02/01/15 Doug McVay

Doug McVay Reports: This week we look at the confirmation hearing of Loretta Lynch to be the next attorney general of the United States.

Century of Lies
Sunday, February 1, 2015
Doug McVay
Drug War Facts
Download: Audio icon COL020115.mp3



FEBRUARY 1, 2015


DEAN BECKER: The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization. Legalization. Let us investigate the Century Of Lies.

DOUG MCVAY: Hello and welcome to Century of Lies. I'm your 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 subscribe to our podcasts. You can follow me on twitter, where I'm at @drugpolicyfacts, and also at @dougmcvay. 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. Remember: knowledge is power.

Now, on with the show.

Last week, the US Senate Judiciary Committee finally held a confirmation hearing for Loretta Lynch, the nominee to be our next attorney general. When and if confirmed, Ms. Lynch will be the first African-American woman to be attorney general in US history.

The hearing was rather contentious. A few of the Republican senators used it as an opportunity to attack the Obama Administration and our current attorney general, Eric Holder. Some senators, again mostly from the Republican side, seemed to get frustrated over the nominee's unwillingness to provide direct answers to some of their questions. Now, a few of those questions were ridiculous, but actually others of them really weren't. There were a few times in the course of the hearing when I actually got irritated at Ms. Lynch's evasiveness. I found some of her non-responses to be as revealing as some of her responses, and not in a good way.

On this week's installment of Century Of Lies, we're going to listen to portions of that hearing. Let's start out with one of those contentious exchanges, I think this will give you an idea of what I'm talking about. The first voice you hear will be that of Senator Mike Lee, Republican of Utah.

SENATOR MIKE LEE: Thank you Mr. Chairman, and thank you Ms. Lynch, for joining us today, thanks for your service to our country. I also appreciate our visit recently when you came to my office, and I'm grateful to you for your support for sentencing reform. The bipartisan legislation legislation that I'm working on with Senator Durbin, uh, you referenced a few minutes ago, is, is important, and I appreciate your views on that as well.

I want to speak with you briefly going back to prosecutorial discretion. As a former prosecutor, I, I assume you'd agree with me that there are limits to prosecutorial discretion, in the sense at least that it's intended to be an exception to the rule and not to swallow the rule itself, would you agree with me that far?

LORETTA LYNCH: Certainly sir I believe that in every instance every prosecutor has to make the best determination of the problems presented in their own area, in my case in my district, and set priorities and within those priorities exercise discretion.

MIKE LEE: Right. And so, prosecutors, uh, inevitably have limited resources and so, it's understandable why they would choose, when they've got to prioritize, to perhaps put more resources, uh, into punishing for example bank robberies than they do into punishing pickpocketers. And perhaps they might put more resources into going after pickpocketers than going after people who exceed the speed limit. Uh, but at some point there are limits to this, and that, that doesn't mean that it would be okeh, that it would be a pros – proper exercise of prosecutorial discretion, to issue permits permits for people to speed, correct?

LORETTA LYNCH: Certainly sir, I think that if you, if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability, even if there was an area that was not an immediate priority, if for example it became one, because a particular neighborhood was being victimized, or, again to use your issue of speeding, there were deaths resulting from that, you would want to have the ability to still, if you could, take resources and focus on that issue. It might not be the first priority, but you would want to have the ability to go back and deal with that issue.

MIKE LEE: And for that reason, prosecutorial authorities or law enforcement authorities typically don't go out and say, uh, we're only going to punish you for a civil violation involving a traffic offense if you speed and then it results in, in an accident with injuries. Uh, they leave open the very real possibility indeed the likelihood that someone can and will be, uh, brought to justice in one way or another for a civil violation they, they commit while speeding.

LORETTA LYNCH: Well certainly I can't speak to all law enforcement agencies. I know that, depending upon the agency, sometimes the priorities are known, sometimes they're expressed. Uh, every office has guidelines. Certainly the law enforcement agencies are aware of certain guidelines in terms of for example a dollar amount, involving certain types of crimes.

MIKE LEE: If someone went out and said, I'm going to issue a permit to someone saying that they speed, saying they may go up to 100 miles per hour without receiving a ticket. That would, unless that person were also in charge of making the law in that jurisdiction, that would be a usurpation of the system by which our laws are made, would you agree with that?

LORETTA LYNCH: Again, without knowing more about it, I'm not able to respond to the hypothetical. It certainly doesn't sound like something that a law enforcement officer would be engaged in. Uh, but again without knowing more of the facts that I, I'm not able to really respond to your hypothetical.

MIKE LEE: Okeh, thank you. Uh, let's shift gears for a minute. Uh. Do you agree that, citizens, and groups of citizens, should not be targeted by government, uh, should not be the recipients of adverse action by the government, based on their exercise of their First Amendment rights?

LORETTA LYNCH: Certainly I think that the First Amendment is one of the cornerstones of a free society. And I believe that our jurisprudence has set forth great protections for individuals as well as groups, uh, in the exercise of their First Amendment rights, to make sure that they are protected and not targeted. I also would say that uh, certainly, as, uh, as a career prosecutor and US Attorney, there is really no place for bias or personal view in terms of how we approach, uh, the types of crimes that we pursue.

MIKE LEE: And presumably you'd say the same with respect to someone's exercise of their rights under the Fourth Amendment, or the Fifth Amendment, or the Sixth or the Seventh or the Eighth, uh, under any of those protections, somebody shouldn't be punished by government for exercising their rights under those provisions of the Constitution.

LORETTA LYNCH: Certainly I believe that there are safeguards in place to prevent that. I think we always certainly have to balance that with some, with the possibility of an extreme situation in which, you know, we may have to move quickly, for example to protect someone, or there's an imminent threat therein, but I believe that there are protections set up for that very purpose.

MIKE LEE: Second Amendment rights as well presumably then, right?

LORETTA LYNCH: I believe that certainly the Supreme Court has set forth, uh, clarity on this issue, so therefore regardless of the Amendment, that certainly that is a protected right.

MIKE LEE: Are you aware that there is a program called Operation Choke Point within the Department of Justice, and that, uh, through this program the Department of Justice and some other federal law enforcement agencies have on some occasions put financial pressure on legal businesses including hardworking Americans who happen to be involved in the business of selling firearms and ammunition, by essentially telling banks not to do business with them.

LORETTA LYNCH: I'm generally familiar with the name Operation Choke Point, and my understanding of it with respect to the Department of Justice's current work, again I haven't been involved in either the, the uh implementation or the creation of it, but my general understanding of it is that it looks to target financial institutions that are involved in perpetrating frauds upon consumers, and where there might be a financial institution that is facilitating for example consumer bank accounts being looted, or consumers essentially losing their bank accounts, that that's the target of that. Again I'm not familiar enough with the specifics of it to know about the underlying businesses that the transaction might have init – might have originated from, but that's my understanding of the program.

MIKE LEE: Okeh. I, I assume it's safe to assume that should you be confirmed you'll work with me to make sure that legitimate law-abiding Americans aren't targeted for their exercise of their Second Amendment rights. Uh –

LORETTA LYNCH: On that and any other issue of importance to you, Senator, I look forward to hearing your concerns and working with you on them.

MIKE LEE: Thank you. Thank you. Uh, I want to talk about civil forfeiture, uh, for a minute. Do you think it's, it's fundamentally just and fair for the government to be able to seize property from a citizen, uh, without having to prove that the citizen was guilty of any crime, and based solely on a showing that there was probable cause to believe that that property was in some way used in connection with a crime?

LORETTA LYNCH: Senator, I believe that civil forfeiture, civil and criminal forfeiture, are very important tools of the Department of Justice as well as our state and local counterparts through, through state laws, in essentially managing or taking care of the first order of business, which is to take the profit out of criminal activity. With respect to civil forfeiture, certainly as implemented by the Department, it is done pursuant to, uh, supervision by a court, it is done pursuant to court order, and I believe that the protections are there. What I will also –

MIKE LEE: I'm sorry. What if you just asked the average person on the street whether they thought the government could or should be able to do that? Should the government be able to take your property absent a showing that you did anything wrong, uh, thereafter requiring you as a condition for getting your property back, whether it's a bank account that's been seized or frozen, whether it's a vehicle that's been seized, that you would have to go back and prove your innocence, so you're guilty in essence until proven innocent, at least guilty in the sense that your property is gone. Do you think the average citizen would be comfortable with that?

LORETTA LYNCH: I certainly can't speak in terms of what the average citizen would or would not be aware of there. I certainly understand that there has been a lot of discussion and concern over, over asset forfeiture as a program as expressed by a number of people.

MIKE LEE: And particularly at the state level, such that some states have adopted uh, in response to a pretty widespread citizen outcry, laws significantly strict – restricting the use of civil forfeiture proceedings for that very reason. Uh, which leads to why I raised this with you. It's my understanding that the Department of Justice has in many instances been used as a conduit through which law enforcement officials at the state and local level can circumvent state laws restricting the use of civil forfeiture within the state court system.

In other words, where under the state courts, state law-established system, that sort of forfeiture is prohibited, people can go through the Department of Justice, the Department of Justice will take out a fee, maybe 20 percent of the value of the assets seized, and then those can be returned. It's a process known as adoption. Don't you think most Americans would find that concerning, if the federal government is facilitating, uh, efforts to circumvent state laws that are designed to prohibit the very thing that they're doing?

LORETTA LYNCH: I think that a number of people would have questions about how the Department of Justice manages its asset forfeiture program, and my understanding is that those questions have been raised about various aspects of it. My understanding is that the Department is undertaking a review of its asset forfeiture program, and certainly as US Attorney, uh, I'm aware of the fact that the adoption program that you have just described, which did raise significant concerns from a number of parties, has actually been discontinued by the Department, that's the guidance which we have recently received, with some exceptions for things like items of danger, explosives and the like.

But it is part of an ongoing review of the asset forfeiture program, and certainly should I be confirmed I look forward to continuing that review. I would also say, Senator, that I look forward to continuing these discussions with you, as you express concerns and interests on behalf of constituents or others, as an important part of the Department being as transparent as possible in explaining how it operates. Asset forfeiture is a wonderful tool. We return money to victims, we take the profit out of crime, but as with everything that we do, we want to make sure that we're being as responsive as possible to the people that we are serving.

MIKE LEE: Thank you, I look forward to those additional discussions, and I see that my time has expired. Thank you very much.

DOUG MCVAY: That was Senator Mike Lee, Republican of Utah, questioning US Attorney Loretta Lynch during her confirmation hearing in front of the Senate Judiciary Committee last week.

I mentioned at the beginning of the show that Ms. Lynch frequently gave non-responses to questions, and that segment with Senator Lee was a fairly good example. Lee is a supporter of sentencing reform, he's against forfeiture, and yes, he is also a Republican from Utah. Not exactly the likeliest of reformers, but, then again, drug policy reform and criminal justice reform are not strictly speaking partisan issues. I'm old enough to remember when liberal icons like Joe Biden and Charlie Rangel were some of the worst drug warriors on capitol hill. By the way, the other senator from Utah, Republican Orrin Hatch, stated early in the hearing that he supports Ms. Lynch and will vote yes on her confirmation.

There were two days of hearings. The first was with Ms. Lynch alone in front of the committee. The second day the committee heard from nine witnesses, none of whom opposed Ms. Lynch, all were either neutral or in support. We may hear from part of that second panel at another time but for today, we're only – I mean, we only have half an hour and there are still some good bits that we should listen to from the questioning of Ms. Lynch. We'll do that, in just a moment.

But first we're going to take a short break. You're listening to Century Of Lies, a production of the Drug Truth Network. We come to you once a week with news, information, and commentary on the drug war. Century Of Lies is heard on 420 Radio.org on Mondays at 11 am and 11 pm, and Saturdays at 4 am, all times are pacific. We're heard on time4hemp.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 carrying 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; WGOT-LP 94.7 FM in Gainesville, Florida; KRFP 90.3 FM in Moscow, Idaho; Valley Free Radio WXOJ-LP 103.3 FM in Northampton, Massachusetts, KOWA-LP 106.5 FM in Olympia, Washington, and Free Radio Santa Cruz 101.3 fm in Santa Cruz California. To all our listeners and supporters: Thank you.

And now, let's continue with our look at the confirmation hearing for US attorney general nominee Loretta Lynch. Ms. Lynch is currently a US Attorney in New York City. The Senate held two days of hearings on her nomination for attorney general last week. Some of you may have heard already that she was asked about the Obama administration's marijuana policies. In fact, two different senators brought it up. You may have read news stories about it, some reporters out there cherry-picked a few sentences here and there and made a meal of them. I am not here to criticize my fellow journalists, nor fellow activists who are doing a little journalism on the side, some of them are people I'm proud to call, you know, acquaintances.

No, we're not going to do that. Instead, we're going to listen to what she, and the senators, actually had to say, as much of it as time will allow, the hearings went on for hours and we only have thirty minutes. So I'm going to shut up and play in the next segment. This is from the morning session on that first day of her hearing. It's an exchange between Senator Lindsey Graham, Republican of South Carolina, and Ms. Lynch. The marijuana question is at the end, it actually starts on a different topic that's also of great interest, the surveillance of American citizens:

SENATOR LINDSEY GRAHAM: Now, do you think the National, NSA terror surveillance program is constitutional as it is today?


SENATOR LINDSEY GRAHAM: Do you think the NSA program, terror surveillance program that we have in effect today, is constitutional?

LORETTA LYNCH: Senator, I believe that it's not only, it's, it's constitutional and effective. I know that there are court challenges to it, and certainly we will abide by those court regulations, but it has been a very effective tool in manag –

SENATOR LINDSEY GRAHAM: But you're okeh with it being constitutional from your viewpoint?

LORETTA LYNCH: Certainly constitutional and effective.

SENATOR LINDSEY GRAHAM: Thank you. Uh, marijuana. There are a lot of states legalizing marijuana for personal consumption. Is it a crime at the federal level to possess marijuana?

LORETTA LYNCH: Marijuana is still a criminal substance under federal law, uh, and it is still a crime not only to possess but to distribute under federal law.

SENATOR LINDSEY GRAHAM: Under the doctrine of preemption, would the federal law preempt states who are trying to legalize the substance?

LORETTA LYNCH: Senator, I think you raised very important questions about the relation of the federal criminal system with the states, uh, and their ability to regulate criminal law that they also have, because as there is concurrent jurisdiction, and in terms of matters in which citizens of various states have voted. With respect to the marijuana enforcement laws, it is still the policy of the administration and certainly would be my policy if confirmed as attorney general to continue enforcing the marijuana laws, particularly with respect to the money laundering aspect of it, where we see the evidence that marijuana, as I've noticed in cases in my own district, brings with it not only organized crime activity but great levels of violence.

SENATOR LINDSEY GRAHAM: Do you know, uh, Michelle Leonhart, the DEA administrator? I don't know if I said her name right.

LORETTA LYNCH: She is the administrator of the Drug Enforcement Administration.

SENATOR LINDSEY GRAHAM: Have you ever had a discussion with her about her views of legalizing marijuana?

LORETTA LYNCH: Michelle and I have not had that discussion although we have spoken on any number of other occasions.

SENATOR LINDSEY GRAHAM: Could you have that discussion and report back to me as to what the results were?

LORETTA LYNCH: Certainly Senator. I look forward to speaking to not just Ms. Leonhart but with you on this issue.

SENATOR LINDSEY GRAHAM: On August 29th, 2013, I think, Deputy Attorney General James M. Cole advised all US Attorneys that enforcing marijuana laws against those that are in compliance with state marijuana laws would not be a priority of the DOJ. Did you get that memo?

LORETTA LYNCH: All US Attorneys received that memo, as did I.

SENATOR LINDSEY GRAHAM: Do you think that is a good policy?

LORETTA LYNCH: I believe that the Deputy Attorney General's policy seeks to try and work with state systems that have chosen to take admittedly a different approach from the federal government with respect to marijuana, and determine the most effective way to still pursue marijuana cases consistent with the states and the choices that they have made.

The Deputy Attorney General's policy as both – as I understood it and as it has been implemented, still requires federal prosecutors to seek prosecution of marijuana cases, particularly where we have situations where children are at risk, where marijuana is crossing state lines, particularly where you have marijuana being trafficked from a state that has chosen a legal framework into a state that has not chosen a legal framework, and the attendant harms therein, as well as those who are driving under the influence of this. A great concern certainly within the Department and those of us who are looking at these issues is the availability of the edible products, and the risk of those falling into the hands of children, and causing great harm there.

SENATOR LINDSEY GRAHAM: If a state is uh, intending to legalize uh, personal consumption at a small level of marijuana, what would your advice be to that state?

LORETTA LYNCH: Well certainly, I'm not sure that, uh, if a state were to reach out to the Department for its views, and I don't know if that's happened or what the advice has been given, but certainly I believe the Department would have an obligation to inform them of the current federal status of narcotics laws and the Department's position that, that the federal narcotics laws will still be enforced by the Department of Justice.

DOUG MCVAY: That was Republican Senator Lindsey Graham of South Carolina questioning Loretta Lynch in her confirmation hearing to become the next attorney general. Now, let's hear an exchange from later in the day, also on marijuana policy. This is Senator Jeff Sessions, Republican from Alabama, questioning Ms. Lynch:

SENATOR JEFF SESSIONS: If, if this view holds, future presidents can unilaterally gut tax, environmental, labor, and security laws by enforcing only those portions with which they agree. This is a dangerous precedent and cannot be allowed to stand, and frankly, the Attorney General of the United States should have told President Obama that, urged him and, uh, to back off. Presidents get headstrong, and he didn't do it and now you're here defending this, and I believe it's indefensible. So I'm worried, just want to tell you, that's a big problem. Now, do you believe and do you support legalization of marijuana?

LORETTA LYNCH: Senator, I do not.

SENATOR JEFF SESSIONS: Uh, I know the uh, head of the DEA, who's a little bit out of step with some in the administration I think, agreed with you on that. The president said this in January of last year. Quote, I smoked pot as a kid, and I view it as a bad habit and a vice, not very difficult from – different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don't think it is more dangerous than alcohol. Close quote. Do you agree with that?

LORETTA LYNCH: Well Senator, uh, I certainly don't hold that view, and don't agree with that view of marijuana as a substance. I certainly think the president was speaking from his personal experience and his personal opinion, neither of which I'm able to share. But I can tell you that I, not only do I not support legalization of marijuana, it is not the position of the Department of Justice currently to support the legalization, nor would it be the position should I become confirmed as Attorney General.

SENATOR JEFF SESSIONS: Well, I do think there's a lot – been a lot of silence there. I know the head of the DEA did push back, uh, and testified here pretty aggressively, but I think she felt like she was out of step within the administration, and I hope that you will cease to be silent, because if, if the law enforcement officers don't do this, uh, I don't know who will and in the past, attorneys generals and other government officials have spoken out, and I think kept bad decisions from being made.

DOUG MCVAY: That was Jeff Sessions, a Senator from Alabama, and a Republican, questioning Loretta Lynch in her confirmation hearing to become the next US Attorney General.

The committee finished its two days of hearings without taking a vote. The next Judiciary Committee meeting is scheduled for Thursday, February 5th. The agenda is not yet posted, however it is most likely that they will hold a discussion and possibly a vote on Ms. Lynch at that time. It's difficult to say how that vote will come out. She'll most likely be confirmed, though it's not a sure bet. All of the committee Democrats are expected to vote in favor. She also has the support of a few of the committee Republicans, again such as Orrin Hatch of Utah.

There is some opposition on the committee. Senator David Vitter, Republican of Louisiana, has stated that he will vote against her. Senator Sessions is also rumored to be opposed. Toward the end of the hearing, committee chairman Charles Grassley, Republican of Iowa, was expressing great frustration with Ms. Lynch's non-responses, and with the administration and the Justice Department in general, though he did not come out and say he would vote against her. He didn't say he was voting to confirm either. One thing that's for sure is that I'll be listening to that committee meeting on Thursday and reporting on it to you.

Now, on a related note: The Judiciary Committee has still not scheduled its hearing on the nomination of Michael Botticelli to be the next director of the Office of National Drug Control Policy. Botticelli is currently serving as acting director. He was nominated as director last session, and he had a hearing, but the committee decided to delay until the new Congress. That meant the process had to be restarted, the nomination had to be resubmitted, with a new hearing and new votes. Senator Grassley said at the time that the hold over was at the request of one or another of his fellow Republican committee members.

The committee was supposed to have discussed Botticelli's nomination a couple of weeks ago, but again it was held over, again at the request of one or another Republican on the committee. So, it should have been discussed last week. It wasn't. And it's not likely they will discuss Botticelli's nomination at Thursday's hearing, that one is likely to be dominated by the Lynch nomination. No one has given any reasons for these continuing delays. There's no stated opposition to Michael Botticelli, though it is safe to say that some of the committee Republicans, particularly the chairman, Chuck Grassley, are not fans of Botticelli's approach to drug policy.

Grassley, as we've discussed before, is a true believer in the drug war, he's an unreconstructed and unreformed prohibitionist. It's possible, it's more than just possible, that he would prefer a drug czar who is more supportive of law enforcement approaches. Botticelli's a treatment advocate, his entire career has been in treatment. He's also a recovering alcoholic, which he talks about freely. That experience informs his work and helps shape his approach to overall drug control policy. It also, frankly, probably helps to shield him from some direct criticism about being soft on drugs. It's possible that these delays are a not-so-subtle message about that, but again, we don't yet know. When we do, you'll hear it here on the Drug Truth Network, your home of the unvarnished truth.

Well for today, that's it. This was Century of Lies, I'm your host Doug McVay, editor of Drug War Facts. I thank you for listening.

Recordings of this show and past shows can be found at the website drug truth dot net. While you're there check out our other programs and subscribe to our podcasts. Follow me on Twitter, where I'm @DrugPolicyFacts and @DougMcVay. The Drug Truth Network is on Facebook, be sure to give its page a Like. Drug War Facts on facebook too, give it a like and share it with friends. Spread the word. Remember: Knowledge is power.

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 of Policy Studies.