Exactly five years ago, April 19, 1999, the United States Supreme Court, once again, redefined the meaning of indecency.

In fact, it was I who had demanded clarification of a statute that had been passed by Congress, signed by President Clinton and ruled on by the Ninth Circuit. My company, ApolloMedia, had filed a lawsuit against Janet Reno, then Attorney General of the United States, challenging the constitutionality of a provision of the Communications Decency Act (CDA) which made the communication of anything "indecent" with the intent to "annoy" a felony punishable by a fine and up to two years imprisonment. In real terms, it meant that if Janet Jackson had reveled her breast to an Internet audience deliberately, she would have been guilty of a felony, only if she intended to annoy the audience. The Supreme Court, agreeing with my assertion that the legislation was unconstitutionally vague, affirmed the appellate ruling that the indecency provision applied only to obscenity.

Since I helped define what it is not, I feel somewhat confident weighing in on what may or may not be considered decent, and since the culture wars of the day are once again flaring in the foreground, it would be instructive to raise a few items. You see, Mr. President, the lack of truth telling in your administration, and your proclamation that you are a War President who is focused on fighting terrorism, rings hollow. Perhaps decency has more to do with honesty and integrity than faux sanitization -- the absence of expression dealing with sex and sexuality or naturally occurring bodily functions.

Let’s start with the man who you have serving as Federal Communications Commissioner, Michael Powell. You would think that he would be tirelessly focusing on how to ensure that the Patriot Act and its application in the area of telecommunications serves its intended purpose by balancing the needs of law enforcement with the privacy concerns of citizens, as well as the burdens imposed on telecommunications companies. As privacy organizations and civil liberties organizations voice concern, and opportunists like New York Attorney General Eliot Spitzer file legal briefs decrying a lack of enforcement by the FCC, your commissioner and his team are busy watching soap operas to see whether they’re too steamy for afternoons. Or pressurizing Clear Channel to fire the likes of Howard Stern. When they’re not too busy steamrolling Dixie Chicks albums or organizing pro-war rallies, that is.

Perhaps Mr. Powell would be willing to look into the faces of the families of those killed on September 11th or those being killed and maimed in Iraq (oh, and Afghanistan, lest we forget about that war), and tell them that covering Janet Jackson’s breasts are more important than setting up a telecommunications policy that both thwarts terrorism, yet respects the ideals for which their families were supposedly killed.

The FCC's Enforcement Bureau originally ruled that the airing of Bono of U2 fame’s unplanned and unscripted expletive, upon receiving a Golden Globe award, was merely exclamatory and not a sexual reference and therefore not sanctionable. On March 18, however, your FCC Commissioners reversed that decision. The culture-destroying phrase, "fucking brilliant" seems like a minor infraction compared to the lies Mr. Powell’s father, Colin Powell, told on television about weapons of mass destruction being concocted in mobile laboratories. Shouldn't there be a sanction for the kind of indecency that leads to the dropping of depleted uranium on thousands of innocent civilians who die as a result? I wonder how many pairs of breasts were permanently covered once the bombs began dropping, but I guess it's difficult to ascertain when you're not even bothering to count dead bodies.

The commission investigating September 11th, supposedly appointed by you to determine what went wrong by exploring (not concealing) the communications breakdown that made the connecting of obvious and relevant dots all but impossible, was told by your Attorney General, John Ashcroft, that fighting terrorism was a priority as evidenced by the passing of the Patriot Act, the oxymoronic civil-liberties-shredding-device that has yet to yield any terrorists we know about.

In fact, the Attorney General used the occasion to clarify why the public should not read anything into his sudden decision to use chartered government planes to fly prior to September 11th. Even after September 11th, and despite early assurances by Mr. Ashcroft himself, in the days following the attacks, that the unprecedented power the Patriot Act provided would not be abused by the government, the Attorney General demonstrated his high priority focus on terrorism in the form of a sweeping invasion of medical privacy which followed a crackdown on physician assisted suicide and medical marijuana. Mr. Ashcroft attempted to obtain hundreds of confidential medical records of Planned Parenthood clients from at least seven hospitals in New York City, Philadelphia, Chicago, San Francisco, and Ann Arbor.

Mr. Ashcroft's Justice Department fishing expedition was in response to a suit that Planned Parenthood filed last November to challenge the unconstitutional abortion ban you signed. According to your logic, if a terrorist rapes a woman, not even a threat to her health would warrant a decision on her behalf to terminate the pregnancy. (Not even if she was a sex worker, on the clock, impregnated by your married brother in some strange hotel room in the Far East). While Al Qaeda plotted to blow up trains in Madrid, the Justice Department of America, Spain’s biggest and strongest ally, was fastidiously tracking down, one by one, records of women who had abortions to see if the procedures used were "medically necessary." Dollars well spent, let alone energy, in the War on Terrorism. Hats off for the reassurance this surely demonstrates to all our other willing allies.

Your Secretary of State, Colin Powell – the man who lied to the United Nations and world using bogus intelligence that Britain had plagiarized from the Internet, told TeenInk, a publication for impressionable teens, that the "Don’t Ask, Don’t Tell" policy preventing gay servicemembers from serving openly was important to "protect the privacy" of heterosexual servicemembers. He did not ask whether the servicemembers in dangerous conditions in Iraq and Afghanistan cared if the any servicemembers covering their backs and dying with them were gay or not, and didn’t have the decency to address the Pentagon’s truly decent and well-timed proposal -- a $75.00 per month deduction in “imminent danger” pay for servicemembers.

So committed, in fact, were Secretary of Defense Rumsfeld and your administration to fighting terrorism, that in November 2002, as news reports that ‘chatter’ among suspected terrorist groups had risen to levels not seen since the days immediately before the attacks of September 11, 2001, America’s armed forces fired qualified, trained Arabic linguists whose skills are essential in translating such communications simply for being gay. Perhaps you can explain to the families of the dead, or to the troops who have just had their deployments extended, (or their families at home) why a person’s sexual orientation is more dangerous to America than hijackers using airplanes as missiles.

Your CIA Director, George Tenet, told the commission that intelligence officials were taking steps to counter al Qaeda's threat and even had the decency to admit mistakes had been made. Gosh, everyone makes mistakes. Hell, had the two of you planned your August vacations better, you could have arranged for a tiny brief or two. "It will take us another five years to have the kind of clandestine service our country needs," Mr. Tenet added.

Do you remember the phrases, "The match begins tomorrow," or "Tomorrow is Zero Hour," Mr. Bush? Back in June 2002, your inexperienced White House spokesman, Ari Fleischer, expressed that you had "very deep concerns" about a leak in which news organizations reported that the National Security Agency intercepted two al-Qaeda messages on September 10th but failed to translate them from Arabic until the day after the attacks. (Hint: Firing Arab speaking translators may hinder rather than help in this area).

Mr. Fleischer worried aloud that the news stories were "alarmingly specific" and could jeopardize intelligence-gathering operations. He said you had asked your Vice President to convey your displeasure to the committee chairmen. So passionate was your outrage, leadership of the House and Senate intelligence committees immediately asked Attorney General John Ashcroft to investigate the leak.

If only your commitment to fighting terrorism was as strong as your desire to withhold information. And if only your commitment to protecting intelligence-gathering operations and routing out the sources of leaks applied equally to those in your Administration who see fit to endanger national security and people’s lives by revealing the identities of CIA operatives.

It’s not only your Department of Defense firing competent linguists who might help thwart terrorists attacks, but someone who serves you in the White House dangerously outed CIA operative, Valerie Plame, to journalists, the slimiest of whom, Robert Novak, took the bait. For nothing more than having the indecency to marry someone critical of your administration’s lies. The lies you used in a State of the Union speech to justify a preemptive war against a country that had nothing to do with September 11th. Have you ever mentioned the name Valerie Plame, Sir?

Indeed your National Security Advisor, Condoleezza Rice, who was decent enough to break principle to testify before the September 11th Commission, under oath, also pointed to the Patriot Act as evidence of your commitment to fighting terrorism.

Quoting actual chatter from a newly declassified memo of August 6, 2001: "Unbelievable news coming in weeks," "Big event ... there will be a very, very, very, very big uproar," "There will be attacks in the near future." -- Dr. Rice conceded she was “troubled” but dismissed it, giving the newly declassified memo little more than a cursory perusal.

“But they don't tell us when; they don't tell us where; they don't tell us who; and they don't tell us how,” Dr. Rice earnestly told the commission. While the terrorists should be appropriately chided for failing to provide such exquisite detail of their attacks, (or commended for following the military's "Don't Ask, Don't Tell" policy to the letter), such an expectation from your National Security Advisor suggests we disband the CIA, FBI, and Department of Homeland Security altogether, and simply adopt a “Hope for the Best” motto as an equally effective and far less expensive counter-terrorism strategy.

“As an officer of government on duty that day, I will never forget the sorrow and the anger I felt. Nor will I forget the courage and resilience shown by the American people and the leadership of the president that day,” Condoleezza Rice dramatically told the commission. Perhaps Dr. Rice is delusional Mr. President, which, is where, it appears, one of the big problems lies. Most of us remember you sitting in a classroom for about ten minutes after hearing about the attacks, listening to school children reading, failing to connect any of the glaring and unusual dots that were thrown at you whilst on your month-long vacation. And then you disappeared on Air Force One for the rest of the day, leaving the country shell-shocked, confused and, quite frankly, leaderless.

And now, Sir, we witness the daily explosions of violence in Iraq, and are forced to listen to a slew of excuses related to a lack of planning and a failure based on lack of U.N. involvement. "Liberation" rode roughshod over the United Nations, invaded Iraq, killed thousands of her people, destroyed her infrastructure, spirit and identity, established a military occupation in her towns and cities complete with censorship, curfews, raids, detentions without trial, barbed wire, beatings and, of course, removed Saddam Hussein and his hordes of weapons of mass destruction. If this is how the U.S. communicates the taste of freedom, perhaps those involved in the Fallujah atrocity were adapting to the behavior of their occupiers. A Columbine-like admonishment for their misinterpretation of the term "freedom". A workaround the newly minted minefield of greed and intellectual property law laid by Donald Trump. A message to those who spearheaded the war and oversee the occupation: "You're Fired!"

And so Mr. President, on the fifth anniversary of the Supreme Court’s ruling in my case (not the one where they appointed you President), and having spent years attempting to define the concept, I still have a difficult time understanding exactly what decency is.

Watching you and your administration’s conduct, however, I think I’m beginning to understand what indecent is. And annoying.

Sincerely,
Clinton Fein

Clinton Fein can be contacted at clinton@annoy.com