Mary Beth Buchanan Makes Her Case

The things government does openly don't much scare the two dozen civil libertarians attending Pittsburgh City Council on April 26; what scares them more is what they think it's doing behind closed doors. So it may seem ominous that Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, is nowhere to be seen. Today, after all, Councilor Bill Peduto is proposing a resolution that criticizes a law Buchanan has championed: the USA PATRIOT Act, passed by Congress after the Sept. 11 attacks to help fight the "war on terror."

In some ways, Peduto's resolution isn't much different from, say, council's commendation of the Pittsburgh Toy Lending Library the same day. Like other such bills, Peduto's resolution endorses high-minded ideals it does little to further. It proudly notes the city's "long and distinguished tradition of protecting the civil rights and liberties of its residents," and complains that anti-terrorism efforts like the PATRIOT Act "do damage to the America institutions and values." But the resolution is non-binding and no one, not even the mayor, is require to honor it.

Yet although Peduto's resolution is largely symbolic, it has been stalled in council since last fall. Supporters blame Buchanan, who says that by urging local police not to assist in investigations council deems unconstitutional, the measure "would cause local law enforcement to be uncertain about what they can do to enforce the law."

It's not the first time civil libertarians have worried about Buchanan. Last year she began prosecuting the first high-profile federal obscenity case in a decade, a prosecution some worry may have a chilling effect on the Internet. She has deprived the world of the dubious cinematic gifts of actor Tommy Chong, who pled guilty to drug charges in a Pittsburgh courtroom for selling bongs. "If you look around the country, you are not seeing these kinds of prosecutions elsewhere," says Vic Walczak, legal director for the Pittsburgh chapter of the American Civil Liberties Union. "I think [Buchanan's] regarded as the vanguard of [U.S. Attorney General John] Ashcroft's attempt to impose his morality on others."

This isn't high praise at the ACLU, but it is testament to Buchanan's achievements. From modest beginnings as a Mon Valley steelworker's daughter who attended college as a single mom, Buchanan has become one of Ashcroft's most prominent lieutenants. She has appeared frequently on national TV news programs, and just finished a one-year stint on a key policy-making and advisory panel.

Along the way, she has become a lightning rod for criticism often aimed at her bosses, the personification of what some find frightening about the Bush administration: its conservative morality and quest for sweeping new police powers.

Of her critics, Buchanan contends, "There are people who see things as black and white" who say, "I don't like these things, so I don't like her." But Buchanan is more complex than some may suspect: While she's led a charge for stricter prison sentences, she has a long history of volunteer work focused on prevention. And she stands out for her candor in a frequently close-mouthed administration. "If I can't explain to the public why I did something," she says, "I probably shouldn't have done it."

Still, those gathered in council are worried that something has happened outside the public's view. There are rumors that a weaker alternative bill to Peduto's has been prepared. Sure enough, Councilor Jim Motznik introduces a measure that begins by lamenting the "horrific attacks...on September 11" and "affirm[ing] abhorrence of, and opposition to, global acts of terrorism." While it pledges to "monitor" concerns about racial profiling and civil-rights violations, it lacks the specificity of Peduto's bill, which includes pages of complaints about PATRIOT Act provisions. For a moment, it seems the worst fears of the civil libertarians -- about Buchanan and the plight of post-9/11 democracy -- are being confirmed.

On Sept. 11, 2001, Mary Beth Buchanan's career was taking off in every sense of the word.

A week before, while vacationing in Europe with her husband, the 38-year-old assistant U.S. attorney had learned that President Bush had appointed her to fill the vacancy left by her former boss, Harry Litman. She would be the youngest person ever named to the post of U.S. attorney of the Western District of Pennsylvania, and the first woman. From that post, she would preside over investigations by the FBI and other federal agencies, and prosecute civil-rights violations, corporate fraud and other federal crimes.

It was heady stuff for the woman born Mary Beth Kotcella, who grew up in Roscoe, Pa., without ever meeting a lawyer. Having divorced her high-school sweetheart, Buchanan had raised a child on her own while attending California University of Pennsylvania and, later, the University of Pittsburgh law school. After working for a private firm, she landed a job in the U.S. attorney's office. She later married Tom Buchanan, a partner in the influential Pittsburgh law firm Buchanan Ingersoll.

As her flight departed Madrid on Sept. 11, Buchanan recalls, "I was so happy; we'd had such a nice trip and I couldn't wait to get back to Pittsburgh and start work."

And then a flight attendant notified Buchanan of first one, then another, aircraft striking the World Trade Center. "Then she came back a third time and said she was sorry to tell me but a third plane crashed in Pittsburgh." Buchanan's airplane, like every international flight that day, turned back. In Madrid, a State Department official told the Buchanans that 30,000 Americans were dead.

Upon returning home, Buchanan volunteered to serve on a Justice Department subcommittee studying terrorism, along with committees studying civil rights, child exploitation and obscenity, white-collar crime, and violent/gun crime. (What does that leave out? "Not a lot," she says.)

Buchanan soon discovered those areas were often connected. For example, she says, funding terrorist activities "could involve loan fraud or opening credit cards, getting the money, and then filing for bankruptcy to clear the debt." Many people who aren't tied to terrorism do the same thing, but Buchanan says, "Every type of criminal investigation that we do, we have to look at it with an eye toward ‘Is this possibly connected to something else?' Because like you see with the 9/11 commission, when something goes wrong, the first question is ‘Why didn't you recognize it as terrorism?'"

Buchanan's drive and diligence paid off in 2003, when Ashcroft chose her to chair his advisory committee. The committee reviews proposed laws and regulations, and issues recommendations on law-enforcement issues. During her one-year stint as chair, Buchanan has discussed key initiatives on national news programs including 60 Minutes and PBS' News Hour with Jim Lehrer. She makes a compelling spokesperson, with both a ready smile and a lawyer's habit of rolling her eyes at arguments she disdains. She comes across as both accessible and authoritative, a PTA parent with an iron will.

In recent months, Buchanan has championed some of the Bush administration's most controversial proposals, like its policy of challenging judges who hand down prison terms below federal guidelines. Buchanan, who helped craft the measures, portrays them as a matter of basic fairness: "Some offenses carried a penalty of probation to 30 years in prison, depending on the feelings of a particular judge." The guidelines, she says, ensure that "we treat people the same based upon what they do and not who they are." Not everyone will find that reassuring: Buchanan generally objects to sentences being too short, rather than too long...and the U.S. already imprisons a larger percentage of its population than any other industrialized country. As he stepped down from Pittsburgh's federal bench in February, Judge Robert Cindrich called the guidelines "morally wrong" and claimed they hurt minorities and the poor.

The most controversial of Buchanan's causes, however, is the USA PATRIOT Act.

Passed overwhelmingly by Congress 45 days after the Sept. 11 attacks, the measure -- Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act -- was hailed as a vital tool, necessary to help the United States contend with new enemies. The law gives the government increased power to monitor and detain those suspected of conspiring in terrorist acts.

But the act has been controversial, which Buchanan suggests may be because "there are people that might not like the attorney general [or] the president." As a result, she says, the act is misunderstood. In an effort to "educate the public," she frequently appears in public debates, circulates copies of a booklet titled "Understanding the USA PATRIOT Act," and even quizzes reporters on what they know.

One controversial provision, for example, allows law enforcement to engage in "sneak-and-peek" investigations, in which they can search property without notifying the owner until later. Buchanan notes that a judge must still sign a search warrant, and be given solid grounds for why notice of the search cannot be given. And yet, she says, "There are people who think it gives law enforcement the opportunity to clandestinely enter the premises without a court order. [But] there is as much if not more judicial oversight as there was before."

Such assurances don't impress the ACLU's Walczak. "There's judicial review," he acknowledges, "but it's meaningless." He notes, for example, that a federal agent can get a warrant for a "sneak and peek" search if he can show that the search is connected in some ways to an intelligence investigation. Says Walczak, "It's impossible for a judge to question that."



Activists have tried to get local governments to question those powers instead, often by passing resolutions like Peduto's. At a December council hearing on the measure, Buchanan and law-enforcement officials warned the resolution might hinder anti-terror efforts, because it urges local police not to cooperate with certain federal investigations. Recalls Council President Gene Ricciardi, "One FBI agent got a little teary. He said, ‘If I need help from Pittsburgh police doing an immigration case, does that mean they won't show up?'"

"Any time you have a law-enforcement officer who is not clear about what their authority is, it puts the community in jeopardy," Buchanan maintains. Last year, she visited councilors repeatedly, urging them to vote against Peduto's bill. Ricciardi, one of the bill's original sponsors, subsequently took his name off it, telling City Paper in February, "I would feel incredibly bad if a terrorist act occurred in the city" because the resolution hindered police.

Though nearly 300 municipalities have passed similar resolutions, Peduto boasts, "Ours is pretty strong": Among other things, it urges the mayor to ask for "the names and total number of groups...being monitored by federal authorities within the City."

The government can deny that request, supporters point out, just as the mayor can decline to make it. The resolution merely "recommends" and "requests" such actions.

"So why bother doing it?" Buchanan counters.

It would be just as easy to ask, "Why bother opposing it?" and Buchanan herself hasn't always seemed so concerned about similar measures. An October 2003 Christian Science Monitor story quoted her saying the resolutions "have absolutely no effect whatsoever on enforcement. These resolutions do not stop law enforcement from doing what they need to do to protect the public."

"I don't know what question the reporter asked me," Buchanan says now. She suspects she was merely stating attorneys would "use every tool that [we] have available regardless of what [a legislature] does."

And she's not just using those tools to fight terrorism. Last year she used the "sneak and peek" provision to bust open a drug ring led by Penn Hills kingpin Oliver Beasley. Ashcroft himself has cited the bust, reportedly the largest drug arrest in Western Pennsylvania, as proof of the Act's value. Civil libertarians cite it as proof of how the act may be abused. They note the title of the bill mentions terrorism, not drug dealing, and was passed in post-9/11 fervor. But Buchanan makes no apologies: Most of the PATRIOT Act, she says, merely puts down in writing what were common practices anyway. "If members of Congress didn't read [the bill], then shame on them."

The Beasley bust isn't the only drug case which has raised Buchanan's profile among both critics and supporters. In February 2003, Buchanan received national attention, and some ridicule, for "Operation Pipe Dreams," in which Pittsburgh investigators nabbed companies using the Internet to sell bongs and other paraphernalia. The investigation targeted more than 50 defendants, but it is best known for resulting in a nine-month sentence for actor Tommy Chong, whose films with Cheech Marin have made him a cult hero to potheads.

Chong's firm, Nice Dreams Enterprises, was a small player in the industry, and some believe he was punished for his celebrity rather than his culpability. "Ashcroft has a long history of picking symbols to prosecute in the hopes that it will communicate a larger deterrent message to society," says Allen St. Pierre, the head of the National Organization to Reform Marijuana Law (NORML).

Indeed, in a September 2003 hearing, an attorney in Buchanan's office told federal Judge Arthur Schwab that Chong's sentence should reflect that he "has become wealthy...by glamorizing the illegal distribution and use of marijuana." Films like Up in Smoke, she contended, "trivialize law-enforcement," as did remarks Chong made outside the courtroom, when he told reporters the case would make a good movie.

Chong pled guilty, unlike other defendants, and got a nine-month prison term, average for his offense. Though Chong told the judge he'd teach moviemaking to kids as a community service, Buchanan notes Chong "had months [before the sentencing hearing] to actually do something" to lighten his sentence. "As the U.S. attorney, I hear a lot stories," she says.

Despite the conspiracy theories of Chong's supporters, Robert Vaughn, a Nashville attorney and authority on paraphernalia law, says Chong's handling was typical. Government officials "want to know the individual has assumed responsibility, and that theirs is a sincere regret. Anything short of that can put a person away."

The larger question, says St. Pierre, is whether it's worth busting bong sales at all. Head shops shut down by police are quickly replaced, he says, and if they aren't, pot smokers can fashion bongs from pop cans. "These laws aren't going to deter this activity," he says; Chong's sentence may even turn him into a martyr. At least one anthem -- the "Tommy Chong Bong Song" -- has been written in his honor. ("It's not very good," St. Pierre cautions.)

"Do I think that by bringing this prosecution I'm going to totally eliminate illegal drug use? No," says Buchanan. But, "If we are trying to tell kids that drug use is bad, and we allow companies to make millions of dollars by selling illegal products, we are sending the wrong message." Moreover, "After the arrest and indictments, the companies that were operating over the Internet ceased."

Some concede Buchanan's efforts have made an impact, at least temporarily. While he argues that drug prosecutions are "cosmetic at best," Rick Cusick, an advertising manager at High Times magazine, acknowledges, "There used to be one or two major [bong] distributors and about 8 or 12 major producers. They all got busted. There are people making less money, which I'm sure is the government's goal."

If nothing else, says attorney Robert Vaughn, after the Chong case, "There is a greater recognition among individuals that there is a federal law." Before, "People were walking around not knowing this at all."

Other businesses may be in for similarly rude awakenings. Buchanan's office is prosecuting a case that one day may become a turning point in First Amendment law: United States vs. Extreme Associates.



Based in Van Nuys, Calif., Extreme makes pornography even other pornographers might blanch at. Titles like Forced Entry graphically depict rape, torture and murder, though company attorney Louis Sirkin insists they're "no different from that movie Monster [about a serial-killing hitchhiker], except it's got a little more sex....They are made to be a take-off on serial killing and serial sex assaults. It's tongue-in-cheek." Anyway, he says, "people should be allowed to sell whatever they want, as long as it's made by consensual adults."

"I disagree strongly with that argument," says Buchanan. "It is fairly obvious that [the actors] are under the influence of drugs." And while other adult filmmakers "try to make a product that will be within the federal obscenity laws," she says, Extreme "wanted to make the most disgusting, degrading and violent material they could think of. That's why they're being prosecuted."

Robert Zicari, who owns the company, apparently agrees. In a message posted on his company's Web site, he writes, "I definitely will not sit here and cry a bunch of tears." Zicari notes that he taunted Ashcroft to charge him on PBS in 2002. "I feel honored and privileged," he says, since the adult-movie industry hasn't seen "a MAJOR FEDERAL OBSCENITY INVESTIGATION in over 10 years."

Buchanan says that's exactly the problem, whatever civil libertarians may think about Bush-era repressiveness: "If we had enforced the law" during the Clinton years, "we probably wouldn't have the proliferation of material we have today."

In both the Chong and Extreme Associates cases, Buchanan has leveraged local prosecutions into national cases by wielding the same tool her targets use: the Internet. "Every case that we prosecute, we take that case as far as we can," she says. When federal agents closed down local head shops, they also went after the firms supplying them on-line; in the Extreme case, undercover agents posed as customers, paying to download films electronically or having films mailed to post-office boxes.

That approach has raised concerns about privacy rights and Internet freedom. Under federal law, for material to be obscene, it has to violate "contemporary community standards" where it is purchased. But what meets community standards in Van Nuys may be offensive in Pittsburgh, leading Sirkin to contend an adult business would need "a clairvoyant censor" to sell material over the Internet at all.

And does pornography violate community standards if it's purchased online, in the privacy of your home? Buchanan contends it does: "The violation occurs when the image is distributed across state lines. Once it's here, regardless of whether you want it or not, the issue is, does the material violate community standards?"

Not surprisingly, the ACLU's Vic Walczak worries the Extreme case may have a "chilling result on the Internet," free speech and privacy. But he seems most upset that "We've got these tremendous international terrorist threats, and the U.S. attorney is going after bongs and dongs."

"Every [terror-related] case that we've been asked to investigate, we've investigated," Buchanan counters. "No requests for investigation in this district have gone unaddressed....But I can't ignore drug trafficking, firearms or anything else."

In fact, the Extreme prosecution may only be the beginning. On April 6, the Baltimore Sun reported that federal prosecutors and investigators were "spending millions of dollars" readying obscenity lawsuits. "Nothing is off limits," the paper adds, "even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered [by] major hotel chains."

Buchanan is not running that investigation, but she says only "the most egregious offenders" will be likely targets. Then again, she adds, "If you have a major corporation distributing this material to every Marriott in the country,...[prosecuting them] would have a big impact" even if the material was not as obscene as Zicari's.

Would she prosecute "soft-core" on cable? "I've never seen Real Sex," she says. "What's soft-core to someone might not be to others."

To a civil libertarian, of course, that's exactly the problem.

At City Council's April 27 meeting, civil libertarians have more pressing concerns. One of the four councilors supporting Peduto's anti-PATRIOT resolution, Sala Udin, is out of town. The clerk has been trying to reach Udin by phone, but Peduto now only has three votes of the five he needs. Councilors have been holding furtive discussions throughout the meeting, and when Motznik proposes the counter-resolution, it looks like the game is up.

But then Peduto announces the competing bills "can work together," and that he'll vote for both. Civil rights are "worth voting for twice," Councilor Doug Shields agrees. Other councilors fall in, and in an oddly anti-climactic vote, both measures pass unanimously. The audience cheers. Suddenly, Mary Beth Buchanan doesn't seem so scary.

"It was distorted by some individuals that there was strong-arming by the feds," City Council President Gene Ricciardi says later. "I didn't see any strong lobbying effort." Ricciardi says that councilors were overwhelmed by the amount of support shown for the bill, and reassured that the measure was non-binding. But he says Buhanan could have brought officers to the meeting in a "full-court press...like they did in December. That might have made a difference."

Buchanan, who was out of town when the vote took place, calls council's vote "unfortunate" and says "federal officials may be reluctant to share information with local police" because of the bill, which requests information about ongoing investigations. Based on assurances she'd received from councilors last year, she says, "I did not believe council would pass this resolution."

Some surmise that Buchanan's role on Ashcroft's advisory committee was the only reason she opposed the resolution at all. "I think she didn't want something like this to pass in her own backyard when she has that position," speculates Barb Feige, the chapter director of the ACLU and one of the resolution's advocates.

But Bucahan's stint on the committee is over, and since U.S. attorneys are given only four-year appointments, her tenure at Justice may not last forever either. Buchanan says she would likely be reappointed if President Bush is re-elected, but with polls showing a close presidential race this fall, that's not a sure bet.

For now, Buchanan is working on another high-profile issue: global trafficking in children. "People in the United States would be amazed to know that modern-day slavery exists," she says, "that [other countries] allow children to be enslaved and sexually abused." Closer to home, she's unveiling plans to seize Pittsburgh-area homes that have been havens for drug crime and prostitution.

Should Buchanan leave her post, she'd likely return to some of the volunteer work she once did. Ethics rules required severing those ties once she took the U.S. attorney job, but non-profit leaders, like Jim Snyder of the Parental Stress Center, would love to have her back. The center connects at-risk families with social services, and Snyder says Buchanan was a strong board member. A former single mom herself, "She did a lot on her own when she might have fallen by the wayside," Snyder says. She's also a skilled fund-raiser, having helped resuscitate the finances of the state's American Heart Association chapter. But Snyder says, "The closest thing to her heart is the prevention work we do," which "addresses issues of violence and the community" before they end up in a courtroom. "She's very good at being an out-front person and she brings along everyone else with her. It made sense to us that she rose so quickly to U.S. attorney."

There's speculation that Buchanan may rise even higher, possibly by heading to Washington or running for office herself some day. The abilities Snyder admires in her -- like fund-raising and consensus building --are hallmarks of a savvy politician. So is the fact that Buchanan has judiciously contributed to local Republican officials, including $1,000 to U.S. Sen. Rick Santorum and nearly $1,500 to U.S. Rep. Melissa Hart (a former classmate at Pitt) since 1999. A Buchanan campaign could boast high-profile prosecutions and non-profit admirers, and political-gossip Web sites have even mentioned her as a potential Republican gubernatorial candidate.

"There are a lot of things you read on the Internet," Buchanan says. "At the present time, I don't have any plans to run for governor."

But such prospects prompt some to wonder: Are Buchanan's prosecutions attempts to curry favor, either with voters or her boss? Buchanan maintains the issues she and Ashcroft share "are issues I have been addressing long before I met [him]." As he basks in the City Council victory, Walczak surmises Buchanan is "just a good foot soldier in [Ashcroft's] moral revolution.

"I like Mary Beth personally," he adds a moment later. "She's a good lawyer and I have no doubt she believes she's doing the right thing. But from my perspective, it's a little scary."