States Maneuver to Avoid Penalties of New Federal ID Program

Montana Gov. Brian Schweitzer
Montana Gov. Brian Schweitzer
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By Spencer S. Hsu
Washington Post Staff Writer
Sunday, March 30, 2008

The governors of Maine and South Carolina are working with the Department of Homeland Security to avert a showdown before tomorrow's deadline over a federal demand for new driver's licenses that could leave residents of those states unable to board aircraft, officials said.

Forty-six other states have formally sought and received extensions of a May deadline for starting work on the new licenses, and Montana and New Hampshire struck a deal a week ago that prompted DHS to grant them extensions they had not requested.

Over the past three years, DHS has struggled to fulfill the counterterrorism mandate set by Congress in 2005 to produce the new licenses by May. As DHS's timetable has slipped, resistance to the plan, known as Real ID, has grown across the country.

The plan was enacted because all but one of the hijackers on Sept. 11, 2001, had acquired, legitimately or by fraud, IDs allowing them to board planes and travel. The law, which overhauls how state ID cards and driver's licenses must be awarded, is meant to combat forgery and fraud by standardizing license data to be shared across government databases.

It requires, for example, that states verify applicants' citizenship status, check identity documents such as birth certificates, and cross-check information with other states and the federal government.

Political opposition to the plan has come from governors such as Montana's Brian Schweitzer (D), who remarked in a National Public Radio interview: "If it does come to a head, we've found it is best just to tell them to go to hell and run your state the way you want to run your state."

The plan's critics have questioned its projected $3.9 billion cost, its technical feasibility and its potential to create a de facto national ID.

But Homeland Security Secretary Michael Chertoff in January announced a March 31 deadline for states to begin to comply and to request an extension beyond the May target. Otherwise, residents of those states could be barred from flying.

To cut costs of the phase-in, DHS also agreed to delay until December 2014 the deadline by which people under 50 would have to present the required cards for purposes such as boarding commercial aircraft or entering U.S. courthouses. States would have until December 2017 to include those 50 and older.

Although 17 states have passed legislation opposing or opting out of Real ID, 46 went ahead and requested extensions. The four that did not had enacted laws explicitly barring participation in Real ID, which caused trouble because DHS indicated that requesting an extension reflected compliance with the law, state officials said.

Although Montana, one of those four states, declined to ask for an extension, Chertoff granted one anyway and deemed Montana to be in "material compliance" because it had outlined measures it is taking on its own to make driver's licenses more secure. On Thursday, DHS reached similar terms with New Hampshire.

"We're certainly going to honor the law, but we're going to continue this dialogue . . . because the idea here is to make sure states are going through the appropriate steps for safety and security of the identification process," DHS spokeswoman Laura Keehner said.

David Farmer, spokesman for Maine Gov. John E. Baldacci (D), said the state at least partially meets 10 of 18 federal benchmarks and is clarifying how it is doing so, following Montana's lead. "Hopefully that will earn us enough points to move this along with people being able to travel later this year," Farmer said.

South Carolina Gov. Mark Sanford (R) is deciding whether to do likewise, asking DHS not to penalize the state's residents. "We have not completely made up our minds on the route, but we would hope the DHS would treat South Carolina the same way they have treated Montana in this case," spokesman Joel Sawyer said.

Last week, lobbyists said the dispute amounted to "political theater" between a lame-duck administration trying to claim progress and opponents trying to unravel the nationwide effort. But they said DHS appeared to be trying to work with states, mindful that governors were not going on embrace a system that has not been fully designed.

"These states are flouting Real ID, and DHS has had to capitulate to that," said Jim Harper, director of information policy studies at the libertarian Cato Institute. Barry Steinhardt, director of the American Civil Liberties Union's technology and liberty program, said: "It's not surprising that DHS blinked. Do you really think they're going to shut down the airports in Charleston, South Carolina, or Portland, Maine?"


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