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Democratic presidential candidate John Kerry gave a speech at Iowa State University in December 2003 entitled “Ending the Era of John Ashcroft.” “If I am president, this government will protect individual rights, not roll them back. We will protect equal rights, privacy rights, and a woman’s right to choose. And we will restore the constitutional foundation of this nation,” Kerry pledged. To be sure, a Kerry victory would introduce a very different mind-set at the Justice Department, particularly when it comes to enforcing civil rights and prosecuting environmental crimes. But when it comes to the department’s top law enforcement priority — disrupting and prosecuting terrorists — President George W. Bush and Sen. John Kerry share a lot of common ground. “There are some questions related to terrorism where Democrats wouldn’t come to different answers,” says Georgetown University Law Center professor Neal Katyal, a Kerry supporter. For starters, Kerry is not about to abandon support for the USA Patriot Act — the controversial legislation passed after the events of Sept. 11 to give law enforcement additional investigative tools. Critics say the law grants broad new powers to the Justice Department, with limited judicial oversight. Kerry, who voted for the Patriot Act in 2001, has said that, if he were elected, he would push for reauthorization of 95 percent of the law and seek stronger tools related to money laundering. Kerry will also seek the flexibility to hold suspected terrorists outside the ordinary criminal justice system, as the Bush administration has done in the cases of American citizens Yaser Esam Hamdi and Jose Padilla. The policy has stirred fierce debate and Supreme Court litigation over the limits of executive branch power. Earlier this month, Hamdi was released to Saudi Arabia after nearly three years in custody; Padilla, arrested at Chicago’s O’Hare International Airport in 2002, remains in solitary confinement. But while the Bush administration asserted its right to hold the so-called enemy combatants without providing access to counsel or substantial judicial review, Kerry has pledged that all Americans held as detainees will be allowed to meet with lawyers and have their case reviewed by an independent tribunal — no more, no less than what is required by the Supreme Court’s ruling in Hamdi v. Rumsfeld. Kerry supporters say that distinctions between the candidates’ approaches to terrorism may be subtle, but Kerry’s approach represents an important shift away from unilateral executive branch action toward a system with more checks and balances. “The people who should be in custody will still be there, but how we get there will be more respectful of due process,” says Lisa Brown, executive director of the D.C.-based American Constitution Society, which promotes liberal values in the law. “It’s not that you’ll necessarily see a Padilla released, but you’ll certainly see him have a day in court.” In campaign speeches, Bush says that Kerry would weaken the Patriot Act and let up in the fight against terror. “By seeking to dilute the Patriot Act, my opponent is taking the eye off the ball,” Bush said last week to a crowd in New Jersey. “The danger to America is not the Patriot Act, or the good people who use it; the danger to America is the terrorists. And we will not let up in this fight.” PATRIOT ACT POLITICS In a close campaign, political rivals must run on their differences. Kerry’s campaign speeches emphasize his commitment to civil liberties and criticize Bush for trampling on Americans’ rights. “What we need to do as Americans is never let the terrorists change the Constitution of the United States in a way that disadvantages our rights,” Kerry stated during one presidential debate. But issuing powerful rhetoric on the campaign trail is easier than making choices about how to equip law enforcement to combat terrorism, particularly in a climate that makes it difficult to exercise restraint in terror cases. “The problem you get into in a post-9/11 atmosphere is that if you are a little bit reluctant to use an investigative tool, and something happens, you’re dead. It doesn’t matter if you had the best intentions,” says Bruce Fein, a GOP lawyer and former DOJ official. Kerry’s position on the Patriot Act addresses only a few of the concerns voiced by civil libertarians on both ends of the political spectrum, who see the act as a draconian measure that infringes on constitutional protections. Specifically, Kerry backs amendments to two provisions of the Patriot Act set to expire in December 2005. The first, commonly known as the sneak-and-peek provision, permits federal law enforcement to wait before notifying the subject of a search warrant in certain circumstances. The second, which has come to be known as the “library provision,” allows the Federal Bureau of Investigation to demand court orders for business records held by third parties and deemed relevant to national security cases. Kerry has said he would insist upon greater judicial review before the tools could be used. Critics want Kerry to go further. “I’d like to see them get rid of indefinite detentions, change the definition of terrorism, and place more restrictions on secret wiretaps,” says Michael Ratner, president of the left-leaning Center for Constitutional Rights. “I think he’s picked his battles carefully by going after the parts of the Patriot Act that have to do with American citizens.” Political realities make it difficult for Kerry to be more aggressive in distinguishing his approach to terrorism from his rival. According to a recent USA Today poll, nearly 60 percent of voters approve of the way Bush is handling terrorism. The Bush campaign has repeatedly suggested that the country would be less safe with Kerry in the White House. Kerry advisers say the biggest difference between the candidates on the Patriot Act lies in how it would be enforced. “It’s not the tools, it’s how you use them,” says Nicholas Gess, a senior consultant in the D.C. office of Bingham McCutchen. For instance, Gess says a Kerry DOJ would not detain U.S. citizens as enemy combatants without court approval. “There is no reason an individual can’t be brought before an appropriate tribunal,” Gess says. “The reality is it’s not that difficult to set up a system that protects national security and civil liberties.” But civil liberties advocates say Kerry’s record for protecting rights is mixed. In the past, Kerry, a former prosecutor, has clashed with groups like the American Civil Liberties Union over encryption and money laundering. Kerry co-sponsored a 1997 bill to outlaw the export of encryption software and provide law enforcement with the means to override software encryption. Ashcroft sided with groups opposed to the measure. “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,” Ashcroft said in a 1997 speech to the Computer and Communications Industry Association. “Now, more than ever, we must protect citizens’ privacy from the excesses of an arrogant, overly powerful government.” Gregory Nojeim, associate director of the ACLU’s D.C. office, says, “Kerry’s record raises substantial concerns,” but Bush’s is worse. “Kerry’s civil liberties record could use improvement, but Bush’s is atrocious.” It’s the kind of pragmatic support for Kerry that one hears from liberal activists as the race for the White House winds down. While Kerry has not promised wholesale reversal of post-9/11 counterterror tactics, he would be expected to bring about changes in areas important to the Democratic base. Former DOJ lawyers say they expect to see an uptick in employment discrimination litigation, more aggressive environmental enforcement, and a renewed role for the American Bar Association in screening judicial selections if Kerry wins. A Kerry Justice Department is also expected to continue the aggressive crackdown on white-collar crime. Kerry supporters say the differences between the candidates’ positions on anti-terror prosecutions should not be discounted. For instance, Kerry has indicated he would abandon controversial plans to bring al Qaeda operatives to trial before military commissions and instead use a system similar to military courts martial, as recommended by the ABA. Under such a system, defendants would be free to appeal judgments to the U.S. Court of Appeals for the Armed Forces and to the U.S. Supreme Court. Last week, Kerry offered his clearest language yet on how his approach to the detainees held at Guant�namo Bay, Cuba, would differ from that of the Bush administration. If elected, he said, he would apply the Geneva Conventions to all battlefield combatants, reversing a 2002 Bush decision that those captured in the Afghanistan conflict fall outside the conventions. “That, to me, is fundamental,” says Ratner of the New York-based Center for Constitutional Rights. “It puts us back on the page of law instead of being outside the law altogether.”
IN THE MIX: Possible picks for top legal jobs under Kerry ATTORNEY GENERAL � Jamie Gorelick: Member of the 9/11 Commission; served as deputy AG from 1994 to 1997. Now partner at Wilmer Cutler Pickering Hale and Dorr. � Patricia Madrid: New Mexico attorney general and a key supporter of John Edwards’ presidential bid. Would be first Hispanic AG. � Janet Napolitano: Democrat up-and-comer served as Arizona U.S. Attorney and state AG before being elected governor in 2002. � Deval Patrick: Former DOJ Civil Rights chief under Reno is leaving current post as Coca-Cola GC at the end of the year. � Ken Salazar: The two-term Colorado AG is in a close Senate race. If he loses, Salazar would be viable candidate to head DOJ. WHITE HOUSE COUNSEL � Eric Holder Jr.: Former D.C. Superior Court judge and U.S. Attorney served as deputy AG from 1997 to 2000. Now partner at Covington & Burling. � Ronald Klain: Former chief of staff and counsel to VP Al Gore ran Kerry’s debate prep operation. Now partner at O’Melveny & Myers. � Jonathan Winer: Former Kerry Senate aide held a senior State Department post from 1994 to 1999. Now partner at Alston & Bird. SOLICITOR GENERAL � Paul Smith: Co-chairs appellate practice at Jenner & Block. Argued in Lawrence v. Texas for Texas sodomy statute to be ruled unconstitutional. � Kathleen Sullivan: Stepped down as dean of Stanford Law School last month. Now heads Stanford Constitutional Law Center.

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