Domestic stealth bombs
From hounding medical-marijuana growers to stacking the courts with conservative judges, the Bush administration is pandering to the right while America prepares for war
from "The"


A SECOND resolution on war in Iraq. A Bush post-invasion plan. Millions of antiwar protesters take to the streets. Saddam Hussein gets feisty with weapons inspectors. It’s no surprise that stories without an Iraq angle get little or no attention these days. The all-Iraq-all-the-time media myopia is even understandable, given how momentous an event it would be for President George W. Bush to send American troops off to battle.

Yet as we’ve learned often enough — especially with the Bush administration — what’s going on out of sight is often just as important as what’s taking center stage on TV or the front page. While we stockpile supplies and wrap our windows in duct tape, the Bushies are quietly advancing a frightening domestic agenda that amounts to a far-right ideological assault on our civil liberties and social protections — and threatens to turn the clock back decades. Here are five Bush-administration domestic policies of enormous consequence that have been overlooked in this time of impending war and national-security crises.

The assault on medical marijuana

This is a misguided, mean-spirited effort. But the Bush administration — led by Attorney General John Ashcroft — seems hell-bent on preventing states from permitting marijuana use for medical purposes. Ashcroft’s assault began in earnest in 2001, when he ordered a raid on a health-care facility in California that distributed medical pot — something a state ballot initiative legalized there in 1996. He’s continued to frustrate the will of California voters by pushing to revoke the licenses of doctors who recommend marijuana to patients. That strategy faltered when a federal court struck down Ashcroft’s legal motion to do so on constitutional grounds last fall.

Now, the attorney general has taken a different tack: arresting and prosecuting cannabis growers who work under the California medical-pot law known as Proposition 215. To date, Ashcroft’s Justice Department has gone after 40 such growers. Its latest victim? Ed Rosenthal. Author of cannabis self-help books and a High Times advice column called "Ask Ed," Rosenthal is something of a celebrity among potheads. But he’s also a legitimate Prop. 215 cultivator, a deputized "officer" who grows pot to be distributed for medicinal purposes under the auspices of the City of Oakland, where a local ordinance set up city-sanctioned growing facilities to implement the state law.

Despite Rosenthal’s official title, federal prosecutors arrested him on charges of marijuana cultivation and conspiracy last year; in January, they took him to court in San Francisco — though not many fair-minded folk would call what happened inside the courtroom a "trial." US District Court judge Charles Breyer refused to allow Rosenthal to raise Prop. 215 as a defense, since it’s not valid under federal law. So while he admitted growing marijuana for distribution, Rosenthal couldn’t offer up any witnesses to explain why. Given the constraints, the jury found Rosenthal guilty on January 31. Under mandatory sentencing, he faces a minimum of five years in prison.

It’s an extraordinary punishment for a man whom sick people regard as a savior and whom California law defines as a caregiver. But then, within days, jurors in his trial did something extraordinary, too. On February 4, eight of the 14 jurors offered a public apology to the man whom they’d just convicted. They were outraged to discover later that Rosenthal was growing medical cannabis for Oakland. If they had known he was acting as a city agent, they said, they would have acquitted him. The jurors, in other words, have a lot more compassion and sense on the matter than the Bush people do.

Americans are widely and increasingly tolerant of marijuana. Most don’t think casual pot use should be punished by more than a fine; 40 percent would even legalize the use of marijuana in small amounts, according to a recent Time/CNN poll. There’s almost no dispute, however, about whether patients with AIDS, cancer, and other debilitating illnesses should be allowed whatever relief marijuana can give them. Eight out of 10 Americans believe pot should be legal with a doctor’s prescription, the poll showed. Such popular support has led nine states, including California, to pass ballot initiatives making marijuana available to seriously sick people.

The Bush administration’s war on medical marijuana flies in the face of the president’s and Ashcroft’s oft-repeated rhetoric about the importance of states’ rights — apparently, a doctrine worthy of support only when it doesn’t contradict their moralistic, father-knows-best social agenda. As Kevin Zeese, who heads the Washington, DC–based group Common Sense for Drug Policy, puts it, "The administration is using the issue to energize its right-wing base." It’s no accident that, of the states that permit medical marijuana, Ashcroft has made an example only of California. Others, such as Hawaii, Colorado, and Maine, represent Republican swing states, whose support the president needs to win re-election in 2004. Zeese explains, "The strategy is to write off California to mobilize [the GOP’s] conservative, far-right base across the country."

This time, though, Ashcroft and his minions may have gone too far. The Rosenthal case has attracted more negative attention than they likely anticipated. If anything, the trial made Rosenthal into a martyr. His conviction has served as a rallying cry for supporters of medical marijuana everywhere. Offers Graham Boyd, who heads the American Civil Liberties Union Drug Policy Litigation Project, "For supporters, the issue is no longer a nice idea. It’s become one where the federal government is viewed as being out of control and vindictive, and we have to do something to stop it."

The war on women

By now, the Bush administration’s disdain for women’s reproductive rights is no secret. Almost as soon as he assumed office, in January 2001, George W. made his anti-abortion position plain, stripping funds from clinics for merely lobbying in favor of reproductive rights. He’s catered shamelessly to religious conservatives ever since by attempting to appoint a string of judicial nominees who are openly hostile to the US Supreme Court’s landmark Roe v. Wade decision. But more on that later.

First, consider the quieter, yet no-less-insidious battle Bush has waged over control of one of the most important panels on women’s health policy: the Food and Drug Administration (FDA) advisory committee on reproductive-health drugs. This government board plays a crucial role in evaluating the safety and effectiveness of drugs used in obstetrics, gynecology, and related fields. It advises the FDA on medications and treatments, including contraception, hormone therapy, and medical abortions. Simply put, it wields tremendous power in determining the future of reproductive rights.

So imagine the dismay among women’s advocates when the president unveiled his list of 11 appointees to the FDA advisory panel on, of all days, Christmas Eve 2002, thus ensuring that it would receive little public attention. High on the list appeared a thinly credentialed doctor by the name of W. David Hager, whose writings include a book titled As Jesus Cared for Women: Restoring Women Then and Now (Fleming H. Revell, 1998). An obstetrician-gynecologist, Hager is a self-described pro-lifer who aims to incorporate Christianity into medicine. In his book Stress and the Woman’s Body (Fleming H. Revell, 1996), which he co-authored with his wife, Linda, he puts an " emphasis on the restorative power of Jesus Christ in one’s life, " and recommends Scripture readings for such ailments as eating disorders, postpartum depression, and premenstrual syndrome. He refuses to prescribe contraception to unmarried women; instead, he lectures them about the virtues of abstinence. Last August, Hager drafted a " citizen’s petition " for the Christian Medical Association demanding that the FDA revoke its approval of mifepristone, or RU-486 — a drug that the FDA board on which he now sits had studied for years. Clearly, notes Amy Allina, of the National Women’s Health Network, in DC, " The Bush administration chose him for his religious activism, " not his scientific record.

The president’s FDA-appointee list includes two other doctors who’ve long opposed abortion and reproductive rights. Susan Crockett, for one, is a professor at the University of Texas Health Science Center, in San Antonio, who happens to serve on two pro-life organizational boards. Likewise, Joseph Stanford, of the University of Utah, has advocated for " natural family planning, " commonly known as the rhythm method (or no method). He’s argued in his writings that the birth-control pill and emergency contraception can trigger an abortion — a position that not only contradicts the accepted medical view of contraception, but also has political implications.

None of these ideologues will head up the FDA advisory board — although Bush originally appointed Hager to chair the board last October, only to be faced down by howls of protest among women's-rights groups. Advocates are somewhat reassured by the chairmanship of Linda Giudice, a Stanford professor who heads the university hospital’s Reproductive Endocrinology and Infertility Center. But the Bush ideologues on the board could threaten women’s reproductive health nevertheless. A bloc of three people with staunch religious views that contradict science could thwart the committee’s work on women’s-health policy. The board, for instance, will have to respond to that so-called citizen’s petition to rescind mifepristone from pharmacy shelves this year. Do we really want members like Hager — who led the anti-mifepristone effort to begin with — deciding this issue for all American women? The panel’s also likely to consider whether to make emergency contraception — which has been shown to be safe and effective, with virtually no side effects — available over the counter. What’s the chance that these three appointees will recommend such access, given their anti-choice positions?

There’s no doubt that the three ultraconservative members of this important FDA committee reflect the Bush administration’s commitment to restrict reproductive rights. They show its determination to undermine women’s health for the sake of politics. And they reveal just how tied to the far right the administration really is. " This decision was not accidental, " says Kate Michelman, of the National Abortion and Reproductive Rights Action League (NARAL). " It was a planned effort by the hard-line conservative base, which calls a lot of the shots on reproductive-rights policy in the Bush White House. " The president’s intent certainly seems clear when you look at his initiatives and actions on women’s health.

But, of course, you have to know to look in the first place.

Stacking the bench

It’s full-steam ahead for the Bush administration and its drive to pack the nation’s courts with archconservative judicial activists. Much has been made of the president’s promise to appoint to the Supreme Court conservative ideologues à la Justices Antonin Scalia and Clarence Thomas. But while waiting for the chance to do so, Bush has nominated one right-winger after another to the lower courts, in a kind of stealth campaign that operates under most radars.

Topping the nominee list is a man whom critics consider stealth-like himself: Miguel Estrada, whose appointment Senate Democrats succeeded in blocking last week. A DC attorney, Estrada has no experience as a judge, and thus no record that can be scrutinized. Yet Bush has nominated him to one of the most influential courts in the country, the US Court of Appeals for the District of Columbia Circuit. Many of his co-workers over the years report that his interpretation of the law stems from a conservative agenda. His former boss at the Office of the US Solicitor General told the Los Angeles Times that Estrada is so " ideologically driven that he couldn’t be trusted to state the law in a fair, neutral way. " When Estrada came before the Senate Judiciary Committee last fall, he dodged questions that would have illuminated his views. Asked about Roe v. Wade, for example, he replied that he hadn’t given the abortion case much thought. That seems so incredible, it borders on laughable. This is, after all, a man who was clerking for pivotal Supreme Court justice Anthony Kennedy when Roe was challenged in 1989.

Of course, Estrada represents just the tip of the iceberg. Other Bush judicial nominees will soon be coming before the Senate. There’s Jeffrey Sutton, an Ohio lawyer who has fought to limit federal protections against discrimination based on disability, race, age, sex, and religion. There’s Deborah Cook, an Ohio Supreme Court judge whose opinions reveal what civil libertarians describe as " a callousness toward the rights of ordinary citizens which offends any reasonable sense of justice. " And then there’s the California judge Carolyn Kuhl, who, as Justice Department employee in the 1980s, urged the Supreme Court to overturn Roe because of its " flawed " reasoning.

These days, the stakes in judicial nominations are high. Now that Republicans control both congressional houses, Democrats are cringing at the prospect of far-right ideologues dominating the bench for years, long after Bush leaves the White House. The new Senate Republican majority has ushered in an era of conveyor-belt-style confirmations. Traditionally, the Senate Judiciary Committee has heard no more than one court-of-appeals nomination at a time. On January 29, however, the committee, under the leadership of Utah Republican Orrin Hatch, hurried through three appeals-court nominations (including Sutton and Cook). In just two weeks, it reviewed the same number of appeals-court nominees that it took six months for the committee to consider during the Clinton administration. Observes Ralph Neas, of the People for the American Way, a liberal-advocacy group in DC, " Bush wants the Senate to be a rubber stamp and rush through as many right-wing ideologues as possible. "

If Bush gets his way, the consequences for American jurisprudence will be severe. Right now, of the 13 federal appellate courts, eight are controlled by Republican-appointed judges. Democratic appointees control three, while the remaining two maintain an equal composition. By the end of 2004, if Bush’s nominees win approval, every single appellate court could end up dominated by Republican-appointed judges. For many Americans, these courts are the last resort. The nation’s highest court hears only 100 cases each year, compared to the 28,000 cases heard by the appeals courts. That means that appellate decisions often serve as the final legal word on reproductive rights, the rights of the disabled, civil liberties, labor protections — the list goes on and on.

The politics of taxes

Earlier this month, the Bush administration released an ambitious budget and tax plan for fiscal year (FY) 2004, which restructures social programs so drastically that it would wipe out the federal government’s safety net for the poor. Not surprisingly, the president proposed the $2.23 trillion package on February 3 with little public fanfare. But don’t let the calm fool you.

If approved by Congress, Bush’s economic plan would unleash a firestorm throughout the federal government. It represents nothing less than a dramatic overhaul of President Lyndon B. Johnson's Great Society programs — from Medicaid and Medicare to welfare — that help the poor, aged, and vulnerable. The reforms seek to hand over control of services to the states, reduce funding, and establish more requirements (read: barriers) for low-income people to receive public assistance. One proposed change calls for states to have more power in administering the $300 billion Medicaid program, the joint state-federal effort that provides health care for the poor and disabled. Another change would force elderly Medicare recipients who want prescription-drug coverage to leave the traditional, publicly funded system for private insurers — a move critics see as a first step toward the total privatization of Medicare. All these policies are, in a sense, ideological heirs to previous conservative attempts to limit the federal role in social welfare. Taken together, however, they would spell devastation for core social services. In effect, they’d transform the federal government’s relationship with our neediest citizens from one of some responsibility to none at all.

At the same time, Bush is pushing a tax cut of historic proportions — one that would cost the US Treasury nearly $1.5 trillion over 10 years. The latest round of Bush tax cuts, like the previous round in 2001, mainly provides benefits to the very, very well off, while squeezing social spending for years to come. The Bush administration touts its 2004 budget-and-tax package as a much-needed economic booster, but not everyone believes the hype. Last week, for instance, 10 Nobel laureates in economics blasted the plan, saying that its "purpose is a permanent change in the tax structure and not the creation of jobs and growth in the near term." These critics predict massive, chronic federal-budget deficits that will limit the ability of future administrations to "finance Social Security and Medicare benefits, as well as investments in schools, health, infrastructure, and basic research." The Nobel laureates were among as many as 450 economists to sign a statement objecting to the Bush plan.

According to Wade Henderson, director of the Leadership Conference on Civil Rights, in DC, the Bush economic package has little to do with responsible tax and budget policymaking. On the contrary, it’s meant to starve the federal government of the fiscal resources needed to fund such vital programs as Medicaid, Medicare, and Social Security. "This is actually the worst of Reagan revisited," explains Henderson, whose group helped launch the Fair Taxes for All Coalition last week in response to the Bush proposal. He adds, "What we’re seeing is an aggressive campaign to transform the role of the federal government."

Bush likes to present himself as a "compassionate conservative." But his critics have taken to calling him the "Great Pretender," what with his penchant for shamelessly misrepresenting the content of his own tax policies. This time, at least, the Bush administration has a track record, and it’s not a very encouraging one. In the year and a half since the 2001 tax cut, which was touted as the perfect economic stimulus, the economy has lost 1.4 million jobs. Meanwhile, billions of dollars in budget surpluses have turned into billions of dollars in budget deficits.

Numbers like these speak for themselves. Which is why, says Henderson, "We cannot be blind to the changes that this administration is moving aggressively to implement."

Federalizing capital punishment

Since taking over Washington in 2001, the Bushies — headed, once again, by our nation’s top cop — have wasted no time gearing up the federal death penalty. Just six months into Bush’s tenure, two federal prisoners were put to death for the first time in 38 years. Then, under Ashcroft’s leadership, US attorneys in states where legislators had banned capital punishment began seeking federal death sentences with fervor. In Massachusetts, for instance, federal prosecutors are going after the ultimate punishment in the pending case of Gary Lee Sampson, who’s accused of murdering three people in two states in July 2001.

But the attorney general isn’t just encouraging his staff to seek executions. Instead, he’s throwing out the recommendations of federal prosecutors seeking alternative sentences and forcing them to go for the maximum. Across the country, Ashcroft has ordered US attorneys to choose the death penalty for defendants in 28 cases in which they did not seek or even recommend capital punishment. The move is known as an "override." Almost half of the 28 overrides come from New York and Connecticut. Those cases include one in Brooklyn against a murder suspect who’d agreed to plead guilty and testify against others in a drug ring in exchange for life in prison. Another involves a New York defendant who’s mentally retarded and thus ineligible for the death penalty.

Ashcroft has justified his decision by claiming that a rise in death-penalty cases in the Northeast would help even out the numbers nationwide. But as with his campaign against medical marijuana, his drive to increase the use of capital punishment contradicts the Bush administration’s touted commitment to give states control. Capital punishment is an intensely local issue that plays differently in different regions. The overrides, according to David Elliot, of the National Coalition to Abolish the Death Penalty (NCADP), "show the Republicans talk a great game about local control. But the talk rings hollow when it comes to ideological issues that are dear to their hearts."

Besides, what’s most troubling about the death penalty isn’t its uneven application across the country. Rather, it’s that minorities are disproportionately sentenced to death. In the final years of the Clinton administration, a Justice Department study found that capital charges in federal cases are overwhelmingly sought against people of color: as much as 80 percent of defendants who face capital charges are members of minority groups. Former attorney general Janet Reno called for an in-depth study of these racial disparities right before the end of her term.

And then, of course, Ashcroft moved in. In June 2001, he released his own report stating that there is "no evidence of racial bias" in federal capital-punishment cases. Today, however, it seems his overrides are only perpetuating the problem. Of the 28 cases in which he’s pressuring prosecutors to seek executions, 19 of the defendants are black, five are Latino, one is Native American, and one is Asian. Only two defendants are white.

The number of cases in which capital punishment is administered unfairly — and those in which DNA evidence has exonerated death-row inmates — led one formerly pro-death-penalty Republican to a recent change of heart. On January 13, Illinois governor George Ryan left office after capturing worldwide attention with his blanket commutation of the death sentences of 163 men and four women to prison terms. It was a watershed moment in the debate over capital punishment. Today, people know how the system can make mistakes that involve prosecutorial misconduct, coerced confessions, and erroneous eyewitness testimony. They know how innocent people can die at the hands of the state.

Given all this, Ashcroft’s directive seems out of whack with the mainstream. Even those who support the death penalty are concerned about innocence and fairness. Apparently, Ashcroft doesn’t care about either. Says Diann Rust-Tierney, of the ACLU Capital Punishment Project, "This is a gross abdication of the attorney general’s responsibility to assure that the most serious punishment is meted out fairly and without mistakes." Once again, Ashcroft’s actions represent, as Rust-Tierney puts it, "an example of just how he’s pursuing this as a political tool," rather than as sound public policy.

Kristen Lombardi can be reached at
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Issue Date: February 27 - March 6, 2003
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