Kerry vs. Ashcroft on Civil Liberties

Politics creates such odd matchups sometimes. Today it’s John Kerry promising not to let John Ashcroft destroy our civil liberties. But a decade ago, as Reason reminds us, it was Kerry who was trying desperately to restrict civil liberties while Ashcroft defended them,

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.

As late as 1997, Reason notes, Kerry was the first co-sponsor to John McCain’s Secure Public Networks Act which would have created a national key escrow registry and solidified the Clinton ban on encryption exports (they should have called this the Encourage Encryption Offshoring Act).

There’s also this Kerry response to a defense of strong encryption that appeared in Wired, in which Kerry alludes to those murder in the first World Trade Center attack and the Oklahoma City bombing,

[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.

I guess he actually voted in favor of sacrificing freedom for security before he voted against it.


John Kerry’s Monstrous Record on Civil Liberties. John Berlau, Reason, July 26, 2004.

Right and Left Nonsense about the Patriot Act

The one good thing the Patriot Act has done is provide a lot of entertainment as people on the Right and Left alternately work themselves into knots to try to either oppose or support John Ashcroft’s favorite law.

First, on the Left, here’s a blatant distortion of the act by Pete Ponzetti, a Green Party activist and politician, from an op-ed published in the student newspaper at the university I work at,

Under Section 213, the Patriot Act legally allows secret searches by the FBI, in both terrorism-related and general investigations. Agents can now search homes and offices using a warrant, but without ever notifying the individuals being investigated.

Except, of course, Section 213 is quite clear — the FBI can delay notification of a search warrant with the approval of a judge, but it cannot simply decided to never notify an individual that he or she has been the subject of a search warrant. In fact, Section 213 requires that such search warrants “provide for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.”

A lot of Left-liberals rail against this so-called “sneak-and-peek” provision, but it is one of the more defensible parts of the legislation. This is the same sort of provision, after all, that applies to wiretaps search warrants. You don’t put a wiretap on a suspected terrorist or organize crime figure and then notify them that, by the way, we’re listening in on your conversations. Similarly, there are clearly cases where it would be prudent not to notify a suspected terrorist that his/her house has been searched by the FBI.

The main problem with Section 213, as with wiretaps, is the possibility of abusing that power. Such fears are only exacerbated by the Justice Department’s incredible level of secrecy about how it enforces the Patriot Act. Which brings me to the right winger who is just as obtuse as Ponzetti, but from a different perspective, Rich Lowry. Lowry rants against the new scourge facing the Republic — librarians — and has a good laugh at Ashcroft’s attempt at embarassing this group,

The A[merican] L[ibrary] A[ssociation]’s opposition to a portion of the Patriot Act that allows counterterrorism investigators to subpoena library records has been total — the ALA is against the very idea of it being on the books (so to speak). So the organization appeared unembarrassed when Ashcroft revealed that this part of the act — hyped by the ALA into a fundamental assault on American rights — has never been used.

But this is precisely the heart of the problem. The fact that this provision of the Patriot Act had never been used was classified until Ashcroft asked it to be declassified specifically to make his point. But how can we possibly be expected to trust a Justice Department that classifies as a state secret the fact that a given law has never been enforced? Far from embarassing the ALA, Ashcroft’s revelation merely underscored the alarming cult of secrecy that obtains in the Justice Department.


The ideological librarians. Rich Lowry, King Features Syndicate, September 22, 2003.

Patriot Act violates citizen’s privacy, should be repealed. Pete Ponzetti, Western Herald, September 17, 2003.