07/26/15 Doug McVay

Century of Lies
Doug McVay
Drug War Facts

This week: the Justice Department's inspector general issues a report criticizing the DEA's handling of its confidential informant program, and the Senate narcotics caucus hears about barriers to CBD research.

Audio file


JULY 26, 2015


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 host, Doug McVay, editor of DrugWarFacts.org. Century of Lies is a production of the Drug Truth Network for the Pacifica Foundation Radio Network. And now, on with the show.

This week, the Justice Department's Inspector General's office released its audit of the Drug Enforcement Administration's use of confidential informants. It will probably come as no surprise to learn that the I-G found numerous abuses and errors by the DEA as well as a complete lack of oversight. Here's the Department's Inspector General, Michael Horowitz, speaking with Deputy Inspector General Rob Storch about the report:

ROB STORCH: Today’s report found that the policies that govern the DEA’s Confidential Source Program, are not fully consistent with guidance provided by the Attorney General. Michael, could you explain that for our listeners in a little more detail, and why the OIG found it was significant?

MICHAEL HOROWITZ: Certainly. To start with, the DOJ has Department-level standards for all Justice Law Enforcement Agencies, including the DEA. The standards cover the establishment, approval, use, and evaluation of confidential sources. They're called the Attorney General Guidelines, or the AG Guidelines. Instead of adopting these AG Guidelines, the DEA chose instead to incorporate certain provisions of the Guidelines into its own preexisting policy, called the DEA Special Agents Manual.

ROB STORCH: Now, I saw in the report that the DEA’s policy was approved by the Department's Criminal Division in 2004. So what's the problem?

MICHAEL HOROWITZ: That's right, Rob. The Department actually did approve the DEA’s policy, and the DEA said that its manual captured the essence of the AG Guidelines. The problem our audit team found was that DEA’s policy actually differs in several significant respects from the requirements in the Attorney General’s Guidelines. We found that the DEA’s Confidential Source Program lacks sufficient oversight, and it lacks consistency with the rules governing other DOJ law enforcement components.

Let me give you 3 examples. First, DEA’s policy differs by allowing high-risk individuals to be used as confidential sources without the same level of review that the Department requires for high-risk sources -- such as sources who may have information obtained through confidential, privileged relationships or people who are affiliated with the media.

ROB STORCH: And these high-risk and privileged or media-affiliated sources are confidential sources who can pose an increased risk to the public and who have unique legal implications for DOJ. These include individuals who are part of drug trafficking organization leadership, as well as lawyers, doctors, or journalists. Is that correct?

MICHAEL HOROWITZ: That’s right. And, and what you have now is that the AG Guidelines require that each Justice law enforcement agency establish an oversight committee, called a confidential informant review committee. This committee is then tasked with reviewing how these high-level, privileged, or media-related confidential informants are registered and used.

ROB STORCH: And the report explains that the DEA had in fact identified its Sensitive Activity Review Committee, also known as the SARC, as its established committee for conducting these responsibilities. Right?

MICHAEL HOROWITZ: That’s right. And, but unlike the requirements in the AG Guidelines, the DEA policy doesn't require the SARC to review how high-level or privileged confidential sources are registered or used. So the DEA’s SARC committee does not actually do these reviews, and that’s obviously the problem.

ROB STORCH: Was that the only area where the report identifies DEA’s policies as differing from the AG Guidelines?

MICHAEL HOROWITZ: No, and that brings me to our second example, which is that confidential sources are sometimes authorized to engage in activity that would be illegal if they were not acting under the direction of the federal government. That’s what’s called, "otherwise illegal activity." One hypothetical example of otherwise illegal activity could be if the DEA is trying to find the leader of a drug ring. The DEA might then allow a confidential source to buy and sell drugs, in an effort to find out who is directing the drug sales.

ROB STORCH: Well, that makes sense. So what’s the issue with DEA’s policy on otherwise illegal activity”?

MICHAEL HOROWITZ: The issue is, there are clear risks with these kinds of activities. So what the AG Guidelines do is provide clear requirements for reviewing, approving, and revoking a confidential source's authorization to conduct otherwise illegal activity. However, we found that DEA’s policies and practices weren't in line with those requirements. That, too, is a concern. Inadequate oversight in this area could prove detrimental to DEA. It could jeopardize the success of its operations and expose the DEA to unnecessary liability. It could also create unforeseen consequences. For example, if a confidential source perhaps oversteps his or her boundaries, with a mistaken belief the DEA sanctions any illegal activities in which the source participates.

ROB STORCH: Let’s move to another topic covered in today's report: DEA’s long-term confidential sources. As the report explains, the AG Guidelines require the DEA to evaluate the continued use of confidential sources who have been in use for six or more consecutive years. And the report explains that DEA's own policy is consistent with that. But contrary to its own policy, the DEA did not always review its continued use of long-term confidential sources, and when it did, the reviews were neither timely nor rigorous. Is that right?

MICHAEL HOROWITZ: That's correct, Rob. This is another example, and the third example of how DEA’s confidential source policies are inconsistent with the Department’s guidance. These reviews are important because of the significant risk that an improper relationship between government handlers and sources could be allowed to continue over many years. Yet we found that from 2003 to 2012, the DEA committee charged with reviewing these long-term sources considered each source for an average of just one minute each. And that’s when there was any review at all.

ROB STORCH: Okay, so the audit found concerns with oversight of high-risk sources, otherwise illegal activity by sources, and long-term sources. I also saw in the report a finding about tax dollars -- specifically, how tax dollars have been used to provide death and disability benefits for confidential sources, under a law called the Federal Employees' Compensation Act, also known as FECA. Could you talk a little about that?

MICHAEL HOROWITZ: Yeah, well, as we describe, Rob, in the report, DEA provided FECA, or death or disability benefits for confidential sources without any process in place for reviewing the claims and determining the eligibility for these benefits. Moreover, it’s unclear if confidential sources even qualify as federal employees, and in turn whether they qualify for any FECA benefits. And we found that DEA was in some cases inappropriately continuing to use and pay confidential sources, who were at the same time receiving full disability benefits through FECA.

ROB STORCH: Does the report give an idea of how much the DEA spent on these FECA benefits for confidential sources?

MICHAEL HOROWITZ: Well, we estimated that in the one-year period from July 2013 through the end of June 2014, the DEA paid a little over one million dollars in FECA benefits to 17 confidential sources or their dependents.

ROB STORCH: Well clearly a lot of important findings in the report. The report also talks about the process that the OIG had to go through in order to conduct the review. And in the report, it says that DEA was uncooperative about providing information to the OIG team. What happened?

MICHAEL HOROWITZ: Well, when we, Rob, conduct our work, we require components to give us complete and timely access to information about the program that we’re reviewing. We just didn't get that kind of access here from the DEA and as a result our work on this audit was seriously delayed. For example, the DEA attempted to prohibit our observation of confidential source file reviews. And, our requests for documents from DEA were delayed, sometimes for months at a time. Each time, the matters were resolved only after I personally elevated them to the level of the DEA Administrator.

These kinds of issues are just unacceptable. We are entitled to access these materials under the Inspector General Act, and that’s because without unfettered access to information, we simply cannot do the work that the Department, the Congress, and the American taxpayers expect and require of us, and problems such as the ones described in today’s report are more likely to continue unfixed for lengthy periods of time, if we even discover them at all without that kind of access to information. I’m hopeful that these issues with the DEA are now behind us, but you can rest assured if they’re not, we will address them, and we will report on them.

ROB STORCH: Absolutely.

DOUG MCVAY: That was the Justice Department's Inspector General Michael Horowitz speaking with his deputy inspector general, Rob Storch, about their office's new audit report on the Drug Enforcement Administration's mishandling of its confidential informant program. The audio came to us courtesy of the Justice Department. This is Century Of Lies, a production of the Drug Truth Network. I'm your host, Doug McVay, editor of DrugWarFacts.org.

On Friday June 24th, the Senate Caucus on International Narcotics Control held a hearing on barriers to cannabidiol research. The Caucus co-chairs, Iowa Republican Charles Grassley and California Democrat Diane Feinstein, are known for their horribly backward and reactionary positions on drug policies and criminal justice policies. When it comes to CBD however those two may actually be softening. Just the fact that they're holding such a hearing is a huge step forward.

Two senators who are leading the fight for reform were invited to participate. Democratic senators Kirsten Gillibrand from New York and Cory Booker from New Jersey were seated along with the actual committee members at the front of the room. First, let's listen to their opening statements:

SENATOR CHARLES GRASSLEY: Thank you. Now, Senator Gillibrand.

SENATOR KIRSTEN GILLIBRAND: Thank you, Chairman Grassley and Ranking Member Feinstein, for holding this important hearing, and for inviting me to participate. I first came to this issue of medical marijuana when parents of children suffering from seizure disorders began to contact my office for help in accessing a strain of cannabis known as CBD.

As we’ll hear today, CBD can reduce the number of seizures patients experience. The benefits are dramatic: children’s brains and bodies can develop, they can learn, and they can play. Children can be children. I’ll speak more about families I’ve met in a moment, but I also want to note that CBD is just one strain of cannabis that has medical benefits for a variety of illnesses affecting our constituents.

I've submitted added testimony today that, while outside of the scope of today’s
hearing, it's important in our consideration of medical marijuana reform. I appreciate the
Caucus's consideration of that testimony. Over the last few months, I've met with many families from across New York state and the nation who desperately need access to medical marijuana.These are mothers and fathers whose children are suffering every single day from diseases like Dravet Syndrome and epilepsy. These are young boys and girls who have hundreds of seizures a day. Their development is delayed because they experience so many seizures.

But while doctors advise that CBD would alleviate the number of seizures, parents risk
violating federal law just to administer the medicine prescribed, and can face arrest and the
loss of custody. I am a parent. I have two young boys. I know many of you in this caucus are parents. I personally cannot imagine the pain and frustration that these families endure when confronted with this choice.

Earlier this year, we received a letter from a mother named Missy, whose son, Oliver, who I have met, suffers from a seizure disorder. She wrote a letter for our committee, and she wrote:

“Oliver had a planned trip for a long time to perform at Disney World with his school's percussion group! It was supposed to be one of the highlights of his life. But as is our life with refractory seizures, he has been seizing and sedated from all rescue meds this whole trip. It's heartbreaking for me to watch this endless torture. The last time we were here at Disney World, Oliver could still walk. He could still sit up in rides, he could still enjoy being in a pool. That was two years ago. This is what the seizures have taken from him in just two years.

"This trip, he can no longer walk, he can’t sit unsupported in any ride, he could not tolerate the pool, and he seized through his favorite ride. Please remember him and represent him and so many others like him.”

This mother, and the thousands of other parents just like her, they're simply asking Congress to do its job: to take care of America’s families by letting doctors determine what
their patients need. State lawmakers across the country have already recognized what the medical community is telling us: that cannabis can treat a variety of illnesses, from MS to cancer, to epilepsy, to seizures. Twenty-three states, plus Washington DC, have already passed laws to legalize medical marijuana.

But none of that matters because our outdated federal laws preempt any of the state laws. The recognition that the regulations are behind the science is growing here in Washington. Committees in both the House and the Senate have passed amendments to expand access to medical marijuana. And just this week, the White House proposed a new rule to lift long-standing obstacles to medical marijuana research.

But until we change our federal laws, doctors cannot prescribe this medicine to children
who need it -- even in states where it's legal. Until we change the federal laws, scientists will still face barriers to researching medical marijuana and the most effective way to use it -- even in states where it is legal. Until we change the federal laws, parents like Missy are stuck watching their children suffer through hundreds of seizures a day -- even in states where medical marijuana is legal.

Let’s do our jobs. Let’s pass a new, modern law on medical marijuana that respects state laws, that respects modern scientific research, and that respects our families. Thank you.

SENATOR GRASSLEY: Yeah. Thank you, Senator Gillibrand, now Senator Booker.

SENATOR CORY BOOKER: Chairman Grassley, I'm grateful for you holding this, I'm grateful also to Co-Chair Feinstein. We've heard now from multiple senators about the agonizing reality of not having CBD legally recognized, despite painful obvious benefits of CBD, recognition from 38 states, 38 of our nation's 50 states, that it has medical benefits. The federal government is lacking woefully behind, and this is simply unacceptable.

The fact that the federal law conflicts with states on access to CBD is just not a small issue. There is an urgency here, there is a moral urgency here. To access the CBD treatment they need, many people put themselves at considerable legal risk. The people don't access CBD, they put their health in jeopardy. They are caught in a terrible trap. I've talked to New Jerseyans about this catch-22, and I know the incredible stress it puts on families. The pain, the agony, the concern, the worry.

Today, conventional treatments often fail Americans afflicted with serious conditions and diseases. We've heard heart-breaking stories of children suffering from Dravet Syndrome and other forms of intractable epilepsy, who are unable to find medicine that is able to sufficiently control their seizures. We have heard and we do know how CBD and THC are the only drugs that often can -- are able to control these conditions.

We've heard stories about parents moving from their home states because of restrictive state and federal medical marijuana laws, literally becoming refugees in other states, away from their homes, away from families, communities, and neighborhoods.

This issue has real impact on the lives of ordinary Americans. My staff met with Jennie Stormes, a woman recently forced to leave my home state of New Jersey because of our restrictive medical marijuana laws. Mrs. Stormes' son, Jackson, suffers from Dravet Syndrome, a severe and debilitating form of epilepsy. Without medication, Jackson can have multiple seizures in a day. This condition has affected his development and put him through a tremendous amount of pain.

Jennie Stormes and her family experience many hardships living in a state where it's hard to gain access to medical -- to the medication that Jackson needs. Jackson has tried 23 different drugs, in 60-plus different combinations, but nothing has worked to control his seizures. Medical marijuana was the first drug that controlled his seizures, and changed their lives. Unfortunately, Jennie announced her family moved to Colorado because in New Jersey, it was too difficult to access the medication they needed for Jackson to stay alive.

This to me is unconscionable. It is an affront to what our nation believes in. It is an affront to our common values, and our collective aspirations, for families and our children. No child in America with a debilitating disease deserves to have a life path, a life of pain, especially when there is treatment options available. It is time to take action, waiting months, years, or even days causes unnecessary hardship, burden, and injury to families like the Stormes. They have to be able to access the medication they need.

This hearing is limited to access of CBD. It is a drug now that is a schedule one drug, that has severe limitations, while other drugs, like methadone, oxycodone, methamphetamines, and even cocaine, are schedule two. As was said by my colleague, CBD does not have any of the effects of the overall marijuana plant that we discussed, none of the ability to get high on that drug. It is simply one that should be in sight. But I do not want to lose sight, I do not want to lose sight of the bigger issue as well, that millions of Americans are in the precarious position because of the federal government's position on overall medical marijuana, not just CBD.

I'm grateful for the Chairman, and for Chairwoman Feinstein, for their willingness to consider the whole issue as a whole, and I'm hopeful that as we look at CBD, we can also expand our vision to other Americans who are dealing with severe diseases and conditions, that can be addressed by the medical application of marijuana, which is a schedule one drug. I believe it is time for us to act. I'm confident that if we do the right thing, we can relieve the suffering of thousands of Americans, and it would allow doctors to help others with -- in our veterans' affairs facilities as well.

I thank all the witnesses who are here today for their testimony. I thank the families and other concerned Americans who have come for this important hearing, and again, I end by saying thank you again to the Chair and the Co-Chair for their work and their focus on this issue. Thank you.

SENATOR GRASSLEY: Thank you, Senator Booker.

DOUG MCVAY: That was Senator Kirsten Gillibrand, Democrat of New York, and Senator Cory Booker, Democrat of New Jersey, speaking at a hearing on barriers to cannabidiol research which was held before the Senate Caucus on International Narcotics Control on Friday June 24th. Now, let's hear from one of the witnesses who was invited to testify. Douglas Throckmorton, MD, is the Deputy Director of the Food and Drug Administration's Center for Drug Evaluation and Research. Here's Dr. Throckmorton:

DR. DOUGLAS THROCKMORTON: I'm Dr. Douglas Throckmorton, Deputy Director for Regulatory Programs in the Center for Drug Evaluation and Research at the FDA. Thank you for this opportunity to be here today to discuss the important role FDA plays in supporting appropriate and scientific research into the medical promise of marijuana and cannabidiol. This is an important part of FDA’s mission to protect and promote the public health by helping to ensure the safety, efficacy, and quality of medical products, including drugs. In addition, I will briefly discuss the regulatory oversight function of the Agency with respect to other products that may contain cannabidiol.

Marijuana contains compounds such as cannabidiol with potential to provide important new treatments for serious diseases, and rigorous studies are needed to assess that potential. To accomplish this, FDA, as the -- like the other panelists, believes that it is important for us to identify and address any barriers that might hinder the conduct of that research, wherever possible. FDA continues to believe that the best way to ensure the safe and effective new medicines from marijuana, including those containing cannabidiol, are available as soon as possible for the largest numbers of American patients.

FDA is the agency that is responsible for the assessment and regulation of new drugs in the United States, including drugs derived from plants, like marijuana. The Food, Drug, and Cosmetics Act required that those drugs be shown to be safe, effective for their intended use before being marketed. In addition, drugs must be shown to be manufactured consistently, lot to lot, with high quality.

Because many factors influence the make-up of plant materials, such as temperature, time of year, location grown, this essential part of drug development presents special challenges when the drug is derived from a botanical source like marijuana. To address these challenges, FDA has published guidance to investigators to give recommendations about the types of studies to be conducted when developing drugs from plants, guidance we believe is helping clear a path to efficient drug development. FDA also works very closely, I have a team dedicated to working with the individuals developing drugs from plants throughout their development plan, to make sure that they know the right path, they can do what they need to do.

Recently for example, FDA has had that team working with public health officials from several states, considering support -- considering support for medical research into cannabidiol, to provide scientific advice and support. In addition to working directly with investigators to support their studies, FDA has several mechanisms to apply specific drug development programs to facilitate and expedite their development. Programs such as fast-track designation, accelerated approval, priority review, and breakthrough designation.

Wherever possible, we are applying these tools to the development of products derived from marijuana and cannabidiol. For example, fast-track designation was granted to an investigational cannabidiol product, Epidiolex, being developed for a rare form of childhood epilepsy. One goal of these expedited mechanisms is to speed drug availability for patients. I have also personally spoken to parents seeking help for their sick children, and understand the importance of making investigational products available to patients while they are under study for approval.

To make this possible, FDA has put in place expanded access programs to give patients access to investigational drugs where appropriate, and where the manufacturer chooses to participate. As has been said earlier, the makers of Epidiolex, containing cannabidiol, report that twenty Epidiolex intermediate size expanded access programs have been authorized to treat approximately 420 children.

Importantly, these children are getting access to an investigational product under close medical supervision, and the data obtained from their use of the investigational agent is being collected to help support drug development.

While doing what we can to speed the development -- the pace of development for promising investigational drug therapies, we are also mindful of protecting consumers. In February of 2015, FDA took action against marketed unapproved drug products that were making egregious health claims, including products that allegedly contained cannabidiol and other compounds from marijuana. For example, products containing cannabidiol were advertised nationally, making unsubstantiated claims as being effective in the treatment of conditions such as breast cancer, rheumatoid arthritis, and ebola infection.

In addition, as a part of this action, we analyzed the products, and found that many did not even include -- contain the ingredients listed on their labels. For example, when we tested products that allegedly contained cannabidiol, around one third of those products in fact contained no cannabidiol on careful testing. Marketing of products that make unsubstantiated claims or do not contain the proper amounts of ingredients, such as cannabidiol, does more than simply defraud consumers. These products and their marketing can create false hope in those seeking relief from serious medical conditions for themselves or their loved ones. Moreover, it can divert patients from products with demonstrated safety and effectiveness.

To conclude my remarks, FDA on its own and in partnership with other federal agencies strongly supports the need for additional research into the therapeutic promise of marijuana and in particular cannabidiol. As evidence of this partnership, I'd highlight the recent decision to abolish the Public Health Service review of investigators seeking marijuana for research. For its part, FDA's committed to using the tools we have to encourage that research and also to identify and address any barriers to research wherever possible, as a part of FDA's mission to assure that safe and effective medicines are available for the American public. Thank you and I would be happy to answer any questions I can.

DOUG MCVAY: That was Douglas Throckmorton, MD, deputy director of the Center for Drug Evaluation and Research at the Food and Drug Administration. He was testifying before the Senate Caucus on International Narcotics Control at their hearing on barriers to cannabidiol research, which was held on Friday June 24th. All that audio came to us courtesy of the committee.

And finally: Hempfest is scheduled for August 14th, 15th, and 16th this year. It's the world's largest marijuana legalization and drug policy reform protestival. Once again this year the event will be held along Seattle's waterfront and spans three parks: Centennial Park, which is the North Entrance, Myrtle Edwards Park, which is the Central Entrance, and Olympic Sculpture Park, which is the South Entrance. Information about the festival is available at their website, HempFest.org.

And that's really all the time we really have today. Thank you for listening. This is Century of Lies, a production of the Drug Truth Network. I'm your host Doug McVay, editor of DrugWarFacts.org.

Recordings of this show and past shows are available for free download from the website DrugTruth.net. While you're there, listen to our other programs and subscribe to our podcasts. You can follow me on Twitter, I'm @DrugPolicyFacts and of course also @DougMcVay. The Drug Truth Network is on Facebook, be sure to give its page a Like. Drug War Facts is on facebook too, please give it a like and share it with friends.

We'll be back next week with more news and commentary on the drug war and this Century Of Lies. For now, for the Drug Truth Network, this is Doug McVay saying so long. So long!

DEAN BECKER: For the Drug Truth Network, this is Dean Becker, asking you to examine our policy of drug prohibition: the century of lies. Drug Truth Network programs archived at the James A. Baker III Institute for Public Policy.