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National ID: Beware What You Wish For

January 09, 2002|JONATHAN TURLEY

Your papers, please!

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This month, a little-known group is meeting to take a step that may affect every citizen of the United States. The American Assn. of Motor Vehicle Administrators has announced it will create a de facto national identification card. The association reportedly is working with the Justice Department and the General Services Administration to create a system with a massive database encompassing every citizen. Thus largely unknown bureaucrats could create a kind of human license plate to track and restrict our movements--anathema in the U.S.

In the past, it was technically impossible or prohibitively expensive to monitor more than a fraction of the population at any given time. But recent advances in technology have removed these barriers. The only thing missing was a catalyst--some event that would substitute immediate security concerns for abstract notions of privacy. That took place Sept. 11.

The smoke was still billowing from the World Trade Center when the first calls came for a national ID card, leading to a November hearing before a House subcommittee headed by Rep. Stephen Horn (R-Long Beach). The hearing revealed radically different and often conflicting views of the purpose and capabilities of such a system. For some advocates, a card would simply provide a better form of identification using "biometric" components such as retinal scans. But others have called for a "smart" card connected to a database where an individual's history and movement could be monitored.

The rush to create a national identification card is based in part on the false assumption that such a card could have prevented the events of Sept. 11. This ignores the fact that the Al Qaeda operatives who launched the attacks on the World Trade Center and the Pentagon were either recent visitors or students on visas who would not have been required to have such cards. Moreover, the greatest threat is the use of "sleeper" agents, terrorists who remain in the country for years before being activated for a mission. Such agents would be able to legally acquire cards.

Nevertheless, there may be some real benefits to a national identification card. France and Belgium have had such cards without inviting tyranny. Even if a national ID card isn't warranted for the entire population, there may be value to requiring such a card for certain people such as international truckers or those with access to such material as anthrax spores. And if a single form of national identification is inevitable, it would be better for the model to be designed and debated in Congress rather than by a collection of motor vehicle bureaucrats.

Any single, uniform card is likely to be quickly integrated into governmental and business systems to become a required form of identification for activities ranging from driving to voting to banking. This is why Congress must assert a national authority over this issue.

We need to avoid a repeat of our experience with the Social Security number, which has become a national identifier despite the fact that Congress expressly rejected such a use. Early Social Security cards included the words: "This card is not to be used for identification." Yet we allowed a system of human serialization in which our names are little more than personal conceits connected to the nine digits. Oliver Wendell Holmes once said that "the life of the law has not been logic; it has been experience." We have learned from experience that governmental power operates like gas in a closed space. As a confined space is increased, both gas and government will expand to fill the available space.

This is why Congress should preempt state attempts to create a de facto national identification and prohibit freelancing agencies like the Justice Department from helping to create such a card without public debate or congressional approval. Instead, Congress should establish a commission to study whether such a system is needed, how it would work and what safeguards should be in place.

Before we take the first step toward a human license plate, we need to consider not just the dangers we are facing but the ones that we may create.

Each generation of Americans is given a constitutional legacy that can be nurtured or negated by the exercise of free choice. Our charge is not only to keep it safe, but also to pass it along to the next generation in the same condition that it was passed to us.

This crisis will pass. It is the paradox of a free people that only the citizens of this country can seriously threaten its foundations.

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Jonathan Turley is a professor of law at George Washington University. He testified at the congressional hearing on the creation of a national identification card.

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