patriot act

[Dan Scanlan <dscanlan@xxxxxxx>]

 John Kerry's Monstrous Record on Civil Liberties
The Man from Beacon Hill's "New War" on the Constitution
John Berlau


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."

John Berlau is a writer for Insight magazine