Form DS-5513: Proposed "Biographical Questionnaire" for (some) passport applicants

I never expected to see my words coming out of the mouth of Glenn Beck (see video above) on the same day that they were quoted by the Daily Kos, but I guess that’s what can happen when (a) one of your stories goes viral and (b) the subject is one of those civil liberties issues on which “left” and “right” don’t really define which side of the question people will come down on.

For my own take on the issue, here’s an interview I did yesterday with Patt Morrison on KPCC, Southern California public radio:

[click “play” arrow at left of slider above to stream archived audio, or click here to download as MP3 podcast]

Last month, after a notice about it (but not the proposed form itself) was published in the Federal Register, I tracked down the State Department’s proposed new Form DS-5513, “Biographical Questionnaire” for (some) passport applicants. My initial report last month (on the Identity Project blog at PapersPlease.org) got little notice, however, in part because the proposal was so outrageous that many people assumed it must be a hoax.

The story only began to get wider attention after I posted another article last Friday at ConsumerTraveler.com, with the formal objections to the proposal that I wrote for a coalition including the Identity Project, Consumer Travel Alliance, and other groups. Thanks to that wider publicity, more than 3000 people registered their objections to the proposal with Department of State in the final 24 hours of the comment period.

I’m continuing to follow the story, mainly on PapersPlease.org. I’ll try to keep this index of my articles on the topic updated:

• State Dept. proposes ‘Biographical Questionnaire’ for passport applicants (18 March 2011)
• State Dept. wants to make it harder to get a passport (22 April 2011)
• Public outrage at proposed questionnaire for passport applicants (26 April 2011, with links to selected comments and news and blog coverage)
• State Dept. already using illegal passport questionnaire (27 April 2011)
• State Dept. responds to passport form furor — with lies (28 April 2011)

Here are some excerpts from the comments opposing the proposal submitted by a coalition of civil liberties, consumer, privacy, and other groups and individuals:

The proposed form reminds us unpleasantly of the invidious historic “Jim Crow” use of a literacy or civics test of arbitrary difficulty, required as a condition of registering to vote and administered in a standardless manner. By making the test impossible to pass, voter registrars could use it as an arbitrary and discriminatory — but facially neutral — excuse to prevent any applicant to whom they chose to give a sufficiently difficult test from registering to vote, on the ostensible basis of their having “failed” the test.

In a similar way, choosing to require an applicant for a passport to complete the proposed Form DS-5513, which few if any applicants could complete, would amount to a de facto decision to deny that applicant a passport. And that decision would be standardless, arbitrary, and illegal….

The proposal describes the proposed form as required for receipt of a Federal benefit. But international travel, for which a passport is now required, is a right, not a mere “benefit”.

The fundamental defect in this rulemaking is that the Department has failed to evaluate the impact of the proposed new requirement to complete a new form on the ability of U.S. citizens to exercise rights of assembly and freedom of movement protected by the First Amendment and international treaties….

The right to assemble and the right to petition for redress of grievances are directly protected by the First Amendment. In the case of U.S. citizens born and/or residing abroad, or U.S. citizens wishing to assemble with U.S. citizens abroad, the exercise of those rights requires crossing U.S. borders. The right to freedom of movement, specifically including both the right to leave any country and the right to return to one’s own country, is protected by Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by, and binding on, the U.S….

Now that the U.S. government requires U.S. citizens to have passports for international travel, conditions on passport issuance must be considered according to the higher standard of justification applicable to regulations which burden the exercise of rights protected by both the First Amendment and Article 12 of the ICCPR, including a showing that the proposed rules are the least restrictive available means of accomplishing a permissible government purpose, and would in fact achieve that purpose….

Completion of the proposed form, in its entirety, is proposed to be mandatory for all those passport applicants who are selected (in some unspecified and apparently standardless and nonreviewable manner) to receive this additional form. The form states that, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

However, none of the statutes listed as legal authorities for the proposed form provides any actual basis for such a denial. A passport application may be denied only where there is a sufficient factual basis for a duly-made determination that the applicant is not a U.S. citizen. In the absence of such facts, the issuance of a passport is a matter of right.