Wasted: Can't the DEA or Congress find a better way to use the DEA's resources?

By Mike Krause and Dave Kopel. Kopel is of the Independence Institute. Krause is a U.S. Coast Guard veteran who served as boat coxswain for drug patrols in the Caribbean Sea.

National Review Online. November 26, 2001 2:20 p.m.

Throughout the federal government, agency after agency is shifting priorities in order to fight the war on terrorism. Except, apparently, the Drug Enforcement Agency (DEA). If you go to the "What's New" page on the DEA website, you'll find a lot of what's old. Almost nothing on the site relates to counterterrorism, other than a country report on Afghanistan.

Yet testifying before Congress on October 17, 2001, Administrator Asa Hutchinson said:

I recently testified before Congress regarding the connection between international drug trafficking and terrorism. This connection defines the deadly, symbiotic relationship between the illegal drug trade and international terrorism. The degree to which profits from the drug trade are directed to finance terrorist activities is of paramount concern to our nation and the DEA.

Given this "paramount concern," one might expect the website to tout announcements from the DEA that the agency's new top priority would be attacking drug-trafficking networks with ties to terrorist organizations. Opium from Afghanistan, long tolerated by the Taliban in exchange for "tax" payments from opium distributors, would seem to be a logical number-one target.

Yet amazingly, the biggest news out of the DEA since September 11 has been a massive new crackdown on drug users whom we know not to be associated with terrorist suppliers: medical-marijuana users.

In California, the DEA has been seizing the medical records of medical-marijuana patients and destroying the marijuana gardens of AIDS and cancer victims. Since September, the DEA has raided and uprooted a marijuana garden in Ventura County, raided and seized the patient records of a medical research facility in El Dorado County, and shut down the Los Angeles Cannabis Resource Center in West Hollywood. (There, DEA agents seized some 400 marijuana plants, and the medical files of several thousand current and former patients. They even took the mix the center used to make marijuana brownies.)

The issue isn't whether the DEA has the legal power to act against medical-marijuana distribution centers. In United States v. Oakland Cannabis Buyers Cooperative, the U.S. Supreme Court ruled that the Controlled Substances Act of 1970 does not allow marijuana cooperatives to raise a "necessity" defense in federal court, at least not in a context in which no individual's medical needs were before the court.

Rather, the issue is whether going after medical marijuana is a wise use of limited resources, especially in a Republican administration — and very especially when we're in a real war, rather than just trying to reduce some domestic problem like poverty or inflation or drugs and calling it a "war."

Nine states have passed medical-marijuana initiatives allowing the possession and use of marijuana for medical purposes. The laws were passed by voter initiative in Alaska, California, Colorado, Nevada, Arizona, Oregon, Maine, and Washington, and by the legislature in Hawaii. These state laws certainly do not legalize the sale of marijuana across state lines, or even sale within the state to people without medical needs.

Republican Bob Dole ran for President in 1996 carrying the Tenth Amendment in his pocket; Republican President Bush won the 2000 election with similar promises to respect federalism. Candidate Bush, in keeping with his campaign themes of "compassionate conservatism" and "trusting the people more than the government," stated that while he opposes the use of medical marijuana, he believed that states ought to be able to decide differently. Speaking in Seattle in October 1999, the future president said, "I believe each state can choose that decision as they so choose."

Indeed, the medical-marijuana issue should be a poster child for federalism. In California, Prop. 215, the Compassionate Use Act, was openly and hotly debated, voted on in a statewide referendum, and passed by a landslide. In fact, more Californians voted in favor of medical marijuana than voted for Bill Clinton (who would later threaten to prosecute any doctor who prescribed it). In West Hollywood, where the recent raid took place, close relationships were established between the cannabis-club operators and state and local government officials, to ensure the integrity of the program and that the law was obeyed. State supervision included quarterly reviews of doctors' prescriptions, and the issuance of patient ID cards in cooperation with the sheriff's office.

Rep. Barney Frank (D., Mass.) has introduced the States Rights for Medical Marijuana Act, which would simply allow the states to implement medical marijuana policy, without interference from the federal government. Not too long ago, northeastern liberal Democrats were claiming that "states' rights" was a code word for racism. Now that an impeccably liberal Democrat, with many Democratic (and a few Republican) cosponsors, is pushing a bill with "states' rights" in its very title, astute Republican leaders would seize the chance to move the bill through committee and onto the floor — thus ending Democrats' ability to rail against "states' rights" Republicans. Pushing the "States Rights" bill would also give Republicans a chance to demonstrate their compassion on health care — without having to spend a cent, write a word of new regulations, or hire a single additional bureaucrat. But foolishly, the Republican leadership has let the States Rights bill languish in committee without a hearing.

In any rational assessment of federal drug-enforcement priorities, doctor-supervised use of medical marijuana would land at the bottom of the list. There are no international or interstate sales, thus making the issue inappropriate for federal control under Congress's power to regulate international or interstate commerce. There are no sales to children. The only people who get the marijuana are adults with a demonstrated medical need. Even if one believes all claims of drug "warriors" about the harms of marijuana, the drug remains much less harmful than other, widely used illegal drugs, particularly cocaine and opiates. In contrast to, say, crackheads and junkies who rob in order to support their habit, medical-marijuana users are about the least dangerous demographic in America — consisting of people in wheelchairs, multiple sclerosis patients, and the like. The distribution of medical marijuana does not involve organized crime and has absolutely no connection to terrorism.

In August, Mr. Hutchinson told the Washington Post he would enforce the federal ban because he wanted to "send the right signal" on medical marijuana. In other words, the best explanation of the DEA's war on medical marijuana is symbolism.

Consider House Speaker Dennis Hastert's Speaker News:

The recent dialogue on so-called 'medical marijuana' sends an ambivalent message to our kids about the dangers of marijuana. The continued public debate over what, if any, medical benefits some compounds found in marijuana may have makes it harder to convince our kids that drug use ends dreams and ruins lives. The way some have constructed this debate sends the wrong signal to our kids about drug use.

In other words, they're doing it for the children. But the claim that we have to take medical marijuana away from adult cancer patients in order to frighten healthy 17-year-olds into abstinence is nonsense. Current federal laws allows medical use of morphine with a doctor's prescription; neither the DEA nor the seeker claim that this limited medical exception prevents society from convincing children not to use morphine or other opiates recreationally. Indeed, the Controlled Substances Act contains (on schedules II, III, and IV) literally hundreds of drugs for which medical use is allowed, with a prescription, but for which non-medical use is banned.

Moreover, even if, for some reason, it is impossible to communicate the same message (medical use is all right; recreational use is not) about medical marijuana that is communicated about hundreds of other drugs, it is wrong to kill people simply for the sake of better communications. In Afghanistan, the U.S. government has been so humanitarian in trying to avoid "collateral damage" civilian casualties that the U.S. has foregone many opportunities to bomb buildings known to contain al Qaeda or Taliban leaders.

If we're that careful not to kill foreign civilians, even for the supremely important objective of killing enemy leaders, then surely we ought not to kill American citizens who are AIDS or cancer patients, and who can't keep their medicine down without the anti-nausea effect of medical marijuana — even if such deaths would improve the "message" that the federal government sends to teenagers. (For the story of one death caused by federal prosecutors stopping a patient from being able to stop vomiting, see William F. Buckley's obituary of Peter McWilliams in the July 17, 2000, National Review.)

Moreover, the seizure of the medical records of thousands of patients — who registered themselves in compliance with state law, in good faith — is an act of intimidation, meant to strike fear in the hearts of the sick that they will be targeted next for enforcement action. (The feds had better start looking for some prisons that are wheelchair-accessible.) In addition, according to John Duran, legal counsel for the Cannabis Club, the records of the club's donors and Prop. 215 supporters were also seized — a pure act of political bullying.

What reason would any of the patients have to trust the government again? Their alternatives now consist of either foregoing the use of marijuana and suffering the health consequences — or else skirting the law entirely and becoming criminals by growing their own, or finding a street dealer.

President Bush has asked all Americans to be eyes and ears for the federal government, keeping watch for suspicious activity related to terrorism. Yet when the federal government deliberately frightens sick people, or people who have lawfully participated in a political campaign, how can these people be expected to trust the government?

On November 8, the Bush administration announced a dramatic restructuring of federal law enforcement. According to Attorney General Ashcroft, "We cannot do everything we once did because lives depend on us doing a few things very well." Pursuant to this change, FBI agents once assigned to drug cases have been reassigned to counterterrorism.

Similarly, Coast Guard boats that were once used in the drug war have now been assigned to protecting our coasts from terrorists.

According to DEA Administrator Hutchinson, "We've tried to make up the slack." Does making up slack mean less attention to complex cases, and more enforcement against easy marks like medical-marijuana providers, who operate out in the open and in cooperation with local authorities? Why were 30 DEA agents used on the October 25 "raid" on the Los Angeles Cannabis Resource Center (whose nearly 1,000 patients are mostly AIDS victims)? Wouldn't those 30 agents be better employed in going after heroin rings connected to al Qaeda and the Taliban? A Justice Department spokesperson said: "The recent enforcement is indicative that we have not lost our priorities in other areas since September 11." Perhaps it's time to reallocate some DEA resources, and prioritize counterterrorism.

In the last decade, the number of FBI agents has remained relatively stable, at around 11,000. Yet in addition to being having the lead on counterterrorism and organized crime, along with substantial responsibilities on the related issue of money laundering, the FBI has been tasked with chasing deadbeat dads, carjackings, student-loan fraud, housing discrimination, and guarding access to abortion clinics. These latter matters are not unimportant, but all could easily be left in the hands of state or local law enforcement.

Over the last decade, the DEA's budget has nearly doubled to $1.66 billion and its manpower has increased by roughly 75 percent, to over 4,600 special agents and over 9,000 total employees, with 78 offices in 56 different countries

There is no doubt that many DEA agents out there are placing themselves in harm's way by chasing real criminals. But in the midst of the largest criminal investigation in American history, and of the drastic restructuring of the priorities of Justice Department agencies, the DEA finds itself in the comfortable position of being able to allocate highly trained, well-armed federal agents to targeting the sick and their medical-marijuana providers. Can't the DEA or Congress find a better way to use the DEA's resources — for instance, to fight terrorism?

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