Bush administration official out; Law still: U.S. fights prostitution?

Posted by Mark Silva at 6:05 am CDT

There is, perhaps, a tragic irony in the saga of Randall Tobias, who oversaw the Bush administration's foreign aid programs but resigned last week after his name surfaced in an investigation of a Washington call-girl ring, in the fact that the agency he ran, the U.S. Agency for International Development, has spent the last two years defending a federal policy of denying aid to organizations that advocate prostitution.

Tobias abruptly resigned after ABC News interviewed him for a program about the so-called "D.C. Madam,'' with ABC reporting that Tobias confirmed that he had called the Pamela Martin and Associates escort service to send women to his condo and give him massages. Tobias, 65, claimed there had been "no sex'' during these visits. His name had been on a list of clients given to ABC by Deborah Jeane Palfrey, who owns the escort service and has been charged with running a prostitution ring in the nation's capital.

"We are sad and disappointed by this news,'' said Tony Fratto, a White House spokesman, traveling with President Bush to a $1 million Republican National Committee fundraising luncheon in Key Biscayne, Fla., on Saturday. "Randy was an extremely effective leader in the fight against HIV/Aids in places like Africa, and his work in development at USAID,'' he said. "We wish him and his family well."

In the fight against AIDS, the U.S. also had attached a certain demand to the money it is disbursing to agencies worldwide: Thou shalt not support prostitution.

In 2003, the federal Leadership Against HIV/AIDS, Tuberculosis and Malaria Act targeted sex trafficking and prostitution as major factors in the spread of the deadly virus. The act includes a clause that prohibits federal funding for any organization which advocates the legalization of prostitution, and requires organizations that do receive federal funding to fight HIV and AIDS to adopt a policy opposing prostitution and sex trafficking.

The agency, USAID, issued a directive in 2005 demanding that, as a condition for funding of private organizations fighting AIDS, any non-governmental organization receiving money would have to comply with the act in opposing prostitution.

The Global Health Council, a Washington-based organization that represents health professionals around the world, complains that this requirement has imposed a "chilling effect'' on organizations around the world – some curtailing services that they were offering to people – and has spawned lawsuits challenging the act. With federal courts supporting the NGOs, the council is calling on Congress to repeal the provision of the law that attaches anti-prostitution strings to the funding of world organizations fighting AIDS.

The State Department has said only that Tobias "informed Secretary of State Condoleezza Rice… that he must step down'' as a deputy secretary, serving as director of U.S. Foreign Assistance and U.S. Agency for International Development Administrator and that "he is returning to private life for personal reasons.''

Rice had named Tobias to head the programs in January 2006, and on Wednesday he was at the White House, where Bush praised his efforts in coordinating global AIDS relief. Tobias had been the White House's coordinator for global AIDS relief before taking the USAID post. Tobias had been a director and chairman of Eli Lilly and Co., the Indianapolis-based pharmaceutical company, before joining the administration.

"The lives saved and made better around the globe by Randy's work at the State Department constitute a rich legacy on which he can look back with justifiable pride," State spokesman Sean McCormack said Friday.

But Tobias became the second public figure identified as a customer of Palfrey's service. Palfrey was indicted in March by a federal grand jury on charges of running an alleged call-girl ring from her California home, and has denied the escort service engaged in prostitution.

Prosecutors have estimated that her business generated more than $2 million over 13 years, with more than 130 women employed at various times to serve thousands of clients at $200 to $300 per session.

Before Tobias became director at USAID, the agency issued an Acquisition and Assistance Policy Directive on June 9, 2005. This was meant to carry out the implementation of the 2003 HIV/AIDS, Tuberculosis and Malaria Act.

None of the money disbursed until this act "may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex-trafficking,'' the USAID directive stated. "The U.S. government is opposed to prostitution and related activities,'' it stated, calling these activities "inherently harmful and dehumanizing.''

On the face of it, this would seem indisputable.

However, the Global Health Council reports, "while most organizations have complied with the… requirement, many report having done so reluctantly.'' Some say it has "interfered with their ability to carry out tested and effective interventions and has hampered efforts to reach this important population with information and services.'' Council members and other NGO's have reported a "chilling effect and pattern of self-censorship related to the vagueness of the class and uncertainty about what would constitute a breach.''

The council cites a Cambodian NGO that stopped teaching English to sex workers in brothels, concerned that this could be misconstrued as an effort to help them solicit English-speaking customers. It cites another NGO that closed down a Website and stopped publishing a magazine for sex workers.

And, the council reports that some partners of U.S. organizations have declined U.S. aid as a result. The Brazilian National AIDS Commission turned down a $40 million grant from the U.S. rather than comply with the directive, the council reports. And the British Broadcasting Company's Charitable Trust also has refused to comply with the directive and no longer accepts U.S. funding for HIV/AIDS prevention programs.

Two lawsuits have been filed challenging the constitutionality of the directive, the council says.

One, filed by DKT International, contends that the directive amounts to "compelled speech,'' and is a violation of the First Amendment. The Alliance for Open Society International, the Open Society Institute and Pathfinder International have raised the same issue. They also contend that it is unconstitutionally vague.

The government has defended the directive, citing the Spending Clause of the Constitution: "Congress' decision as to who it will choose to subsidize falls as clearly within Congress' Constitutional powers.

Last year, the council says, the U.S. District Court for the Southern District of New York ruled in favor of the second group of litigants, calling the requirement "offensive to the First Amendment.'' Judge Victor Marrero wrote: "The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program.''

And also last year, a judge in the U.S. District Court of Columbia ruled in favor of the first litigant, with Judge Emmet Sullivan calling "view-point based restrictions on speech'' unconstitutional.

In appeals, the council says, some 40 NGOs have joined as friends of the court as the government continues to defend the directive – a defense that USAID has waged throughout Tobias' tenure at the agency.

Tobias is gone – maintaining that he was not supporting prostitution.

And the law should go, too, the Global Health Council maintains, calling on Congress to repeal the provision of the law that the USAID has been enforcing since 2005.

"Sex work is typically dangerous and harmful,'' the council reports. "However,'' the USAID directive "does nothing to improve and can only impede the success of prevention programs for sex workers and their clients. The global AIDS crisis demands the wise and efficient use of human and financial resources… Good public health programming depends on the ability of those working on the front lines of AIDS programming to openly present and debate the evidence… The apprehension created by the (directive) has curtailed the flow of information and stifled debate.''