The REAL ID Act: How It Violates U.S. Treaty Obligations, Insults International Law, Undermines Our Security, and Betrays Eleanor Roosevelt's Legacy

By NOAH S. LEAVITT
Monday, May. 09, 2005

The most high-profile provision of REAL ID would mandate that applicants for state drivers' licenses must prove they are in the U.S. legally, in order to get identification that may be used at federal facilities (airports, national parks, government offices, and so on.).

However, REAL ID is much broader than that. It will fundamentally reshape the U.S.'s policies governing the admittance and removal of foreigners from our country. And this change, in turn, will alter the way the rest of the world thinks about the United States.

Despite the extensive debate around REAL ID over the past several months, one vital fact has surprisingly been overlooked: Many provisions of the legislation violate treaties that are part of U.S. law. Others insult well-established international norms, including norms the U.S. itself helped develop; often, they betray Eleanor Roosevelt's great legacy.

In the end, this aspect of the Act may be its biggest flaw. It also, as I will argue, may undermine the Act's very justification - by making America less, rather than more, secure.

Background: The History of the REAL ID Act

The arguments about the REAL ID Act started last winter, as Congress worked to pass legislation to implement the recommendations of the independent, bipartisan 9-11 Commission.

During those debates, Rep. Sensenbrenner and others argued for the inclusion of a number of restrictive provisions, that opponents argued were anti-immigrant. But 9-11 Commission members spoke out against these provisions, arguing that they would not make any significant contribution to public safety and security.

After extensive public debate, as well as several hearings, a few of the harshest measures were removed from the final version of the legislation. The resulting draft eventually was passed by Congress as the Intelligence Reform and Terrorism Prevention Act of 2004.

But this year, Rep. Sensenbrenner quickly reintroduced the controversial provisions he had removed. And on February 10, the House of Representatives passed Sensenbrenner's full package.

A month later, that same legislation was attached to a huge emergency appropriations bill - a "must sign" piece of legislation - to fund the U.S' military efforts in Iraq and Afghanistan. Troublingly, the House passed this massive funding bill without any public debate or hearings.

When the debate shifted to the Senate, the REAL ID Act was not included. But when the bill went to the Conference Committee just two weeks ago, House supporters pushed strongly for the provisions to be included.

During debates, a couple of the most unsavory proposals - such as one that would have created private bounty hunters to enforce immigration law - were removed. But most of the troubling provisions remain - even though the legislation is on its way to be signed into law, likely this week.

What REAL ID Will Do, and What the Arguments on Both Sides Have Been

Rep. Sensenbrenner and other supporters of REAL ID say that the Act will make the U.S. safer from terrorists. For example, in support of the drivers' license/legal immigrant provision, Sensenbrenner has pointed out that 18 of the 19 9/11 hijackers used drivers' licenses or other types of state identification cards to gain access to the airplanes.

But opponents point out that the drivers' license provisions may only force those who are illegal aliens underground, and thus make the roads more dangerous. They also warn that these provisions will likely be an unfunded mandate to states - one that financially-strapped states will be forced to spend hundreds of millions of dollars to administer.

According to a recent statement from Sensenbrenner, REAL ID will tighten the asylum system by "weeding out fraudulent asylum applications made by people lying through their teeth." It will shut down "Smuggler's Gulch" along our borders, and protect us from "terrorists, drug smugglers, alien gangs and violent criminals."

Opponents, however argue that REAL ID will make it difficult for people fleeing persecution to find refuge in the US; they say many of the asylum applications "weeded out" may be based on cases of genuine oppression, with dire consequences if the applications are denied.

All of these points - as well as others that have been made -- are important. In this column, however, I will focus on the additional point that REAL ID violates international law.

The Relevant Provisions of International and Domestic Law

International human rights norms are based in the Universal Declaration of Human Rights ("Universal Declaration"), which the U.N. adopted in 1948. The U.S., led by Eleanor Roosevelt, was instrumental in drafting and lobbying for the Declaration.

The Declaration then gave rise to two treaties. One is the International Covenant on Civil and Political Rights (ICCPR). The other is the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both came into force in 1976.

Taken together, these three instruments are known as the "International Bill of Rights" (in large part because their principles are modeled on the Bill of Rights in the U.S. Constitution). The International Bill of Rights is recognized around the world as the core set of human rights principles by which all nations ought to abide.

The U.S. has signed and ratified the ICCPR. Under Article VI of the U.S. Constitution, that means the treaty should be the "supreme Law of the Land." It still, however, may not be able to form the basis for litigation. The U.S. Senate regularly attaches declarations saying that ratified treaties are non-self executing and that they need additional domestic legislation to become enforceable in U.S. courts - and the ICCPR is no exception.

Meanwhile, the status of the ICESCR is more problematic; the U.S. has signed, but refuses to ratify it.

One additional fundamental treaty that establishes norms for how countries must treat individuals fleeing persecution is the 1951 Convention Relating to the Status of Refugees ("Refugee Convention"). The large majority of countries in the world has signed, and follows, the Refugee Convention. The U.S. itself has incorporated much of the Refugee Convention into its domestic immigration law system.

(Overall, however, the U.S. is lagging far behind many other nations in utilizing such norms to inform its domestic law. The constitutions of growing number of countries direct judges to follow international law, or to interpret domestic law to be consistent with international law. South Africa's Constitution, for example, looks to international norms to inform its domestic court decisions.)

How the REAL ID Act Violates United States Law, In the Form of the ICCPR

Let's begin by taking a look at the ICCPR - a treaty ratified by the United States - and how the REAL ID Act violates, and abrogates, it.

Article 14 of the ICCPR provides that persons convicted under law shall have the right to review by a higher court. But REAL ID purports to eliminate all habeas corpus review for immigrants who claim they have been treated unlawfully by the Department of Homeland Security. It is also purports to strip federal judges of the power to temporarily stay the immigrants' deportation, pending appeal of a negative determination.

Article 22 of the ICCPR, and Articles 7 and 8 of the ICESCR, provide for the right to organize collectively at the workplace, and the right to strike. But the REAL ID Act allows the Department of Homeland Security to ignore local, state and federal laws to the extent that the Secretary believes necessary to "expeditiously" complete the security border fences with Mexico and Canada. Collective bargaining laws are not exempt. (Nor are laws on environmental protection, safety and discrimination).

Article 17 of the ICCPR - like Article 12 of the Universal Declaration - provides for a right to privacy. Yet, as discussed earlier, the REAL ID Act sets complex federal standards for all drivers' licenses, and compels states to scan all passports and visas and share the massive database of information created -without privacy protections. This collected information will include social security number, phone numbers, residence addresses, and in some cases, medical history (on vision, needed medication, and more).

How the REAL ID Act Violates International Law and Norms

In addition to gutting a treaty the U.S. has signed and ratified, the REAL ID Act also undermines Eleanor Roosevelt's legacy, and reneges on the United States' commitment to the world, as embodied in the Universal Declaration of Human Rights.

Article 14 of the Universal Declaration -- along with the entire Refugee Convention -- provides for the right to seek asylum when an individual fears persecution for a fundamental aspect of their identity. These aspects include race, religion, nationality, membership in a particular social group, and political opinion.

The REAL ID Act, however, makes a mockery of that right by requiring asylum seekers to demonstrate that one of those enumerated grounds is one of the "central reasons" for their persecution - not just "a" reason.

How is this to be proven? Must the asylum seeker read the mind of his or her persecutor? Yet without this proof, the asylum seeker will be sent back to his or her country of origin - where they will be likely to face additional, and possibly worse, persecution.

In this respect, the legislation not only violates the Universal Declaration but, much more deeply, it also mocks America's longstanding claims of being a beacon of hope and freedom and democracy to people living under tyrants and dictators.

The REAL ID Act, by sending a harsh message to asylum seekers who regard the U.S. as a haven for safety from repressive countries, undermines such claims. The Statute of Liberty, on the day this Act passes, ought to shed a tear.

Why the REAL ID Act May Actually Harm, Not Bolster, National Security

Supporters of the REAL ID Act claim that its provisions will make America safer from terrorists.

Yet, one of the main reasons America is a target is the perception that it is arrogant, and lacks respect for people beyond our borders. By flouting well-known international norms, the REAL ID Act only exacerbates such a perception.

Even as the U.S.'s own allies - such as the European nations who are linked through the European Court of Human Rights - try to connect their international norms with their domestic system, the U.S. blatantly violates these very norms.

It thus risks alienating the very nations on which we have repeatedly been dependent in war-on-terrorism enforcement. These - and many others - are among the nations we most need to cooperate with, and share information and expertise with, if we are to effectively prevent another attack. (This is equally true as it pertains to other national security goals, such as partnering with Europe to challenge China's growing military capabilities, as pointed out in the June edition of The Atlantic Monthly) Unfortunately, the REAL ID Act only moves us even further apart.

By contrast, abiding by the international norms the U.S. has promised to honor - and even, in some cases, touted - would present the U.S. as a nation that wants to share a set of values with the rest of the world. It would reassure allies that they are right to join together with the U.S.

For all these reasons, the REAL ID Act may compromise our collective security more than it protects it. Thus, refusing to support this Act is not only the right thing to do; it is also the wise and safe thing to do.

As Eleanor Roosevelt said, "One's philosophy is not best expressed in words; it is expressed in the choices one makes... and the choices we make are ultimately our responsibility."


Noah S. Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The opinions here do not necessarily represent those of his organization. Leavitt can be contacted at nsleavitt@hotmail.com

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