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March 18, 2002

"Secure in Their Persons"

A national identity card is no threat to liberty

By Thomas G. Donlan - Barrons

"Your papers, please!" The intimidating bark of the security policeman, one hand on his machine gun, is a commonplace of 20th century secret-agent novels and movies. The hero conspires against an evil empire. His stomach turns as he wonders if his false identity card will carry him past the Nazi or Soviet functionary.

If his counterfeit is not good enough, he will surely be arrested, thrown into some hell-hole prison, brutally interrogated and eventually taken out and shot.

This vision of darkness at noon is what some Americans fear when they oppose a national identity card: All the arbitrary abuses of a police state, in which heroes are victims and law is a force of evil.

But the fear is misplaced in the 21st century. Americans may fear tyranny, and oppose every hint or possibility that it may emerge. But an identity card is not tyranny, it is an identity card. Free citizens may very well wish to prove their identity, and a government composed of free citizens may even require them to do so, at appropriate times.

The existence of a national ID card would not change the Fourth Amendment to the Constitution:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized."

Fear of Flying

Unless we become so frightened of terrorism that we decide to amend the Bill of Rights, the Fourth Amendment is a fundamental law, and decades of court decisions applying it and enforcing it still stand. With narrow and technical exceptions, it is pointless for the policeman to violate Fourth Amendment rights because criminal evidence gathered in violation of these rights cannot be used at trial. We prefer to let obviously guilty people go free rather than to convict them through a violation of their Fourth Amendment rights. This preference may not be the most sensible feature of the American republic, but it evolved from intolerable experiences with the power of law applied to weak and unpopular persons and causes.

Asking a citizen to identify himself is not intolerable. Enabling a citizen to proffer identification reliably attesting to his identity is even more tolerable. Anything that improves a law-abiding citizen's ability to have brief and pleasant encounters with law enforcement is highly desirable. So why do so many advocates of privacy and individual rights still denounce every plan for a national identification card?

Some worry that a card would not be foolproof, and it might be forged. But a card with a "biometric" device, such as a fingerprint or retinal-pattern reader -- or, further in the future, a DNA-sequencer -- would be a great deal more foolproof than a state driver's license. The worry that a card might be forged is no reason not to try to design a card that is more secure against forgery.

A similar worry is that secure identification is only as good as the information used to establish a person's identity. Last week's disclosure that the Immigration and Naturalization Service had just gotten around to sending student visas to two of the September 11 terrorists does nothing to reinforce confidence in government security investigations. The INS is like the restaurant that serves atrocious food -- and keeps the patrons waiting for it. But this discovery may well prompt a long-needed house-cleaning at INS. Bureaucratic failures never turn up until somebody tries to use bad information. The security databases already exist, but are not well employed. Even the failures of a national identity card system would prompt innovation. Equality is also a concern: If most people had ID cards, those who did not have them could be subject to discrimination and harassment. True enough, but it is more likely that creating a national ID-card system would mean that many people now unjustly subjected to discrimination and harassment -- people "driving while black," or "flying while Arab" - - would be empowered with a quick and easy means of giving a good account of themselves.

Other people have a lot to gain from carrying maximum-security ID cards. Think of Representative John Dingell, the Michigan Democrat who recently had to prove to airport security people that he has a hip replacement, a knee brace and various other metal body parts. They made him strip to his skivvies, and he is a 75-year-old Congressman. People without his eminent status have an even greater need for a smart identity card that could vouch for them and their special, non-threatening, attributes.

Pilots, ground workers and other people who have to go through scans a zillion times a week would be better off if they could provide ironclad assurance of who they are and how they have been investigated. The people running the scans would have more time to evaluate possibly dangerous suspects -- or at least to check them for nail clippers.

Costs and Benefits

Millions of illegal immigrants would find it impossible to establish a legal identity. This is not a good thing, since the nation has room to welcome the undocumented people it both condemns and employs. But such people do break our laws, even if it's the laws rather than the people who are usually at fault. A national ID system would increase pressure to conform immigration laws with economic and social reality, and might improve our ability to select immigrants who will participate productively in our country's economy. Critics say that a national ID system would create a false sense of security: It might misallocate security resources to maintaining the identity card system -- resources that would be better used on other law-enforcement and security projects. This is a real problem, and all too common.

Six months after September 11, we have bars on the doors of airplane cockpits, but no rules to ensure that pilots stay in the cockpits or portable toilets to be sure they can, no arms for them to defend themselves, no mandatory martial-arts training for flight attendants. Above all, there is no real assurance that passengers are who they say they are. In airports, we have piled on procedures to try to ensure that no passenger poses even the most implausible threat, each time and every time he boards a plane; but bags still go on the plane with at most a sniff from a police dog.

Like the reservists in cammies toting M-16s who stand watch at airport-security checkpoints, most of the security measures instituted since September 11 provide a false sense of security, undermined by invisible vulnerabilities. That's no reason not to employ meaningful security measures, such as identification backed up by biometric verification.

Ample Precedent

It's not like there are no identity cards in our society. Check your wallet or purse: You are probably carrying well over a dozen bank cards, store cards, membership cards and so forth. The danger of identity theft rises with every card you carry.

And it's not like the police cannot ask us to identify ourselves at the airport or on the street -- and deny passage to those who don't comply. It's just that we have failed to insist on identity cards that really work.

The Aviation and Transportation Security Act enacted last November gives the federal government a chance to create a useful identity card that ought not to offend even those most suspicious of government power: It authorized the new Transportation Security Agency to issue "trusted traveler cards," using biometric identifiers.

Representative John Culberson, a Texas Republican who has pushed for the travelers' ID card, calls it "a common-sense solution to a system that frisks 3-year-old children and 86- year-old Medal of Honor winners." But the new head of the Transportation Security Administration, John Magaw, is dragging his feet. He advised a Senate committee recently that a trusted passenger card sooner or later would be issued to a terrorist mole who would live in the U.S. long enough to establish a clean record.

Smart cards do require smart people to run an ID system, and a certificate of trustworthiness will have to rely on more than the absence of links to terrorism. But the alternative is what we have: An ID system with so many easy security gaps that it allows minors to buy beer and cigarettes illegally. It is not tyranny to seek a more serious approach to identification and security.