JOHN KERRY'S DARK RECORD ON CIVIL LIBERTIES

The Democratic Candidate Is No Friend To The Bill of Rights.

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
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 common sense 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."

Sacrificing Personal Privacy

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 a noteworthy difference in those days. Then it was Sen. John
Ashcroft (R-Mo.) who argued along-side 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 (NSA), 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 (R-Ariz.) 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 loop-holes 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 The
Web of Crime That Threatens America's Security, 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 the 1993 bombing of
the World Trade Center and the 1995 bombing of the Alfred P. Murrah
Building in Oklahoma City. "One 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 un-crypto-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 l980s 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 plain spoken
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 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, not on PATRIOT. "John Kerry stands by his vote for the
PATRIOT," 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.

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."