John Kerry, Defender of Civil Liberties... Not

We've all seen Kerry's efforts over the past few months to portray John Ashcroft and the Bush Justice Department as a group of evildoers intent on breaking down doors and destroying the privacy rights of most Americans. I guess we should laud Kerry for his consistency on the issue, since he was always critical of Janet Reno... wait, I guess he never really condemned Janet Reno. Hmmm, just one more flip-flop. At least he's consistent about flip-flopping.

But the online libertarian magazine Reason offers us this analysis of Kerry's efforts in the civil liberties area, contrasting his efforts in the U.S. Senate with those of the left's favorite bogeyman, John Ashcroft...

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.

...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."

What's amazing about this is that Kerry now condemns the Patriot Act as too far-reaching... and the Patriot Act doesn't even include a provision similar to the one in the 1997 bill Kerry championed. As the article makes clear, Kerry's zealous pursuit of criminals in the face of privacy concerns wasn't unusual...

Even a semi-sympathetic review in the liberal Washington Monthly called [Kerry's book] 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."

What's different since then is that 9/11 took place, and one can make the argument that someone like Ashcroft may have seen the need for expanded governmental power in order to protect public safety. But Kerry has seemingly lurched in the opposite direction, which seems even more amazing, until one realizes the political opportunism at work in the act.

Maybe this is why Kerry doesn't like talking about his Senate record.