For John Kerry, the specter of Attorney General John Ashcroft trashing Americans' civil liberties has been a useful campaign prop. In campaign stops, Kerry has promised to "end the era of John Ashcroft and renew our faith in the Constitution." In a Kerry administration, he promised the liberal group MoveOn in June 2003, "there will be no John Ashcroft trampling on the Bill of Rights." In his 2004 campaign book, A Call to Service, Kerry accuses Ashcroft and the Bush administration of "relying far too much on extraordinary police powers."
In contrast, Kerry positions himself as a civil libertarian—or at least as a proponent of a reasonable balance between liberty and security. "If we are to stand as the world's role model for freedom, we need to remain vigilant about our own civil liberties," Kerry writes in A Call to Service. He calls for "rededicating ourselves to protecting civil liberties."
Kerry, like every other senator in the chamber except Russell Feingold (D-Wis.), voted for the USA PATRIOT Act in the wake of 9/11. Now he is now co-sponsoring the SAFE Act, a bipartisan measure that restricts some of the powers that the PATRIOT Act granted the government. Furthermore, he is critical of the package of proposals from Ashcroft's Department of Justice (DOJ) that has been dubbed Patriot II. Citing his experience as a prosecutor—he was an assistant district attorney in suburban Boston in the '70s—Kerry writes, "I know there's a big difference between giving the government the resources and commonsense leeway it needs to track a tough and devious foe and giving in to the temptation of taking shortcuts that will sacrifice liberties cheaply without significantly enhancing the effectiveness of law enforcement. Patriot II threatens to cross that line—and to a serious degree."
This isn't the first time Kerry and Ashcroft have been at odds over civil liberties. In the 1990s, government proposals to restrict encryption inspired a national debate. Then as now, the American Civil Liberties Union (ACLU) and electronic privacy groups locked horns with the DOJ and law enforcement agencies. Then as now, Kerry and Ashcroft were on opposite sides.
But there was noteworthy difference in those days. Then it was Sen. John Ashcroft (R-Mo.) who argued alongside the ACLU in favor of the individual's right to encrypt messages and export encryption software. Ashcroft "was kind of the go-to guy for all of us on the Republican side of the Senate," recalls David Sobel, general counsel of the Electronic Privacy Information Center.
And in what now seems like a bizarre parallel universe, it was John Kerry who was on the side of the FBI, the National Security Agency, and the DOJ. Ashcroft's predecessor at the Justice Department, Janet Reno, wanted to force companies to create a "clipper chip" for the government—a chip that could "unlock" the encryption codes individuals use to keep their messages private. When that wouldn't fly in Congress, the DOJ pushed for a "key escrow" system in which a third-party agency would have a "backdoor" key to read encrypted messages.
In the meantime, the Clinton administration classified virtually all encryption devices as "munitions" that were banned from export, putting American business at a disadvantage. In 1997 Senate Commerce Committee Chairman John McCain pushed the Secure Public Networks Act through his committee. This bill would have codified the administration's export ban and started a key escrow system. One of his original co-sponsors was his fellow Vietnam vet and good friend from across the aisle, John Kerry.
Proponents such as McCain and Kerry claimed that law enforcement could not get the key from any third-party agency without a court order. Critics responded that there were loopholes in the law, that it opened the door to abuses, and that it punished a technology rather than wrongdoers who used that technology. Some opponents argued that the idea was equivalent to giving the government an electronic key to everyone's home. "To date, we have heard a great deal about the needs of law enforcement and not enough about the privacy needs of the rest of us," said then-Sen. Ashcroft in a 1997 speech to the Computer and Communications Industry Association. "While we need to revise our laws to reflect the digital age, one thing that does not need revision is the Fourth Amendment... Now, more than ever, we must protect citizens' privacy from the excesses of an arrogant, overly powerful government."
But John Kerry would have none of this. He had just written The New War, a book about the threat of transnational criminal organizations, and he was singing a different tune on civil liberties. Responding directly to a column in Wired on encryption that said "trusting the government with your privacy is like having a Peeping Tom install your window blinds," Kerry invoked the Americans killed in 1993 bombing of the World Trade Center and the 1995 bombing of the Alfred P. Murrah Building in Oklahoma City. "[O]ne would be hard-pressed," he wrote, "to find a single grieving relative of those killed in the bombings of the World Trade Center in New York or the federal building in Oklahoma City who would not have gladly sacrificed a measure of personal privacy if it could have saved a loved one." Change a few words, and the passage could easily fit into Attorney General Ashcroft's infamous speech to the Senate Judiciary Committee in late 2001—the one where he declared, "To those who scare peace-loving people with phantoms of lost liberties, my message is this: Your tactics only aid terrorists—for they erode our national unity and diminish our resolve."
If Ashcroft was encryption advocates' go-to guy on the GOP side in the encryption debate, Kerry played that role for law enforcement among the Democrats. "John Kerry was always a pretty strong proponent of law enforcement and the military, and the NSA was not terribly crypto-friendly, and the FBI was extremely uncrypto-friendly," says Will Rodger, who covered the encryption debate for USA Today and is now public policy director at the Computer and Communications Industry Association. "John Kerry's support for limiting encryption wasn't a real shock to most people who had followed his voting record."
Eventually, the strength of the business and civil liberties opposition—plus the sheer impossibility of keeping up with encryption technology—led the Clinton administration and Kerry to accept relaxed encryption controls. Today it seems laughable that software would ever have been labeled as "munitions"; even Ashcroft's DOJ did not try to include a key escrow system in the PATRIOT Act.
"Get Their Ass and Get Their Assets"
The Bush administration is not likely to point out Kerry's position in favor of encryption control, because it is trying to paint him as soft on crime and terrorism. Kerry does hold many traditionally liberal views on crime, including a consistent opposition to the death penalty. But encryption was just one of many issues in Kerry's Senate career where he and civil libertarians were on opposite sides. And while Kerry is in some respects singing a different tune today on civil liberties, he has never walked away from his statements in The New War. In fact, he displays the book in an ad that began running in late June as evidence that he authored an antiterrorism strategy way back in the late '90s.
Although the encryption fight appears to be over, similar battles are being fought today. For instance, as with encryption, the FBI now wants preemptive design mandates so it can have an automatic mechanism to tap into Voice over Internet Protocol, the fledgling technology that allows people to make phone calls online. Once again, law enforcement wants tech firms to build a "back door" for the police. Wayne Crews, director of technology studies at the pro-market Competitive Enterprise Institute, notes that Kerry has been silent on the FBI's efforts. "The only thing I've heard from Kerry on technology regulation is continued investment from the federal government," Crews says.
This isn't the only issue that could be worrisome for civil libertarians, given Kerry's record in the '90s. In general, whenever the ACLU was aligned with business interests, Kerry took the side of law enforcement against what he called "big money."
An example is the fight over asset forfeiture. In the 1980s war on drugs, the laws were stretched so that property that had been used for criminal purposes could be seized by law enforcement even if the owner of that property was innocent. If a drug dealer rode in your car or your airplane, for example, it was subject to seizure, and you would have to sue to get it back by proving you had no knowledge that a dealer had used it for illicit purposes. This was the case even if you had never been charged with any crime. The resale of impounded property became a source of revenue—and corruption—for local police departments. Even in cases where there were actual criminal convictions, governments would often seize assets that were not related to the crime or to compensating victims.
In the mid-1990s, a bipartisan movement arose to reform the forfeiture laws, with conservative Republican Reps. Henry Hyde of Illinois and Bob Barr of Georgia joining with such liberal Democrats as Reps. John Conyers of Michigan and Barney Frank of Massachusetts. They wanted to increase the burden of proof on the government when it seized property. As with encryption, there was stiff opposition to reform from Janet Reno's Justice Department.
What was Kerry's position? He thought U.S. asset forfeiture laws were working so well that he wanted to export them. "We absolutely must push for asset forfeiture laws all over the planet," Kerry wrote in The New War. "In the words of one plainspoken lawman, 'Get their ass and get their assets.'" There was, tellingly, no discussion at all of civil liberties issues.
Kerry added that we can't reasonably expect another country "to assist us in our struggle with crime if it does not see direct benefit for itself, especially if it is among the countries with highly limited funds for law enforcement." It didn't seem to occur to Kerry that, without safeguards, countries "with highly limited funds" might go after the assets of innocent people or third parties with only a tangential relationship to the criminal. Indeed, the only "dark and dangerous underside" of international forfeiture he identified was the possibility that criminals would give up assets in exchange for avoiding jail sentences. "We must ensure that asset forfeitures do not become a substitute for serving time," he wrote. (In 2000, after being watered down by the Reno Justice Department, the Civil Asset Forfeiture Reform Act passed the Senate by a voice vote and was signed into law by Clinton. Kerry did not object on the Senate floor; neither did Sen. Ashcroft.)
Even a semi-sympathetic review in the liberal Washington Monthly called The New War "a kind of international edition of Reefer Madness," referring to the notoriously overwrought anti-drug movie of the 1930s. Kerry is a drug warrior, and after having discovered some genuine instances of bad guys' stashing their money at the $23 billion Bank of Credit and Commerce International, an international financial institution that was shut down in 1991 by various countries' bank regulators, he became a crusader against banks holding "dirty money." (BCCI had dealings with drug lords, Saddam Hussein, the PLO, and the KGB.) While it may be too much to ask a major-party presidential candidate to ponder drug prohibition's contribution to dirty money, Kerry's solution to money laundering was—and is—to deputize banks and force them to spy on all their customers.
Many on the left and right worried about overreach from the federal "Know Your Customer" regulations of 1997-98, which would have required banks to monitor every customer's "normal and expected transactions." Those proposed rules were eventually withdrawn after the ACLU, the Libertarian Party, and other groups generated more than 100,000 comments in opposition. But from his writings and statements, John Kerry seemed worried that the regulations did not go far enough. "If the standards by which banks accept money were lived up to with the same diligence as that by which most banks lend money, the 'know your customer' maxim would have teeth," he wrote in The New War. "But too many bankers pretend they are doing all they can to know what money crosses their threshold and pretend they are not as key as they are to law-enforcement efforts."
Kerry then expressed his belief that bank customers are entitled to essentially zero privacy. "The technology is already available to monitor all electronic money transfers," he wrote (emphasis added). "We need the will to make sure it is put in place."
Has a politician who seven years ago proposed all electronic transfers be monitored changed his views on civil liberties? Officials from Kerry's Senate office and presidential campaign promised to have someone answer questions about his civil liberties positions, but no one ever had. A close look at his campaign's statements on the PATRIOT Act, however, reveals that there is less to his opposition than meets the eye.
As noted above, Kerry is cosponsoring the SAFE Act, which would limit the circumstances under which "sneak- and-peek" warrants can be issued under the PATRIOT Act. (PATRIOT broadened the government's power to conduct such searches, in which the person whose property is examined is not notified.) It also put more brakes on PATRIOT provisions that give the FBI the power to search records on individuals held by third parties—such as libraries, bookstores, and Internet service providers—and the power to require the third parties to keep silent about the search. But Kerry signed onto the SAFE Act only after his right flank was protected; the bill's original co-sponsors included conservative Sens. Larry Craig (R-Idaho) and Lisa Murkowski (R-Alaska) as well as Feingold. More tellingly, Kerry's support is premised on what he calls Ashcroft's abuses of the PATRIOT Act, not on PATRIOT itself. "John Kerry stands by his vote for the Patriot Act," says a March 11 campaign statement. "You can sum up the problems with the Patriot Act in two words: John Ashcroft... The real problem with the Patriot Act is not the law, but the abuse of the law."
In fact, the "real problem" is the law's provisions, which would be troubling in any administration. Responding to Kerry's statement, Gregory T. Nojeim, associate director of the ACLU's Washington National Office, says, "People from the left to the right agree that John Ashcroft is no civil liberties angel, but the problems of sneak-and-peek warrants and an overbroad notion of what constitutes terrorism are dangerous in the hands of any attorney general." Nojeim observes that the definition of terrorism is so broad that it could cover groups practicing civil disobedience, such as the anti-abortion Operation Rescue.
Meanwhile, Kerry continues to support intrusive efforts to stamp out money laundering. His campaign statement points out that Kerry "authored most of the money laundering provisions" in PATRIOT. Those provisions were largely based on an old money laundering bill that Kerry had introduced and which was opposed by economic conservatives and the ACLU. Kerry and other Democrats insisted that the money laundering provisions be attached to the PATRIOT Act. An October 2001 Associated Press article quoted Kerry as accusing Republicans of trying to remove the provisions "by fiat." The article noted that Kerry "underlined the political influence of Texas bankers."
The money laundering provisions, which became Title III of the PATRIOT Act, are some of the most privacy-threatening aspects of the bill. (See "Show Us Your Money," November 2003.) They go beyond the "Know Your Customer" rules of the late 1990s, bringing real estate brokers, travel agents, auto dealers, and various other businesses under the rubric of "financial institutions" that must monitor their customers and file "suspicious activity reports" on deviations from customers' normal patterns.
It was the Title III money laundering provisions that the FBI used in the much-criticized Operation G-String, an investigation of a strip club owner in Las Vegas accused of bribing local officials. The case had nothing to do with terrorism. Tellingly, Kerry—whose provisions allowed it to happen—has not cited this operation as one of Ashcroft's abuses, even though other Democrats have.
We have been told repeatedly that the world has changed since 9/11. Indeed, that is the explanation many have offered for Ashcroft's change of heart on civil liberties. But what about a candidate who, well before 9/11, consistently advocated measures that would have eroded those liberties? Would he be more or less constrained in the middle of a war on terror? To raise the issue is to take Kerry's own advice from his new book—that we "remain vigilant about our own civil liberties."