On Wednesday, the House Homeland Security Committee conducted a hearing on the 2010 budget priorities of the Department of Homeland Security. The budget was submitted to Congress on May 7, 2009 as part of the President's $3.5 trillion Fiscal Year 2010 Budget Proposal. The ranking Republican on the subcommittee with jurisdiction over U.S. borders and counterterrorism, Rep. Mark Souder (R-IN), yesterday during the hearing specifically asked DHS Secretary Janet Napolitano whether she still supported repeal of the REAL ID Act. This was the exchange:
REP. SOUDER: Now on the border, one is a concern on terrorism on the border. If we're going to work out anything in this country on immigration we have to have the confidence of the American people that whether it's the Dream Act or whether it's immigration reform of some type, that the border is secure, or otherwise people just pour in if we make changes.
Furthermore, if we're going to fight terrorism, we have to know who people are.
You stated that you wanted to eliminate – repeal the Real ID Act, which was one of the key 9/11 Commissions and – do you still stand with that? Do you see that moving ahead? And how is that working? And if I can do the second one, you can kind of work these together.
SEC. NAPOLITANO: Thank you, Congressman. In terms of Real ID, as I think the committee recognizes, governors across the country, both parties, all thought Real ID was an unfunded mandate from the Congress. I actually signed a bill in Arizona opting Arizona out of Real ID because there was no money associated with it, and the way the rates were coming down, it was going to be a very big burden.
That was almost the strongest bipartisan vote amongst the nation's governors that I saw in my time as governor. So when I came here, I said, look, we need to get to what the 9/11 Commission was getting at, which is a more secure driver's license, all right. So we have been working with a team or governors at the NGA level in a bipartisan fashion to craft a substitute for Real ID. And there is a proposal now, I believe – either it has been or will be introduced in the Senate – I think that will have bipartisan sponsorship that the governors will accept and will be able to implement. So it's not just a matter of repealing Real ID, which nobody was going to do, it's a matter of giving the governors of the country a bill that they can actually implement given the way motor vehicle departments work and the like. So that's where we are with that.
Secretary Napolitano's comments include: (1) a misstatement of fact; (2) a misunderstanding of 9/11 Commission recommendations; (3) a questionable association with a special interest group that has drafted the REAL ID repeal proposal and one in which she recently held a leadership position; and (4) making sure the governors have to do very little to actually implement the REAL ID "substitute."
A misstatement of fact
"I actually signed a bill in Arizona opting Arizona out of Real ID because there was no money associated with it." While it's true that while governor of Arizona, Secretary Napolitano opted out of REAL ID, it is not true that there was no money associated with it. Under her tenure, Arizona received a total of $3,781,884 despite opting out of REAL ID. (To see where this number comes from, see "Secretary Chertoff's Stocking Stuffer".) In fact, when Secretary Chertoff left office, he left about $49 million in REAL ID monies for Secretary Napolitano to distribute to the states. As of yet, there has been no statement from the Obama administration that such monies have been allocated.
That raises two questions: (1) What did Gov. Napolitano do with $3.8 million in REAL ID monies from the federal government if she signed a bill not to implement REAL ID? (2) Why, if there is a complaint from states about lack of REAL ID funds, has Secretary Napolitano not supplemented her former colleagues' REAL ID budgets with the remaining $49 million allocated by Congress to REAL ID last year, assuming that has yet to be done?
A misunderstanding of 9/11 Commission recommendations
"When I came here, I said, look, we need to get to what the 9/11 Commission was getting at, which is a more secure driver's license." The best way to get to what the 9/11 Commission was recommending on secure driver licenses is to understand what “secure” means as per 9/11 Commission recommendations and my border team’s substantiating facts as laid out in the Commission monograph, 9/11 and Terrorist Travel. As Mr. Souder remarked in his question to the secretary, the most fundamental element of a secure driver license issuance system is the assurance that people are who they say they are. The most recent drafts of the REAL ID repeal proposals gut identity verification, alongside other key elements of security identified by the facts and circumstances laid out in the Commission work.
Substituting new proposals in place of the REAL ID provisions supported by 9/11 Commission findings and the technical recommendations of the American Association of Motor Vehicle Administrators, does not amount to abiding by 9/11 Commission recommendations. Saying so does not make it so. In fact, in some cases, the secretary's REAL ID "substitute" is less secure than standards that were in existence before 9/11. However, until a bill is introduced, it is hard to say for sure how insecure our driver's licenses would be under the secretary's REAL ID repeal. What we do know is no American will be as secure as REAL ID would assure.
Taking guidance from a special interest group
"So we have been working with a team or governors at the NGA level in a bipartisan fashion to craft a substitute for Real ID." As governor of Arizona, Secretary Napolitano was a co-chair of the National Governors Association's Homeland Security Committee. At least twice she wrote Congress requesting monies for REAL ID, which she received, if in modest amounts. (See a May 17, 2007, letter from Gov. Napolitano and Gov. Pawlenty to Senate Appropriations Chairmen requesting REAL ID funding, and a March 19, 2007, letter from Gov. Napolitano and Gov. Pawlenty to House Budget Chairmen requesting REAL ID funding.)
She has repeatedly stated her close working relationship with the NGA on REAL ID repeal, and in her Senate confirmation hearing even said she would take the lead from the NGA on statutory language. This association between a cabinet official and a special interest group raises questions about the sincerity of the president's stated policies regarding his administration's and congressional dealings with special interest groups. A typical comment by the president can be found on his campaign website, at a page entitled "Barack Obama: Connecting and Empowering All Americans Through Technology and Innovation," which reads in part as follows: "Barack Obama will use the most current technological tools available to make government less beholden to special interest groups and lobbyists and promote citizen participation in government decision-making." It seems, however, that Secretary Napolitano has gone out of her way to show that she is beholden to a powerful special interest group that represents the political interests of governors and does not include any citizen participation, nor seems to be interested in actually protecting their residents from driver’s licenses easily subject to identity theft, counterfeiting, alien smuggling, drug trafficking, and other criminal abuse of identity.
A "no work required" bill for governors
"So it's not just a matter of repealing Real ID, which nobody was going to do, it's a matter of giving the governors of the country a bill that they can actually implement given the way motor vehicle departments work and the like." "Given the way motor vehicle departments (DMVs) work and the like" it is always easier when they don’t have to do anything new. In fact, in many cases, DMVs could reverse the work they have already done (and waste taxpayer money well spent in the 30 or states that have been diligently working towards reducing fraud and waste via REAL ID implementation) and still be in compliance with the current REAL ID repeal proposals. Now that would be something quite easy to implement and appears to be in sync with Secretary Napolitano's new definition of "secure" driver licenses.
That's okay. Secretary Napolitano is doing a good job of preparing us for risks from man-caused disasters, and we can just add the new definition of "secure" to her list of ever-evolving definitions.
If you enjoyed this blog, check out The Appearance of Security or our video on REAL ID Fact and Fiction.
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