As we’ve noted in our previous commentaries on the REAL-ACT in this blog and in our recent presentation at the Cato Institute, there are two components to the threats against individual residents of “noncompliant” states (and territories and the District of Columbia) that are being used by the DHS to try to induce reluctant state governments to incorporate their state drivers license and ID databases to the distributed national REAL-ID database by connecting them to the contractor-operated REAL-ID hub:
- Threatened denial of common carrier airline transportation to individuals who present drivers licenses or other ID credentials issued by noncompliant states; and
- Threatened denial of access to (certain) Federal facilities to these individuals.
The first of these threats appears to be hollow. The TSA has consistently argued, when demands for ID from air travelers have been challenged in court, that no ID credentials at all are required to fly.
The TSA claims the right to subject any traveler to more intrusive search and interrogation, without probable cause, and may use this arbitrary power against residents of states that don’t comply with the REAL-ID Act. But the TSA appears to realize that it has no legal authority for outright denial of air travel to people who don’t have, or decline to carry or show to the TSA or its contractors, government-issued ID credentials, REAL-ID Act compliant or not.
With respect to its threat to deny access to Federal facilities, the DHS (in its usual fashion of rulemaking by press release) has posted an announcement on its website that this will be implemented in phases determined by the “Federal Security Level” (FSL) assigned to individual facilities.
But what are the facilities, if any, to which these levels have been assigned, and to which individuals with ID from noncompliant states will therefore be denied access? We’ve filed a series of Freedom of Information Act requests to find out.
The responses to our FOIA requests suggest that this prong of the REAL-ID Act enforcement cattle prod is, to mix metaphors, a paper tiger. We’ve been unable to find any Federal facility to which such an FSL has actually been assigned.
According to those redacted documents about the process which the DHS has made public, the FSL (if any) for each Federal facility is supposed to be assigned by an interagency “Federal Security Committee” (FSC) for the facility. We filed FOIA requests for the minutes of any FSC for a variety of local Federal facilities to which public access is important, to see what (if anything) they said about any FSL designations.
Since we are located in the San Francisco Bay Area, we started with the most conspicuously iconic and symbolically significant potential terrorist target on the West Coast, the Golden Gate Bridge.
Both ends of the Golden Gate Bridge are on Federal reservations.
The south end of the bridge and its approaches are in the Presidio of San Francisco and under the jurisdiction of the Presidio Trust, a Federally-chartered corporation subject to FOIA. The Presidio Trust first told us it has no record of any FSC for the Presidio, and in response to a follow-up request told us that it has no record of any FSL designation or consideration of a possible FSL designation — although the follow-up response added that, perhaps as a result of our request, “The Trust is in the process of reviewing the FSL designation for the portion of the Presidio under the Trust’s administrative jurisdiction.”
The north end of the Golden Gate Bridge and its approaches are in the Golden Gate National Park, which also includes Alcatraz Island and other symbolically significant facilities. Does the National Park Service have any record of an FSC that might have assigned the bridge, or any other portion of the park, an FSL? No. Does it have any record of the assignment of an FSL, or of any consideration of the assignment of an FSL? Again, no.
What about that other Bay Area icon, the San Francisco-Oakland Bay Bridge, which is actually even more heavily traveled and a much more critical piece of infrastructure than the Golden Gate Bridge?
Between the east and west spans of the Bay Bridge, Interstate 80 passes through a tunnel in Yerba Buena Island — a Federal reservation which constitutes the US Coast Guard’s Station San Francisco. Does the Coast Guard have any record of an FSC that might have considered assigning an FSL to the Bay Bridge? No.
For what it’s worth, we got a similar response from the Coast Guard regarding its Training Center and antenna farm at Two Rock Ranch near Petaluma, which at least at one time was one of the NSA’s largest West Coast listening posts.
The General Services Administration, which manages a wide range of Federal courthouses, office buildings, and other facilities, was the only agency that admitted to finding any record of an FSC for any of the facilities about which we asked. The GSA told us it wasn’t the lead agency for the FSCs, if any, for most of the facilities we asked about, and referred most of our requests to other agencies including the Federal courts themselves, which are exempt from FOIA. But the GSA did admit to being the custodian of records for the FSC for the US District Courthouse in San Francisco, and released 43 pages of redacted minutes of the FSC’s quarterly meetings from its creation in 2010 through 2014.
The FSC for the US District Courthouse in San Francisco considered such matters as access to the building by “small” service horses (permitted) and nude people (prohibited):
Public Nudity at Courthouse
Recent City of San Francisco ruling was to disallow public nudity. Individuals appealed the ruling to the Federal court and they have protested in the plaza of 450 Golden Gate [i.e. the courthouse]. There was concern over how to handle these individuals if they sought to enter the building without clothing on. There are no rules that specifically banned nudity in Federal buildings. [redacted], provided a determination that “the appearance of nude people in the Courthouse will create a disturbance and disrupt the business of the Courthouse.” As such, the CSOs [Courthouse Security Officers] at the entrances to the building will not allow naked individuals to enter the location….
As information, it was presented to the FSC that only dogs and small horses are acceptable service animals…. If an individual states that their dog/horse is a service animal, the CSOs can ask them what the animal does but the individual does not have to produce any certification, have animal perform the act, or have the animal wear something to designate it as a service animal.
The FSC also discussed the dissemination of reports on surveillance of Occupy SF:
Comments/Questions on the Occupy Movement
With the recent Occupy Movement activities the group agreed that FPS [Federal Protective Service] and US Marshals are providing good information in advance and as these events develop. Most members [redacted] of the FSC are receiving some type of notification through email. [redacted], asked if members wanted to receive the updates that he gets from FPS/USMS. The members did not have any issues with this and felt that it was good to get updates from multiple sources. In the future, updates for these types of events will be sent out to FSC members.
While the FSC minutes were redacted by the GSA, there is mention of an FSL in the portions of the minutes that were released, and an FSL had been assigned or considered. ID requirements for access to the building were discussed only in relation to government employee access to the parking garage under the building.
This is only a small sample. But while the DHS says ominously that ID credentials issued by states that haven’t complied with the REAL-ID Act won’t be accepted for access (if ID is an cna lawfully be required at all) to Federal facilities that have been assigned certain “Federal Security Levels”, the government’s own FOIA officers have been unable to find any evidence that there are any such facilities, even among high-profile big-city potential terrorist targets.