John Kerry's Dark Record on Civil Liberties

The Democratic candidate is no friend to the Bill of Rights.

John Berlau from the October 2004 issue

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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.)

Know Your Candidate

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 an avid 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? That's the question I asked officials at Kerry's Senate office and presidential campaign. He promised to have someone answer questions about his civil liberties positions, but as of press time no one has responded to my calls. A close look at Kerry's statements on the PATRIOT Act, however, reveals that there is less to his opposition than meets the eye.

The Real Problem Is the Law

As noted above, Kerry is co-sponsoring 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 puts some 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.