National identification cards: powerful tools for defining and identifying who belongs in the United States

Albany Law Review, Summer, 2008 by Renee C. Redman

In the wake of the terrorist attacks on September 11, 2001, there have been numerous calls for a federal national identification card system as a means to prevent future terrorist attacks in the United States. The proposals range from a comprehensive system involving chips and databases that could be used to track the movements of card holders to "trusted-traveler" cards that would facilitate faster boarding of planes for pre-screened individuals. (1) Another type of proposal is for a national identification card that simply identifies the holder as having the right to be in the United States. Such cards, it is proposed, would contain some or all of the following information: name, address, social security number, photo, and fingerprint of the holder. They would allow the holder to easily pass through security checks at airports, high rise buildings, and federal buildings. Some have suggested that such cards be voluntary, in which case those who choose to not show such a card would be choosing to undergo more scrutiny.

The current impetus for a national identification card system is at least in part due to the fact that some of the 9/11 hijackers obtained United States identification cards. The 9/11 Commission reported that "[a]ll but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud." (2) Others, in particular Representative Sensenbrenner, have alleged that the hijackers were able to carry out their terrorist acts because they possessed sixty-three drivers licenses. (3) A fact sheet issued by the 9/11 Public Discourse Project, a campaign created by ten members of the 9/11 Commission, reports that the hijackers, in fact, had thirteen licenses, two of which were duplicates. (4) While all were real licenses, not all were legally obtained. (5) For example, some hijackers lied about being residents of a particular state. (6) In any case, all the hijackers entered the United States on visas and all but one had legal immigration status when they applied for a license. (7) The remaining hijacker used his passport to board the plane. (8) It has also been reported that some of the U.S. identification cards mentioned by the 9/11 Commission were, in fact, very official-looking cards that were issued by private companies. (9) The Public Disclosure Project Fact Sheet reports that while the Commission made recommendations to catch terrorists, it "did not make any recommendation[s] about licenses for undocumented aliens." (10)

Despite these facts, many proponents of national identification card systems lump terrorists with immigrants whose only transgression is their presence in the country without legal permission. National identification cards, the argument goes, would help locate terrorists and "illegal aliens" because those without permission to be in the United States would not have a card. The cards would identify who has a right to be in the country. (11) Thus, the card would reduce the need for racial profiling by quickly identifying those who belong, and thwart terrorism by preventing terrorists from hiding in plain sight.

Among the people suggesting that a national identification card system be considered is Professor Alan Dershowitz. (12) A well-known civil-libertarian, Professor Dershowitz made waves when, in October 2001, he suggested that our recent experiences called for a rebalancing of security and liberty. (13) His card would be optional, but would permit the holder to easily pass through security checks at airports and buildings. (14) It would contain only the holder's name, address, photo, and a chip containing a fingerprint or retina scan. (15) Professor Dershowitz suggests that such a card would actually reduce racial and ethnic profiling. (16) He acknowledges that Arab-Americans would likely be asked for their cards more often, but believes that production of their cards would avoid the harassment they currently suffer. He relies on an experience in his own life: when African-American students first began to attend Harvard in substantial numbers, many were harassed by the Harvard police when they entered campus. After Harvard identification cards were introduced, much of the harassment ended, although African-American students were asked for their cards more often than white students. The card signified to the police that those students belonged on Harvard's campus. (17)

Professor Dershowitz acknowledges that a national identification card would be a "compromised with liberty," but believes such a system would be justified because otherwise, "large compromises [would] be imposed only on outsiders ('theys')." (18) The "theys" are people in the country without permission, or "illegal aliens." (19) One reason he supports such a system is based on his belief that it would move the country towards a "system under which 'illegal immigrant' status really means something. "We can no longer accept a situation in which millions of people are de facto accepted as residents while de jure being illegally here." (20) He urges that to protect the country from potential terrorists, the legal status of every person in the country must be "unambiguously clear" and that we should have a system whereby those who are here "illegally" are tracked down and deported. (21) A national identification card would assist in that effort.