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 Special Print Edition of CounterPunch: The 2004 Election

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Today's Stories

December 4 / 6, 2004

Alexander Cockburn
Politicize the CIA? You've Got to be Kidding

December 3, 2004

Dave Lindorff
Lie Then Escalate

Ben Tripp
Fun With Boycotts: How to Shop in a Time of Crisis

Joe Allen
Murder in El Salvador: the Assassination of Teamster Organizer Gilberto Soto

Matthew B. Riley
Human Rights Court Fails Lori Berenson

Meir Shalev
In the End, It is the Violin that Wins

Bob Wing
The White Elephant in the Room: Race and Election 2004

Christopher Brauchli
When McCain Bit His Tongue

Sasan Fayazmanesh
The EU, the US, Israel and Iran

 

December 2, 2004

Tito Tricot
No Justice in Chile: I'm a Torture Survivor in a Country Where Torturers Still Run Free

Behzad Yaghmaian
The Murder of Theo Van Gogh and Muslim Migration

Dr. Susan Block
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Liberalism and Its Bounds

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Standoff in Ukraine: the Bad v. the Corrupt

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Another Grim Record in Iraq

Mark Engler
Seattle at Five

Michael Donnelly
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Nate Collins
The Bay Area Mall on an Ohlone Burial Grounds

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December 1, 2004

Phillip Cryan
Associated with Whom? Rightist Bias in Wire Coverage of Colombia

Dave Zirin
What's the Matter with "Leon"?: Budweiser's Racist Commercial

Ghali Hassan
Iraq's Health Care Under the Occupation: 200 Children Die Every Day

Donna J. Volatile
Beware Western Nations Threatening "Democracy"

Patrick Cockburn
How Saddam Tried to Arm the Insurgency

Nick Meo
Chemical War Over Afghanistan

Mike Ferner
The Battle of Toledo

Mokhiber / Weissman
Shame and Determination on Global AIDS Day: 40 Million and Rising

Kathy Kelly
Looking the Other Way: the Real Crimes of the UN in Iraq

 

November 30, 2004

Jennifer Van Bergen
The Veil of Secrecy

Toni Nelson Herrera
Meeting Kurtz: When Art is a Crime

Paul Craig Roberts
The Bush Delusions: Successful at Incompetence

Patrick Cockburn
The Insurgency Strikes Back: There Are No Safe Havens in Iraq

Chuck Munson
WTO Protests Five Years Later: Seattle Weekly Trashes Anti-Globalization Movement

Adam Williams
Citizenship Sold: Back to Business in Indiana

Gregory Elich
A Dangerous Turn in the US Plans for North Korea

Website of the Day
Read Lynne Cheney's Lesbian Novel Online!

 

November 29, 2004

Dave Lindorff
Blowback in Ukraine: The Hand of the CIA?

Omar Barghouti
"The Pianist" of Palestine: Roadblock Concerto at Gunpoint

Mike Whitney
The US Media and Fallujah: How to Market a Siege

Uri Avnery
The Abu Mazen Style: "Give Me Some Credit!"

Matt Vidal
Globalization and Economic Inequality: a Look at the Numbers

Patrick Cockburn
An Interview with Iraq's Foreign Minister

Alan Farago
Sex Change and Salvation: God, Girly Men and Endocrine Disrupters

Justin Huggler
Bhopal 20 Years Later

Antony Loewenstein
How Australia Reported Arafat's Death and Legacy

Gary Leupp
Ukraine: Poll Results Aren't the Real Issue

Website of the Day
Mosul: Images from a Kill Zone

 

November 27 / 28, 2004

Peter Linebaugh
Torture & Neo-Liberalism with Sycorax in Iraq

Alexander Cockburn
What Happened to O'Reilly's Loofa?

Fred Gardner
Ashcroft v. Raich: Medical Marijuana and the Supreme Court

Kathy Kelly
What We Can Control

Diane Christian
The Other Cheek: "Empire Doesn't Analyze, It Acts"

Gary Leupp
One More Neocon Target: South (Yes, South) Korea

Lenni Brenner
Equality and Rights of Return: Jefferson Instructs the New York Times

Ron Jacobs
Death Squads and Iraq's Elections: the Mysterious Murders of the AMS Clerics

Joshua Frank
An Interview with Kevin Zeese on Nader, Kerry and the ABB Crowd

Toni Solo
The Murder of Danilo Anderson

Saul Landau
Fallujah, the 21st Century Guernica

JoAnn Wypijewski
Matthew Shepard Case 6 Years Later: Why Hate Crimes Laws are No Cure for Homophobia

Justin Taylor
Empire's Lawless Opportunities

Amos Harel
The Case of Captain R.

Walter A. Davis
Tabloid Justice

Stephen Hendricks
God's Kind of Men

Poets' Basement
Albert, LaMorticella and Ford

 

November 26, 2004

Peter Feng
Gavin Newsom: Man or Machine?

Greg Moses
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Liaquat Ali Khan
The Devil's Work: Bush's Minority Appointments

Michael Mandel / Gail Davidson
Why Bush Should Be Banned from Canada: a Memo to the Ministry of Immigration

Dave Lindorff
Nation of Sheep, Turkey of an Election: Urkrainians Show the Way

Gary Corseri
When Black Friday Comes...

Paul Craig Roberts
Whatever Happened to Conservatives?

Website of the Day
Iraq Pipeline Watch

 

November 25, 2004

Willliam Loren Katz
Giving Thanks to Whom?: "Thanks to God We Sent 600 Heathen Souls to Hell Today"

Mitchel Cohen
Why I Hate Thanksgiving

Mike Ferner
An Uncommon Mom

 

 

November 24, 2004

Gila Svirsky
License to Kill: the Example of Violence is Set by the State

Winslow T. Wheeler
The Other Mess in Congress

Christopher Brauchli
The Company He Keeps: the Syndicate of Tom Delay

Dave Lindorff
Double Standards on Exit Polls: Hypocrisy Sans Irony

Ron Jacobs
The Occupation of Iraq is the Root of t he Problem

Ken Sengupta
Witnesses: War Crimes in Fallujah

Diana Barahona
The Final Holocaust or Why I Voted for Ralph Nader

John L. Hess
Safire the Shameless

Jason Leopold
Did Harvard Hire (Another) War Criminal?

Jeffrey St. Clair
The Mark of McCain: the Senator Most Likely to Start a Nuclear War

Map of the Day
Now and Then: 2004 v. 1860

 

November 23, 2004

Forrest Hylton
Bush and Uribe at the Beach

 

 

 

 

November 22, 2004

Dave Zirin
Fight Night in the NBA: Selective Outrage in Detroit

Paul Craig Roberts
On to Iran: We Won't Get Fooled Again?

Michael Mandel / Gail Davidson
Why Bush Should be Banned from Canada

Kathie Helmkamp
Our Son: a Marine Who Won't Kill

Ken Sengupta
The Triangle of Death: "This is Now the Most Dangerous Place in Iraq"

Mike Whitney
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November 20 / 21, 2004

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Gary Leupp
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Weekend Edition
December 4 / 6, 2004

Pot Shots

Supreme Court Hears Raich Case

By FRED GARDNER

People anxious to watch oral arguments in Ashcroft v. Raich started arriving outside the U.S. Supreme Court at 5 a.m on Monday, Nov. 29. Frank Lucido, MD, Angel Raich's doctor, and Jeff Jones of the Oakland Cannabis Buyers Co-op were second and third. By 9:00 more than 200 concerned citizens had formed an L-shaped line across the wide plaza and then east on Constitution Avenue. What once would have been an unobstructed view of the Capitol (with symbolic meaning, since the Court rules on the legality of what Congress does) now consists of backhoes, trucks, ditch-witches, porta-potties, barricades (huge round tubs of concrete), cyclone fencing, wooden fencing, and non-union construction workers and rent-a-guards milling about. The sun was bright, the temperature around 400; the heavy equipment was kicking fine sand into the air as the line began to move.

More than 100 media types and others with connections had guaranteed seats. Reporters who cover the court regularly get box seats along one side of the courtroom (stage left); we in the overflow were seated behind them and behind a wall with arched openings. Not all the Justices could be seen through the arches. Your correspondent had an excellent view of Justice Stephen Breyer (thin, bald, sepulchral) and Clarence Thomas (he looked positively bored and was the only judge who asked no questions). A public information officer gave out a scorecard with pictures of the Justices, numbered 1-9, and she held up fingers to indicate who was speaking. Scalia was #4, the clean-up hitter.

Justice Stevens presided because Chief Justice Rehnquist is undergoing treatment for thyroid cancer. Stevens announced that Rehnquist intends to read the transcript and vote on Ashcroft v. Raich. Activists are spinning fantasies about Rehnquist, unable to bear the nausea of chemotherapy, obtaining relief from cannabis and turning into an advocate. I heard versions of this inane riff from half a dozen seemingly intelligent people. It's more likely that William H. Rehnquist would cast a vote against Raich with his last bit of mortal energy. The Controlled Substances Act -which this case is really all about- was his work product. He helped draft it as a young lawyer in the Nixon White House (having gotten the job for, among other services rendered, hassling black voters in Arizona). If Rehnquist were, in his hour of need, to use cannabis as an anti-emetic, he would undoubtedly figure out why it was righteous for him (but not you) to do so. For years he has taken strong painkillers on a daily basis to cope with back pain. He doesn't define himself as an addict because he checks into treatment periodically, i.e., he's in control of the situation!

 

The Petitioner's Case

Each side gets half an hour to restate and defend the arguments made in written briefs that the judges have already read. The petitioner goes first. The Department of Justice and the Drug Enforcement Administration are petitioning the Court to invalidate an injunction, issued by the 9th Circuit Court of Appeal in October 2003, allowing Angel Raich and Diane Monson to obtain and use cannabis in accordance with California law. Acting Solicitor General Paul Clement re-made the key points: Congress is entitled to enforce the Controlled Substances Act. Californians growing and using cannabis within the state will inevitably have an impact on interstate commerce. The relevant precedent was set by Wickard v. Filburn, a 1942 case upholding the federal government's right to limit the amount of wheat a farmer could grow for home consumption.

O'Connor interrupted Clement to ask why the Lopez and Morrison rulings shouldn't apply. In Lopez (1995) the Court struck down a federal law banning possession of a gun within 1,000 feet of a school because it didn't involve economic activity. Morrison (2000), similarly, struck down a law entitling rape victims to sue assailants in federal court. The Lopez and Morrison rulings were said to reflect the Court's "new federalism," a tilt towards states' rights.

Lopez and Morrison didn't undo Wickard, said Clement. O'Connor noted that the marijuana used by Raich and Monson did not involve interstate commerce. But undoubtedly some marijuana would, said Clement, "diversion would be inevitable" if all California's medical users and their growers became legal. O'Connor's tone implied that she was trying to poke holes in the government's position, but she could have been trying to elicit winning arguments to employ on behalf of the government in the Supremes' internal debate.

O'Connor asked whether California law enforcement wouldn't suffice to ban diversion to the non-medical market. "Marijuana is a fungible product," said Clement, meaning there's no way to distinguish "medical" marijuana from the non-medical kind; one could be sold instead of the other.

In response to questions by Scalia and Kennedy, Clement repeated that diversion of marijuana was inevitable in an annual national market of $10.5 billion. Any "island of lawful possession" would undermine regulation by Congress. (These gentlemen try to avoid saying "Prohibition.") Clement falsely stated that any beneficial effects of marijuana could be obtained legally via Marinol. Marinol is synthetic THC in pill form. Herbal cannabis contains hundreds of other compounds, some of which exert modulating effects. Precise dosage and immediate onset can be achieved by smoking.

Justice Kennedy asked about the impact on price if Californians were allowed to grow their own marijuana for medical use. Clement said the price would go down, the opposite of what Congress wants. Congress is trying to increase the price of marijuana on the black market. Also, sales of Marinol would be affected if people could grow and use cannabis -an obvious impact on interstate commerce. And the CSA trumps a doctor's opinion that marijuana is medically necessary. [Next time you're sick, call a Congressman.]

Stevens asked if a District Court could find, contrary to Congress, that marijuana is effective medicine. Only if the case involved a review of the scheduling decision, according to Clement. The FDA is not anti-THC, he said, witness Marinol being moved from Schedule 2 to Schedule 3. [Which actually shows that the FDA is not anti-corporate.]

Ginsburg and Souter asked about challenges to marijuana's Schedule l status and its alleged benefits. Clement said that the Institute of Medicine Report released in 2000 found that smoked marijuana "has no future as medicine." Science [i.e, the drug companies] will find and synthesize the good components of the plant minus the bad components. Smoking is harmful per se. [The Institute of Medicine Report is like the Bible, you can quote it to make any point.] The Court should not second-guess Congress.

 

The Respondent's Case

Randy Barnett, a libertarian professor of constitutional law, argued for Raich-Monson that their activity -growing and using cannabis as medicine- had been entirely intrastate and non-economic. The feds need not ban such activity in order to regulate illicit drugs.

In response to questions from Kennedy, Barnett said that the fungibility of marijuana does not mean possession for personal medical use is economic activity.

Scalia compared possessing marijuana for medical use to owning a plant or animal protected by the Endangered Species Act. Barnett said that banning ownership of endanged species "might be essential to a broader regulatory scheme," but owning marijuana for personal medical use was distinguished by state law. Scalia was skeptical that that California could narrow the scope of the activity to medical users. He invoked "reports of whole communes with lots of people in them" growing marijuana.

Justices Breyer and Souter pursued the point that California couldn't effectively limit the set of medical users. Breyer foresaw large numbers of cannabis consumers resulting in lowered prices, thus undermining the feds' ability to control contraband. Barnett implied that the government's figure of 100,000 overestimated the number of medical users in California. [That estimate appeared in the Spring '04 O'Shaughnessy's and may be an underestimate today.] Souter speculated about "millions of medical users buying marijuana on the street."

Ginsburg asked whether a ruling for Raich-Monson would authorize cultivation of marijuana by medical users in states that hadn't legalized it. Barnett said it depended on how the Court's ruling was crafted. If the activity is non-economic, Congress can regulate only as needed "to enforce a broader regulatory scheme." Congress doesn't have to ban medical use of cannabis in order to limit interstate commerce in contraband.

Scalia asked how the Raich case differed from Wickard v. Filburn, in which a family was eating their homegrown wheat. Barnett said Filburn was feeding wheat to livestock that were sold on the market, not just eating it. "The wheat was grown as part of a commercial enterprise."

Stevens asked about the likely effect on the price of marijuana on the interstate market (if Raich prevailed). Barnett, not sounding totally sure, predicted "a trivial reduction." Stevens disagreed. There followed an exchange it which Barnett was asked about the population of California and couldn't provide the answer. (Kennedy did: 34 million.) Souter tried to estimate how many might be in chemotherapy -100,000? His point was, "isn't it economic activity if it has a sizeable effect on the market?"

Barnett differentiated economic activity from personal activity by using prostitution as an example of the former. "Substitution effects between prostitution and sex within marriage does not make sex within marriage economic activity. The nature of the activity determines if it is economic."

At this point Breyer suggested that Raich-Monson hadn't exhausted their administrative options. "Can't your clients go to the FDA and get it rescheduled? Then if the FDA rules against them" he sounded like a civics teacher explaining how (and that) the system works "they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn't I believe as a judge that it is doubtful there is a medical benefit? After all, medicine by regulation is better than medicine by referendum." This last phrase was quoted by every reporter who filed a story. It echoes the enlightened-sounding comment of Breyer's friend Harold Varmus, former director of the National Institutes of Health, after Prop 215 passed: "Nobody wants to settle medical issues by plebiscite." Varmus convened a panel of "experts" to settle the issue. That was back in '97.

Barnett urged Breyer to read the amicus brief written by Rick Doblin, PhD, describing the endless runaround that would-be researchers have gotten over the years from FDA, DEA, NIDA, and HHS. He also pointed out that the Institute of Medicine Report acknowledges that some people benefit even from smoked marijuana. Barnett's tone was slightly apologetic (smoking, the sin of all time!) and he missed an opportunity to inform the Justices that for nausea there is no better drug and delivery system than herbal cannabis and inhalation. Nor is there any other drug to enhance appetite.

Kennedy asked if prescriptions were limited to cases where marijuana saved lives. "It is limited to a list of illnesses," said Barnett, instead of acknowledging the open-ended wording of the California law and the doctors' gatekeeping role.

Ginsburg asked a final procedural question: can you enjoin criminal prosecutions? Barnett said Raich-Monson were seeking to enjoin the seizure of marijuana, which had already occurred.

Clement, in the few minutes he had reserved for rebuttal, emphasized that the case wasn't about two individuals. He repeated estimates of 100,000 to 170,000 medical users in California. He quoted the broad definition of illness that can be treated by cannabis under California law. He cited a California case (Rutherford) in which the defendant, caught with 19 separately packed ounces of marijuana and a scale, was allowed to present a "medical-user" defense. Clement also cited the WAMM case, in which 250 cannabis users -a veritable hoard- claimed protection under the law.

Assessment

Those who have been following Ashcroft v. Raich in the media know that most learned observers think the Justices' questions implied a looming victory for the federal government. Linda Greenhouse of the NY Times, in the press room after the hearing, predicted a 9-0 vote. However, Pebbles Trippet of the Medical Marijuana Patients Union expects support for Raich from Ginsburg, Thomas ("the commerce clause scholar on this court"), Stevens, and O'Connor (who is often a swing vote). "Anything can happen," says Trippet.

Whatever happens, coverage of the Supreme Court hearing has made the American people even more aware that marijuana is safe and effective medicine. Angel Raich and Diane Monson, although opposites in many ways, are both convincing advocates. There is a desperate edge to Angel, who looks emaciated and says urgently that she would die without cannabis (from which she derives no pleasure except pain relief). Monson is calm and businesslike -an accountant, she is living proof that cannabis use doesn't undermine one's ability to do meticulous work that requires sustained attention to detail. Her claim isn't that cannabis is keeping her alive, only that it enables her to function.

More commentary and analysis in the days and weeks ahead. Some of our shrewder sources are among the 120 lawyers in Key West, Fla., attending NORML's 21st annual marijuana-defense-specialists' conference... In D.C. We learned that the NORML Board has selected Allen St. Pierre to succeed Keith Stroup as the new director. St. Pierre graduated from UMass/Amherst in 1989 and moved to Washington, intending to go to law school. Instead he went to work for NORML as communications director in '91 and has been there ever since (as deputy director since '93). In recent years NORML has been out-fundraised by the slicker, smoother Marijuana Policy Project. St. Pierre may be too serious and straightforward to reverse this trend. Good luck!

Hoopla

The recent brawl involving players and fans in Detroit has evoked countless calls for "more security," but you don't hear too many for "less alcohol..." San Francisco Chronicle sportswriter Bruce Jenkins asserted 11/27, "This is a young man's league, the province of teenagers coming straight out of high school, and they represent an angry, anti-establishment generation consumed with rebellion, the strident lyrics of rap songs and the price to pay for being 'disrespected.'" The NBA is a rich man's league, the province of multimillionaires. The gifted young giants who get NBA salaries don't "represent" anybody. They form a small, unique subset of individuals who, after growing up in black urban ghettos, acquire sudden wealth and fame. The result is a fractured class identity. There is no evidence that the generation of 20-somethings, white or black, is "consumed with rebellion." Nor do "the strident lyrics of rap songs" equate with rebellion. Commercial hip-hop culture is all about militant stance without corresponding political content. "As people lament the decidedly weak security around the league," writes Jenkins, "we can only recall the Warriors' glory days in Oakland, when some massive, fearsome-looking security types patrolled the scene. They always offered a striking contrast to the sight (and scent) of people blatantly smoking weed in the Coliseum corridors. Somehow, there always was a sense of order..." Well, of course things were orderly: it was weed, not alcohol. And those fearsome-looking security types had the good sense to tolerate it. [Is it simply coincidence that "the Warriors' glory days" ended when the Coliseum cracked down on the doobie section? Or could it be... the curse of the Zig-Zag man?]

The punishment of Ron Artest et al is playing in the same theater as the purification of Carmelo Athony. 'Melo is a beautiful 20-year-old who played one year of college basketball (leading Syracuse to the national championship) and one year as a pro in Denver (turning a losing franchise into a winner). Before this season began 'Melo was arrested for marijuana possession; a small amount was found in his backpack as the team waited to board a flight. A friend named James Cunningham then said in an affidavit that he'd stayed at Carmelo Anthony's house and borrowed the backpack and left his marijuana in it. Denver police figured they couldn't get a conviction and didn't charge 'Melo.

Nike is now running an ad campaign designed to polish 'Melo's image. A hip black poet -very intelligent, charismatic face and delivery- reminds us that 'Melo is a lovable kid from a tough part of Baltimore, and that he drinks milk. Apparently a group of "creative" types employed by Nike sat around a table coming up with lines like, "Should we fire him or admire him?," reflecting their own conflicts... Too bad they couldn't come out and say that Carmelo Anthony gets migraine headaches and self-medicates with cannabis. Not even the great Kareem Abdul-Jabbar could get away with such a direct truth.

Jabbar got busted for possession (6 grams!) at the Toronto airport in '98, said it was for medical use, and was humiliated in the media and blacklisted as a coach. "It was a slow week for the NBA'S active miscreants," wrote David Steele of the Chronicle, "so like the Hall of Famer he is, Abdul-Jabbar stepped into the breach and got himself busted. The six-time MVP, six-time championship winner and (naturally) the league's all-time leading scorer surrendered what was described as a small amount of marijuana. A Customs spokesman said that Abdul-Jabbar told the officials at the airport that his doctors had recommended his using marijuana to combat migraines. Must have been a doctor in our own fine state, home of Proposition 215..." Steele went on to make light of the fact that Chris Webber and Robert Parish had been busted for marijuana, too. These busts were humiliating and costly for the people involved. Where was the humor? Wittingly or not, Steele was serving the interests of the team owners, who wanted the NBA players to agree, in the upcoming contract, to be tested for marijuana. And the players did indeed capitulate.

The implication of the Carmelo Anthony bust -like the Abdul-Jabbar bust and the Webber bust and the Parish bust- is that marijuana use doesn't prevent one from being a great athlete. Parish was the most durable player in the history of the league. "David Steele must never have had a migraine," commented a migraine sufferer of my acquaintance. "I don't know what the worst pain in the world is, but it must be the second."

Fred Gardner can be reached at journal@ccrmg.org

Weekend Edition Features for November 27 / 28, 2004

Peter Linebaugh
Torture & Neo-Liberalism with Sycorax in Iraq

Alexander Cockburn
What Happened to O'Reilly's Loofa?

Fred Gardner
Ashcroft v. Raich: Medical Marijuana and the Supreme Court

Kathy Kelly
What We Can Control

Diane Christian
The Other Cheek: "Empire Doesn't Analyze, It Acts"

Gary Leupp
One More Neocon Target: South (Yes, South) Korea

Lenni Brenner
Equality and Rights of Return: Jefferson Instructs the New York Times

Ron Jacobs
Death Squads and Iraq's Elections: the Mysterious Murders of the AMS Clerics

Joshua Frank
An Interview with Kevin Zeese on Nader, Kerry and the ABB Crowd

Toni Solo
The Murder of Danilo Anderson

Saul Landau
Fallujah, the 21st Century Guernica

JoAnn Wypijewski
Matthew Shepard Case 6 Years Later: Why Hate Crimes Laws are No Cure for Homophobia

Justin Taylor
Empire's Lawless Opportunities

Amos Harel
The Case of Captain R.

Walter A. Davis
Tabloid Justice

Stephen Hendricks
God's Kind of Men

Poets' Basement
Albert, LaMorticella and Ford

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