Ashcroft's Pounded By Justices, Judges

W A S H I N G T O N, April 19, 2002 -- Attorney General John Ashcroft must really be wishing he could get more of this administration's judicial nominees confirmed, after the pounding he's taken from various justices and judges this week.

First came the Supreme Court's ruling (the case was notably shorthanded Ashcroft v. Free Speech) knocking down a statute that sought to criminalize computer-generated as well as actual child pornography. The Child Pornography Prevention Act (CPPA) would have prohibited an image that "appears to be" or "conveys the impression" of a child engaging in sexual acts.

But in the 6-3 ruling written by Justice Anthony Kennedy, the court ruled that the law is too broad to pass constitutional muster.

"The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression."

Kennedy noted that the CPPA carries severe penalties (up to 15 years for a first offense) and could prohibit speech "despite its serious literary, artistic, political, or scientific value." The law prohibits sexual images of individuals who appear to be younger than 18 — but, he noted, that's higher than the legal age for marriage in many states.

Kennedy also pointed out that William Shakespeare "created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9."

The justice also mentioned recent films (carefully noting which had been nominated for, and which had won, Oscars) like Traffic and American Beauty which also depict sex between minors.

"Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value."

To the government's argument that pedophiles might use virtual child porn to seduce children, Kennedy replied: "There are many things innocent in themselves, ... such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused."

And it probably poured salt into the attorney general's wound that his old buddy Justice Clarence Thomas concurred in the majority opinion. What was surprising, and quite unusual, was that Ashcroft decided within hours to make a statement responding to the court's opinion. And not just release a piece of paper, but actually to appear before cameras.

Justice policy and tradition is that the department rarely, and the attorney general virtually never, comments on court rulings. A former aide to Attorney General Janet Reno could only remember her having done it once. As one longtime observer pointed out, if you crow about your winnings, people are more likely to notice your losses — and why would you mention them?

There's also long been the belief that the attorney general should not risk annoying the court by commenting directly on its rulings. And finally, even the most casual observer of Justice must have noticed by now that whenever there's an adverse ruling, and often even when the ruling is favorable, the immediate response is always that the department is "reviewing the ruling" to determine what action is appropriate.

So it was rather surprising that a press conference was announced for late in the day specifically so that the attorney general could comment on the ruling. (The joke was on us, though: it wasn't a real press conference because he refused to take any questions.) And his statement was quite strong, almost scolding the court for making his mission to prosecute child pornographers "immeasurably more difficult."

Justice officials, including one who supervises porn prosecutors, briefed us on the very real difficulties they will now face in prosecuting these cases. One of the biggest problems is that because the technology has advanced so far, it often is not possible to be sure if an image is that of a real child or a virtual child. With this week's ruling, the former would be illegal; the latter not. And, as even Kennedy had to acknowledge, "Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice."

Assisted Suicide

But Kennedy's ruling on child porn must have seemed like a love letter to the attorney general, compared with an opinion the next day from a federal judge in Oregon.

Judge Robert Jones made his earlier injunction permanent, blocking the Justice Department from enforcing a November directive from Ashcroft that threatened the licenses of any Oregon physicians who assist a patient's suicide. The judge found that the federal government does not have the authority to overturn an Oregon state law allowing such doctor-assisted suicide.

But the judge's scathing language really stands out. He insists on calling the November memo the "Ashcroft directive" and twice points out that Ashcroft "began the battle" between the state and the feds, that Ashcroft "fired the first shot" with his directive. He says, "Ashcroft evidently sought to stifle an ongoing earnest and profound debate in the various states concerning physician-assisted suicide."

He points out that "the citizens of Oregon, through their democratic initiative process, have chosen to resolve the moral, legal, and ethical debate on physician-assisted suicide for themselves by voting — not once, but twice — in favor of the Oregon Act."

And yet, "[w]ith publication of the Ashcroft directive, Ashcroft essentially nullified the Oregon Act and four years of Oregon experience in implementing it." He scolds the attorney general for issuing the directive without consulting with the state: "... how hastily the Ashcroft directive appears to have been crafted and published."; "... the attorney general essentially kept his own counsel, did not provide notice or an opportunity for comment, did not take any evidence, did not decide disputed facts, and more importantly, did not produce an administrative record. Instead, the only record with respect to the Ashcroft directive is the one currently being created in this court."

The judge is withering in his analysis of the government's legal arguments, dismissing the "gleaned bits and pieces" and "isolated words or sentences" as being "contrary to accepted principles of statutory construction."

He concludes there is no evidence that Congress ever intended the Controlled Substances Act (CSA) "to override a state's decisions concerning what constitutes legitimate medical practice." And he twice points out that the attorney general is merely "appointed": "To allow an attorney general — an appointed executive whose tenure depends entirely on whatever administration occupies the White House — to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary."

To underscore that Congress has not signaled its intent to bring assisted suicide under the CSA, he points out that two legislative attempts to do so have failed. "Even though both acts failed in Congress, certain congressional leaders made a good faith effort to get through the administrative door that which they could not get through the congressional door, seeking refuge with the newly-appointed attorney general whose ideology matched their views ?"

Jones makes it clear throughout that he is not addressing the moral or ethical or religious dimension of this complicated subject. "But the fact that opposition to assisted suicide may be fully justified, morally, ethically, religiously or otherwise, does not permit a federal statute to be manipulated from its true meaning to satisfy even a worthy goal."

Justice officials have indicated that they will appeal the ruling.

Moussaoui's Complaints

The alleged conspirator of the Sept. 11 hijackers has been chafing under the special administrative measures imposed by the government on his confinement.

He complained of the isolation, the 24-hour monitoring, the lights that are always on, etc. He also requested a larger cell with a computer, desk, and chair. The government's response rejected virtually all of his arguments, contending that the "conditions imposed on him are entirely reasonable under the circumstances and are designed to promote valid and compelling security concerns."

However, prosecutors did relent in one respect: they offered him the use of a computer in a nearby secure room.

As one Justice wit noted, the headline should read: "Dude, you're gettin' a Dell!"

It's Not EFR

So I was talking to some FBI officials and agents about the announced retirement of Dallas Special Agent in Charge Danny Defenbaugh.

He had served with distinction in heading up the investigation of the Oklahoma City bombing, only to be laid low by multiple errors leading to the belated revelation of Timothy McVeigh documents that had not been given to the defense. The inspector general's report three weeks ago severely criticized Defenbaugh's handling of the matter and recommended that disciplinary action be taken.

So it was not a huge surprise that he might retire before the (long, laborious) disciplinary process could unfold. But only imagine my chagrin when, in talking to one agent, I was casually informed, "well it's no great surprise; he's been KMA for ages." What's KMA, I asked innocently. Well, it turns out, it means "eligible for retirement."

FBI agents become eligible for retirement when they have served 20 years as a federal criminal investigator and have reached the age of 50. Retirement is mandatory at age 57 (or, on the last day of the month in which their 57th birthday falls), but extensions are sometimes granted, up to the age of 60 — but agents rarely serve that long, and 60 is absolutely drop-dead mandatory.

So what, you may ask again, does KMA stand for? "Kiss My A**!" In fact, this is such a long-standing thing that everyone with whom I spoke was surprised I'd never heard it before. (I admit my embarrassment at this lapse.)

Agents sometimes wear hats proclaiming they are "KMA," and one official told me that emblems from the Kentucky Military Academy are very popular with agents.

I'm sure the good people at the academy are curious why their KMA badges, buckles, hats, etc., are such hot items with the FBI.

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.