Comments Of Senator Patrick Leahy (D-Vt.)
 On DHS Secretary Chertoff’s Insistence On Demanding
Birth Certificates At The Northern Border Beginning Feb. 1
Thursday, Jan. 17, 2008

[Department of Homeland Security Secretary Michael Chertoff today (Thursday, Jan. 17) responded to a Dec. 19 letter from Sen. Patrick Leahy (D-Vt.).  Leahy had asked for the legal and practical justification for DHS’s decision to require birth certificates at the Northern Border beginning Feb.1, at least 17 months before a newly enacted law allows implementation of the land-crossing phases of the Western Hemisphere Travel Initiative (WHTI).  The Leahy-Stevens Amendment to the DHS Appropriations Bill orders DHS to postpone the land-crossing component of WHTI until June, 2009, to give DHS more time to adequately prepare and to work out the program’s many problems.  Chertoff asserts that DHS has authority to impose the birth certificate requirement under a longstanding earlier statute.  Leahy believes the new requirement violates, at minimum, the spirit of the new WHTI postponement law, which has wide bipartisan support in both the Senate and the House.  Leahy says the new DHS birth certificate requirement has negligible security value but threatens chaos and economic disruption along the Northern Border.  The Leahy letter and the Chertoff response are both available on the Leahy website (leahy.senate.gov).  Following are Leahy’s comments on Secretary Chertoff’s response and on his intention to proceed with the Feb. 1 implementation of the new birth certificate requirement:]

“Two years ago, Secretary Chertoff proudly rolled out the PASS Card, a border crossing card that he said was needed to replace just what he is implementing now: the impossible task of verifying citizenship from 8000 possible U.S. and Canadian birth certificates.  The DHS mismanagement of the PASS Card project prompted Congress to give DHS more time to fix the mess so PASS Card can be properly implemented.

“Now, because of the agency’s own mismanagement, Secretary Chertoff wants to impose confusion and delays at the Northern Border by eliminating the discretion of border patrol agents to accept oral declarations, and to use their training and skills to identify risks that no pieces of paper could catch.  Secretary Chertoff is now forcing on Americans and our Canadian neighbors the same unworkable border crossing process that he so vigorously wanted to change only months ago.

“When it comes to the Northern Border, the muddled thinking and poor planning at DHS seems to have no bounds, and the agency that botched Katrina seems to have no shame and no memory to boot.  The looming requirement for birth certificates at the Northern Border is poorly planned, and with concerns about a recession on the way, the timing for clamping down on billions of dollars in trade and travel could not be worse.  I can think of nothing that would push the Northern Border states over the edge more surely than this heavy-handed, ill-timed and misguided government mandate.   

“For no good reason, they are creating another major hassle for law-abiding citizens and communities all across the longest peaceful border in the world.  This interim step adds nothing to our security while costing Vermont and our national economy billions in lost commerce.  Instead, for only a fraction of that expense, we could and should be beefing up our intelligence and working with Canada to seek out potential terrorists long before they get anywhere close to our borders.

“The new law that sets standards and buys more time for Northern Border security, just weeks old, has widespread bipartisan support in the Senate and the House.  But instead of using this time to work with us on better solutions, the Bush Administration has decided to squander yet another opportunity to do that.

“In his letter today, Secretary Chertoff writes that in 2002, Customs and Border Protection apprehended 15,000 people who had made false declarations.  This is an indication that the men and women who serve as Customs and Border Patrol Agents are doing their jobs and doing them well.  His suggestion that asking hard questions about the efficacy of this dramatic interim step ahead of full WHTI implementation is irresponsible and specious.  We should not forget that the Millennium Bomber, Ahmed Ressam, was caught by an alert Customs Officer who noticed Ressam’s nervousness and proceeded to further inspection.  WHTI will only be effective when implemented if the people and the government are given adequate time to plan, prepare and ultimately engage as willing participants in the new system.  The interim step the Department has announced will do little more than frustrate millions of law-abiding citizens who otherwise would want to travel across our land borders.    

“Secretary Chertoff also writes that ending oral declarations will ‘sharply reduce’ the variety of current documents that CBP can accept.  But I question the effectiveness of requiring birth certificates of every American citizen re-entering the United States so close to the WHTI’s full implementation.  Birth certificates come in wide variety from countless jurisdictions.  They are easily forgeable, and giving CBP the responsibility to determine the validity of birth certificates from around the country is a big burden that we would not want to have stand as a distraction from the scrutiny of individuals who have been identified as threats in the past.  On top of that, if national security was truly paramount to DHS, they would not be using RFID chips used to track store inventory in any type of personal ID documents, which in fact create a real vulnerability at the border.  

“They have announced that people can apply for PASS Cards beginning Feb. 1, but there is no process to apply for cards, and they will not be available until at least Spring.  Similarly, ‘enhanced driver’s licenses’ for those states that have approval to issue them will not be available until Fall at the earliest.

“It is also disingenuous of Secretary Chertoff to stoop to pronounce that, unless we do this, we risk another ‘Sept. 11 style’ attack.  I would remind him that they themselves say they have had the authority to do this before Sept. 11.  If DHS truly was serious about sensible border security, they would have chosen to use the ePassport secure chips in PASS Cards, they would not have ignored thousands of comments urging them not to use an insecure RFID chip, and they would agree to work with Congress and the states to find solutions to the legitimate and proven concerns about WHTI’s successful implementation.”   

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