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Jewish World Review June 10, 2002 / 1 Tamuz , 5762

Jonathan Turley

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Consumer Reports

A comedy of eros | When I lived in New Orleans, I was told about a trial before one of our state judges in which a local madam appeared under a charge of assaulting an officer. The bordello was periodically subject to routine sweeps by the police to "keep up appearances." The madam, however, was mistaken on the appointed time and, according to one arresting officer, slammed a swinging door in his face - breaking his nose. On cross-examination, the madam denied the allegation and insisted that there is no swinging door in that room. When the prosecutor expressed skepticism, the madam turned to the judge and said, "Judge, you know da-n well there is no swinging door in that parlor."

The story captured the attitude of local authorities to bordellos in Louisiana. In New Orleans, houses of ill-repute are some of the oldest institutions in the French Quarter and often cited in tours as virtual cultural landmarks. Prostitution itself is a misdemeanor, a law universally honored in the breach. This is a view not shared by the Ashcroft Justice Department. This week, the Justice Department announced the results of a long investigation of a French Quarter bordello, which serviced a virtual who's-who of New Orleans elite, including at least one local judge.

For over thirteen months, the Justice Department has conducted a major investigation of this bordello, including hundreds of pages of surveillance transcripts and reports by ten FBI agents. With considerable fanfare, the Justice Department touted its "catch" in a press conference: 12 prostitutes.

Only the FBI could go to the French Quarter and find only a dozen prostitutes after a year of investigation. Given the roughly one-to-one ratio between agents and prostitutes, the FBI could have produced a hundred times this number by simply having agents walk down Bourbon Street. In some parts of New Orleans, a "sting operation" for prostitutes requires the simple opening of a car door.

Of course, when the Justice Department convinced an unwitting judge to sign this surveillance order, it had promised something far more alluring. It insisted that the bordello would reveal mob dealings as well as criminal activities by the infamous Latin King gang. It further assured the judge that the bordello was a hotspot for major drug transactions. Ultimately, the surveillance failed to nail a single mobster or gang member. As for the drugs, the FBI carefully made a case against a 62-year woman who sold small amounts of marijuana for personal use at the location - often a joint at a time.

When confronted by this ludicrous "haul" of twelve prostitutes, the Justice Department was unapologetic and insisted that this was a major law enforcement victory. Federal prosecutor Sal Perricone spoke for the Ashcroft Justice Department when he pledged more of such enforcement. "We'll seek it out, we'll find it, we'll grab it by the scruff of the neck and we're going to prosecute it," Perricone insisted. That is certainly reassuring. While it was revealed this week that the FBI largely ignored CIA identifications of known terrorists in the United States before 9-11, it appears that it was actually able to find prostitutes in New Orleans.

It simply boggles the mind how such an investigation could have been approved, let alone continued after the 9-11 attacks. When these agents were carefully recording calls to a bordello, hundreds of agents were being shifted from major crimes to homeland security and the Administration was demanding thousands of new positions. While Ashcroft was seeking expanded powers to listen in on suspected terrorists, these agents were listening to the descriptions of particular prostitutes and their special "capabilities." Agents carefully recorded the strict rates of $200-300 per hour and how the mother-daughter team that ran the bordello could barely pay their bills on their fifty percent take.

The mother and daughter are now cooperating in the prosecution of their former "employees." None of the johns (including a judge, respected lawyers, stockbrokers, bankers, and civic leaders) have been charged. While the Justice Department found federal crimes for the prostitutes, they simply could not imagine a federal crime for the johns. Such matters, they explained, are strictly matters for local enforcement.

The Justice Department is half-right. It was all a matter for local concern. What is particularly ironic is that Ashcroft is a great believer in states rights and protecting areas of state authority. Yet, this operation effectively turned FBI agents into vice cops and supplanted the local authorities. The very notion of a "federal vice" operation is a contradiction in terms. Vice is an area that has been left to the states since the founding of the republic. The Framers intended for state and local authorities to enforce such laws subject to the approval of their constituents. States and cities are allowed to set their own priorities as to criminal enforcement. It turns out that bordellos in New Orleans are viewed materially differently from bordellos in Salt Lake City. Each state expresses its values and priorities differently through its criminal laws and policies. In New Orleans, they are a bit more concerned with local murders than madams.

The Justice Department insists that it had jurisdiction in this case because some of the prostitutes crossed state borders. However, this merely explains that the government could investigate, not that it should. Most any crime today has some element that crosses state lines, but we expect the Justice Department to resist temptation. One can certainly appreciate that listening to the supply of sexual services is a bit more interesting than banking services.

However, the Justice Department is expected to resist such calls of the erotic. Like many tourists on Bourbon Street, the Justice Department simply stayed too long and paid too much in the Big Easy.

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JWR contributor Jonathan Turley teaches constitutional law at George Washington University Law. Comment by clicking here.

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05/23/02: Do we really need a Federal Marriage Amendment?
05/19/02: No "battlefield detainee" should leave home without a U.S. birth certificate
05/10/02: The perfect constitutional storm
04/26/02: 'Slave of Allah' wounds justice
04/12/02: The importance of being nameless
04/05/02: The adjusted value of justice
03/18/02: How Clinton got off: A law professor's take
03/11/02: Profiling and the terrorist lottery
03/05/02: Yes, Sharpton, there was a failure of justice
02/28/02: The Lay of the land
02/14/02: Living in constitutional denial
02/05/02: Legal Lesson for Afghanistan: War's Not a Slip-and-Fall Case
01/25/02: Sever "Jihad Johnny"'s ties to his homeland
01/21/02: "Out of sight, out of mind," but they're still prisoners
01/14/02: Your papers, please!
01/07/02: Prescription for disaster
12/18/01: Madison and the Mujahedeen
12/07/01: In the U.S., espionage crime is easy to understand but difficult to prove
11/19/01: What type of 'creature' would defend bin Laden?
11/19/01: Could bin Laden be acquitted in a trial?
10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2002, Jonathan Turley