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Bush Ad Falsely Implies Kerry Would Repeal Wiretaps of Terrorists

In reality, Kerry favors some of the same "safeguards" as several conservative Republicans.

May 25, 2004

Modified: June 1, 2004

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Summary

 

A Bush ad released May 25 accuses Kerry of "playing politics with national security" and implies he would repeal "wiretaps, subpoena powers and surveillance" against terrorists under the USA Patriot Act. The wording of the ad could leave some viewers with the impression that Kerry opposes wiretapping suspected terrorists at all, which is false. In reality, Kerry's advocates stronger oversight by judges.

The Bush ad says Kerry changed his position on the Patriot act after being "pressured by liberals." But some conservative Republicans make the same criticisms of the act that Kerry does, and five Republicans are co-sponsoring legislation with him to amend the Patriot Act. Even Bush campaign chairman Marc Racicot conceded last year that the act could use "refinement . . . so that it does not end up invading the civil rights of any American."

Analysis

 

The ad gets some things right. Bush did sign the USA Patriot Act and Kerry did vote for it. But the ad goes too far when it says Kerry "would now repeal the Patriot Act's use" of "wiretaps, subpoena powers and surveillance against terrorists."

Bush Cheney '04 Ad
"Patriot Act"

Bush:  I'm George W. Bush and I approve of this message.
Announcer: President Bush signed the Patriot Act giving law enforcement vital tools to fight terrorism.
John Kerry? He voted for the Patriot Act, but pressured by fellow liberals, he's changed his position.
While wire taps, subpoena powers and surveillances are routinely used against drug dealers and organized crime, Kerry would now repeal the Patriot Act's use of these tools against terrorists.
John Kerry. Playing politics with national security.

"Repeal" Wiretaps of Terrorists?

It's true that last December, during the Democratic nomination fight, Kerry did call for "replacing the Patriot Act with a new law." But Kerry is not calling for repealing the law-enforcement powers alluded to in the ad. He's calling for modification -- specifically  tighter control by judges. There's a big difference between "repeal" and adding judicial oversight.

Bush campaign officials say the ad is meant to refer to "sneak-and-peek" searches, which are conducted without the knowledge of the subject, and "roving wiretaps" in which authority to eavesdrop is applied to the individual rather than to a specific telephone number.

Kerry's position on those matters is spelled out in some detail on his website, and it simply does not support what the Bush ad claims.

Sneak and Peek

On sneak-and-peak searches, Kerry says he would change the law to require "more oversight" but would still allow secret searches with no notice to the subject for as long as a week, or indefinitely so long as a judge approves the continuing need for secrecy:

Kerry website: Agents can break into a home or business to take photos, seize physical property, examine and copy computer files, load a secret keystroke detector on a computer, or download the information from a previously loaded keystroke detector.  Kerry believes there must be strong oversight to assure the authority can only be used in cases where notice of the warrant would endanger a person’s life or safety, result in flight from prosecution, or result in the destruction of evidence. Kerry will also require that law enforcement provide notice of the covert search within seven days, unless a court extends the period of notification if the need for secrecy continued.

Roving Wiretaps

Similarly, Kerry wouldn't end roving wiretaps of suspected terrorists, but calls for adding "adequate checks (and) safeguards" against eavesdropping on persons other than the authorized target.

Kerry website: This roving wiretap authority threatens personal privacy and increases the likelihood that the conversations of innocent people wholly unrelated to the intelligence target will be intercepted. John Kerry will require law enforcement to identify the target to be wiretapped and require that surveillance be conducted only when the presence of the target is ascertained. These are the requirements for use of roving wiretaps under the criminal code.

"Pressured by Liberals"

As evidence that Kerry supposedly flip-flopped after being "pressured by liberals," the Bush campaign cites criticism of the Patriot Act by Howard Dean and the American Civil Liberties Union. But that's unfair. Some prominent conservatives have made some of the same criticisms, too, and want the same changes.

Former Georgia congressman Bob Barr, a Republican ex-prosecutor, has called some provisions of the Patriot Act a violation of personal privacy:

Bob Barr: Kerry isn't a supporter of terrorism any more than I am, just because we both raised some questions about whether some things in the Patriot Act go too far. ...The Fourth Amendment is a nuisance to the (Bush) administration, but the amendment protects citizens and legal immigrants from the government's monitoring them whenever it wants, without good cause - and if that happens, it's the end of personal liberty.

Other conservative critics of the Patriot Act include Eagle Forum President Phyllis Schlafly, Free Congress Foundation President Paul M. Weyrich, former Virginia Gov. James S. Gilmore III, American Conservative Union Chairman David A. Keene and Republican Sen. Larry Craig of Idaho.

Craig is lead Senate sponsor of bill S.1709 , the "Security and Freedom Ensured Act" (SAFE Act), which would amend the Patriot Act to add precisely the changes Kerry is calling for regarding roving wiretaps and sneak-and-peak searches. It has four Republican co-sponsors: Michael Crapo of Idaho, Lisa Murkowski of Alaska, Arlen Specter of Pennsylvania and John Sununu of New Hampshire.

Among the 14 Democratic co-sponsors is, of course, John Kerry.

Footnote: Last October the President's own campaign chairman Marc Racicot conceded at a forum of Arab Americans that the Patriot Act could use "refinement."

Marc Racicot, Chairman, Bush-Cheney '04: And it's my belief, based upon the comments of members of Congress, who presently have legislation pending to provide refinements to that act, to bring that balance even truer than it has been, so that it does not end up invading the civil rights of any American, to be a cause that will be undertaken, and ultimately finished by Congress. . . . I do sense that most Americans realize that this is going to be an ongoing dialogue and process of refinement.

Sources

 

Bush Cheney '04, "Bush-Cheney '04 Ad Facts - "The PATRIOT Act – Playing Politics" Fact Sheet posted on campaign website, 25 May 2004.

John Kerry, "End the Era of Ashcroft" Position paper posted on John Kerry for President website, Accessed 5/25/2004

Ralph Z. Hallow, "Patriot Act divides Bush loyalists Some Republicans defend Kerry," Washington Times 5 April 2004; A4.

US Senate, 108th Congress, 1st Session S. 1709, "To amend the USA PATRIOT ACT to place reasonable limitations on the use of surveillance and the issuance of search warrants, and for other purposes" Introduced 2 Oct 2003.

Marc Racicot, remarks at news conference at Arab American Institute National Leadership Conference, Dearborn, Michigan 17 Oct 2003.

Remarks by Senator John Kerry, "Ending the Era of John Ashcroft," Iowa State University 1 Dec. 2003, Accessed from John Kerry for President Website.