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News Analysis: Congress Violates Separation Of Powers Over Child Porn Suspects
By: Mark Kernes (Courtesy of
Posted: 8/17/2006

Washington – In what appears to be a blatant violation of the Constitution’s "separation of powers" doctrine, Congress, the federal legislative branch, has sidestepped the federal executive branch – in this case, the U.S. Department of Justice – and delivered to state prosecutors and attorneys general the names and credit-card numbers of 1,500 alleged patrons of Internet child porn entrepreneur Justin Berry.

This report, trumpeted on Rev. James Dobson’s Focus on the Family (FotF) website, claims that "Before Congress adjourned for its August recess, members of the Oversight and Investigations subcommittee of the House Energy and Commerce Committee forwarded information it had received" from Berry to judicial officers in 46 states.

According to former Justice Department porn prosecutor Patrick Trueman, who now works for Dobson’s organization, the subcommittee members had "grown impatient with the Justice Department’s failure to prosecute the individuals Berry identified," and decided to overstep its powers, claiming that the DOJ had "dropped the ball."

The fact that Berry had, by his own admission in testimony before Rep. Ed Whitfield’s (R-Ky.) subcommittee, actively solicited many of those alleged child-porn patrons to pay him with cash and gifts to perform sexual acts on webcam apparently did not enter into the discussion.

Daniel Weiss, Dobson’s own "senior analyst for media and sexuality," seemed to have missed the constitutional implications of the representatives’ action.

"Basically Congress has stepped into the role of investigation and law enforcement," Weiss said. "We have the Department of Justice apparently refusing to do its job — refusing to do anything, even with solid leads — so Congress is stepping in to do its job for it. I just find that absolutely amazing."

And likely unconstitutional. Article I, Sec. 8 of the Constitution sets forth Congress’ powers, and law enforcement isn’t one of them. That House members would decide to violate their oaths of office in this way is simply one more piece of evidence of the lengths to which the members will go to target sexual material – and not just illegal sexual material like child porn.

According to Trueman, "the Justice Department and Oosterbaan have been equally slow to act on prosecuting obscenity cases involving adults," wrote Focus on the Family associate editor Pete Winn.

"What many people don’t understand," Trueman said, "is that pornography involving adults and pornography involving children is one continuum. One is as bad as the other… [T]hese are not men who started out looking for child pornography. By and large, they started out with materials involving adults — and just kept looking for harder and harder material."

In fact, no reputable researcher has found a link between those interested in child porn and those interested in adult sexual material. What appeals to one group does not appeal to the other, and adults who enjoy sexually explicit material created by and utilizing adult performers are repelled by material featuring the prepubescent children favored by pedophiles.

The FotF article also claims that newly appointed DOJ prosecutor Brent Ward, who heads the Obscenity Prosecution Task Force, "has been given almost no resources to prosecute hardcore adult porn."

"He only has a couple of attorneys, and the FBI has only allotted him three agents to do the work," Trueman said. "He needs another 10 prosecutors and should have available to him agents from FBI field offices across the country."

If that is in fact correct, it isn’t because Congress hasn’t tried. The PROTECT Act of 2003 required the hiring of 25 new attorneys for the Justice Department’s Child Exploitation and Obscenity Section (CEOS), which also deals with adult sexual material, and the Adam Walsh Child Protection and Safety Act of 2006, signed into law by President Bush last month, requires that, "In fiscal year 2007, the Attorney General shall, subject to the availability of appropriations for such purposes, increase by not less than 200 the number of attorneys in United States Attorneys’ Offices. The additional attorneys shall be assigned to prosecute offenses relating to the sexual exploitation of children."

Winn reports that, "Trueman and other anti-porn leaders hope to meet soon with the president to discuss the issue."

Though (as usual) not invited to participate in such an event, the adult industry will eagerly await the results of that meeting.




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