04/13/14 Eric Holder

Century of Lies

Doug McVay of Drug War Facts report on Congressional hearing over drug laws with AG Eric Holder & US Rep Mario Diaz-Balart

Audio file


Century of Lies April 13, 2014


DEAN BECKER: The failure of Drug War is glaringly obvious to judges, cops, wardens, prosecutors and millions more. Now calling for decriminalization, legalization, the end of prohibition. Let us investigate the Century of Lies.


DOUG McVAY: Hello and welcome to Century of Lies. I'm your guest host, Doug McVay, editor of Drug War Facts dot org. Century of Lies is a production of the Drug Truth Network, and is brought to you through the Pacifica network's radio station KPFT-fm in Houston, Texas. Find us on the web at drug truth dot net, where you can find past programs and you can subscribe to our podcasts. You can follow me on twitter, where I'm at drug policy facts, and also at doug mcvay. The Drug Truth Network is on Facebook, be sure to give its page a Like, you can find Drug War Facts on Facebook as well, please give it a like and share it with friends.

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On Friday April 4th, Attorney General Eric Holder testified before a Congressional appropriations committee regarding the DOJ's fiscal year 2015 budget request. Later that day, Huffington Post ran this headline: Eric Holder Would Be 'Glad To Work With Congress' To Reschedule Marijuana

The story does admit that quote "Several Republican lawmakers at the hearing questioned Holder's decision to allow Colorado and Washington to legalize and regulate marijuana and to take the states' actions into consideration when prioritizing federal marijuana prosecutions." End quote. But that headline, dang. I bet a lot of people clicked onto it. I sure did. And I did more than that. I actually watched, and listened to, the entire hearing, including the bit when Holder made this statement. I also recorded it. This hearing makes for sobering listening. It is not pleasant.

Out of context, the comment by Attorney General Holder sounds great. In context, not so much. It came from an exchange between Attorney General Eric Holder and Representative Mario Diaz-Balart, a Republican from Florida. Diaz-Balart is not a supporter of reform. He is opposed to medical cannabis legalization and to rescheduling. Here it is:


MARIO DIAZ-BALART: Thank you very much Mr. Chairman. By the way a lot of the issues that I was going to bring up to you the attorney general already brought up so I’ll just kind of go back to another one that we’ve already spoken a little bit about which is the issue of marijuana and the enforcement of marijuana.

As we’ve already talked about marijuana is illegal according to federal law. It is classified as a Schedule I controlled substance under the Controlled Substance Act. This label implies that the drug has a high potential for abuse and no currently accepted medical use in treatment.

Now, I’m not an expert on that but that’s what current federal law is. So, again, according to federal law it is not a minor benign substance. According to federal law it is the same as other Schedule I controlled substances.

Now, Attorney General, you’ve talked about already to why the Department of Justice is dealing with it the way that you are doing. I don’t want to relitigate that but I know that you are aware and it is just the sad reality that a lot of folks in the country believe that this administration selectively enforces the law. I don’t want to relitigate that either but there is a perception out there and that is something that we have to deal with.

So, here’s the question. Again, you’ve talked about how it is because of law enforcement that Schedule I substance is being treated different than other Schedule I substances. So, to my point, would it not make since that your department or somebody in the administration would bring to congress a proposal to as opposed to just kind of selectively...and I’m not trying to say this in a negative sense I’m just saying your department is dealing with it differently than other Schedule I drugs as far as the enforcement. You’ve explained why but would it not make sense to change or at least recommend changes to either federal laws to the illegality of marijuana or at least changes to the Schedule I drugs so that the American people would be certain that you are enforcing the law (which, obviously, you said that you are) as opposed to selectively enforcing the law for whatever good reasons that may be. So wouldn’t it make sense to come to congress with some recommendations for changes if nothing else to give certainty and consistency and the American people would understand that the law is applied with certainty and consistency?

ERIC HOLDER: I don’t want to be argumentative but I would just take issue (and I’ll leave it at that) with the notion that we are selectively enforcing the law. I’ll leave that there.

With regard to the whole question of the scheduling of marijuana we would be more than glad to work with congress if there is a desire to look at and reexamine how the drug is scheduled. As I said there is a great deal of expertise that exists in congress and that is something that congress would ultimately have to change. I think our administration would be glad to work with congress if such a proposal were made.

MARIO DIAZ-BALART: But, Mr. Holder, the question is obviously congress can do what it may but congress is not the one who decided to allow or to not go after folks in a couple states who are now, in essence, selling marijuana. That’s not congress’s decision. That has been a unilateral decision by your department so, again, my question is if that is the decision by your department which things like that are seen (rightfully or wrongfully – because this is not the moment to obviously litigate that but as selective enforcement)...

Congress has made the decision. As far as congress is concerned marijuana is illegal in federal law. That has not changed and your role is supposed to be enforce that federal law. Not only is it illegal but, again, it is a Schedule I controlled substance. You have made a prosecutorial discretion to allow to not go after certain individuals, certain entities in Colorado and Washington for that violation of federal law.

So, again, it’s not congress because we haven’t changed anything. What has changed is the policy of this administration versus previous administrations as to how to enforce that federal law. Based on the changes that you have all made shouldn’t that come to congress and say, “Look, we believe that the law is wrong. This is how we are enforcing it now. We believe this is why and we think the law should reflect the enforcement.”

ERIC HOLDER: I would say that if you look at...at the end of the day if you look at the kinds of marijuana cases that we will bring or that we are bringing and what was brought by the justice department previously I’m not sure that you are going to see a huge difference. The priorities that we talk about - you know, preventing the distribution of marijuana to minors, preventing cartels from being involved, preventing violence, use of firearms – a lot of the marijuana enforcement happens at the state and local level with regard to possessory offences. The kinds of cases that have been brought previously by the justice department and I think that we would bring now, again, looking at these 8 enforcement priorities I’m not sure that you would see a substantial difference and to the extent that this scheduling issue is one that congress wants to engage in I think the administration would be prepared to do that but I think, as I said, that the responsibility for this resides in congress.

MARIO DIAZ-BALART: Mr. Chairman, I don’t know if I have time for one last question.

Again, this might not be specifically to your department but let me just throw it out there anyway.

Again, we know there are some states now that have legalized marijuana. Other states have legalized medical marijuana. The state of Florida has a ballot initiative coming up on the same issue and who knows what will happen there.

Is there a process or will there be a process involved in the part that you deal with to analyze what if any affect these changes in the different states are going to have ...again, you don’t deal with the health issues I understand but you deal with potential issues of crime, of organized crime or whatever may be. Is there going to be an organized, established...is there going to be a bureau, a process, a commission and, if not, is that something that you all should be looking at to make sure that whatever impact (and we don’t know what they are going to be – if any) that we don’t all of the sudden 10 years down the road all of the sudden say, “We didn’t realize this was happening and it’s too bad but now it’s too late.”

Is that something that formally taking place within your agency?

ERIC HOLDER: That’s actually a very good question. What I have told the governors of both Washington and Colorado is that we retain the ability to file federal lawsuits if we feel that the regulatory schemes that they have put in place are contrary to or are not operating consistently with what they say in terms of not having an impact on public safety. If there are public health concerns that are generated by these new regulations what I’ve told them is that we will not hesitate to come in and file lawsuits and we will, within the department, come up with ways in which we can, I think, objectively monitor these situations so that we can make the determinations about whether further federal action would be appropriate beyond the promulgation of the 8 enforcement priorities that we have and the letters that the deputy attorney general sent to the field.

MARIO DIAZ-BALART: For example those (which I’m glad to hear) are those...is that process going to be something that you will be willing or able to share with congress so that we can also see the information that you are getting? I’m sure that congress will look at other ways, too, but I think it would be helpful if we try to be on the same page so we, at least, would have the same information. In many cases I think that would be helpful.

ERIC HOLDER: My guess would be that the way this will happen is we will get research proposals from a variety of places. Our Office of Justice programs would make determinations as to which ones to fund. The research is done. The reports are prepared and they are publically available. Obviously we would share them with congress and on the basis of that research make determinations about what further action, if any, by the justice department is warranted.

MARIO DIAZ-BALART: Thank you very much, Mr. Chairman.

HAROLD ROGERS: I’m going to go to Mr. Culberson next but I think we’ve reached the threshold. I think the administration, quite frankly, is failing. I just saw the article the other day, “First reported death link to marijuana in Colorado since legalization” and the Denver Medical Examiner’s office said an exchange student fell to his death after eating a pot cookie.

“Levi Thamba Pongi, an exchange student from the Republic of Congo, died while visiting Denver by falling from the balcony of a hotel in March according to the Denver Post. The autopsy report that Denver’s Fox13 revealed ruled the death an accident saying ‘His death was due to multiple injuries due to fall from balcony after consuming marijuana cookie and marijuana intoxication.’

”According to the report 7.2 Nano grams of active THC per millimeter of blood in his system.” – the legal limit to drive.

We’re seeing reports ...I think we’re going to see reports...you know, you are a moral leader, too, here and the president is. I know the president must wish he could take those statements back that he made but as we see accidents, as we see car accidents...Imagine a mom and dad out with the three kids and all of the sudden an automobile takes place and the guy is high on marijuana.

I think you all are failing the nation and I think Mr. Diaz-Balart is right. You ought to quickly call a time out on this and bring together some of the very best minds on the health issues, on law enforcement telling me is a person high on this. With alcohol the content is a certain level.

I took, frankly, breaking with my leadership at that time I pushed .08. The members said if we carry .08 in this bill the alcohol people...and I don’t take alcohol money – they were angry. The restaurant people were angry but we saved a lot of lives.

I can remember former congressman Mike Barns on the 21-year-old drinking age...I think the door is wide open now so unless you all do something fairly dramatic...that’s why I did a letter to the president yesterday asking him to meet with the head of NIDA on research not on what are your present opinions but on research and, hopefully, the president is a good father. I disagree with the president on a lot of issues but nobody could say that he is not a good father.

Both of you have a unique responsibility at this time. I do predict that if the president does not do something the door will be wide open and 10 years from now, 20 years from now when you are sitting on your rocking chair you are going to say, “When I saw what is taking place in this country on safety I regret that when I had the opportunity...”

There is nothing more ‘ex’ than an ex-attorney general. When you are gone you will not be able to do anything. I urge you to follow through with what Mr. Diaz-Balart said.

I think that after you sit down with NIDA you are going to have a better opportunity. I appreciate...you can provide the moral leadership to kind of deal with it.

I remember when Governor HIckenlooper was here for the governor’s conference - you probably met with him 2 3 weeks ago – he urged the other governors to move carefully, to be very slow because this thing could have ramifications for the nation.

We all love this country whether republicans or democrats. I have 16 grandkids. I don’t want them to be ...if you would do that...if you want to say something and then I’m going to...

ERIC HOLDER: First of all I hope in 10 years I won’t be in a rocking chair but...

HAROLD ROGERS: It’s OK to sit in a rocking chair. You may want to sit there and just get up and do something but I think...the point is when you leave here...President Kennedy was in his 40s and sat in a rocking chair. I love a rocking chair but the point is when you leave this opportunity you will never again ...you’ve been given a great opportunity to serve the country. You will never again...If you are a lawyer bills $800 an hour you’re not going to have the impact that he can have now. Now you can have it and I urge you to please do it on behalf of the children.

ERIC HOLDER: More seriously - as I was discussing with Congressman Diaz-Balart the enforcement priorities - if you look at the sixth enforcement priority that would, in fact, warrant federal intervention, federal investigative and prosecutive activity it is...let me just read it to you, “Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.”

We are saying, in essence, that (with regard to drugged driving but beyond that kind of picking up on the incident that you talked about and that he spoke about more generally) if there are adverse public health consequences that we deem associated with marijuana use this is an enforcement priority 4 for this administration, for this justice department and that would warrant our intervention.

HAROLD ROGERS: Well, we have already seen it. The pain and suffering and the agony of this family back in the Republic of Congo...they will never again have their son with them. I think the threshold has been met.


DOUG McVAY: This is Century of Lies, a production of the Drug Truth Network. I’m your guest host, Doug McVay, editor of http://DrugWarFacts.org.

So yes, Holder did say the words that he is reported to have used. The meaning however is lost without knowing the context. For those who are unaware, the GOP is attempting to create a campaign issue for the 2014 and 2016 election cycles on the question of whether the president may decide to not strictly enforce certain federal laws. In this case the laws are marijuana prohibition and the ban on same-sex marriage. Holder said what he did to deflect Diaz-Balart's real question, in fact by turning it as Holder did - treating it as an offer to work on rescheduling - he was giving Diaz-Balart a rhetorical middle finger.

So what then does Holder really think about rescheduling? We're in luck, because the matter came up a few days later - prompted no doubt by Huff Post’s misleading and incomplete article. On Tuesday April 8, Attorney General Holder appeared before the House Judiciary Committee for an oversight hearing on the DOJ. Attorney General Holder was the sole witness. Here he is being questioned about rescheduling by Representative Steve Cohen, Democrat of Tennessee. Rep. Cohen is widely regarded as a strong advocate for medical marijuana laws and reform at the federal level.


STEVE COHEN: Thank you, sir. General Holder, I have great regard for you but I have some questions. We’ll do a lightening round if you don’t mind because I’ve got a lot of issues as you well know.

First of all as all politics is local Shelby Country, Tennessee, Memphis has an election coming up. Early voting starts April 16, a primary election and then a general election in August. We’ve had a whole list of problems with the election commission. We’ve written you over the past couple weeks and we will have a letter that a staff member will give to your staff member. We just like to have your assurance that you will look into having monitors because there have been elections thrown out because they let people vote that shouldn’t have been allowed to vote in certain elections and they’ve had people who have been refused the right to vote and all kind of problems. Can you assure us that you will look into having monitors in Shelby County to see that the elections are done fairly?

ERIC HOLDER: We’ll look at that, in fact, I think we received a letter from you last week regarding an upcoming election in Shelby County and we are reviewing that information but we’ll look at anything else that you provide to us.

STEVE COHEN: Thank you. Pastor Whalum had called up and he’s been speaking to an individual in your office who said he hadn’t gotten the letter. It’s been 2 weeks and going through the legislative liaison sometimes takes time.

Going back to policy. As you well know I’m very concerned about our drug policy in our country and the way that it affects minorities and the way that it takes away people’s liberties by incarcerating them. I appreciate what you have done and some of the statements you have made have been most forward moving and I appreciate them but you recently talked about changing marijuana from Schedule I and said you would like to work with congress and congress should take the lead.

Let me suggest to you that it is my understanding under title 21 that you have the authority to initiate a request to the secretary of Health and Human Services to do a study to look into marijuana as a Schedule I and that you could then change it. In my humble opinion and I think the majority of the people of this country there’s no way that marijuana should be Schedule I because it is not in the same class as heroin and LSD as it is in the code which breeds contempt for our laws and there is certainly medical bases. Dr. Sanjay Gupta has shown this in his broadcasting. The people have voted it in 20 states for Multiple Sclerosis, for children with epilepsy and seizures so it has medical benefit. To be Schedule I it says it has no medical benefit. That’s just fallacious.

The fact that it says that there is a high likelihood for abuse – it’s nothing like heroin. That’s absurd.

I would like to ask you why will you not act, as the president suggested, where congress won’t? I predict that congress will not act in this area because congress is generally like tortoises – until it’s very clear they are not going to put their head out there but the administration has acted on immigration policy, wages, minimum wages, etc. Why won’t the administration act to help people out to take this out of Schedule I so it can be studied because we’re all in favor of research?

ERIC HOLDER: I think that we actually have acted in a responsible way in how we have made the determination on how we are going to use our limited resources. The policies that I have announced as part of the Smart On Crime Initiative, the directions that I have given to people in the field I think reflect a sensitivity, again, to the resource restraints that we have, the division between federal and local law enforcement responsibilities and I think that we have acted appropriately.

STEVE COHEN: On those issues you certainly have but on Schedule I all you have to do is to ask the secretary to make a scientific and medical evaluation and after that you can go further and make a determination on whether it should be Schedule I. Schedule I says you can’t do any research on it. Why will you not ask the secretary under title 21, chapter 13 to initiate that program to get marijuana out of Schedule I? It’s obviously not Schedule I.

ERIC HOLDER: Well, what’s obvious to one is perhaps not obvious to another. I think, as I said, given the responsibilities that I have...

STEVE COHEN: Let me ask you this. The secretary would make that study to determine it. Why not initiate the opportunity for the secretary to make the study and base it on science? Until you do that it is not going to happen.

ERIC HOLDER: Well, as I said, within the world in which I have primary responsibility I think we have acted in a way that is appropriate.

STEVE COHEN: In those areas you have. “The attorney general shall initiate proceedings that are subsection A to remove a drug or other substance shall request from the secretary a scientific and medical evaluation.” That’s all you have to do is request it. That doesn’t take away from your limited resources.

ERIC HOLDER: Well, as I said, I’m satisfied with what we have done.

STEVE COHEN: Commutations. You know why I’m interested in those issues as well. Have you looked at having a group of commutations the people who were convicted under crack under the old determination of 100-1 instead of the 18-1 because of the Fairness in Sentencing law and having all those people in group commutation be put forward?

BOB GOODLATTE: The time of the gentleman has expired but the attorney general will be permitted to answer the question.

ERIC HOLDER: I don’t think that we will be looking for group commutations. We would be looking for individuals who would be deserving of clemency given the nature of their conduct, their lack of ties to violence or to drug dealing gangs or cartels. We’ve begun an initiative to identify additional clemency recipients. This is something that I know is important to the president. We are trying to come up with ways in which we can commit individualized determinations about who should receive clemency.


DOUG McVAY: After that exchange, new headlines appeared about the Attorney General "backing off" from his pledge. What pledge? Now you've heard what was really said, what really happened. There was no pledge to work on rescheduling.

The poet Alexander Pope once wrote, "A little learning is a dangerous thing ; Drink deep, or taste not the Pierian spring : There shallow draughts intoxicate the brain, And drinking largely sobers us again."

A little learning. At the Drug Truth Network we provide more than just a little learning, we go behind the headlines and dig deeply to find the whole story.

Interested in learning more about medical cannabis? The organization Patients Out of Time is holding its Eighth Annual National Clinical Conference on Cannabis Therapeutics in Portland, Oregon this May 8 through 10th. Registration and information about the conference is available through their website at medicalcannabis.com.

We have a few minutes left in the broadcast so here are a couple of news items:

The state of Maryland is lowering penalties for small-scale possession of marijuana. A measure decriminalizing marijuana possession passed both houses of the Maryland legislature this month. As noted by the Washington Post, quote: "Under the new law, adults age 21 and over will face fines escalating to $500 the first three times they are caught with less than 10 grams of pot. They will not have to appear in court, and -- again like a traffic ticket -- the offense will not result in a criminal record. (Offenders under the age of 21 will still have to go before a judge, though they are also unlikely to face prison time.)" End quote. Maryland's governor Martin O'Malley has already stated that he will sign the measure.

The US Food and Drug Administration has approved a prescription treatment that can be used by family members or caregivers to treat a person known or suspected to have had an opioid overdose. The device, brand name Evzio, rapidly delivers a single dose of the drug naloxone via a hand-held auto-injector. Naloxone has been proven to be quite effective at quickly reversing the effects of an opiate overdose.

That's it for this week. This has been Century of Lies. Thank you for listening. You can find a recording of this show and past shows at the website drug truth dot net, where you can also check out our other programs and subscribe to our podcasts. Follow me on Twitter, where I'm @ Drug Policy Facts. The Drug Truth Network is on Facebook, be sure to give its page a Like, you can find Drug War Facts on Facebook as well, please give it a like and share it with friends. Spread the word. Remember: Knowledge is power.

For the drug truth network, this is Doug McVay saying so long. So long!


For the Drug Truth Network, this is Dean Becker asking you to examine our policy of Drug Prohibition.

The Century of Lies.

This show produced at Pacifica Studios at KPFT, Houston.

Transcript provided by: Jo-D Harrison of www.DrugSense.org