Xtreme Measures

May 2004

Washington’s new crackdown on pornography.
G. Beato


Only the man himself can say for certain, but I’m pretty sure that Attorney General John Ashcroft would disapprove of the Realdoll, a life-size $5,999 sex dummy that boasts "a completely articulated skeleton which allows for anatomically correct positioning." Nor, I imagine, would he have any kind words for the Extreme Bonk’er™ sex trapeze, the mango-scented Cum-Kleen personal wipes, or the thousands of hardcore videotapes and DVDs that are for sale here at the Adult Entertainment Expo, a bustling trade show for sexual entrepreneurs sponsored by the adult video trade magazine AVN in January at the Venetian Hotel in Las Vegas.

Perhaps what Ashcroft would find most distressing about the event, however, is the crowd it has attracted. Elsewhere at the Venetian, in the casino’s own Guggenheim-Hermitage Museum, where Picassos and Manets adorn walls designed by prize-winning architect Rem Koolhaas, admission is only $15, but there are few takers. At the Adult Entertainment Expo, it’s a different story. The show is open to fans as well as those in the business, and by noon hundreds of people are standing in line for tickets, ready to hand over $40 for a chance to meet the stars of Weapons of Ass Destruction 2, The Incredible Gulp, and other X-rated fare.

Ultimately, nearly 16,000 fans will attend the four-day show. Those in line today attest to the democratizing power of double-penetration videos: Businessmen toting expensive digital cameras stand next to leather-clad bikers, who stand next to frat dudes in baseball caps and sports jerseys. There are whites, blacks, Asians, and Latinos here, and many of them are female. There are people in wheelchairs, aging hippies, bespectacled lesbian hipsters, curious tourists, a member of the Backstreet Boys, and Mike Tyson. The only other place where such diversity flourishes is at the Department of Motor Vehicles.

Inside the show, it’s one giant gang hug as packs of happy fans pose for snapshots with half-dressed porn stars. The biggest draw, though, is Larry Flynt, arch-nemesis of Jerry Falwell, numerous federal prosecutors, and propriety in general. Dressed in a crisp navy blazer, his head as big and waxy as any senator’s, Flynt signs copies of Hustler for an endless procession of admirers with efficient magnanimity. For a man who claims to have lost his virginity to a chicken, he looks remarkably statesmanlike.

A few dozen yards away, in a small, no-frills exhibition booth, a pair of less beloved pornographers holds court. Robert Zicari, known in the industry as Rob Black, is a stocky 30-year-old who looks like he could play the role of, say, Wiseguy No. 3 on The Sopranos. He wears a black velour tracksuit with white piping and white high-top sneakers, and his dark, auburn-tinged hair is cut short on the sides and longer and somewhat spiky on top. He has a trim goatee, a wide face, and an air of restless, Barnumesque intelligence, always figuring angles and always looking for opportunities to stir things up.

His wife Janet, known in the industry as Lizzy Borden, has long, bleached blonde hair and the enigmatic smile of a slutty Mona Lisa. At 26, she’s already a six-year porn veteran, starting out as a performer in the late 1990s, then switching to directing after she started to date Zicari. Under the banner of their company, Extreme Associates, the pair are known for producing material that even fellow pornographers find objectionable. Their videos are products of a jaded, hypermediated era: explicit porn coupled with the over-the-top gore of slasher movies and the stunts and gross-out spectacles of reality TV. In the Extreme universe, women drink viscous cocktails of semen, spit, and other bodily fluids. Dead fish are considered sex toys. U.S. Marines save a female reporter from Osama bin Laden, then rape her themselves after cutting off Bin Laden’s head. Jesus comes down off the cross and rapes an angel.

God has yet to render judgment on that particular blasphemy, but others are showing less patience. Decorating the Extreme Associates booth at the Adult Expo is a poster of Janet Zicari posing inside a boxing ring, ready to battle in fishnet stockings, a skimpy, cut-off T-shirt, and fists swathed in Everlast hand-wraps. "Fight for your right to watch porn," the poster urges in bold red print. In smaller print, on a ring card announcing the next bout in the never-ending Culture Wars, the text reads "Lizzy Borden vs. Mary Beth."

"Mary Beth" is Mary Beth Buchanan, U.S. attorney for the Western District of Pennsylvania. On August 7, 2003, Buchanan announced that a Pittsburgh federal grand jury had indicted the Zicaris on 10 counts of violating federal obscenity laws. Social conservatives hope and civil libertarians fear that this case marks a new stage in Washington’s crackdown on pornography, a sign that Ashcroft’s Department of Justice is -- take your pick -- a champion of traditional values or a threat to free expression.

The Zicaris face a more concrete threat: They each face maximum sentences of 50 years in prison and $2.5 million fines. By comparison, the maximum sentence for actual rape in Pennsylvania is 20 years.

Destroying Civilization...Again

Although the First Amendment promises that Congress "shall make no law...abridging the freedom of speech," obscenity prosecutions are almost as old as the nation itself. In 1815 six citizens of Pennsylvania were tried and convicted for privately exhibiting, for money, "a certain lewd, wicked, scandalous, infamous and obscene painting, representing a man in an obscene, impudent and indecent posture with a woman." In 1842 the first federal law against obscenity was passed, and in subsequent decades several more were added to the books.

But what was it, exactly, that qualified certain books and pictures as obscene? In 1868 an English case, Regina v. Hicklin, established a test that was ultimately adopted in the United States as well: If a work had the power to "deprave and corrupt those whose minds are open to such immoral influences," it was obscene and therefore illegal. This definition evolved over time until 1973, when, in the course of ruling on the case Miller v. California (which reaffirmed that the First Amendment does not protect obscenity), Chief Justice Warren Burger established a three-part test for determining obscenity that was so jurisprudentially limber that it has managed to survive for more than 30 years. To be considered obscene, Burger wrote, a work had to appeal to the prurient interest as determined by "the average person, applying contemporary community standards"; it had to depict or describe sexual conduct in a "patently offensive" way; and, taken as a whole, it had to lack serious literary, artistic, political, or scientific value.

While Burger also offered some advice on what general types of material might qualify as obscene, he ultimately left final determinations in the hands of jurors, so that individual communities could apply their own local standards on a case-by-case basis. In effect, then, the Miller test permits everything and nothing. A jury in California might decide a specific work is perfectly legal, while a jury in another state might say the same work is obscene.

In an age of suicide jets and anthrax spam, obscenity cases feel faintly anachronistic, the comfort crimes of the legal system. If prosecutors still have time to punish Americans for thoughtcrime, bad taste, or simply a robust instinct for overexposure, the world can’t be that close to Armageddon.

Those who take it upon themselves to ensure the nation’s moral fitness have a different perspective, of course. They blame pornography for divorce, the dissolution of families, the debasement of sex, and general spiritual dissolution. If left unchecked, they suggest, it’s a cultural virus that has the same capacity to destroy America as a thousand suitcase nukes.

This dire take on the situation isn’t particularly novel. In 1873 Anthony Comstock, America’s first great vice hunter, lamented the state of the union in his diary. "Why is it that every public play must have a naked woman?" he complained. "It is disgusting; and pernicious to the young. It seems as though we were living in an age of lust." In 1965 Citizens for Decent Literature produced a movie called Perversion for Profit. "A floodtide of filth is engulfing our country in the form of newsstand obscenity," its narrator intoned. "It is threatening to pervert an entire generation of our American children." In June 2002 John Ashcroft continued the tune, unbroken for over a century now, at a symposium for federal prosecutors in Columbia, South Carolina: "Obscenity invades our homes persistently through the mail, phone, VCR, cable TV, and now the Internet. Never before has so much obscene material been so easily accessible to minors."

Never before, indeed, except for the last time and the time before that. Perhaps because we somehow managed to survive Comstock’s age of lust and Perversion for Profit’s floodtide of filth, and perhaps because the idea of the federal government as marriage counselor lacks a constitutional underpinning, the pornography-as-moral-threat argument isn’t entirely convincing to many Americans. To make their crusade more appealing to such people, vice hunters frequently emphasize the even darker perils of porn. Invariably, they link consensual adult pornography with child pornography and other forms of child abuse. Invariably, they champion the notion that porn can systematically turn otherwise healthy, law-abiding individuals into violent sexual criminals.

Consider the August 2003 conviction of Michael J. Corbett and his ex-wife, Sharon Bates. Their crime: selling Outdoor Pooping Paradise, Scat Sampler #2, and approximately 50 other videos and DVDs via their Web site. For this, Corbett received an 18-month prison sentence, three years’ probation, and a $30,000 fine. Bates got a 13-month sentence, three years’ probation, and a $10,000 fine. They also forfeited $15,010 seized from their bank accounts and the equipment they used to produce their videos. In order to save their home, which was legally the government’s to seize because it was used in the sale of obscene materials, they agreed to pay an additional $60,000. Finally, their Internet domain name, Girlspooping.com, is now the property of the United States.

In the wake of this conviction, Deputy Assistant Attorney General John G. Malcolm, head of the Justice Department’s Child Exploitation and Obscenity Section (CEOS), strained to convey the import of the victory: "This type of material has a coarsening and desensitizing effect on our society, and can lead some to commit other degrading, and sometimes violent, sexual offenses against others."

I’ll spare you the details, but the affidavit that summarizes the content of these videos makes absolutely no mention of violence or any other form of coercion, either real or feigned. Instead, the videos mostly appear to depict solo, purely elective pooping and urination in a sexualized context. Gross? Yes. Potentially illegal under the arbitrary standards of federal obscenity laws? Sure. But how was Malcolm able to conclude, either empirically or rationally, that these happy celebrations of human elimination cause some of their viewers to commit "violent sexual offenses" against others?

Making the Porn Industry’s Fears a Reality

While today’s vice hunters employ rhetoric like that on a regular basis, what may be most unsettling about many of them is how reasonable they appear to be. In conversation, Morality in Media President Robert Peters is genial and open-minded, a far cry from the stereotypical finger-wagging crotch cop. When I ask him what he hopes to accomplish in his Sisyphean battle against obscenity (he’s worked for Morality in Media since 1985), he replies: "If we could just send a message to people that this is not what sex is all about, we will have won more than half the battle. Whether you’re a creationist or a Darwinist, sex is linked to something greater than masturbating to depictions of other people having sex. It’s linked to a person. We have a capacity to love."

Mary Beth Buchanan, the U.S. attorney overseeing the Extreme Associates prosecution, is, like Peters, even-keeled and pragmatic. "We don’t have the resources to prosecute every instance of the illegal distribution of obscenity," she concedes. "But if the law isn’t enforced, the material is going to proliferate and become more violent, more degrading, and more disgusting. So there have to be limits."

In other words, just go after the worst of the worst, right? Not quite. Today’s vice hunters may seem relatively tolerant at first, but their tolerance has definite limits. Buchanan, for example, isn’t concerned only about content; when it comes to obscenity prosecutions, size matters too. "We’re trying to focus our resources on the material that causes the greatest harm," she says. "And the greatest harm could be caused by producing the most egregious material, but it could also be caused by a distributor with a large area of distribution."

This is exactly what today’s most fervent vice hunters want to hear. To them, cases against fringe operations like Girlspooping.com are little more than annoying foreplay. "The prosecution bar is far too high," complained Jan LaRue, chief counsel of Concerned Women of America, in the aftermath of the Girlspooping.com conviction. "Come on, DOJ. Go after the big guys....It’s time to make the porn industry’s fears a reality. It’s time to send a message to the white collars on Wall Street who think selling porn is a good way to improve the bottom line."

Three years ago, LaRue and her anti-porn colleagues believed George W. Bush and John Ashcroft were the answer to their prayers. Throughout history, vice hunters have blamed the scourge of pornography on various nefarious entities: the French, the Communists, the Mafia, and of course Satan himself. But most recently, an even greater fiend has taken the blame for the current floodtide of filth. "For the eight years during Bill Clinton’s administration, [obscenity] laws were not enforced, and that’s why the sale of obscene pornography became so rampant across the country and on the Internet," charges Citizens for Community Values President Phil Burress.

According to Morality in Media’s Peters, federal obscenity prosecutions climaxed at 80 during 1989, then dwindled to six in 2000. "If you want to make certain offenses a priority, you have to make sure that you have the resources to investigate them, and that you have prosecutors who are trained to prosecute them," says Mary Beth Buchanan, who served as an assistant U.S. attorney from 1988 to 2001. "During the Clinton administration, those things were not happening."

According to the American Family Association Journal, George W. Bush promised during the 2000 campaign that "his administration would make it a point to enforce obscenity laws." To seal the deal, he even signed a "letter of commitment" after repeated entreaties from the American Family Association. Ashcroft made similar promises in the early days of his tenure, meeting with representatives from more than a dozen anti-pornography groups in May 2001. "We gave him a ton of information and actual evidence as to who the major pornographers were," Phil Burress recalls, "and he seemed determined to do something about it."

Then came 9/11. Momentarily, at least, the terrors of the Code Orange Age were deemed a greater threat to the nation’s well-being than pornography. The vice hunters were sympathetic at first, but they’ve grown increasingly restless as the promised prosecutions have failed to materialize in sufficient numbers. The announcement of the Extreme Associates indictment in August pleased them to a certain degree, because while Extreme isn’t a major player in the porn industry, it is the highest-profile producer that the Department of Justice has gone after in more than 10 years. Still, they yearn for a bigger, more ambitious crackdown, one that will put the fear of prosecution into the hearts of every hard-core pornographer, including the most mainstream ones. "I’ve almost done handstands with joy about what’s happening with digital downloading," says Robert Peters, referring to the music industry’s decision to file lawsuits against individuals who engage in unauthorized file sharing. "There’s no way they’re going to stop downloading through law enforcement alone, but it really has sent a phenomenal message. Supposedly, file sharing has been cut by 50 percent. So a relatively little law enforcement could go a long way."

"Aggressive [obscenity] prosecution had a major impact in the ’80s," says Phil Burress. "They took homes, they took boats, they took cars, they took property. They took millions and millions of dollars in assets, and they basically drove the pornographers back underground and made the industry smaller."

In certain respects, this is true. Campaigns like Project Postporn, a Department of Justice initiative which targeted pornographers who marketed their products through mail-order catalogs, did put many companies out of business. Still, the government’s efforts had little impact on the demand for adult videos. According to AVN, U.S. viewers rented 75 million adult videos in 1985, 490 million in 1992, and 686 million in 1998. In other words, the increase in annual rentals was actually highest during the time that the Department of Justice was most aggressively prosecuting obscenity cases.

Phil Harvey, a First Amendment activist and the founder of the mail-order catalog Adam & Eve, was the target of two obscenity indictments in the ’80s. (Full disclosure: He has also donated to the Reason Foundation, the nonprofit that publishes this magazine.) It took him eight years, $3 million, and one lawsuit to successfully defend his company against the charges the federal government brought against it, but there was an unexpected upside to this effort to put him out of business: Adam & Eve grew substantially during those years, as the government improved its market opportunities by shutting down other mail-order companies. "For about four years, there were fewer outlets and less competition for us," he says. "Other competitors stayed away because it was a high-risk environment."

Vice hunters sometimes talk as if law enforcement, or the lack thereof, is the only factor in the proliferation of porn. Press them, and they’ll acknowledge that technology has played a major role too. In the ’80s, VCRs brought porn into the nation’s living rooms; in the ’90s, premium cable and pay-per-view eliminated the need for furtive trips to the video store, and the Internet brought porn into the workplace. Still, none of these developments would matter much if there were no demand for the product: Porn proliferates mostly because millions of people enjoy porn.

The vice hunters press on, though, organizing, proselytizing, and constantly demanding that police and prosecutors enforce obscenity laws. While a few figures in the adult entertainment industry have defended their rights with a similar zeal, passive expediency is a more common reaction.

"Too many people in my business haven’t stood up and fought," exclaims Robert Zicari. "The feds are kicking themselves in the balls right now because they hit me first. Anybody else in this industry would have already copped a plea, and that’s just what the government wants. They don’t want millions of people debating this issue. They don’t want a big firestorm of publicity. They want to do this quietly."

Son of a Pornographer

Zicari is a second-generation pornographer. In the late ’60s, before he was born, his father owned nearly 40 adult bookstores in upstate New York and the surrounding area. By the time Zicari was a teenager, his father had scaled back his operation to just four stores. Zicari started working at one of them at the age of 14, sorting quarters from the peep show booths into rolls in an upstairs room. "I got to keep whatever didn’t fit into these $100 boxes, so I’d hit the batting cages with, like, $80 worth of quarters," he remembers.

When Zicari turned 18, he started managing his father’s store in Rochester. But he had other ambitions too, including college. In 1996, however, without telling his father, he used some of his school money to produce and direct his first porn movie, Tender Loins. After Zicari completed a second video in similarly clandestine fashion, his father found out and they had a temporary falling-out. During that time, Zicari moved to Los Angeles and created the character Rob Black, a loudmouthed provocateur who was determined to shake up the porn industry by producing filthy, twisted porn that boasted as much violent misogyny as standard Hollywood fare, along with lots and lots of spit, gaping orifices, and surreal images like men ejaculating onto crackers at an outdoor picnic. The difference between Zicari and Black? "I have bad taste," explains Zicari, "but Rob Black has even more bad taste."

Zicari immediately alienated many of his porn industry brethren. In 1996, when he first started releasing videos, the aggressive federal crackdowns of the late ’80s and
early ’90s felt like a thing of the past. Suddenly, the industry was penetrating the mainstream in a completely consensual, very profitable manner, everyone was making money, and almost no one was going to prison. To keep things this way, virtually every producer of commercial consequence scrupulously obeyed a set of unwritten guidelines: Urination, defecation, and rape and incest themes were all taboo, and bondage videos could not show penetration.

Then people like Zicari and a former UPI photographer who called himself Max Hardcore started flouting standard industry decorum. Their tapes were controversial, but thanks to their novelty, the attention they received, and their taboo nature, they were also popular. In 1998 AVN named Zicari Best Director at its annual awards show. Soon other producers were jumping on the shock porn bandwagon, and with the Internet making it increasingly easy for anyone, including international producers, to make and distribute pornography, the kind of material that was relatively hard to find just five years ago is now only a mouse click away.

As all of this played out, however, Zicari himself seemed to lose interest in the pornography business. In 1999 he founded a professional wrestling league called Xtreme Pro Wrestling. In 2001 he ran for mayor of Los Angeles. But with the inauguration of George W. Bush raising the specter of another federal crackdown on obscenity, Zicari found a new cause to take up. In an episode of the PBS newsmagazine Frontline that aired in February 2002, an interviewer asked Zicari if he worried about the possibility of an obscenity charge. "I’m not out there saying I want to be the test case," Zicari replied. "But I will be the test case."

Zicari’s appearance on the show put him on the Justice Department’s radar, and in the spring of 2002, under the direction of Mary Beth Buchanan, the federal government started pursuing a case against Extreme Associates. Eventually, a postal inspector used an "undercover credit card" to purchase five videotapes from the company and to join the members-only section of its Web site and view at least six of the video clips that were available there. Buchanan presented this material to a grand jury, and on August 6, 2003, it filed an indictment against Extreme Associates and Robert and Janet Zicari, charging them with conspiracy, sending obscene materials through the mail, and distributing obscene materials via an interactive computer service.

While Buchanan says her office has received numerous requests from citizens to enforce obscenity laws, did any Pennsylvania resident actually complain that Extreme Associates content was available in the state? "I can’t comment on that," Buchanan says when I ask her. Zicari, on the other hand, has plenty to say on the subject. "Nobody walked into a video store and was forced to look at this stuff," he argues. "You couldn’t even go into a store to purchase Forced Entry. We knew it was strong material, so we didn’t even make it available to video stores. You had to go to our Web site or call us up and request it."

Unlike the Miller test, Zicari’s own definition of obscenity is extremely specific. "You know what obscenity is to me in the adult industry?" he says. "It’s a child getting fucked, or a dog. And people laugh at me when I say dog. They’re like, ‘Dog? Who gives a shit about a dog?’ But personally, I find that fucking obscene."

Zicari’s general sense of decency actually extends beyond prohibiting child porn and dog sex. "I’m not a person who thinks that everybody should watch pornography," he insists. "If you want to open up a giant porno store with jack booths and stuff like that, and you’re gonna plop it inside a [residential] community with nice lawns, and they don’t want it, I’m the first person who’s like, ‘Dude, you’re totally right, it’s kind of fucked up we put this place right here in the middle of your neighborhood.’" But he also believes that people should be able to view his videos in the privacy of their own homes. And he thinks that he should have the right to make and sell them without facing obscenity prosecutions.

To a certain extent, the federal government agrees with him. In the 1968 Supreme Court case Stanley v. Georgia, Justice Thurgood Marshall concluded that "the mere private possession of obscene matter cannot constitutionally be made a crime." In other words, it’s OK to own obscene materials -- you just can’t buy them.

Now, thanks to the way technology has changed how pornography is distributed, Zicari and his attorney, First Amendment specialist Louis Sirkin, plan to argue that this state of affairs no longer makes sense. "In 1973, the Miller test had merits," says Zicari. "It gave people a way to control these seedy fucking porno stores in their community. Now, a private citizen buys my shit from the privacy of his own home, and that’s where he watches it. Why is the community involved? If you happen to live in an Amish town, does that mean you’re not allowed to watch porno or horror tapes? Anything the Amish would object to, you can’t watch in your own home?"

The Internet further complicates matters, because anything that’s available online is essentially available to all communities. In the analog world, pornographers have often avoided shipping their wares to places known to have very strict community standards. But if a pornographer wants to make his content available to potential customers in New York or San Francisco, people who live in other regions will have access to it too. If the Zicaris and Extreme Associates are convicted on the charge of using an interactive computer service to distribute obscene material, they’ll have to shut down their Web site and forfeit their domain name to the federal government. Effectively, the community standards of Pittsburgh will serve as the community standards for the world.

As of yet, no trial date has been set, but Robert Zicari thinks the government’s case may already be crumbling. "When they raided our office, they seized five movies," he says. "But then they only indicted us on three. So either the grand jury said those two other movies weren’t obscene, or the government didn’t present those movies to the grand jury. And one of those movies was Ass Clowns #3, where Jesus comes off the cross after being crucified and rapes an angel. So now my question is, why is the rape in Ass Clowns all right, but the rape in Forced Entry isn’t?"

Zicari has a lot of similar questions, if it comes to that. For example, why is pornography held to a higher standard of decorum than other genres of pop culture? Are the two amateurishly simulated murders in Forced Entry somehow more offensive than the dozens of expertly simulated murders in Jason vs. Freddy or Gangs of New York? Is the difference between eating semen-spattered dog food in a porn movie and eating raw pig rectums on Fear Factor really so pronounced that the former deserves a jail sentence while the latter becomes a prime-time major network staple?

"What’s the difference between us and Hollywood?" asks Zicari. "We show explicit sex, and they don’t. And they make hundreds of millions of dollars, and we’re going to have to spend $300,000 [in legal fees] to keep from going to jail. And it’s a shame, because it makes me bitter about the United States, and I’m like the biggest fucking patriot motherfucker in the world."

To help finance his case, Zicari has reached out to some of his better-funded peers in the porn business, including Larry Flynt. So far, he hasn’t gotten much response. "There’s a lot of people in this industry who think it’s not them, it’s me," Zicari says. "But honestly, if those motherfuckers think that Ashcroft has hired 25 prosecutors to get me and that’s it, then they are unbelievably delusional. Are you gonna tell me that Jerry Falwell sits at his desk, and he’s got a box of porn, and it’s divided into the porn he likes and the porn he doesn’t like? You think he holds up a movie from [mainstream producer] Vivid and says, ‘This is good porn!’ You know what, man, he takes that box and says ‘Burn it! Burn all of it! It’s all fucking blasphemy!’"

Except for the swearing part, Zicari is undoubtedly right. In starting with him, though, he believes that the Justice Department is taking a risk. "This is the World Series, and they’re the Boston Red Sox," he exclaims. "They’re getting a chance that they haven’t had in 9 billion years, and if they blow this, they can never come back. Because where can you go after a jury says there’s nothing wrong with these movies? How do you go after a movie involving a husband and wife and the guy’s wearing a condom? How do you get someone to go after that, when you couldn’t even prosecute a tape where the guy comes in the girl’s mouth, and then he fucking stabs her? This is their one shot, and they fucking know it."

Meanwhile, in the Shadow of the Dildoes...

As the afternoon progresses at the Adult Entertainment Expo, the crowds only get bigger. In a small conference room downstairs from the main event, a seminar entitled "Key Legal Issues Facing the Adult Industry" is taking place. It lacks the flash of what’s happening upstairs -- there aren’t any nubile strippers or artisan-quality dildoes on display, just Lou Sirkin, three other attorneys, and some PowerPoint slides. Each of these four speakers sounds notes of caution, gloom, and alarm, and to some observers, they probably seem a little paranoid, or at least unreasonably pessimistic. After all, haven’t they checked out the show upstairs: the hundreds of booths, the vast array of products, the thousands of fans?

Still, they’ve been defending the adult industry for a long time, and they know how much certain people would like to shut it all down -- not just Extreme Associates and its ilk, but every company in every booth on the floor above them, the whole shamelessly hedonistic spectacle. "I consider censorship a cancer," Sirkin warns at the end of his talk. "Once it starts, it spreads pretty rapidly."

G. Beato is a freelance journalist who has written for SPIN, The Washington Post, and many other publications, including his own Web site, Soundbitten.com

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Judge rules in favor of pornography business

By Chris Osher
TRIBUNE-REVIEW
Saturday, January 22, 2005

A federal judge on Thursday dismissed federal obscenity charges against a California couple and their pornographic video business that distributed graphic videos depicting rape and murder.

The case against Extreme Associates and its owners, filed in U.S. District Court in Pittsburgh, was the first federal obscenity prosecution in decades against a producer of pornographic material. It was considered to herald a renewed anti-obscenity campaign by the U.S. Justice Department.

U.S. District Judge Gary Lancaster dismissed the 10-count obscenity indictment against Robert Zicari, 31, also known as Rob Black, and his wife, Janet Romano, 27, also known as Lizzie Borden, of Northridge, Calif., and their porn business, Extreme Associates Inc.

"The court went back and applied established constitutional principles, and that took a lot of courage," said Zicari's lawyer, H. Lewis Sirkin of Cincinnati. "This country is all about allowing people to have differing views."

Sirkin had said prosecutors might have chosen Pittsburgh as a venue for the case because it is more conservative than California, where the videos were made. Romano and Zicaro could not be reached for comment yesterday.

U.S. Attorney Mary Beth Buchanan, who was in Washington, D.C., for President Bush's inauguration. said in a statement that her office is reviewing the ruling and examining options, including a possible appeal to the 3rd U.S. Circuit Court of Appeals.

"As we set forth in the pleadings we filed in the case, we continue to believe that the federal obscenity statutes are valid and constitutional, including as applied in this case," Buchanan said.

Sirkin said he expects Buchanan's office to appeal.

The government argued its prosecution of Extreme Associates was valid because the government has the right to restrict the distribution of obscene materials as a way to protect minors and people who don't want access to it.

Lancaster said the criminal case against Extreme Associates isn't the right way to proceed.

"A total ban is clearly not the least restrictive means of achieving that goal," Lancaster ruled.

He said filters and other technological devices can restrict access to Web sites that display or sell pornographic material. He said prosecutors should find ways other than filing a criminal case against the California couple to advance the government's stated interests of protecting minors and unwitting adults from exposure to obscene material, the judge ruled.

Sirkin said the indictment had been the first federal obscenity prosecution against a major pornography distributor in several decades.

"There is no reason for an obscenity law when you're dealing with adults," Sirkin said. "We're all grown-ups, and we should be allowed to make our choices. Now when children are involved, that's a different matter."

The California couple were charged after an undercover U.S. Postal Service inspector on Sept. 5, 2002, subscribed to Extreme Associates' membership Web site. The inspector bought six videoclips over the Internet and had three videotapes sent by mail.

Sirkin argued during a hearing before the judge in November that when the U.S. Supreme Court struck down Texas' homosexual sodomy laws as unconstitutional in 2003, it created a new fundamental right to engage in private sexual conduct. That right would protect the distribution of material with a sexual content, Sirkin argued.

Lancaster ruled he wasn't prepared to declare such a fundamental right exists, but he acknowledged the Supreme Court ruling could "be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."

Buchanan's office argued that while a 1969 U.S. Supreme Court ruling found a Georgia man should not be prosecuted for having obscene material in his home, the court repeatedly has refused to recognize a First Amendment right to distribute such material.

The government should enforce laws that make such distribution illegal because doing so prevents obscene material from ending up in the hands of minors or adults who do not want to view it, Buchanan's office argued.

Lancaster pointed out that Zicari and Romano already restricted access to the material they marketed to those who wanted it and who were consenting adults.

"Assuming that protecting minors from exposure to obscene materials is a compelling interest, the federal obscenity statutes, which completely ban the distribution of all such material, including to consenting adults, are not narrowly drawn to advance that interest," Lancaster ruled.

If convicted, each defendant faced up to 50 years in prison and up to a $2.5 million fine.

Cheney Says Israel Might 'Act First' on Iran

January 21, 2005
Cheney Says Israel Might 'Act First' on Iran
By DAVID E. SANGER

WASHINGTON, Jan. 20 - Just hours before being sworn in for a second term, Vice President Dick Cheney publicly raised the possibility on Thursday that Israel "might well decide to act first" to prevent Iran from obtaining nuclear weapons.

In an interview on the MSNBC program "Imus in the Morning," a highly unusual forum for Mr. Cheney, he appeared to use the danger of Israeli military action as one more reason that the Iranians should reach a diplomatic agreement to disarm, noting dryly that any such strike would leave "a diplomatic mess afterwards" and should be avoided.

President Bush, in his inaugural speech on Thursday, appeared to have Iran, among other countries, in mind when he said he was committed to "the ultimate goal of ending tyranny in our world."

After defending the administration's decision to invade Iraq, Mr. Cheney, who appeared on the show with his wife, Lynne, was asked about the Iranian threat. "We believe they have a fairly robust new nuclear program," Mr. Cheney said of the Iranians, carefully not using the word "weapons," though in the American and European intelligence communities there is a widespread belief that the program is intended to build a nuclear arsenal.

He also said that Iran "is a noted sponsor of terror," particularly in its support for Hezbollah, and that the combination of nuclear technology and terrorism "is of great concern."

"You look around at potential trouble spots, Iran is right at the top of the list," he said.

Mr. Cheney focused on diplomacy, not military action, as the key to the Iranian situation.

"At some point, if the Iranians don't live up to their commitments, the next step will be to take it to the U.N. Security Council, and seek the imposition of international sanctions," he said, restating the administration's longstanding position.

Europe has opposed any such move, saying it would only drive Iran to break out of the Nuclear Nonproliferation Treaty and openly pursue an atomic weapon, the path that North Korea took two years ago.

Don Imus, who during the election campaign made no secret of his dislike of the policies of Mr. Bush and Mr. Cheney, then asked, "Why don't we make Israel do it?" It was a reference to a military option much discussed in Washington but rarely talked about in public by top officials.

"Well, one of the concerns people have is that Israel might do it without being asked," Mr. Cheney said. "If, in fact, the Israelis became convinced the Iranians had a significant nuclear capability, given the fact that Iran has a stated policy that their objective is the destruction of Israel, the Israelis might well decide to act first, and let the rest of the world worry about cleaning up the diplomatic mess afterwards."

"We don't want a war in the Middle East, if we can avoid it," he said. "In the case of the Iranian situation, I think everybody would be best suited or best treated and dealt with if we could deal with it diplomatically."

Mr. Cheney's remarks came at what appears to be a critical moment in the administration's internal debate over how to deal with Iran. For more than a year the C.I.A. and other intelligence agencies have been intently focused on identifying Iranian nuclear facilities. Some of that information has been shared with the International Atomic Energy Agency to guide its inspections.

Mr. Imus, unable to resist the temptation to tease Mr. Cheney about his reputation as the real decision maker in the White House, also asked him: "Do you want to be president now?"

"No," the vice president said, with no hesitation.

Mr. Imus pressed: "Are you the president now?"

"No," Mr. Cheney said. "But that was a nice try."

U.S. Christians issue gay warning over kid video

By Jill Serjeant
LOS ANGELES (Reuters) - Christian Conservative groups have issued a gay alert warning over a children's music video starring SpongeBob SquarePants, Barney and a host of other cartoon favorites.

The wacky square yellow SpongeBob is one of the stars of a music video due to be sent to 61,000 U.S. schools in March. The makers -- the nonprofit We Are Family Foundation -- say the video is designed to encourage tolerance and diversity.

But at least two Christian activist groups say the innocent cartoon characters are being exploited to promote the acceptance of homosexuality.

"A short step beneath the surface reveals that one of the differences being celebrated is homosexuality," wrote Ed Vitagliano in an article for the American Family Association.

The video is a remake of the 1979 hit song "We Are Family" using the voices and images of SpongeBob, Barney, Winnie the Pooh, Bob the Builder, the Rugrats and 100 TV cartoon stars. It was made by a foundation set up by songwriter Nile Rodgers after the Sept. 11, 2001, hijacked plane attacks to promote the nation's healing process.

Christian groups however have taken exception to the tolerance pledge on the foundation's Web site which asks people to respect the sexual identity of others along with their abilities, beliefs, culture and race.

"Their inclusion of the reference to 'sexual identity" within their 'tolerance pledge' is not only unnecessary but it crosses a moral line," Dr James Dobson, founder of Focus on the Family, said in a statement on Thursday.

Rodgers was astounded at the attack. "That is so myopic and harsh. You have really got to look hard to find anything in this that is offensive to anyone. The last thing I am going to do is taint these characters," he told Reuters.

Dobson was quoted by the New York Times on Thursday as having singled out the wildly popular SpongeBob during remarks about the video at a Washington D.C. dinner this week.

SpongeBob, who lives in a pineapple under the sea, was "outed" by the U.S. media in 2002 after reports that the TV show and its merchandise was popular with gays. His creator, Stephen Hillenburg, said at the time that although SpongeBob was an oddball, he thought of all the characters as asexual.

It is not the first time that children's TV favorites have come under the critical spotlight of the U.S. Christian right. Tinky Winky, the purse-toting purple Teletubbie, was in 1999 declared a homosexual role model by Rev. Jerry Falwell.

Reuters/VNU

THE COMING WARS

But of course. See the archives

by SEYMOUR M. HERSH
What the Pentagon can now do in secret.
Issue of 2005-01-24 and 31
Posted 2005-01-17

George W. Bush’s reëlection was not his only victory last fall. The President and his national-security advisers have consolidated control over the military and intelligence communities’ strategic analyses and covert operations to a degree unmatched since the rise of the post-Second World War national-security state. Bush has an aggressive and ambitious agenda for using that control—against the mullahs in Iran and against targets in the ongoing war on terrorism—during his second term. The C.I.A. will continue to be downgraded, and the agency will increasingly serve, as one government consultant with close ties to the Pentagon put it, as “facilitators” of policy emanating from President Bush and Vice-President Dick Cheney. This process is well under way.

Despite the deteriorating security situation in Iraq, the Bush Administration has not reconsidered its basic long-range policy goal in the Middle East: the establishment of democracy throughout the region. Bush’s reëlection is regarded within the Administration as evidence of America’s support for his decision to go to war. It has reaffirmed the position of the neoconservatives in the Pentagon’s civilian leadership who advocated the invasion, including Paul Wolfowitz, the Deputy Secretary of Defense, and Douglas Feith, the Under-secretary for Policy. According to a former high-level intelligence official, Secretary of Defense Donald Rumsfeld met with the Joint Chiefs of Staff shortly after the election and told them, in essence, that the naysayers had been heard and the American people did not accept their message. Rumsfeld added that America was committed to staying in Iraq and that there would be no second-guessing.

“This is a war against terrorism, and Iraq is just one campaign. The Bush Administration is looking at this as a huge war zone,” the former high-level intelligence official told me. “Next, we’re going to have the Iranian campaign. We’ve declared war and the bad guys, wherever they are, are the enemy. This is the last hurrah—we’ve got four years, and want to come out of this saying we won the war on terrorism.”

Bush and Cheney may have set the policy, but it is Rumsfeld who has directed its implementation and has absorbed much of the public criticism when things went wrong—whether it was prisoner abuse in Abu Ghraib or lack of sufficient armor plating for G.I.s’ vehicles in Iraq. Both Democratic and Republican lawmakers have called for Rumsfeld’s dismissal, and he is not widely admired inside the military. Nonetheless, his reappointment as Defense Secretary was never in doubt.

Rumsfeld will become even more important during the second term. In interviews with past and present intelligence and military officials, I was told that the agenda had been determined before the Presidential election, and much of it would be Rumsfeld’s responsibility. The war on terrorism would be expanded, and effectively placed under the Pentagon’s control. The President has signed a series of findings and executive orders authorizing secret commando groups and other Special Forces units to conduct covert operations against suspected terrorist targets in as many as ten nations in the Middle East and South Asia.

The President’s decision enables Rumsfeld to run the operations off the books—free from legal restrictions imposed on the C.I.A. Under current law, all C.I.A. covert activities overseas must be authorized by a Presidential finding and reported to the Senate and House intelligence committees. (The laws were enacted after a series of scandals in the nineteen-seventies involving C.I.A. domestic spying and attempted assassinations of foreign leaders.) “The Pentagon doesn’t feel obligated to report any of this to Congress,” the former high-level intelligence official said. “They don’t even call it ‘covert ops’—it’s too close to the C.I.A. phrase. In their view, it’s ‘black reconnaissance.’ They’re not even going to tell the cincs”—the regional American military commanders-in-chief. (The Defense Department and the White House did not respond to requests for comment on this story.)

In my interviews, I was repeatedly told that the next strategic target was Iran. “Everyone is saying, ‘You can’t be serious about targeting Iran. Look at Iraq,’” the former intelligence official told me. “But they say, ‘We’ve got some lessons learned—not militarily, but how we did it politically. We’re not going to rely on agency pissants.’ No loose ends, and that’s why the C.I.A. is out of there.”

For more than a year, France, Germany, Britain, and other countries in the European Union have seen preventing Iran from getting a nuclear weapon as a race against time—and against the Bush Administration. They have been negotiating with the Iranian leadership to give up its nuclear-weapons ambitions in exchange for economic aid and trade benefits. Iran has agreed to temporarily halt its enrichment programs, which generate fuel for nuclear power plants but also could produce weapons-grade fissile material. (Iran claims that such facilities are legal under the Nuclear Non-Proliferation Treaty, or N.P.T., to which it is a signator, and that it has no intention of building a bomb.) But the goal of the current round of talks, which began in December in Brussels, is to persuade Tehran to go further, and dismantle its machinery. Iran insists, in return, that it needs to see some concrete benefits from the Europeans—oil-production technology, heavy-industrial equipment, and perhaps even permission to purchase a fleet of Airbuses. (Iran has been denied access to technology and many goods owing to sanctions.)

The Europeans have been urging the Bush Administration to join in these negotiations. The Administration has refused to do so. The civilian leadership in the Pentagon has argued that no diplomatic progress on the Iranian nuclear threat will take place unless there is a credible threat of military action. “The neocons say negotiations are a bad deal,” a senior official of the International Atomic Energy Agency (I.A.E.A.) told me. “And the only thing the Iranians understand is pressure. And that they also need to be whacked.”

The core problem is that Iran has successfully hidden the extent of its nuclear program, and its progress. Many Western intelligence agencies, including those of the United States, believe that Iran is at least three to five years away from a capability to independently produce nuclear warheads—although its work on a missile-delivery system is far more advanced. Iran is also widely believed by Western intelligence agencies and the I.A.E.A. to have serious technical problems with its weapons system, most notably in the production of the hexafluoride gas needed to fabricate nuclear warheads.

A retired senior C.I.A. official, one of many who left the agency recently, told me that he was familiar with the assessments, and confirmed that Iran is known to be having major difficulties in its weapons work. He also acknowledged that the agency’s timetable for a nuclear Iran matches the European estimates—assuming that Iran gets no outside help. “The big wild card for us is that you don’t know who is capable of filling in the missing parts for them,” the recently retired official said. “North Korea? Pakistan? We don’t know what parts are missing.”

One Western diplomat told me that the Europeans believed they were in what he called a “lose-lose position” as long as the United States refuses to get involved. “France, Germany, and the U.K. cannot succeed alone, and everybody knows it,” the diplomat said. “If the U.S. stays outside, we don’t have enough leverage, and our effort will collapse.” The alternative would be to go to the Security Council, but any resolution imposing sanctions would likely be vetoed by China or Russia, and then “the United Nations will be blamed and the Americans will say, ‘The only solution is to bomb.’”

A European Ambassador noted that President Bush is scheduled to visit Europe in February, and that there has been public talk from the White House about improving the President’s relationship with America’s E.U. allies. In that context, the Ambassador told me, “I’m puzzled by the fact that the United States is not helping us in our program. How can Washington maintain its stance without seriously taking into account the weapons issue?”

The Israeli government is, not surprisingly, skeptical of the European approach. Silvan Shalom, the Foreign Minister, said in an interview last week in Jerusalem,with another New Yorker journalist, “I don’t like what’s happening. We were encouraged at first when the Europeans got involved. For a long time, they thought it was just Israel’s problem. But then they saw that the [Iranian] missiles themselves were longer range and could reach all of Europe, and they became very concerned. Their attitude has been to use the carrot and the stick—but all we see so far is the carrot.” He added, “If they can’t comply, Israel cannot live with Iran having a nuclear bomb.”

In a recent essay, Patrick Clawson, an Iran expert who is the deputy director of the Washington Institute for Near East Policy (and a supporter of the Administration), articulated the view that force, or the threat of it, was a vital bargaining tool with Iran. Clawson wrote that if Europe wanted coöperation with the Bush Administration it “would do well to remind Iran that the military option remains on the table.” He added that the argument that the European negotiations hinged on Washington looked like “a preëmptive excuse for the likely breakdown of the E.U.-Iranian talks.” In a subsequent conversation with me, Clawson suggested that, if some kind of military action was inevitable, “it would be much more in Israel’s interest—and Washington’s—to take covert action. The style of this Administration is to use overwhelming force—‘shock and awe.’ But we get only one bite of the apple.”

There are many military and diplomatic experts who dispute the notion that military action, on whatever scale, is the right approach. Shahram Chubin, an Iranian scholar who is the director of research at the Geneva Centre for Security Policy, told me, “It’s a fantasy to think that there’s a good American or Israeli military option in Iran.” He went on, “The Israeli view is that this is an international problem. ‘You do it,’ they say to the West. ‘Otherwise, our Air Force will take care of it.’” In 1981, the Israeli Air Force destroyed Iraq’s Osirak reactor, setting its nuclear program back several years. But the situation now is both more complex and more dangerous, Chubin said. The Osirak bombing “drove the Iranian nuclear-weapons program underground, to hardened, dispersed sites,” he said. “You can’t be sure after an attack that you’ll get away with it. The U.S. and Israel would not be certain whether all the sites had been hit, or how quickly they’d be rebuilt. Meanwhile, they’d be waiting for an Iranian counter-attack that could be military or terrorist or diplomatic. Iran has long-range missiles and ties to Hezbollah, which has drones—you can’t begin to think of what they’d do in response.”

Chubin added that Iran could also renounce the Nuclear Non-Proliferation Treaty. “It’s better to have them cheating within the system,” he said. “Otherwise, as victims, Iran will walk away from the treaty and inspections while the rest of the world watches the N.P.T. unravel before their eyes.”

The Administration has been conducting secret reconnaissance missions inside Iran at least since last summer. Much of the focus is on the accumulation of intelligence and targeting information on Iranian nuclear, chemical, and missile sites, both declared and suspected. The goal is to identify and isolate three dozen, and perhaps more, such targets that could be destroyed by precision strikes and short-term commando raids. “The civilians in the Pentagon want to go into Iran and destroy as much of the military infrastructure as possible,” the government consultant with close ties to the Pentagon told me.

Some of the missions involve extraordinary coöperation. For example, the former high-level intelligence official told me that an American commando task force has been set up in South Asia and is now working closely with a group of Pakistani scientists and technicians who had dealt with Iranian counterparts. (In 2003, the I.A.E.A. disclosed that Iran had been secretly receiving nuclear technology from Pakistan for more than a decade, and had withheld that information from inspectors.) The American task force, aided by the information from Pakistan, has been penetrating eastern Iran from Afghanistan in a hunt for underground installations. The task-force members, or their locally recruited agents, secreted remote detection devices—known as sniffers—capable of sampling the atmosphere for radioactive emissions and other evidence of nuclear-enrichment programs.

Getting such evidence is a pressing concern for the Bush Administration. The former high-level intelligence official told me, “They don’t want to make any W.M.D. intelligence mistakes, as in Iraq. The Republicans can’t have two of those. There’s no education in the second kick of a mule.” The official added that the government of Pervez Musharraf, the Pakistani President, has won a high price for its coöperation—American assurance that Pakistan will not have to hand over A. Q. Khan, known as the father of Pakistan’s nuclear bomb, to the I.A.E.A. or to any other international authorities for questioning. For two decades, Khan has been linked to a vast consortium of nuclear-black-market activities. Last year, Musharraf professed to be shocked when Khan, in the face of overwhelming evidence, “confessed” to his activities. A few days later, Musharraf pardoned him, and so far he has refused to allow the I.A.E.A. or American intelligence to interview him. Khan is now said to be living under house arrest in a villa in Islamabad. “It’s a deal—a trade-off,” the former high-level intelligence official explained. “‘Tell us what you know about Iran and we will let your A. Q. Khan guys go.’ It’s the neoconservatives’ version of short-term gain at long-term cost. They want to prove that Bush is the anti-terrorism guy who can handle Iran and the nuclear threat, against the long-term goal of eliminating the black market for nuclear proliferation.”

The agreement comes at a time when Musharraf, according to a former high-level Pakistani diplomat, has authorized the expansion of Pakistan’s nuclear-weapons arsenal. “Pakistan still needs parts and supplies, and needs to buy them in the clandestine market,” the former diplomat said. “The U.S. has done nothing to stop it.”

There has also been close, and largely unacknowledged, coöperation with Israel. The government consultant with ties to the Pentagon said that the Defense Department civilians, under the leadership of Douglas Feith, have been working with Israeli planners and consultants to develop and refine potential nuclear, chemical-weapons, and missile targets inside Iran. (After Osirak, Iran situated many of its nuclear sites in remote areas of the east, in an attempt to keep them out of striking range of other countries, especially Israel. Distance no longer lends such protection, however: Israel has acquired three submarines capable of launching cruise missiles and has equipped some of its aircraft with additional fuel tanks, putting Israeli F-16I fighters within the range of most Iranian targets.)

“They believe that about three-quarters of the potential targets can be destroyed from the air, and a quarter are too close to population centers, or buried too deep, to be targeted,” the consultant said. Inevitably, he added, some suspicious sites need to be checked out by American or Israeli commando teams—in on-the-ground surveillance—before being targeted.

The Pentagon’s contingency plans for a broader invasion of Iran are also being updated. Strategists at the headquarters of the U.S. Central Command, in Tampa, Florida, have been asked to revise the military’s war plan, providing for a maximum ground and air invasion of Iran. Updating the plan makes sense, whether or not the Administration intends to act, because the geopolitics of the region have changed dramatically in the last three years. Previously, an American invasion force would have had to enter Iran by sea, by way of the Persian Gulf or the Gulf of Oman; now troops could move in on the ground, from Afghanistan or Iraq. Commando units and other assets could be introduced through new bases in the Central Asian republics.

It is possible that some of the American officials who talk about the need to eliminate Iran’s nuclear infrastructure are doing so as part of a propaganda campaign aimed at pressuring Iran to give up its weapons planning. If so, the signals are not always clear. President Bush, who after 9/11 famously depicted Iran as a member of the “axis of evil,” is now publicly emphasizing the need for diplomacy to run its course. “We don’t have much leverage with the Iranians right now,” the President said at a news conference late last year. “Diplomacy must be the first choice, and always the first choice of an administration trying to solve an issue of . . . nuclear armament. And we’ll continue to press on diplomacy.”

In my interviews over the past two months, I was given a much harsher view. The hawks in the Administration believe that it will soon become clear that the Europeans’ negotiated approach cannot succeed, and that at that time the Administration will act. “We’re not dealing with a set of National Security Council option papers here,” the former high-level intelligence official told me. “They’ve already passed that wicket. It’s not if we’re going to do anything against Iran. They’re doing it.”

The immediate goals of the attacks would be to destroy, or at least temporarily derail, Iran’s ability to go nuclear. But there are other, equally purposeful, motives at work. The government consultant told me that the hawks in the Pentagon, in private discussions, have been urging a limited attack on Iran because they believe it could lead to a toppling of the religious leadership. “Within the soul of Iran there is a struggle between secular nationalists and reformers, on the one hand, and, on the other hand, the fundamentalist Islamic movement,” the consultant told me. “The minute the aura of invincibility which the mullahs enjoy is shattered, and with it the ability to hoodwink the West, the Iranian regime will collapse”—like the former Communist regimes in Romania, East Germany, and the Soviet Union. Rumsfeld and Wolfowitz share that belief, he said.

“The idea that an American attack on Iran’s nuclear facilities would produce a popular uprising is extremely illinformed,” said Flynt Leverett, a Middle East scholar who worked on the National Security Council in the Bush Administration. “You have to understand that the nuclear ambition in Iran is supported across the political spectrum, and Iranians will perceive attacks on these sites as attacks on their ambitions to be a major regional player and a modern nation that’s technologically sophisticated.” Leverett, who is now a senior fellow at the Saban Center for Middle East Policy, at the Brookings Institution, warned that an American attack, if it takes place, “will produce an Iranian backlash against the United States and a rallying around the regime.”

Rumsfeld planned and lobbied for more than two years before getting Presidential authority, in a series of findings and executive orders, to use military commandos for covert operations. One of his first steps was bureaucratic: to shift control of an undercover unit, known then as the Gray Fox (it has recently been given a new code name), from the Army to the Special Operations Command (socom), in Tampa. Gray Fox was formally assigned to socom in July, 2002, at the instigation of Rumsfeld’s office, which meant that the undercover unit would have a single commander for administration and operational deployment. Then, last fall, Rumsfeld’s ability to deploy the commandos expanded. According to a Pentagon consultant, an Execute Order on the Global War on Terrorism (referred to throughout the government as gwot) was issued at Rumsfeld’s direction. The order specifically authorized the military “to find and finish” terrorist targets, the consultant said. It included a target list that cited Al Qaeda network members, Al Qaeda senior leadership, and other high-value targets. The consultant said that the order had been cleared throughout the national-security bureaucracy in Washington.

In late November, 2004, the Times reported that Bush had set up an interagency group to study whether it “would best serve the nation” to give the Pentagon complete control over the C.I.A.’s own élite paramilitary unit, which has operated covertly in trouble spots around the world for decades. The panel’s conclusions, due in February, are foregone, in the view of many former C.I.A. officers. “It seems like it’s going to happen,” Howard Hart, who was chief of the C.I.A.’s Paramilitary Operations Division before retiring in 1991, told me.

There was other evidence of Pentagon encroachment. Two former C.I.A. clandestine officers, Vince Cannistraro and Philip Giraldi, who publish Intelligence Brief, a newsletter for their business clients, reported last month on the existence of a broad counter-terrorism Presidential finding that permitted the Pentagon “to operate unilaterally in a number of countries where there is a perception of a clear and evident terrorist threat. . . . A number of the countries are friendly to the U.S. and are major trading partners. Most have been cooperating in the war on terrorism.” The two former officers listed some of the countries—Algeria, Sudan, Yemen, Syria, and Malaysia. (I was subsequently told by the former high-level intelligence official that Tunisia is also on the list.)

Giraldi, who served three years in military intelligence before joining the C.I.A., said that he was troubled by the military’s expanded covert assignment. “I don’t think they can handle the cover,” he told me. “They’ve got to have a different mind-set. They’ve got to handle new roles and get into foreign cultures and learn how other people think. If you’re going into a village and shooting people, it doesn’t matter,” Giraldi added. “But if you’re running operations that involve finesse and sensitivity, the military can’t do it. Which is why these kind of operations were always run out of the agency.” I was told that many Special Operations officers also have serious misgivings.

Rumsfeld and two of his key deputies, Stephen Cambone, the Under-secretary of Defense for Intelligence, and Army Lieutenant General William G. (Jerry) Boykin, will be part of the chain of command for the new commando operations. Relevant members of the House and Senate intelligence committees have been briefed on the Defense Department’s expanded role in covert affairs, a Pentagon adviser assured me, but he did not know how extensive the briefings had been.

“I’m conflicted about the idea of operating without congressional oversight,” the Pentagon adviser said. “But I’ve been told that there will be oversight down to the specific operation.” A second Pentagon adviser agreed, with a significant caveat. “There are reporting requirements,” he said. “But to execute the finding we don’t have to go back and say, ‘We’re going here and there.’ No nitty-gritty detail and no micromanagement.”

The legal questions about the Pentagon’s right to conduct covert operations without informing Congress have not been resolved. “It’s a very, very gray area,” said Jeffrey H. Smith, a West Point graduate who served as the C.I.A.’s general counsel in the mid-nineteen-nineties. “Congress believes it voted to include all such covert activities carried out by the armed forces. The military says, ‘No, the things we’re doing are not intelligence actions under the statute but necessary military steps authorized by the President, as Commander-in-Chief, to “prepare the battlefield.”’” Referring to his days at the C.I.A., Smith added, “We were always careful not to use the armed forces in a covert action without a Presidential finding. The Bush Administration has taken a much more aggressive stance.”

In his conversation with me, Smith emphasized that he was unaware of the military’s current plans for expanding covert action. But he said, “Congress has always worried that the Pentagon is going to get us involved in some military misadventure that nobody knows about.”

Under Rumsfeld’s new approach, I was told, U.S. military operatives would be permitted to pose abroad as corrupt foreign businessmen seeking to buy contraband items that could be used in nuclear-weapons systems. In some cases, according to the Pentagon advisers, local citizens could be recruited and asked to join up with guerrillas or terrorists. This could potentially involve organizing and carrying out combat operations, or even terrorist activities. Some operations will likely take place in nations in which there is an American diplomatic mission, with an Ambassador and a C.I.A. station chief, the Pentagon consultant said. The Ambassador and the station chief would not necessarily have a need to know, under the Pentagon’s current interpretation of its reporting requirement.

The new rules will enable the Special Forces community to set up what it calls “action teams” in the target countries overseas which can be used to find and eliminate terrorist organizations. “Do you remember the right-wing execution squads in El Salvador?” the former high-level intelligence official asked me, referring to the military-led gangs that committed atrocities in the early nineteen-eighties. “We founded them and we financed them,” he said. “The objective now is to recruit locals in any area we want. And we aren’t going to tell Congress about it.” A former military officer, who has knowledge of the Pentagon’s commando capabilities, said, “We’re going to be riding with the bad boys.”

One of the rationales for such tactics was spelled out in a series of articles by John Arquilla, a professor of defense analysis at the Naval Postgraduate School, in Monterey, California, and a consultant on terrorism for the rand corporation. “It takes a network to fight a network,” Arquilla wrote in a recent article in the San Francisco Chronicle:

When conventional military operations and bombing failed to defeat the Mau Mau insurgency in Kenya in the 1950s, the British formed teams of friendly Kikuyu tribesmen who went about pretending to be terrorists. These “pseudo gangs,” as they were called, swiftly threw the Mau Mau on the defensive, either by befriending and then ambushing bands of fighters or by guiding bombers to the terrorists’ camps. What worked in Kenya a half-century ago has a wonderful chance of undermining trust and recruitment among today’s terror networks. Forming new pseudo gangs should not be difficult.

“If a confused young man from Marin County can join up with Al Qaeda,” Arquilla wrote, referring to John Walker Lindh, the twenty-year-old Californian who was seized in Afghanistan, “think what professional operatives might do.”

A few pilot covert operations were conducted last year, one Pentagon adviser told me, and a terrorist cell in Algeria was “rolled up” with American help. The adviser was referring, apparently, to the capture of Ammari Saifi, known as Abderrezak le Para, the head of a North African terrorist network affiliated with Al Qaeda. But at the end of the year there was no agreement within the Defense Department about the rules of engagement. “The issue is approval for the final authority,” the former high-level intelligence official said. “Who gets to say ‘Get this’ or ‘Do this’?”

A retired four-star general said, “The basic concept has always been solid, but how do you insure that the people doing it operate within the concept of the law? This is pushing the edge of the envelope.” The general added, “It’s the oversight. And you’re not going to get Warner”—John Warner, of Virginia, the chairman of the Senate Armed Services Committee—“and those guys to exercise oversight. This whole thing goes to the Fourth Deck.” He was referring to the floor in the Pentagon where Rumsfeld and Cambone have their offices.

“It’s a finesse to give power to Rumsfeld—giving him the right to act swiftly, decisively, and lethally,” the first Pentagon adviser told me. “It’s a global free-fire zone.”

The Pentagon has tried to work around the limits on covert activities before. In the early nineteen-eighties, a covert Army unit was set up and authorized to operate overseas with minimal oversight. The results were disastrous. The Special Operations program was initially known as Intelligence Support Activity, or I.S.A., and was administered from a base near Washington (as was, later, Gray Fox). It was established soon after the failed rescue, in April, 1980, of the American hostages in Iran, who were being held by revolutionary students after the Islamic overthrow of the Shah’s regime. At first, the unit was kept secret from many of the senior generals and civilian leaders in the Pentagon, as well as from many members of Congress. It was eventually deployed in the Reagan Administration’s war against the Sandinista government, in Nicaragua. It was heavily committed to supporting the Contras. By the mid-eighties, however, the I.S.A.’s operations had been curtailed, and several of its senior officers were courtmartialled following a series of financial scandals, some involving arms deals. The affair was known as “the Yellow Fruit scandal,” after the code name given to one of the I.S.A.’s cover organizations—and in many ways the group’s procedures laid the groundwork for the Iran-Contra scandal.

Despite the controversy surrounding Yellow Fruit, the I.S.A. was kept intact as an undercover unit by the Army. “But we put so many restrictions on it,” the second Pentagon adviser said. “In I.S.A., if you wanted to travel fifty miles you had to get a special order. And there were certain areas, such as Lebanon, where they could not go.” The adviser acknowledged that the current operations are similar to those two decades earlier, with similar risks—and, as he saw it, similar reasons for taking the risks. “What drove them then, in terms of Yellow Fruit, was that they had no intelligence on Iran,” the adviser told me. “They had no knowledge of Tehran and no people on the ground who could prepare the battle space.”

Rumsfeld’s decision to revive this approach stemmed, once again, from a failure of intelligence in the Middle East, the adviser said. The Administration believed that the C.I.A. was unable, or unwilling, to provide the military with the information it needed to effectively challenge stateless terrorism. “One of the big challenges was that we didn’t have Humint”—human intelligence—“collection capabilities in areas where terrorists existed,” the adviser told me. “Because the C.I.A. claimed to have such a hold on Humint, the way to get around them, rather than take them on, was to claim that the agency didn’t do Humint to support Special Forces operations overseas. The C.I.A. fought it.” Referring to Rumsfeld’s new authority for covert operations, the first Pentagon adviser told me, “It’s not empowering military intelligence. It’s emasculating the C.I.A.”

A former senior C.I.A. officer depicted the agency’s eclipse as predictable. “For years, the agency bent over backward to integrate and coördinate with the Pentagon,” the former officer said. “We just caved and caved and got what we deserved. It is a fact of life today that the Pentagon is a five-hundred-pound gorilla and the C.I.A. director is a chimpanzee.”

There was pressure from the White House, too. A former C.I.A. clandestine-services officer told me that, in the months after the resignation of the agency’s director George Tenet, in June, 2004, the White House began “coming down critically” on analysts in the C.I.A.’s Directorate of Intelligence (D.I.) and demanded “to see more support for the Administration’s political position.” Porter Goss, Tenet’s successor, engaged in what the recently retired C.I.A. official described as a “political purge” in the D.I. Among the targets were a few senior analysts who were known to write dissenting papers that had been forwarded to the White House. The recently retired C.I.A. official said, “The White House carefully reviewed the political analyses of the D.I. so they could sort out the apostates from the true believers.” Some senior analysts in the D.I. have turned in their resignations—quietly, and without revealing the extent of the disarray.

The White House solidified its control over intelligence last month, when it forced last-minute changes in the intelligence-reform bill. The legislation, based substantially on recommendations of the 9/11 Commission, originally gave broad powers, including authority over intelligence spending, to a new national-intelligence director. (The Pentagon controls roughly eighty per cent of the intelligence budget.) A reform bill passed in the Senate by a vote of 96-2. Before the House voted, however, Bush, Cheney, and Rumsfeld balked. The White House publicly supported the legislation, but House Speaker Dennis Hastert refused to bring a House version of the bill to the floor for a vote—ostensibly in defiance of the President, though it was widely understood in Congress that Hastert had been delegated to stall the bill. After intense White House and Pentagon lobbying, the legislation was rewritten. The bill that Congress approved sharply reduced the new director’s power, in the name of permitting the Secretary of Defense to maintain his “statutory responsibilities.” Fred Kaplan, in the online magazine Slate, described the real issues behind Hastert’s action, quoting a congressional aide who expressed amazement as White House lobbyists bashed the Senate bill and came up “with all sorts of ludicrous reasons why it was unacceptable.”

“Rummy’s plan was to get a compromise in the bill in which the Pentagon keeps its marbles and the C.I.A. loses theirs,” the former high-level intelligence official told me. “Then all the pieces of the puzzle fall in place. He gets authority for covert action that is not attributable, the ability to directly task national-intelligence assets”—including the many intelligence satellites that constantly orbit the world.

“Rumsfeld will no longer have to refer anything through the government’s intelligence wringer,” the former official went on. “The intelligence system was designed to put competing agencies in competition. What’s missing will be the dynamic tension that insures everyone’s priorities—in the C.I.A., the D.O.D., the F.B.I., and even the Department of Homeland Security—are discussed. The most insidious implication of the new system is that Rumsfeld no longer has to tell people what he’s doing so they can ask, ‘Why are you doing this?’ or ‘What are your priorities?’ Now he can keep all of the mattress mice out of it.”