Karen Tandy and the DEA (Can Congress Get a Clue?)

8/3/03

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Late Thursday night, the U.S. Senate unanimously confirmed Karen P. Tandy as the new head of the DEA, following former administrator Asa Hutchinson’s move to Homeland Security.

The Washington Post reported the confirmation, without mentioning some of the more disturbing facts of her past, or the lack of critical knowledge she exhibited in her confirmation hearing.

Jason Vest’s excellent article in The Nation – A New Hard-Liner at the DEA details some of the issues which should have received close scrutiny by the White House, the Senate, or at least by the Senate Judiciary Committee, including the fact that her assignments as a Justice Department prosecutor and administrator involved:

  • busting mail order bong sellers
  • busting medical marijuana operations in California and Oregon

Additionally, Karen Tandy:

  • was “disqualified and prohibited from directly or indirectly participating” in an investigation by Judge Albert Bryan Jr. because she read documents the court had ruled were protected by attorney-client privilege
  • in one case waited until only three days before trial before giving defense attorneys over 60,000 pages of critical documents, all unindexed
  • supposedly threatened to withhold family visits unless a defendant said what she wanted him to say
  • seized the property of a defendant’s family member even though there was no evidence he was involved
  • changed the wording of a plea agreement without the knowledge of the defendant, defense attorney, or judge, in order to set up the defendant for a subsequent arrest
  • failed to turn over exculpatory evidence in a cocaine trial
  • seized the business and property of a man despite a lack of evidence – a judge was so upset by the lack of evidence that he dismissed the charges “with prejudice”

This still leaves a large part of her prosecutorial history unexamined.

To confirm, without discussion, a nominee with this kind of record, when she will be in charge of a government agency with a history of abuse of rights, is unconscionable on the part of the Senate.

Karen Tandy had a brief nomination hearing in the Senate Judiciary Committee. Clearly is was intended that she slide through the confirmation hearings without much questioning. Her hearing on June 19 was shared by hearings for a circuit judge, five district judges, and an assistant attorney general.

Committee Chair Orrin Hatch appeared to know almost nothing about Tandy other than the White House press release. Patrick Leahy threw a couple of softballs about medical marijuana and the rave act. Diannne Feinstein of California, who had been lobbied heavily to oppose Tandy because of the DEA’s harrassment of medical marijuana users in her home state was a no-show, although she submitted some mild questions in writing.

The only one to really stand up and do his job was Senator Richard Durbin of Illinois.

He started with questions about the rave act. This badly drafted bill was snuck into the Amber Alert Bill, and within a very short time, was used by a DEA agent to intimidate an Eagles Lodge in Montana into cancelling a political event. While this action caused a firestorm of protest so that the DEA issued an apology for the actions of the agent, concerns are high that the DEA will continue to use this law to intimidate free speech.

Durbin asked Tandy whether she would be willing to specify that certain legal actions were not subject to penalties under the law, and to clarify through public policy statements what the rules are, so that event promoters know in advance what is allowed.

Tandy’s answers, in part:

Tandy:“The current guidance requires a thorough review of each situation on a case-by-case basis. As in other types of investigation, DEA recognizes that lawful activity, such as playing certain types of music, or using lawfully possessed items such as glow sticks, cannot by themselves give rise to prosectution under the Act. On the other hand, it has long been recognized that actions or circumstances that are lawful or consistent with innocence when viewed separately, may give rise to reasonable suspicion of unlawful activity when viewed together in the context of a specific situation… Accordingly, I believe that DEA must consider the totality of circumstances in each case and how these circumstances apply to the law in question… Given the wide variety of circumstances under which this statute could apply, it is not feasible to provide meaningful universal regulations…”

In other words, we will not tell you exactly what will cause us to come after you. If you want to exercise your First Amendment rights, you’ll have to take the chance that you might face huge legal costs, fines, or imprisonment.

Durbin then turned to medical marijuana and the fact that the DEA started aggressively attacking medical marijuna in California in 2001, despite the fact that the California’s medical marijuana proposition passed in 1996.

Durbin: “…do you believe the DEA’s limited resources should be consumed on raids of medicinal marijuana providers? If so, what priority would you give such raids, in relation to other DEA enforcement activities?”

Tandy (ducking the question): “…in my view, DEA’s priorities should reflect the need to encourage adherance to the law.”

Durbin: “Would you be willing to support a moratorium on such raids until Congress can hold hearings on this matter?”

Tandy (not interested in Congress, the states, justice or the people): “…as Administrator of the DEA, it will be my duty to see to the uniform enforcement of federal law. I do not believe it would be consistent with that duty for me to support a moratorium on enforcement of this law, or any law, in selected areas of the country.”

Durbin: “Would you support the creation of a special, well-balanced commission to evaluate the reclassification of marijuana from a Schedule 1 drug (considered to be potentially addictive and with no current medical use) to a Schedule II drug (potentially addictive but with some accepted medical use)?

Tandy: “I believe that current law and judicial review provide adequate mechanisms for the balanced review of the appropriate scheduling of marijuana. This system has been in place for over thirty years…”

Of course, the problem with this is that the DEA actually controls the process for reviewing the scheduling of marijuana. In other words, if you want the government to reschedule, you have to ask the DEA to do it. They can then delay for years while considering it, reject the request on technicalities, or simply reject the evidence, and you’re required to then apply for judicial relief, which can take years more. In one previous rejection by the DEA, they actually concluded that marijuana DOES have a high potential for abuse in part because “substance-related legal problems, are indicative of a substance’s abuse potential” (i.e. the reason it’s illegal is because of the potential for abuse and the reason it has potential for abuse is because it’s illegal, therefore it should remain illegal!).

Since the DEA gets funding in part based on their results, and it’s easiest to show results in seizures, etc. from marijuana (the DEA seized over 10 million pounds of pot since 1986), it’s against their interest to change the schedule. Since they control the mechanism for changing the schedule, they will fight any effort to do so. Tandy clearly intends to keep this policy.

Note: for a current effort to reschedule, and some excellent background on the rescheduling process, visit DrugScience.org.

But it’s worse. Here’s another question by Durbin:
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Durbin:Are you aware of information regarding the medicinal benefits of marijuana (for example: an editorial in the New England Journal of Medicine on [January] 30, 1997; the 1999 Institute of Medicine report “Marijuana and Medicine: Assessing the Science Base authorized by the White House Office of National Drug Control Policy; and the 1988 ruling from the DEA’s chief administrative law judge, Francis L. Young)?…”[links added]

Tandy:“I am not personally familiar with the sources you cite discussing the putative “medicinal benefits of marijuana…”

So, the nominee for the head of the DEA is not even familiar with several of the highest reputed sources regarding medical marijuana, including a report by a DEA chief administrative law judge, and an exhaustive National Institute of Health report commissioned by the Office of National Drug Control Policy!

This fact alone should disqualify her!

At one point in the proceedings, Senator Jeff Sessions of Alabama tried to make a statement that there was no evidence of medical marijuana use, so Senator Durbin entered the materials above into the record. That stopped Sessions pretty fast.

In the end, Senator Durbin was the lone vote on the committee against the nomination. It then proceeded to the House floor and passed by voice vote.

Until Congress wakes up, expect more of the same at the DEA — attacks on civil liberties and the American people.


Next: The nominee for Deputy Administrator of the DEA, Michele Leonhart

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