Look Who Didn't Trust the Feds

A blast from the past in the war on terrorism

It's not easy to find a U.S. senator who wants to stand up against the pack mentality on sacrificing civil liberties in the name of fighting terrorism. Last week's 98-1 vote on the scarcely debated anti-terrorism bill is exhibit A.

But one needs to go back just three years on this very subject to find a prominent senator issuing strong and poignant warnings about the need to protect citizens from their federal Big Brother.

"Americans must be free to communicate privately, without the government listening in," the senator said in announcing a hearing on anti-terrorism proposals that would have given federal law-enforcement agencies access to codes that protect e-mail and other transmissions. "For government agencies to have the keys to computer communication is like mandating that house keys be left on deposit with Uncle Sam.

"The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value."

At the hearing itself, the senator -- chairman of the Senate Judiciary Committee's constitution, federalism and property-rights subcommittee -- used even stronger language to express his indignation at the federal government's insistence that it needed new powers to combat terrorism.

"We in the Senate have heard a great deal about the needs of law enforcement in the digital age and the risk that robust encryption poses to the traditional methods employed by law enforcement," he said. "We've been told that law enforcement needs mandatory access to every individual's electronic messages and material. We've even heard that we need a new Fourth Amendment for the digital age.

"At the same time, we've heard almost nothing about privacy interests of law-abiding citizens ... Apparently, innocent citizens are expected to trust the bureaucracy not to abuse them ... The FBI has argued that a system of mandatory access would make it easier for law enforcement to do its job. Of course it would, but it would also make things easier on law enforcement if we simply repealed the Fourth Amendment."

Strong words of distrust, don't you think?

Thank you, Sen. John Ashcroft.

Yes, those were the fed-bashing sentiments of Missouri's own erstwhile senator, the same man who earlier this month -- as attorney general -- attacked senators for contemplating any debate at all on anti-terrorism measures far more sweeping than the Clinton administration's key-encryption proposals. That was then, this is now.

But Sept. 11 changed everything, right? Everyone gets a free pass to modify their pre-attack views with regard to fighting terrorism, don't they?

Up to a point, yes. But international terrorism wasn't born on Sept. 11, and, in fact, Justice Department proposals on encryption can be traced all the way back to 1993 and the first terrorist attack on the World Trade Center, when coded files were found on the laptop computer of attack mastermind Ramzi Ahmed Yousef.

Then-FBI director Louis J. Freeh urged sweeping new powers to track terrorists. Ashcroft was part of a coalition of conservatives and civil-liberties groups that thwarted many of those proposals during his six years in the Senate.

It could be argued that the passionate civil-liberties stance was among the most benign acts of Ashcroft's senatorial tenure, but the significant issue today isn't who was right or wrong a few years ago. Instead, Ashcroft's stunning 180-degree turnabout begs another question: Why should we suddenly trust the federal government just because he's there?

Listen to Attorney General Ashcroft express an alternative view to the positions previously espoused by Sen. Ashcroft:

"Law-enforcement tools created decades ago were crafted for rotary telephones, not e-mail, the Internet, mobile communications and voice mail," Ashcroft recently testified. "Every day that passes with outdated statutes and the old rules of engagement is a day that terrorists have a competitive advantage. We are today sending troops into the modern field of battle with antique weapons. It is no prescription for victory."

What does that say about the resistance to the Justice Department by senators such as Ashcroft, who saw to it that not only days but years passed with the outdated statutes and old rules of engagement? The same terrorists used much of the same technology, as least as far back as 1993, according to the FBI.

As for today's Ashcroft, whatever happened to the Fourth Amendment and the "indivisible American value" it contains? To borrow a phrase (his), "apparently innocent citizens are expected to trust the bureaucracy not to abuse them."

What a sharp point-counterpoint debate we have in Ashcroft v. Ashcroft.

Perhaps it would be easier to understand were today's Ashcroft to make some reference to how his own intense viewpoints were modified by having assumed stewardship of the very agencies whose trustworthiness and credibility he challenged not so long ago. Then again, that wouldn't seem terribly statesmanlike.

And don't expect his turnabout to be blamed on the shock of Sept. 11. After all, Ashcroft chaired a key Senate committee until last year that resisted some of the very solutions -- proposed by the FBI in the context of fighting terrorism -- he now embraces as critically urgent.

Issuing mea culpas over his past refusal to rid the nation of its "antique weapons" would be tantamount to admitting that this whole thing could have been avoided if we'd just listened to Bill Clinton. That wouldn't look so good, either.

Besides, it probably wouldn't even be true. And, looking ahead, there's no evidence the nation will truly be safer if it turns out that Osama bin Laden took out the Fourth Amendment along with the WTC towers.

Indeed, it would certainly be just the opposite. We need a healthy distrust for government.

Just ask the old John Ashcroft.

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