided that “interested parties” include organizations with technological and operational expertise in document security and organizations that represent the interests of applicants for licenses. The revised version provides that “interested parties” be consulted, without specifying the particular types of parties or organizations that these include.

Still, Sensenbrenner argues that the final bill—the Intelligence Reform and Terrorism Prevention Act of 2004—lacks adequate border security, immigration, and driver’s license provisions. However, the bill is replete with such provisions. They include requirements to

establish minimum federal standards for birth certificates and driver’s licenses;
enhance the security of Social Security cards;
establish a visa and passport security program in the U.S. State Dept.;
require the Dept. of Homeland Security (DHS) to establish minimum ID standards for boarding commercial aircraft and to recommend ID standards for access to other federal facilities;
test advanced technology to secure the northern border;
require the DHS to create plans for systematic surveillance of the southwest border by remotely piloted aircraft;
increase the number of full-time Border Patrol agents by 2,000 per year for five years;
increase the number of full-time Immigration and Customs Enforcement investigators by 800 per year for five years;
increase the number of detention beds available to the DHS for immigration detention and removal by 8,000 a year for five years;
strengthen visa application requirements;
criminalize alien smuggling;
make receipt of military-type training from designated terrorist organizations a deportable offense;
mandate a Government Accountability Office study on potential weaknesses in the U.S. asylum system;
make inadmissible and deportable any alien who commits acts of torture, extrajudicial killing, or atrocities abroad;
establish a counterterrorist travel intelligence strategy;
establish the Human Smuggling and Trafficking Center;
authorize funding for an immigration security initiative;
require the DHS to develop an integrated screening system; and
require the DHS to develop a biometric entry and exit data system.

Sensenbrenner also has asserted that the 9/11 terrorists were able to carry out their attacks because, collectively, they were able to obtain 63 state driver’s licenses. His claim has been widely circulated by anti-immigration groups such as the Federation for American Immigration Reform and in Congress. But the claim is contradicted by both a 9/11 Commission staff report and a fact sheet recently issued by the 9/11 Public Discourse Project (9/11 PDP), a nationwide public education campaign created by the ten members of the 9/11 Commission (a description of the 9/11 PDP can be found on its website: www.9-11pdp.org).

The fact sheet makes clear that the claims Sensenbrenner has made about the number of licenses the hijackers obtained before 9/11 and the conclusions he draws from their use by the hijackers are both incorrect. The fact sheet reports that, in fact, the hijackers obtained only 13 (not 63) driver’s licenses, and that 2 of those were duplicates. According to the fact sheet, they also had 21 U.S.A.- or state-issued ID cards. However, the fact sheet itself is somewhat misleading in including so-called U.S.A. ID cards in this number. These are not government-issued ID cards; they are cards made by a private company that sells deceptively real–looking ID cards. So the number of government-issued ID cards was actually somewhat lower than the number cited by the commission and far lower than the number cited by Sensenbrenner.

According to the 9/11 PDP fact sheet, all the terrorists’ driver’s licenses were legal, although not all were legally obtained. At least five of the hijackers obtained their licenses by falsely stating that they were residents of the state that issued them. All the hijackers entered the U.S. with valid immigration documents, so a law preventing undocumented immigrants from obtaining licenses would have had no effect on the hijackers’ ability to obtain licenses. Only two of the hijackers were out of lawful immigration status as of the day they staged their attack, Sept. 11, 2001. One of these obtained his license when he was in lawful status. The other used his passport to board the plane that he helped hijack.

In its final report, the 9/11 Commission recommended new standards to ensure the integrity of state-issued driver’s licenses and ID cards and to ensure that the applicant for an identity document is actually the person the applicant claims to be, as well as improvements to the physical security (i.e., the security features) of the document. But the chairman of the commission, Thomas H. Kean, told reporters that “the commission was calling for standards such as biometrics, not a crackdown on whether licenses were being obtained by illegal immigrants,” according to the Dec. 1, 2004, Washington Times.

The commission concluded, as the 9/11 PDP fact sheet puts it, that “stronger immigration enforcement to catch terrorists who were exploiting weaknesses in America’s border security” and “greater attention to terrorist travel tactics and information sharing about such travel” are needed. According to the fact sheet, “[W]e did not make any recommendation about licenses for undocumented aliens. That issue did not arise in our investigation, as all hijackers entered the United States with documentation (often fraudulent) that appeared lawful to immigration inspectors. They were therefore ‘legal immigrants’ at the time they received their driver’s licenses.” The fact sheet notes that all of the hijackers could have obtained driver’s licenses, even under the restrictive provisions pushed by Sensenbrenner, because they had valid visa documentation to show to state department of motor vehicle officials.

Hunter, the chair of the House Armed Services Committee, had opposed the conference report because he disagreed with some of its key intelligence reform provisions. His objections were, in the end, calmed by a revision providing that the new national intelligence director’s authority will not abrogate the statutory responsibility of the Dept. of Defense over intelligence issues.

The House approved the compromise bill on a vote of 336-75, and the vote in the Senate was 89-2. Sensenbrenner and his Republican supporters in the House have vowed to introduce new driver’s license, asylum, and other immigration provisions in early January 2005, when the new Congress convenes. They have said they will try to attach these provisions to “must-pass” legislation such as funding for the war in Iraq. The battle to ensure that immigrants are not the scapegoats for intelligence failures will assuredly continue.