10/26/14 Doug McVay

Doug McVay reports: This week: We hear from experts on the international implications of US moves to legalize marijuana, and a short follow-up on the story of Eric Sinacori, the UMass-Amherst student who was entrapped by campus police and forced to become a snitch.

Program: 
Century of Lies
Date: 
Sunday, October 26, 2014
Guest: 
Doug McVay
Organization: 
Drug War Facts
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Century of Lies October 26, 2014

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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.

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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, which comes to you through the Pacifica Foundation Radio Network and is supported by the generosity of the James A. Baker III Institute for Public Policy and of listeners like you.

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.

Now, on with the show.

The current view of the U S State Department is that the United Nations treaties on drug control are flexible enough to allow a broad range of approaches, everything from marijuana legalization and harm reduction through prison and possibly in some cases the death penalty. That's a unique perspective, and it's questionable to say the least. Fortunately, this discussion is ongoing. On October 17th in Washington DC, the Brookings Institution and the Washington Office on Latin America hosted a forum to discuss the international implications of the movement toward reform of marijuana laws in the US. They convened a panel of experts to discuss the possible ramifications of legalization in the US both for the international drug control regime and for other nations. We're going to hear a portion of that discussion, the full audio and video of which are available through the Institution's website at Brookings dot E D U. In this segment we'll hear from Sandeep Chawla, the Former Deputy Executive Director and Director of Research and Policy for the U.N. Office on Drugs and Crime.

In that segment we heard from Sandeep Chawla, the Former Deputy Executive Director and Director of Research and Policy for UNODC.

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SANDEEP CHAWLA: I’ll make three sets of remarks – some tied to the past, some tied to the present, some tied to the future.

The three are very closely linked in the words of the great poet D.S. Elliot, “Time present and time past are both, perhaps, contained in time future.”

We can’t separate the three but I’ll try and go over the three systematically and the three sets of remarks.

First the past and horrid conditions ...the present. We live in a multi-state system at the moment which was formed in Europe in the middle of the 17th century. It’s the [inaudible] volume system. It gives absolute sovereignty to individual states.

In the international arena where the states come together it has nothing. It has anarchy. What has come in the place of that anarchy is a gradual, incremental system that has developed over the years to regulate the relationships between states which we now call international law.

The basis of international law is the sovereignty of international states but what they do internationally is very, very difficult to control and only works incrementally following the practice of states rather than leading it.

After more than 3 decades of working for the United Nations one of the things that I realized is that a term that we use all of the time in the United Nations which is familiar discourse here is the international community. This international arena is actually anything but a community. It’s a contradiction in terms to speak of an international community because nationally countries are at variants with each other all the time.

In this international community which we’ve called for such a long time there are equal states but there are some states which are more equal than others. The first among equals among this is the United States of America because it is one of the most powerful countries in the world – probably the most powerful. It has had a very, very distinct role to play in the drug control system and the international drug control regime that we are speaking about today.

The reason for that is that drug control and American foreign policy are intimately related because it was in the drug control area that the United States government made its first major intervention in international diplomacy. This happened at the beginning of the 20th century and the history of the United States of the international community of the United Nations and the context of Asian countries where it first happened is intimately tied.

In 1898 following the Spanish American War the United States acquired control over the Philippines. It was very difficult in the background of this country to call it a colony because the United States and its own self-image is that of an anti-colonial nation but it did acquire control over the Philippines. In the Philippines there was a serious problem with opium smoking. That led to the United States government convening the first international conference on drugs. It was called the Shanghai Opium Conference and that happened in 1909. That is the beginning of formal drug control because that led 2 years later in 1911 to the first opium convention at the Hague.

The United States was so closely involved in the development of this international regime that its foreign policy became very closely tied to it and from here comes something else that is peculiar to drug control and to the United States which is that in the context of the federal government and the states within the United States the interplay between them international drug control played a crucial role in this because the federal government regularly used international treaties and the federal commitments of the United States government to be able to balance its commitments across the states because it had no power over the states in some of these areas.

The drug treaties as they were developed through the course of the 20th century were frequently used by the United States government to cover all its national territory and this enabled a drug control system to work. It also colored the way in the United States pursued its international agenda at the United Nations even though it was never a member of the League of Nations. Its role in the League of Nations was influential. It was particularly influential after the United Nations was formed at the end of the WWII.

In the first treaty the Single Convention which Martin and others have mentioned on the panel the notion, the model, the vision of drug control that was incorporated into the Single Convention was the one that the United States had a lead in developing since the Shanghai Commission of 1909.

In this what happened was that states that signed the Single Convention became in a certain sense obliged to have national legislation that would support these conventions, these international treaties - the three that have been mentioned – are not self-executing. They need to have states once they become signatories to have within it some sort of national legislation that allows them to work towards it.

The model that was exported by United States, drafted onto the treaties, incorporated into the UN system of drug control was a supply-control model which emphasized more than anything else the control of supply of the drugs and, therefore, interdiction and eradication became a part of this model.

The situation of the users, the demand for the drug was left pretty much to countries to regulate themselves and it so happened that since the supply of the drugs that were being controlled was external to the United States the emphasis became on controlling the supply of the drugs from outside of the country.

If, for instance, alcohol had been incorporated into this the supply would have been internal but the battles with prohibition had already been fought in the in the first half of the 20th century within in this country and I don’t need to repeat that history.

It’s all happened that the sources of supply were outside the country. The model of control became one that emphasized eradication and interdiction and polarized the debate internationally making this very unhelpful distinction between producer and consumer countries which poisoned international debates on drug policy for over 50 years.

Now in the situation which we have at the moment and I now turn to the present with this. This whole debate seems to have turned a full circle with Colorado and Washington because now with what is happening in these two states the ground on which the federal government has advocated drug control internationally has now gone very shaky. If several states within this country move along the path of Washington and Colorado then there is a danger that in the future the “emperor may have no clothes.”

The danger is on in which an international commitment will need to be adapted to face a completely different situation because the policy of the United States internationally has always sought to occupy the moral high ground. With drugs the moral high ground is the international conventions.

If the support for the conventions is wavering within the country then we need to deal with that reality and the government of this country will have to deal with that reality in terms of how it pursues its policies internationally since occupying the moral high ground supporting the drug conventions has always meant that all the very significant power of the United States comes down against anybody transgressing the international system and against the conventions so the power of the United States has frequently been exercised in soft terms, in hard terms in different ways against any state that transgressed or pushed the limits of the conventions whether it was against countries like the Netherlands which defected against the conventions but in terms of a soft convention, whether it was against countries like Bolivia which tried first to amend the Single Convention then eventually denounced it and re-acceded with the reservation or whether it was against countries like Uruguay but now the approach of Uruguay is completely different because of Colorado and Washington.

We have to move now into a situation in which the international leadership provided by United States in the United Nations in other areas will have to somehow be adapted to these new realities. That adapting will be one which we will see very clearly in the UNGASS in 2016 – a special session of the general assembly which is meant to look at this whole drug control session and for us to try to anticipate what we can expect from this and what can reasonably be done before it because we need to have a situation in which something concrete and constructive can be achieved.

It is quite clear that in this the considerable influence of the United States government can be used to pursue the idea of getting a constructive debate forward. What can we do in this constructive debate ?

First and foremost I think it is clear ... and now the concluding remarks about the future.

[inaudible] UNGASS it is quite clear that if we have another self-congratulatory exercise saying everything is all well and fine in the world of drug control and we’ve eliminated the drug problem and make our world drug free by a certain token date well, that’s not likely to happen or it may happen but I hope it won’t.

I think there is enough happening in the world to prevent that kind of outcome. We can’t expect another very optimistic outcome which is at 2016 the nations of the world will agree to revise the drug treaties. That’s a very slow, cumbersome process and that’s very unlikely to happen as well but I think it is realistic to hope for the fact that we will have some genuine debate. We need not come up with a binding declaration on all countries but we can have some genuine debate about how the world has changed since these conventions were adopted.

We can – through the UNGASS – allow for a certain amount of space and flexibility for countries to experiment with their own drug policies. This includes the United States with Colorado and Washington and what may happen as far as marijuana is concerned and we may eventually get to the first step to remove what was quite clearly the weakest and the most vulnerable point of this whole control system which was something that has been obvious for 30 years but nobody’s ever been able to do anything about it because of the dead weight of multilateral consensus and that was to include cannabis in the same control regime as heroin and cocaine and amphetamines. That oddity of the system needs to be removed and the UNGASS can take the first step to work towards it.

And, finally, to move towards there – as I said earlier – I think the United States can use its not inconsiderable influence in this global arena to make sure that it doesn’t go before the general assembly of the UN the way Mark Antony went before the senate of Rome to say of Caesar (but in this case I’m talking about the conventions), “I come here to bury Caesar not to praise him.”

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DOUG McVAY: In that segment we heard from Sandeep Chawla, the Former Deputy Executive Director and Director of Research and Policy for UNODC.

We're going to take a short break. You are listening to Century Of Lies, a production of the Drug Truth Network. I'm your guest host Doug McVay, editor of Drug War Facts dot org. Century Of Lies is heard on 420 Radio dot org on Mondays at 11 am and 11 pm, and Saturdays at 4 am, all times are pacific. We are heard on time4hemp dot com on Wednesdays between 1 and 2pm pacific along with our sister program Cultural Baggage. And we're on The Detour Talk Network at thedetour.us on Tuesdays at 8:30pm. A few of the stations out there that carry Century Of Lies include WERU 89.9 FM in Blue Hill, Maine; WPRR 1680 am 95.3 fm in Grand Rapids, Michigan; WIEC 102.7 FM in Eau Claire, WI;A WGOT-LP 94.7 FM in Gainesville, FL; KRFP 90.3 FM in Moscow, Idaho; and Free Radio Santa Cruz 101.3 fm in Santa Cruz California.

Welcome back.

We're going to hear a bit more from that Brookings Institution event on the international implications of marijuana legalization in the US, in this segment we'll hear from Wells Bennett. Bennett is a Fellow in the Brookings Institution's Governance Studies program, he's actually a national security guy who typically focuses on domestic surveillance, drones, assassinations, and is managing editor of the lawfare blog. Let's hear what he has to say about legalizing pot:

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WELLS BENNETT: Briefly I just want to essentially do two things. One, set up some of the international legal context as it applies to the United States evolving experiment with marijuana including the United States’ arguments as to why in its view it is in compliance with the international drug control. And, two, just for ever briefly (I’m sure we’ll get into this in the discussion and Q&A) talk about the up sides and down sides of the US’s approach...uh, the legal setting.

It is almost certainly not news to the people in this room that the international drug control regime comprises three accords to which the United States is a party. One done in 1961 and amended in 1972. Another done in 1971 and still another in 1988 concerning illicit trafficking.

In the interest of time and keeping everyone awake I won’t recite legal provisions to you but suffice it to say that together these instruments deal rather sternly with drugs within their prevue and that includes marijuana. To name a few pretty well known example the provisions of the 1961 convention enjoined upon the parties an obligation to take all such measures as needed to limit drugs including marijuana to scientific and medical purposes – the so-called penal provision which obligates its parties to punish most forms of marijuana activity.

The 1988 convention goes further in this regard and explicitly requires the criminalization of many forms of drug activity. Again, marijuana counting as a drug.

Now it is true that there is kind of a legal debate at the margins about exactly what that might mean for the United States which has conditionally tolerated the creation in Washington State and Colorado regulated markets for marijuana. There essentially are two claims. One is that there is policy flexibility baked into these treaties – that the United States can say, as it did through the so-called Cole Memo issued by the deputy attorney general – that the United States can pick and choose its enforcement priorities and provided that those don’t get offended it can sort of stay its hand and see what happens with marijuana.

There is also a broader policy claim namely that the treaties have broad objectives -ensuring access to critical medicine, for example – and that the treaties give a lot of digression to state parties as to how to figure out how to achieve these objectives. The ideas, in so many words, is that those objectives are functionally consistent or not inconsistent with a conditional toleration for marijuana.

Now the United States has paired those arguments with kind of a long term vision and that vision is that the treaty shouldn’t be changed. They are good as they are and that all the international communities should come together in a discussion and agree on a way to live within them while accommodating changing drug policies in that regard regarding marijuana.

The core of this is to say that these are living documents that need to be re-interpreted from time to time, that the world looks fundamentally different and that we should all just figure out that there is space in it that we can all accommodate in – that’s essentially what the secretary of state was saying there and remarks that John eluded to. That’s the US position in a nutshell.

What are its upsides and downsides, point two. In the short term this probably makes some pragmatic sense. There weren’t a lot of good options for the United States. There have been call in some corners to bring a lawsuit founded on preemption (the doctrine that federal statutes trump contrary state statutes) but that wasn’t a surefire winner. There’s also not politically or economically a not very smart idea to just send a trail of DEA and FBI guys into Washington and Colorado and just sort of shut the whole thing down. There’s kind of a “least bad” alternative difficult choice matrix in play there that really does explain what the US was up to.

There’s also the prospect that marijuana legalization may not work and may go badly if they stopped it. The trajectory may be reversed and if that happens the US position is going to look pretty astute in the rear view mirror – that by pausing, seeing what was going to happen and then waiting for the thing to play out...well, it didn’t require any big adjustments to their international positions or any big adjustments to international treaties either.

The downside, though, is that it might work. Marijuana legalization might go forward and might go forward smartly and that event there is going to be....there is already tension between the US position and the treaties. I think that’s safe to say but that tension will only grow more acute and the legal arguments get less and less persuasive the marijuana legalization proceeds intelligently if that trajectory holds.

That is why the piece that John and I have written...we think that treaty reform should be on the table and not off the table presumptively because if the United States can claim policy flexibility in the treaties for so long as it needs to then its treaty partners are entitled to no less.

I certainly don’t mean to be alarmist by saying this but that holds true not only in the drug control setting but also in other multilateral regimes where the United States has pretty powerful interests in securing compliance.

I think most people would agree that we don’t want Vladimir Putin in the business of claiming unilateral flexibility with nuclear weapons or something even though, again, that’s sort of an example I just use to illustrate the point. I don’t mean to be an alarmist by it.

That is the US view and my appraisal of it in so many words. I want to stop there because I don’t want to take up too much time.

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DOUG McVAY: Folks should recall a story we covered not long ago on the death of Eric Sinacori, the student at the University of Massachusetts-Amherst who got busted for drugs by campus police and was pressured into becoming an informant for the U Mass campus police department, and who died of a heroin overdose some time later. I've been continuing to follow the story, looking at the broader implications of the transformation of some campus security offices around the country into authorized police departments. To me, and this does show my age, it's like taking Barney Fife out of Mayberry and making him chief of police at some college, giving him a glock 9 millimeter and setting him loose to play like he's a real cop. It's dangerous, it's stupid, and it seems to happening in campuses across the country. Some school police departments, like the University of California at San Francisco, at least have written policies regarding their use of confidential informants. Others, well, not so much. Oh, but everything is ok because these campus security guards - oops sorry that should be college campus police officers - have taken training courses just like real cops.

Right. Well, I’ve been in touch with the International Association of Campus Law Enforcement Administrators (otherwise known as IACLEA) to find out more. I left several phone messages and sent some emails to IACLEA’s chief staff officer, Chris Blake – he’s the highest ranking official at IACLEA listed on their website. Aside from a brief conversation after I called him on his cell fone in which he told me that he had passed my message onto a colleague I’ve heard nothing...nadda...no information. They won’t even go on record to say they have no data.

I not only asked about the number of campuses which do undercover operations and how many use CI’s I also asked if they have model policies for campus police agencies regarding undercover operations and use of confidential informants. No response.

The Police Executive Research forum was a little more forthcoming. I will give them credit for that. I contacted their research department director, Rob Davis, who forwarded my question to their media person, Craig Fisher. Craig told me that he didn’t know of any data and then suggested that I try IACLEA. Craig also gave me a link to a paper that the PERF had recently done about the marijuana laws in Colorado and Washington.

Still trying to understand how he could have thought that this would in any way relate to college campus security agents and their use of confidential informants. My best guess is he was hoping that I would just do a story about something different.

Well, Craig, I’m interested in the topic I asked about. You know it’s too bad but it looks like none of the people who should be tracking these things have any idea of what is actually going on in this country in that regard. How many more cases like that of Eric Sinacori are occurring today on student campuses? How many students are being entrapped and then pressured into becoming snitches by their campus cops?

We don’t yet know and, sadly, you and I, dear listeners, are some of the few who seem to actually care. Are you a student? Is there a college campus near you? Do you know whether those nice security guards who work for the school, the ones who unlock classroom doors and check parking permits...do you know if they also carry side arms and are authorized to carry out investigations and perform undercover work and run confidential informants just like “real” police on and off campus? Well, I think it is time we found out.

And, finally, December 17th is the 100th anniversary of the Harrison Narcotics Act. That’s the day the US began its 100 year-long drug war – it’s century of lies. On that day people in towns and cities around the nation will hold rallies at local courthouses to call for an end to prohibition. You can get involved. Email the Drug Truth Network’s executive producer, Dean Becker. He’s dean@drugtruth.net

Get involved today. Find out more at http://endprohibition.org

Also check out the Facebook page. It’s http://facebook.com/100yearsisenough

That’s it for this week. I’m Doug McVay and this was Century of Lies. Thank you for listening. You can find a recording of this show and past shows at the website, http://drugtruth.net

Follow me on Twitter where I’m @drugpolicyfacts and @dougmcvay.

The Drug Truth Network is on Facebook. Please be sure to give its page a like. Find Drug War Facts on Facebook as well. 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 the century of lies. For now, for the Drug Truth Network this is Doug McVay saying so long...so long.

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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