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Hemp in the Time of New Federal Marijuana Policy [FEATURE]

It's not just medical and legal marijuana states that watched the Justice Department's announcement of its response to marijuana law reforms in the states with interest. Nine states have laws regulating the production of industrial hemp, and ten more have asked Congress to remove barriers to industrial hemp production.

Rep. Massie, Comm. Comer & Rep. Polis (Vote Hemp via youtube)
Hemp is also moving in the Congress. An amendment to the Farm Bill cosponsored by Reps. Earl Blumenauer (D-OR), Thomas Massie (R-KY), and Jared Polis (D-CO) passed the House on a vote of 225-200 in July and will now go to a joint House-Senate conference committee. And the Industrial Hemp Farming Act (House Resolution 525 and Senate Bill 359) is pending in both chambers.

At a Tuesday Capitol Hill briefing organized by the industry group Vote Hemp (video embedded below), state and federal elected officials said they thought the Justice Department's policy directive on marijuana opened the door not just to regulated medical and legal marijuana, but also to industrial hemp production. Some states intend to move forward, they said.

"That Department of Justice ruling pertained to cannabis," said Kentucky Agriculture Commissioner John Comer, "and hemp has always been banned because it's in the cannabis family. The Department of Justice ruling pertained to states with a regulatory framework for cannabis, and we feel that includes hemp as well. Our legislation set up a regulatory framework."

The legislation Comer is referring to is Kentucky Senate Bill 50, the Bluegrass State's industrial hemp bill, which passed the legislature with bipartisan support, gained endorsements by both of the state's Republican US senators, Mitch McConnell and Rand Paul, and became law without the governor's signature in April. It establishes an Industrial Hemp Commission and sets up procedures for licensing farming and processing.

"We have a hemp commission meeting Thursday, and we are going to request that Rand Paul send a letter to the DEA telling them we intend to get going next year unless the Department of Justice tells us otherwise," Comer said. "We are taking a very proactive stance in Kentucky. We've been trying to replace tobacco, and hemp is an option not only for our farmers, but it could also create manufacturing jobs in our rural communities."

The commission did meet Thursday, and it voted unanimously to move forward with industrial hemp production, aiming at producing hemp next year.

"That's our first goal, to get the crop established. Then, once companies and industries see that we have a crop here established and growing, we believe industries will start coming here looking for it instead of importing it from other countries," said Brian Furnish, chairman of the Industrial Hemp Commission, after the Thursday vote.

According to Vote Hemp, Kentucky isn't the only state planning on moving forward with hemp next year. Vermont just released its Hemp Registration Form that allows farmers to apply for hemp permits and the Colorado Department of Agriculture is developing regulations to license hemp farmers in 2014. North Dakota has issued permits for several years now.

Imported hemp is now a $500 million a year industry, Vote Hemp's Eric Steenstra said.

Congressman Thomas Massie (R-KY), who also played an important role in passing the Kentucky bill and who is a cosponsor of the House hemp bill, said he was encouraged by the Justice Department policy directive, but that it was not enough.

"We need more than a Justice Department ruling," he told the press conference. "As a farmer and entrepreneur, I want some certainty. I want a legislative remedy for this, and that's why I continue to push hard for our bill, which would exclude hemp from definition as a controlled substance."

Vote Hemp's Eric Steenstra
But while the House hemp bill now has 47 cosponsors, it still has a long row to hoe. The hemp amendment to the Farm Bill, which would allow hemp production for university research purposes, has already passed the House and awaits action in conference committee.

"If you can attach an amendment to a spending bill, then you can get action," said Massie. "I have to give credit to Rep. Polis for doing this. This is a farm issue, not a drug issue. And while there was debate over whether it was wise to even have a vote, it passed. People decided spontaneously to vote for it as an amendment."

While the Senate has not passed a similar provision, Massie said he was hopeful that it would make it through conference committee.

"There is no equivalent in the Senate, there is no companion amendment, but we do have [Senate Minority Leader] Mitch McConnell, who is all for it," he said. "I'm hopeful it will survive, and we'll continue to work on the standalone hemp bill."

"It was important to get the House language in the Farm Bill," said Polis. "Not only does it allow universities to do research that is needed, but it also symbolically moves forward with embracing the potential for industrial hemp production."

Polis said he was cheered by the Justice Department's policy directive when it came to hemp.

"They listed eight enforcement priorities, and industrial hemp isn't even on the enforcement radar," the Boulder congressman said. "We see no federal interest in going after states or hemp producers. The risk is minimal. But minimal isn't good enough for some folks, and that's why we want to continue to gather support for the Industrial Hemp Farming Act. You don't want to have to depend on a federal prosecutor or the attorney general not getting up on the wrong side of the bed in the morning."

Industrial hemp may be an afterthought for Justice Department policy setters, but the recent guidance has emboldened hemp advocates to push forward faster than ever. Getting hemp research approved in the Farm Bill would be a good first step; passing the Industrial Hemp Act would be even better. But it doesn't look like some states are going to wait for Congress to act.

Washington, DC
United States

Medical Marijuana Update

Comments in the Senate Judiciary Committee provided hope that medical marijuana's banking problems may be ending, California communities continue to tussle over the issue, and a New Jersey bill is signed into law. There's more, too. Let's get to it:

National

On Tuesday, a hint came that banking issues for dispensaries may soon be resolved. Deputy Attorney General James Cole told the Senate Judiciary Committee the Justice and Treasury Departments and banking regulators were working "to deal with this in accordance with the laws on the books." Cole's comments came after several senators prodded him on the issue. [Ed: If Treasury is involved, could that mean they'll deal with the IRS dispensary audit issue too? That would be huge -- arguably the audits are the biggest threat facing the medical marijuana industry, and they could just as easily hit the legalized marijuana industry too. - DB]

California

Last Thursday, the Napa Planning Commission canceled a meeting to begin the process of repealing the city's medical marijuana ordinance. The city said it needed more time to consider the implications of a federal memorandum regarding marijuana enforcement that was issued last week by the US Justice Department. Late last month, the city council had voted to effectively ban dispensaries, but now wants to rethink. The council had opted to repeal its existing ordinance that would have allowed a dispensary. Repeal of the ordinance would effectively ban dispensaries in the city because current zoning does not permit such activity.

Last Friday, a statewide dispensary regulation bill rose from the dead. The bill, AB 604, sponsored by Assemblyman Tom Ammiano (D-San Francisco) was killed earlier in the year, but Ammiano reintroduced it using the "gut and amend" process to dump it into an existing measure. The effort took on added urgency after the federal government late last month unveiled its latest approach to medical marijuana and legal marijuana states. A backup bill, SB 69, was introduced the following day. Only one of them needs to pass. The legislative session ends at the end of this week.

On Monday, a judge blocked a request for an injunction to force Long Beach to count all signatures submitted by organizers of an initiative to overturn the city's dispensary ban. The Long Beach Citizens' and Patients' Rights political action committee filed petitions with 43,159 signatures in February to place an initiative on a special election ballot similar to the medical marijuana regulations the City Council passed in 2010. However, City Clerk Larry Herrera conducted a random sample of 3 percent of the signatures and found only 31,294 signatures were valid, short of the 15 percent, or 33,543 registered voters required for a special election. The political action committee then sued. But federal District Court Judge Audrey Collins ruled that Herrera "acted reasonably rather than arbitrarily or fraudulently."

Also on Monday, the El Dorado County planning commission called for a dispensary regulation ordinance. The county's moratorium on dispensaries is set to expire at the end of October. The commission objected to a proposed ordinance from supervisors that would ban all dispensaries. Because the urgency ordinance expires Oct. 30, the board needs to adopt an ordinance at its Sept. 24 meeting.

On Tuesday, the Long Beach city council agreed to draft a new dispensary ordinance. In an 8-0 vote, council members directed the city attorney to draft an ordinance that would once again allow a limited number of collectives to operate within city limits. The council debate came a day after a group seeking to overturn the city's medical marijuana ban was dealt a blow in court. A federal judge ruled officials would not have to place a medical marijuana initiative on the city's April ballot, or do a full count of more than 43,000 signatures seeking a special election.

Also on Tuesday, Merced County supervisors approved an ordinance to limit medical marijuana grows. The ordinance limits medical marijuana cultivation to 12 plants per parcel of land, regardless of the property's size, whether it's an indoor or outdoor garden, or the maturity of the plants. Despite strong support from law enforcement and elected officials, a few medical pot users on Tuesday said the ordinance unfairly groups them with people who grow marijuana for profit. The ordinance would carry stiffer civil and criminal penalties, including abatement and cleanup at the owner's expense, an administrative procedure resulting in penalties or a misdemeanor charge resulting in six months in jail and-or a $1,000 fine.

Illinois

Last Thursday, Park City imposed a 120-day moratorium on dispensaries. Alderman said they wanted to give the city time to decide where proper locations for dispensaries or cultivation facilities might be.

Michigan

Last Wednesday, medical marijuana supporters rallied in Lansing, saying police are violating state law by punishing medical marijuana users. The rally featured live entertainment and showcased people who said they had been victimized by police.

Last Thursday, the Michigan Marihuana Review Panel heard testimony on adding PTSD to the list of debilitating conditions for which medical marijuana can be used. The review is the result of a citizen petition. The panel last month voted 7-2 to approve PTSD, but still has to make a final recommendation later this year.

New Jersey

On Monday, changes to the state's medical marijuana rules passed the Assembly. The changes were demanded by Gov. Chris Christie (R) when he issued a conditional veto on a bill that would have allowed qualified children to use medical marijuana. Christie demanded that the bill be revised to require that only minors can use "edibles" and that they would have to be approved by both a psychiatrist and a physician. The bill also removes the limit on the marijuana strains that may be cultivated and requires parental permission, according to the release.

On Tuesday, Gov. Christie signed the bill.

Pennsylvania

On Monday, the Pennsylvania State Nurses Association released a new position statement on medical marijuana. "It is the position of PSNA that medical marijuana is worthy of further rigorous clinical testing," the statement said. "In order to weigh the true risks and benefits of medical marijuana, there must be a discussion and openness at the federal level regarding the conversion of marijuana from a Schedule I to Schedule II drug classification. Schedule II classification would allow testing of consistent grade medical marijuana in a randomized controlled fashion in order to ascertain the drug's risk/benefit profile for a multitude of illnesses and symptoms. In addition, PSNA supports protection from prosecution for patients who currently use medicinal marijuana or for providers suggesting medicinal marijuana for relief of intractable conditions or symptoms. Lastly, PSNA shares concerns about the delivery system of smoking medication and, if this drug is approved, encourages the development of a more efficient drug delivery system." A bill to legalize medical marijuana in the state has been pending since 2009.

Washington

On Monday, officials suggested the state's dispensaries are criminal enterprises. The medical marijuana law was never intended to allow businesses to sell marijuana to patients, a task force of state officials told a legislative committee. The task force could come up with recommendations for shutting down dispensaries by January. Alternatively, the legislature could act to regulate dispensaries.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Senate Holds Hearing on State Marijuana Legalization [FEATURE]

The Senate Judiciary Committee Tuesday afternoon held a hearing on marijuana legalization and conflicts between state and federal marijuana laws. Led by committee Chairman Sen. Patrick Leahy (D-VT), the hearing featured testimony from the deputy attorney general who has set Justice Department policy, two officials in states that have legalized marijuana and one critic of marijuana legalization.

The hearing marked the first time Congress has grappled with the issue of responding to state-level marijuana legalization and was notable for its emphasis on making legalization work in states where it is legal. It was also notable in that of all the senators present, only one, Sen. Charles Grassley (R-IA), bothered to dredge up the sort of anti-marijuana rhetoric that had in years and decades past been so typical on Capitol Hill.

"Marijuana is a dangerous and addictive drug," said Grassley, who turns 80 next week. "It's illegal under international law as well, and the treaty requires us to restrict its use to scientific and medical uses. These [legalization] laws flatly contradict our federal law. Some experts fear a Big Marijuana, a Starbucks of marijuana," he lamented.

Grassley's lonely stand reflects changing political realities around marijuana policy. The other senators who spoke up during the hearing -- Democrats Leahy, Richard Blumenthal of Connecticut, and Sheldon Whitehouse of Rhode Island -- all represent states where voters have already expressed support for medical marijuana and a region where support for outright legalization is high. They were all more interested in removing obstacles to a workable legalization than in turning back the clock.

"Last November, the people of Colorado and Washington voted to legalize marijuana, and these new laws are just the latest example of the growing tension between state and federal marijuana laws and the uncertainty about how such conflicts are resolved," Leahy said as he opened the hearing. "Marijuana use in this country is nothing new, but the way in which individual states deal with it continues to evolve. We all agree on the necessity of preventing distribution to minors, on preventing criminal enterprises from profiting, and on drugged driving. But I hope that there might also be agreement that we can't be satisfied with the status quo."

The first witness was Deputy Attorney General James Cole, author of last month's policy directive notifying state governments that the Justice Department would not seek to preempt their marijuana laws and instructing all federal prosecutors to leave legal marijuana alone -- with a number of exceptions. Sales to minors, the use of guns or violence, profiting by criminal groups, a marked increase in public health consequences like drugged driving, and distribution of marijuana into non-legal states are all among the factors that could excite a federal response, Cole's directive noted.

On Tuesday, Cole reiterated and went over the policy directive for senators, but the most striking part of his testimony was his admission that the federal government could not effectively put the genie back in the bottle.

"It would be very challenging to preempt decriminalization," Cole conceded in response to a question from Leahy. "We might have an easier time preempting the regulatory scheme, but then what do you have? Legal marijuana and no enforcement mechanism, which is probably not a good situation. You would also have money going to organized criminal enterprises instead of state coffers."

The three Democratic senators all prodded Cole and the Justice Department to do something about the legal marijuana (and medical marijuana) industry's problems with banks and financial services. Because of federal pressure, such institutions have refused to deal with marijuana, leaving those businesses drowning in cash. The senators also questioned reports that the DEA had been telling armored car companies not to do business with marijuana businesses.

"What about the banking industry?" asked Leahy. "A cash only business is a prescription for problems. We're hearing that DEA agents are instructing armored car companies to stop providing services to medical marijuana companies. It's almost as if they're saying 'let's see if we can have some robberies.' What is the department going to do to address those concerns?"

"The governors of Colorado and Washington raised this same issue," Cole acknowledged. "There is a public safety concern when businesses have a lot of cash sitting around; there are guns associated with that. We're talking with FinCEN and bank regulators to find ways to deal with this in accordance with laws on the books today."

"There should be specific guidance to the financial services industry," a not-quite-mollified Leahy replied.

The committee then heard from King County (Seattle), Washington, Sheriff John Urquhart. "The war on drugs has been a failure," the sheriff said bluntly. "We have not reduced demand, but instead incarcerated a generation of individuals. The citizens decided to try something new. We, the government, failed the people, and they decided to try something new."

Urquhart saw no great tension between the federal government and legal marijuana states, and he, too, brought up the issue of banking services.

"The reality is we do have complementary goals and values," Urquhart said. "We all agree we don't want our children using marijuana. We all agree we don't want impaired drivers. We all agree we don't want to continue enriching criminals. I am simply asking that the federal government allow banks to work with legitimate marijuana businesses who are licensed under this new state law."

The committee also heard from Kevin Sabet of Project SAM (Smart About Marijuana), the voice of 21st Century neo-prohibitionism.

"In states like Colorado," he said, "we've seen medical marijuana cards handed out like candy, we've seen mass advertising. At the marijuana festival in Seattle we saw 50,000 people smoking marijuana publicly; it's the public use of marijuana that worries me. I don't see the evidence of trying to implement something robust, especially in the face of an industry that will be pushing back against every single provision. In a country with a First Amendment and alcohol and tobacco industries that profit off addiction, I worry that, inevitably, American-style legalization is commercialization, no matter the interests of state officials and regulators."

But nobody except Grassley seemed to be listening.

Marijuana legalization advocates and drug law reformers liked what they heard Tuesday.

"It feels like there's a paradigm shift underway in the Justice Department's interpretation of federal drug control law," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "They seem to recognize that drug control should be first and foremost about protecting public health and safety, and that smart statewide regulatory systems of the sort that Colorado and Washington are proposing may advance those objectives better than knee-jerk enforcement of federal prohibitions."

"For years, the legalization movement has been gaining traction as people learn this is neither a fringe issue nor a partisan one, but one responsible for deep inequities in our justice system, the expansion of criminal gangs and the increase in unsolved violent crimes," said Law Enforcement Against Prohibition (LEAP) board member and former Denver cop Tony Ryan. "There's a long road ahead, and this hearing leaves many questions unanswered, but this historic discussion means we are on our way to a more rational and effective drug policy."

"The Department of Justice is finally taking seriously the dangers that a lack of access to simple banking services poses to consumers, employees and business owners," said Aaron Smith, director of the National Cannabis Industry Association. "We are encouraged that the growing consensus among essentially all stakeholders is that banking access must be available to legal businesses. It portends a quick reform to this dangerous and unnecessary situation."

"The era of robust state-based regulation is here," said Bill Piper, director of national affairs for the Drug Policy Alliance. "Legalizing marijuana and shrinking the number of people behind bars in the US is an issue the left and right can join together on. Like the repeal of alcohol prohibition, the repeal of marijuana prohibition will save taxpayer money, put organized crime syndicates out of business, and protect the safety of young people."

But at a time when marijuana prohibition remains the federal law of the land, perhaps former Seattle police chief and LEAP member Norm Stamper had the most down-to-earth take.

"While I would have liked to have seen a substantive change in policy, what we were really listening to in that hearing was the sound of a changing political climate," said Stamper. "People who can't agree on any other political issue are coming together over this one, and politicians on both sides of the aisle ignore that at their own peril."

Washington, DC
United States

Senate Judiciary Committee Hearing on Marijuana Policy Going on Now

An interesting hearing on federal marijuana policy in the face of medical marijuana in 20 states and legal marijuana in two states was supposed to start a few minutes ago.

It hasn't yet, though.

You can watch the hearings in real time here.

I'll be popping back in periodically to update this blog post as warranted, and will be writing a feature article on it for later today.

Update: 2:50 PM EST the hearing has started. Leahy is speaking.

Update: Leahy: "I don’t think federal prosecutors should be pursuing low level users of marijuana complying with the laws of their states."

Update: 3:00 PM EST Grassley: "Marijuana is a dangerous and addictive drug....we could see a Starbucks of marijuana..."

Update: 3:20 PM EST In response to a question from Leahy, Deputy AG Cole said that a preemption lawsuit wasn't a good choice because if the federal government prevailed, marijuana would still be legal in Colorado and Washington, but there wouldn't be any regulation.

Update: 3:35 PM EST Sen. Whitehouse asks for clarity regarding not prosecuting financial institutions and others receiving funds. Cole says only if the eight federal enforcement priorities are implicated. Earlier, he suggested that the DEA wasn't going to be pressuring armored car companies to not work with dispensaries.

Update: 3:45 PM EST Cole is done. Now up are the King County, WA, sheriff, a rep of Colorado Gov. Hickenlooper, and neo-prohibitionist Kevin Sabet.

Update: 3:50 PM EST King County Sheriff Urquhart: "My experience shows me the drug war has been a failure. We've incarcerated a generation of citizens, but not stopped demand. We in the government have failed the people, and the people decided to try something else. I support I-502."

Update: 4:00 PM EST Kevin Sabet finds Deputy AG Cole's recent guidance "disturbing" and argues that the administration can take steps now to destroy the looming creation of Big Marijuana. Why open the floodgates and hope for the best?

Update: 4:15 PM EST The issue of access to banking services has been raised throughout the hearing, both by senators and by witnesses. I was a bit surprised, but I guess business is business.

I'm signing off on this post now unless someone says something really surprising in the remaining minutes. Look for our feature article on the hearing later today.

Location: 
Washington, DC
United States

Private Plane Pilots Face Warrantless Drug Searches

Private plane pilots, especially those traveling to or through states with relaxed marijuana laws, are being subjected to warrantless searches by state and federal law enforcement, the Toledo Blade reported Monday.

Warrants? They don't need no steenking warrants. (cbp.gov)
The newspaper reported that the Aircraft Owners and Pilots Association, which represents small plane owners and operators across the country, said it had received dozens of complaints from members "subjected to random searches" by Customs officers, local police, or both.

"None of the stops resulted in anything being found," said Steve Hedges, a spokesman for the owners and pilots association. "In most cases, the pilots were stopped and held while their planes were searched… I'm told one pilot was asleep in a motel room with his wife when agents kicked the door down and took them back out to the airport to search his plane, only to find nothing there."

Hedges said the pilots' group has filed Freedom of Information Act requests for documentation justifying the searches, but didn't expect to get a response for months.

The Blade also cited a June blog entry by the editor of Flying magazine, Robert Goyer, where Goyer described email and phone conversations with an unnamed "law enforcement source… who is knowledgeable about aviation matters" who described his 2009 training to participate in a federal drug interdiction program targeting private pilots. That source said he was taught pilots were to be treated as though they had no right to refuse a search.

"What they taught law enforcement officers and agents was that all aircraft can be detained since they fall under the… authority of the FAA [Federal Aviation Administration]," Goyer quoted the source. "This, in effect, gives them complete search authority of any aircraft."

Goyer described the training as an "aviation drug interdiction" class sponsored by a High Intensity Drug Trafficking Area (HIDTA) office. The training was conducted by two agents, one from Homeland Security and one from Customs and Border Patrol, the source said.

As part of the program, "suspicious" planes would be tracked and followed by a Homeland Security aircraft, and once the plane landed, the pilots would be approached often at gunpoint and usually by local law enforcement and detained until federal agents arrive on the scene. Then they are ramp checked for compliance with Federal Aviation Authority (FAA) regulations and the planes searched.

"Our source told us that the ramp check was just a ploy to search the airplane and that the real target of the search was drugs, though even that, he said, could be used as a pretense for apprehending other potential criminals," Goyer noted.

The federal agents teaching the class he attended did not specify what other kind of "target" they might find, the source said, adding that instructors warned that the success rate for such searches was likely to be low, but that they could yield a "big bite" when successful.

A Customs official told the Blade that its job included "ensuring that all persons and cargo enter the US legally and safely through official ports of entry, preventing the illegal entry into the US of persons and contraband at and between POEs [points of entry], ensuring the safe and efficient flow of commerce into the United States, and enforcing trade and tariff laws and regulations," but did not explain how stopping and searching planes that had not left the US fit with that mission.

The Blade also cited a letter from acting Customs and Border Protection commissioner Thomas Winkowski saying that the agency has the authority "to inspect a pilot's operating certificate and related aircraft documents" on the basis of federal code governing the licensing of pilots and registration of aircraft."

"In the course of conducting a pilot certificate inspection, facts may arise meriting further investigation or search to the extent authorized under the Constitution and consistent with federal law," Winkowski wrote. "Each interaction and event must be evaluated independently based on the facts present at the time of the encounter." Such searches could include a "limited search" of the pilot if there is "reasonable suspicion" the person is armed and dangerous; a "protective sweep based on reasonable suspicion that a person is hidden who intends to impede or harm the law enforcement officer," or a search of the vehicle "based on probable cause that contraband or evidence is onboard the aircraft."

But the plane owners and pilots' association said that all 42 of the pilots who have reported such searches denied there was any probable cause or reasonable suspicion to search their planes. None had crossed a US border during its flight.

One pilot cited by the Blade said he had flown a plane from Concord, California, to Boonville, Missouri -- both within the United States -- and when he landed to refuel in Pueblo, Colorado, four unmarked vehicles surrounded his plane. Local police told him they had received a call from the Border Patrol saying he was "under suspicion of transporting large amounts of marijuana."

The only thing that could have remotely suggested the flight might be involved with drugs, the pilot said, was that it originated in California. "They think people are flying pot out of California," Mr. Brodsky said. "They're casting a wide net and hoping to catch something -- and trampling people's civil rights in the process."

Another pilot, who had twice been searched at airports, said police in both encounters mentioned they thought the plane "had been involved in drug trafficking." It wasn't, and the pilot said he was tired of it. He said he would "comply, be courteous" with police requests, but would not consent to any searches.

"At that point, I'll get legal counsel if they do," he said."I don't think there's any reason why a US citizen should be searched, or asked to search, unless they law enforcement have a warrant or probable cause," he said.

"When they got all this Homeland Security money, well, there are only so many terrorists out there to fight," the first pilot said, so it was predictable that it "would be turned on our own citizens."

Broad Coalition Seeks Capitol Hill Hearings on DEA

Spurred by recent revelations of the DEA using NSA and CIA programs ostensibly designed to fight terrorism to try to make drug cases, but grounded in decades of festering concern over the DEA's bull-in-a-China-shop behavior, a broad coalition of more than 120 groups Thursday asked Congress to hold hearings on the agency.

Citing an August Reuters report on the DEA's use of NSA spying data to make drug cases and hide the NSA connection from prosecutors and judges and a September New York Times story on how the DEA makes use of AT&T phone traffic databases to make cases against US citizens, the groups called on the House and Senate Judiciary and Oversight committees to hold broad hearings to investigate the DEA and hold it accountable for its actions.

"The implications of the Reuters revelations are serious and far-reaching. Since the Edward Snowden/NSA revelations, the American public has been continuously told by the Obama Administration and others that such programs do not constitute a domestic spying program, and that the programs are solely used for counterterrorism purposes. The news that the DEA is using such programs in domestic drug cases directly contradicts both these assertions," the coalition said in a letter sent to relevant committee chairs and ranking members and copied to Attorney General Holder.

"Additionally, we believe that by covering up the origins of evidence it obtained, the DEA has violated the constitutional rights of many Americans and created judicial chaos," the letter continued. "Indeed, lawyers seeking to review certain cases and convictions have been stymied by the fact that authorities will not inform them when and where such methods were used."

The letter was signed by more than 120 groups, both domestic and international and from across the political spectrum. Signatories included the ACLU, Witness for Peace, the Ella Baker Center for Human Rights, Global Exchange, Witness for Peace, the Drug Policy Alliance and numerous US drug reform groups, including StoptheDrugWar.org (publisher of this newsletter), and the International Drug Policy Consortium, which represents more than 160 non-government organizations.

"For too long Congress has given the DEA a free pass," said Bill Piper, director of national affairs at the Drug Policy Alliance. "Our hope is that Congress does its job and provides oversight because this agency has a deeply troubling track record of unregulated and out of control behavior. The DEA must be reined in and held accountable."

While the recent revelations about the DEA and the NSA and AT&T have been the catalyst for the hearings call, the letter also cited a small selection of other issues and scandals associated with the DEA (which should be familiar to Chronicle readers), including:

  • The case of Daniel Chong, a San Diego student who was left unattended and unfed in a holding cell by the DEA for five days, and who subsequently sued and settled for $.4.1 million in July of this year.
  • A drug war operation in Honduras in which the DEA took part, and which led to the killing of four innocent civilians. The incident has never been properly investigated by authorities.
  • DEA's role in the "Fast and Furious" scandal, where the agency smuggled and laundered millions of dollars in drug war profits for Mexican drug cartels as part of an ill-conceived sting operation.
  • DEA administrator Michele Leonhart's role in overruling the DEA's own administrative judges after they made decisions based on medical science.
  • Defense attorneys in Arizona are claiming government misconduct because the DEA rehired Andrew Chambers, a government informant who was terminated by the Justice Department years ago amid accusations of serial perjury.

In July, the DEA marked its 40th anniversary of its creation by President Richard Nixon. As the letter noted, "Congress has rarely held hearings on the DEA, its actions, and its efficacy." It is time for Congress "to investigate the DEA and hold it accountable for its actions," the letter's signatories said.

Washington, DC
United States

Medical Marijuana Update

Federal prosecutors speak out on how the Justice Department's new stance on legalization will affect their medical marijuana prosecutions (not much), an initiative's language gets rejected for a second time in Arkansas, and much, much more. Let's get to it:

Arizona

In mid-August, two men filed suit challenging the state's prohibition on growing your own within 25 miles of a dispensary. Keith Floyd and Daniel Cassidy argued that requiring them to obtain medical marijuana from a state-regulated dispensary instead of being able to grow their own is unconstitutional and detrimental to patients' well-being. They sued after being unable to renew their cultivator status on their medical marijuana cards. When they were issued cultivator status a year ago, there were no dispensaries nearby, but now they are beginning to open up in the area.

Arkansas

Last Friday, state Attorney General Dustin McDaniel declined to certify a medical marijuana initiative. McDaniel rejected the request from Arkansans for Compassionate Care to certify the popular name and ballot title of their initiative, saying it had "ambiguities." This is the second time this year McDaniel has rejected the Compassionate Care initiative, which would allow limited home cultivation. He has already approved another medical marijuana initiative which wouldn't allow home grow. That one is sponsored by Arkansans for Responsible Medicine.

California

Last Friday, Northern California US Attorney Melinda Haag said her crackdown on medical marijuana would continue despite the Justice Department's announcement a day earlier that it would not seek to block taxed, regulated, and legalized marijuana in Colorado and Washington. Her office is studying the Justice Department's guidance to federal prosecutors, a spokesperson said, "and for the most part it appears that the cases that have been brought in this district are already in compliance with the guidelines. Therefore, we do not expect a significant change."

Nevada

Last Thursday, the State Health Department said certification for growers and dispensaries will be delayed. No certifications will happen before April 1, 2014 following a decision by the state attorney general's office.

On Tuesday, the Las Vegas city council moved toward a moratorium on business licenses for medical marijuana enterprises. A council committee approved a proposal that would enact a six-month moratorium and extend the current halt on land use, business license, or building permit applications for such businesses. The moratorium is scheduled for a vote by the full council September 18. Proponents of the prolonged delay, including bill author and Mayor Pro Tem Stavros Anthony, said it will give Las Vegas time to create its own rules to work with forthcoming state regulations, expected by the end of the year. Opponents say the issue already has been deferred by more than a decade and is only hurting those already in physical pain and criminalized for using a natural remedy.

New Jersey

Last Thursday, news came that a dispensary will open in Bellmawr in Camden County. Compassionate Sciences will open up shortly. It is one of only two dispensaries proposed for South Jersey. The other, the Compassionate Care Foundation, will open by month's end.

Rhode Island

Last Wednesday, an existing dispensary sought permission to open up a delivery service. In its proposal to the Department of Health, Greenleaf Compassionate Care Center of Portsmouth said a delivery service will benefit the many medical marijuana patients who are homebound or have difficulties travelling. The center wants to operate daily deliveries in Newport and Bristol counties and deliveries two times a week in the rest of the state. The marijuana would be delivered by two Greenleaf employees using an unmarked car. No deliveries would be made after 5:00pm.

Vermont

On Tuesday, a draft ordinance banning dispensaries was presented in Weathersfield. The proposed ordinance would also ban "any premises where drug and tobacco paraphernalia is displayed for sale." The move was prompted not by a dispensary, but by the expansion of the Magic Mushroom head shop.

Washington

Last Thursday, Seattle US Attorney Jenny Durkan said the state's medical marijuana system was "untenable" in the light of new guidance from the Justice Department. In a statement, Durkan said that the "continued operation and proliferation of unregulated, for-profit entities outside of the state's regulatory and licensing scheme is not tenable and violates both state and federal law."

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

DEA Using Massive AT&T Phone Records Database

For at least six years, the DEA has had access to a massive AT&T database of phone call records dating back to 1987, the New York Times reported Sunday. According to the report, the DEA pays AT&T to place company employees in DEA offices around the country, where they supply DEA agents with phone data in compliance with federal subpoenas.

The program, known as the Hemisphere Project, is not limited to AT&T calls. It also covers data for any carrier using an AT&T switch and picks up 4 billion calls a day, according to the Times.

It only came to light because a Washington peace activist filed a FOIA lawsuit seeking information from West Coast law enforcement agencies, and one of them included training slides from the Office of National Drug Control Policy. The slides, which included a power point presentation, were marked "law enforcement sensitive."

They revealed not only the existence of the Hemisphere Project, but also efforts to keep it secret.

"All requestors are instructed to never refer to Hemisphere in any official document," one slide said.

The exposure of Hemisphere comes at a time when concern over government surveillance technologies is high, as revelations from former NSA employee Edward Snowden and his interlocutors about the extent of spying continue to appear on a regular basis. While NSA spying is ostensibly directed at foreign terrorists, it has also provided surveillance information to the DEA for use not in terrorism investigations, but in criminal ones.

Federal officials told the Times that the Hemisphere Project was no big deal, saying it has been useful in finding drug dealers who frequently discard cell phones and it uses investigative techniques that have been employed for decades and present no new privacy issues.

Privacy and civil liberties advocates begged to differ.

The Hemisphere Project "certainly raises profound privacy concerns," ACLU deputy legal director Jameel Jaffer told the Times. "I'd speculate that one reason for the secrecy of the program is that it would be very hard to justify it to the public or the courts," he said. And while he acknowledged that the database remained in AT&T's possession, "the integration of government agents into the process means there are serious Fourth Amendment concerns."

Administration Gives States Okay on Marijuana Legalization [FEATURE]

Attorney General Eric Holder told the governors of Colorado and Washington Thursday that the Justice Department would not -- at least for now -- block their states from implementing regimes to tax, regulate, and sell marijuana. The message was sent during a joint phone call early Thursday afternoon.

The Justice Department will take a "trust but verify" approach, a department official said. The department said it reserved the right to challenge the state legalization laws with a preemption lawsuit at a later date if necessary.

The go-ahead from Holder to the states was accompanied by a memorandum from Deputy US Attorney General James Cole to federal prosecutors laying out Justice Department concerns and priorities. If marijuana is going to be sold, the memo said, it must be tightly regulated.

"The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests," the memo said. "A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice."

The memo listed a number of activities that could draw federal prosecutorial attention or result in a Justice Department reassessment, including sales to minors, profits going to criminal actors, diversion to pot prohibition states, marijuana sales as a cover for other drug sales, violence and the use of firearms, drugged driving and other "adverse public health consequences," and growing marijuana on public lands.

Attorney General Eric Holder (usdoj.gov)
That leaves some wiggle room for federal prosecutors, some of whom have shown a willingness to be quite aggressive in going after medical marijuana providers. But it also gives them a clear signal that legalization will, in general, be tolerated in states where voters have approved it.

In a first response from marijuana reform activists, Tom Angell of Marijuana Majority called the Justice Department's stance "a step in the right direction", but also blasted the administration for its aggressive enforcement activities against medical marijuana providers and warned that interpreting the new directive will be up to US attorneys.

"It's nice to hear that the Obama administration doesn't at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual US attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law," Angell said.

"It's significant that US attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution, but the guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business," he continued.

Angell chided the administration for using cheap rhetoric about not busting pot smokers to obscure deeper issues of federal harassment of marijuana businesses.

"The administration's statement that it doesn't think busting individual users should be a priority remains meaningless, as it has never been a federal focus to go after people just for using small amounts of marijuana," he said. "The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs."

The Marijuana Policy Project also reacted Thursday afternoon, saying it applauded the move.

"Today's announcement is a major and historic step toward ending marijuana prohibition. The Department of Justice's decision to allow implementation of the laws in Colorado and Washington is a clear signal that states are free to determine their own policies with respect to marijuana," said Dan Riffle, the group's director of federal policy.

"We applaud the Department of Justice and other federal agencies for its thoughtful approach and sensible decision," he added. "It is time for the federal government to start working with state officials to develop enforcement policies that respect state voters, as well as federal interests. The next step is for Congress to act. We need to fix our nation's broken marijuana laws and not just continue to work around them."

Washington, DC
United States

HUGE: Administration to Allow State Marijuana Legalization to Proceed

Dept. of Justice building, Washington, DC (gsa.gov)
Deputy Attorney General James Cole has issued "guidance" to federal prosecutors with respect to the state marijuana laws. The memo is online here. The press release is here.

Though it refers to regulatory legalization, as is happening in Colorado and Washington, the memo indicates that the guidance is for "all states." It additionally includes "civil enforcement," which would seem to go beyond criminal prosecutions and investigations to include problems like forfeiture threats directed at landlords and so forth. As a DOJ memo it would not constrain IRS audits of dispensaries.

There is plenty of wriggle room for prosecutors to target people, if that's what Cole and Holder and Obama intend. But at a first glance at least, it looks to me like the memo is seeking to allow Colorado and Washington to proceed with marijuana legalization, and that it may help ease things up in the medical marijuana states as well.

Phil will be posting a Chronicle story momentarily.

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