Schweitzer Tells Feds
They Can Go to Hell
Montana Defies DHS Chief Chertoff on Real ID

A dramatic standoff took place recently between the state of Montana and the Department of Homeland Security in Washington, D.C. Armed with a law passed unanimoulsy by the state legislaure, which rejected the rquirements of the federal Real ID Act of 2005, Gov. Schweitzer defied the feds, saying publicly they could “go to hell.” Montana, though, after a face-saving maneuver pulled by DHS chief Michael Chertoff, officially joins the long list of states officially complying with Real ID.

Gov. Brian Schweitzer led the fight among the nation’s governors against compliance with the federal ID law, and he claims the Feds lost round one in its bout with Montana—after DHS chief Chertoff granted an extension for compliance that Montana did not request, a move that artificially brings Montana into the federal fold along with most other states. Montana Attorney General Michael McGrath sent Chertoff a letter Mar. 21 explaining the security features in the state’s current driver's licenses: holograms, secure digital photographs and a magnetic stripe on the back. In that DHS had drawn a line in the sand, that formal requests to extend Real ID compliance until 2010 had to be submitted by March 31, Chertoff chose to interpret McGrath’s letter as a request for an extension, which DHS then granted in a return letter.

Schweitzer told Threat Level, a government watchdog group active on the Internet, that the Treasure State sent the letter to Chertoff “just to keep the guy happy. He seems so grumpy all the time. It doesn't mean anything…I sent them a horse and if they want to call it a zebra, that's up to them. They can call it whatever they want, and it wasn't a love letter.” And Schweitzer said flat out in a Mar. 7 National Public Radio interveiw that “every month [the Feds] come out with another harebrained scheme.…We play along for a while.…But if it comes to a head we’ve found it’s just best to tell them they can go to hell.”

Though full implementation of Real ID isn’t expected until 2017, under a DHS directive, after May 11 of this year state driver’s licenses and identification cards will not be accepted for “federal purposes,” such as boarding airline flights. The DHS offered an out, however: states could avoid travel problems for their residents by applying to DHS for extensions on compliance with Real ID. The hitch: requests for extensions needed to be filed by Mar. 31, even though the timelime for Real-ID-compliant licenses and state ID cards reaches out to 2014.

A week before the letter exchange between Montana and the Feds that resulted in Montana’s extension, Schweitzer told the Pioneer that Montana driver’s licenses and identification cards “are better than virtually every other state’s already.” He said that if push comes to shove after May 11, regarding Montana‘s compliance with Real ID, “the Feds will say, ‘I didn’t mean you.’”

“I guarantee you that your Montana driver’s license will be accepted at every airport in America,” Schweitzer insisted. “Our driver’s licenses will be just fine.…I’d bet the ranch on it.”

The extension that was never requested makes that a winning bet, but only for the time being, still Schweitzer was emphatic that he has no intention of sharing data related to Montanans, as required by Real ID, with the Feds.

“Do you want your government to have the ability to track where you went, how you got there, and when you got home?” the governor told Threat Level. “It would be naïve for someone to think this information will not be abused in the future.”

Referring to the recent news that State Department employees had examined the passport files of Senators McCain, Clinton, and Obama, the three top-runners in this year’s race for the White House, he added that “Virtually every decade these kinds of files have been used to violate people's privacy.”

Schweitzer also told the Pioneer that Real ID is another example of a growing number of federal mandates requiring funding and implementation at the state level.

“Mostly we just ignore [the federal government] as long as we can,” Schweitzer told the Pioneer. “They even try to regulate our minds [with the No Child Left Behind Act]…sometimes you’ve just got to stand up to them.”

Montana legislators in Washington, D.C. expressed concern over the array of dates contained in the Real ID require-ments, although they focused mostly on the May 11 enforcement date. “It is our position that this…is both arbitrary and ineffective and imposes unnecessary burdens on all parties without enhan-cing our national security,” wrote Sen. Max Baucus and Rep. Jon Tester, both Democrats, in a letter to Director Chertoff earlier this year. That letter was also signed by Republican John Sununu of New Hampshire and Democrat Daniel Akaka of Hawaii. “Furthermore, [DHS] has not taken the steps necessary to implement this deadline effectively. We therefore respectfully request that you exempt all 50 states from the May 11, 2008, deadline.” Montana’s Republican Representative in D.C., Denny Rehberg, told the Associated Press that although he has opposed Real ID since it surfaced in legislation, the Treasure State should comply now that it has become law.

Schweitzer had already said “No, nope, no way, Hell no,” to Real ID in 2007, after the Montana legislature passed a law refusing to comply with the plan. The legislation, sponsored by Rep. Brady Wiseman (D-Bozeman), pointed to privacy, cost, and states rights as primary reasons that the Treasure State opposes the idea. Wiseman’s bill passed the Republican-controlled Montana House and Democrat-controlled Senate without a single dissenting vote, as Montana declared in a loud voice it did not support a federally-mandated Real ID.

Schweitzer’s Face-off with the Feds

Brian Schweitzer is passionate about this cause. In January of this year, he sent letters to governors in 17 states asking them to join Montana in standing up to the Feds on Real ID. The letter was sent to the governors of Colorado, Georgia, Idaho, Maine, New Hampshire, Oklahoma, South Caro-lina, Arizona, Hawaii, Illinois, Missouri, Nebraska, Nevada, North Dakota, Pennsylvania, Tennessee, and Washington.

“Today, I am asking you to join with me in resisting the Department of Homeland Security (DHS) coercion to comply with the provisions of Real ID,” Schweitzer wrote. “If we stand together either DHS will blink or Congress will have to act to avoid havoc (including pat-down searches) at our nation's airports and federal courthouses.”

Schweitzer also cited cost as a major concern. The Real ID is a massive undertaking requiring time and money, and the states are to foot most of the bill. Initially expected to cost some $20 billion, the federal government (after making some changes dealing with, among other things, “trickle-down” costs to the states) now expects the program will come in at around $4 billion.

By mid-March, Montana, New Hampshire, South Carolina, and Maine were the only states not granted Real ID extensions by DHS. Like Montana, New Hampshire sent a letter similar to Montana’s to DHS in February, and received an extension it didn’t ask for later that month. That leaves South Carolina and Maine as the only states that haven't asked for an extension, but judging by DHS’s actions so far, they might receive them relatively soon.

The ever-colorful Schweitzer, well aware there’s political hay to be made with such an issue, compared the compliance of the majority of the other states to a Montana sheep ranching operation.

“You know how you tie a bell around the neck of an old wether or two, and pretty soon all the other sheep follow them? I’m not getting into the sheep line,” Schweitzer told the Pioneer. “This is a program looking for a problem. [Real ID] is just another bluff by bureaucrats in D.C.”

Montana has nevertheless been steered into the federal fold, although Schweitzer declared that the fight isn’t over. He told the AP he sent a letter to Chertoff on Mar. 24, saying, “I recognize the question that some recent press coverage might have raised, but I can assure you I stand behind the Attorney General's letter in its entirety.” McGrath’s letter to Chertoff empha-sized that Montana would not give the Feds a copy of the database required by Real ID, in that the state legislature outlawed compliance with that requirement based on privacy concerns.

“Let’s be frank,” Schweitzer told the Pioneer. “I represent the people of Montana. I would break my oath of office if I complied with Real ID. I’m just playing the cards that I’ve been dealt.”

What is Real ID?

The Real ID Act is contained in legislation signed by President Bush in 2005. This idea for a de facto national ID card stems from the Office of Homeland Security’s first report after the 9/11 attacks. That report, released in July of 2002, stated that “While the issuance of driver’s licenses falls squarely with the powers of the states, the federal government can assist the states in crafting solutions to curtail the future abuse of driver’s licenses by terrorist organizations.”

In July 2004, the 9/11 Commission nudged the issue into the Federal arena in a 585-page report that “The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver's licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.”

In December 2004, President Bush signed the National Intelligence Reform Act into law, requiring the Secretary of Transportation to establish a negotiated rule-making process to establish minimum standards for state-issued driver's licenses and ID cards. But in the 2005 legislation containing the Real ID Act (the Emergency Supplemental Appropriation for Defense, the Global War on Terror, and Tsunami Relief, 2005), that rule-making process was repealed and replaced with minimum standards established by the federal government alone.

The new licenses and ID cards require a person’s name, address, date of birth, gender, signature, driver's license number, a digital photograph and other counterfeit-prevention features. Appli-cants must prove their identities with a photo ID, a document showing date of birth, and proof of a Social Security number; a document with the name and address of the applicant is also required. All information is to be fed into a national data base, which left the Montana legislature wondering about invasions of privacy and identity theft.