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

• Author: Redman, Renee C.

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.

Others, including a broad array of civil liberties groups, have argued against the creation of a national identification card system--particularly if the card would be connected to a central databank--on the grounds that it would infringe upon privacy rights. (22) Civil libertarians are concerned that such a system would lead to more discrimination and harassment of people who are perceived to look or sound foreign, or are of a particular religion. (23) Others note that a national identification system would condition the availability of many constitutional rights on credentials: "People [would] obtain ersatz-identities based on identification documents and numbers or places in databanks." (24) They base their arguments on the theory that part of personhood is the right to be free from intrusion and that a national identification system would encourage such intrusion. (25)

This Essay considers the concept of a national identification card system for the purpose of identifying who "belongs" in the United States--for defining and identifying "them." It does not address the identification of potential terrorists, as foreigners in the United States without immigration papers are not necessarily terrorists, and as history has shown, terrorists are not necessarily in the United States without documents. Many are citizens. (26) Moreover, law enforcement's need to identify potential terrorists is distinct from the issue of whether people who do not pose a terrorist threat "belong" in the United States even though they do not have "legal" immigration status.

The concept of a national identification card raises not only issues involving potential abuse of civil rights and intrusions into privacy, but also fundamental issues relating to the scope of who "belongs" in the United States. Who is the "they" who would be denied cards and thereby be excluded from life in the country? One division is between United States citizens who "belong" and everyone else. However, that would not take into account the millions of non-United States citizens who have rights under the immigration laws to be in the United States, including lawful permanent residents who often live here their entire lives without becoming citizens, immigrant workers, non-immigrant workers, refugees, students, and visitors. Thus, another division might be between all people who have rights under the immigration laws to be in the country, including foreigners who are "legal," on one hand, and all foreigners who do not have such permission or are "illegal" on the other.

Yet, the "illegal" group is huge--the current population of undocumented people living and working in the United States is estimated to be anywhere between seven and twenty million. While these people may not have "legal" immigration status, they have been tacitly invited to contribute their labor and skills to the country's economy and civic life. Over the last twenty years, the United States has encouraged and permitted millions of people to enter and remain in the country "illegally" while, at the same time, increasingly limiting the avenues for entering the country legally or acquiring legal immigration status while in the United States. Should those people be relegated to invisibility based solely on the fact that they do not possess a national identification card?

The first Section of this Essay is a brief history of the idea of national identification cards in the United States and the use of national identification cards in other countries, particularly when used to identify those who do not belong in a particular society. This Section is not comprehensive and is intended merely to provide background. The second Section provides a brief picture of the millions of non-U.S. citizens currently living in the United States. This Section examines the experiences of United States citizens as well as undocumented immigrants. The third Section considers the experience of New Haven, Connecticut with its Elm City Resident Card, an example of a card system whose purpose is to indicate that the holder is a resident of New Haven--that regardless of immigration status, the holder belongs. New Haven's experience illustrates the power of identification cards to distinguish between people who "belong" in a society and those who do not.

I conclude that a national identification card system should not be used to identify undocumented migrants. Such a system would be counter-productive as it would marginalize a vast number of people and would prevent them from participating in civic life. A national identification card system would also...