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Editors Note: This is an excerpt from Book Review Roundtable: Laws Wars, Laws Trials from our sister publication, the Texas National Security Review. Be sure to check out the full roundtable.

Richard Abel, Laws Wars: The Fate of the Rule of Law in the U.S. War on Terror (Cambridge: Cambridge University Press, 2018) and Laws Trials: The Performance of Legal Institutions in the U.S. War on Terror (Cambridge: Cambridge University Press, 2018)

As the long post-9/11 era of U.S. counter-terrorism enters its third decade, it has grown easier to identify distinct genres within the sizable body of work assessing the legal costs of U.S. actions. One body of work has focused squarely on the damage counter-terrorism policies have inflicted on individual civil liberties and human rights, including how expansive surveillance compromised the right to privacy, how torture and abuse undermined the promise of human dignity, how indefinite detention of some individuals violated the right to liberty, and how particular acts of targeted killing violated the right to life. Such policies implicated, and at times transgressed, a long list of prohibitive rules codified in domestic and international law and designed to limit the kinds of things governments can do to people in the name of national security.

A second collection of work has looked at the damage wrought by the post-9/11 wars on legal and political institutions, on process values of regularity and fairness, and on the ability of legal structures to constrain government power or hold it to account. It is a body of scholarship commonly characterized by its attention to the much used and abused concept of the rule of law.

While the rule of law is today invoked with increasing frequency as though it is synonymous with the list of rules, the phrase classically meant something quite different. Rule of law referred to the core principles and institutional structures by which any lawful action may be taken and by which any legal rule may be applied, interpreted, or changed. Without hoping to engage the many libraries worth of scholarship devoted to debating what those principles are, few would dispute that they include the very basic idea that people will be governed by publicly available rules that are known in advance, are applied equally in all cases according to their terms, and are binding on both private individuals and the conduct of the government itself. In works focused on the rule of law, the concern is with how policies were introduced and implemented. Did the president have the constitutional authority to take a particular action? Did the secrecy surrounding government action compromise the ability to hold public officials to account? Were like cases treated alike, according to fixed or predictable applications of law, or did the government slip into seemingly arbitrary assertions of power?

Richard Abels sweeping two-volume collection fits firmly within the latter body of work. It aims not to catalog particular violations of legal rules after 9/11, but rather to examine how legal structures built for constraining power, inside the government and out, fared in pushing back against those violations. The answer he offers is mixed: [D]efenders of the rule of law achieved only partial victories all that is ever possible.

In one sense, it is hard to contest that conclusion, particularly when so many of the policies studied in Abels books, as well as the institutional responses to them, are still unfolding. Forty detainees remain at Guantanamo Bay, for example, while multiple legal cases involving those detainees are pending in U.S. federal court. Proceedings in military commissions are now entering their 17th active year. CIA black sites and enhanced interrogation techniques are formally no longer part of the U.S. repertoire, but 2016 presidential candidate Donald Trump campaigned and won on a platform that called for a resumption of such techniques. Efforts continue apace in U.S., foreign, and international courts to hold original perpetrators of torture to account. Analogous policy issues continue to arise as U.S. forces are still in Afghanistan and Iraq, and continue to carry out counter-terrorism missions in multiple other countries. The wisdom and legality of operations in putative service of those missions including, for some, the controversial strike last year against Iranian Gen. Qasem Soleimani remain a chronic part of the national political debate today.

Yet even within the existing record, Abels account leaves unclear what he would consider a more decisive victory for the rule of law. While Abel regularly describes failures to correct or punish government officials who violated laws as failures of the rule of law, not all post-9/11 excesses or accountability gaps are attributable to failures of the particular structural checks he describes. Or, as the examples below illustrate, they may reflect rule-of-law problems in some institutions but not others.

The distinction is not merely semantic. Calling an action a threat to or failure of the rule of law an accusation made with frequency and accuracy against the Trump administration can have serious rhetorical and practical effects. Just as false claims about the structural integrity of elections may destructively undermine confidence in American democracy, misplaced claims about the threat to structural legal norms can be used to justify extraordinary institutional responses that may themselves undermine the rule of law. Moreover, even where underlying structural or process failures exist, they may be the result of institutional deficits unrelated to failures of legal rules or norms. In those cases, viewing the problem as primarily legal in nature risks obscuring the need for other vital reforms. Quite often as was certainly the case in many of the governments post-9/11 errors there are failures of more than one kind occurring at once, and there is ample institutional blame to go around. As institutions today work to recover from the exceptional Trump presidency, it seems essential to make sure the post-9/11 story is told in a way that squarely diagnoses what went wrong.

Trading One Rule Violation for Another

Consider one of the episodes Abel invokes to demonstrate a failure of the rule of law: the Obama Justice Departments decision not to move forward with prosecuting federal agents implicated in the torture-related deaths of two detainees in U.S. custody. As Abel recounts, Attorney General Eric Holder explained the decision not to prosecute by citing Justice Department investigators conclusion that the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt. Critics of the decision, including the New York Times editorial board, called the implications for the rule of law deeply troubling. Abel ultimately agrees, describing the failure to secure prosecutions for such offenses as the rule-of-law defenders greatest defeat. Because no court had been able to declare such conduct criminally unlawful or formally punish the perpetrators, rule-of-law [i.e., law] violators can keep claiming their actions were legal.

Having labored extensively to document scores of detainee deaths in U.S. custody since 9/11, including those who had been tortured to death, I well recall the acute disappointment of Holders announcement. Yet, a failure to prosecute seems an inadequate place to lay blame. Prosecutors decide not to move forward with cases for lack of sufficient admissible evidence all the time. And the prospect that there was insufficient admissible evidence to win these cases was unfortunately plausible. As my colleagues and I discovered in combing through the governments own investigative reports, the initial mishandling of evidence by various personnel often put ordinary criminal prosecution out of reach. Notwithstanding, for example, a U.S. Army medical examiners report finding that a detainee in U.S. custody had been strangled to death, the physical evidence that would have been required to prove his cause of death was destroyed due to the detainees body having been left on an Iraqi airport tarmac for hours in the blistering heat. Similar problems arose when multiple individuals participated in an interrogation over time. There might be sufficient ordinary evidence to establish the specific culpability of some participants, but not all.

Abel is entirely right to see non-prosecution in such cases as tragic. He would be equally right to call such decisions a failure of justice. But it is not at all clear that non-prosecution was a failure of the rule of law. On the contrary, for the Justice Department to attempt to secure a criminal conviction in a case despite conventionally inadequate proof would risk weakening the regular evidentiary safeguards that aim to make the criminal process fair. No ordinary application of the existing public rules of evidence in such a case would suffice. It would lead us away from the application of ordinary law, publicly known and equally applied. It would likewise risk damaging the credibility of the Department of Justice an indispensable institution, but not the one responsible for the evidentiary failures that made prosecution impossible. Torturing detainees violated the rules. Asserting state power to evade ordinary rules of evidence risks violating the rule of law.

If evidentiary obstacles were to blame for the decision not to prosecute, a rule-of-law-protecting response to the problem would focus on other ways to make clear the social and political condemnation of the practice of torture by, for example, imposing adverse career consequences on perpetrators of torture and abuse. It would also address any failures that took place at the evidence-collection stage by holding individuals who failed to preserve evidence to account through internal disciplinary processes (including the military justice system) and by strengthening the availability of those accountability measures, as well as the procedures and training that support them. There may well have been rule-of-law failures in those earlier stages. But whether any efforts were made to address those failings in response to the deaths Holder declined to prosecute is a topic Abel does not address.

Missing Policy Failures for Law

Other examples that Abel considers involve a mix of failures some attributable to different institutional failings, some more accurately characterized as failures of the rule of law. Take the original February 2002 torture memo produced by the Justice Departments Office of Legal Counsel. The infamous memo informed federal agencies that interrogation techniques could not be considered a violation of the criminal law against torture unless they produced a level of pain equivalent in intensity to the pain accompanying organ failure or even death. Abel rightly identifies the memo as enabling those practices that resulted in abusive interrogation after 9/11. Parts of the torture memo can be said to pose a serious challenge to the rule of law. But it was not the implausibly narrow definition of torture the memo embraced that caused bipartisan legal condemnation and led the Bush administration itself to withdraw it. It was the offices claim without engaging the most relevant legal authorities that the ordinary federal criminal law against torture did not apply to constrain those acting on behalf of the president of the United States. Here was a rule-of-law failure in the extreme: An internal executive branch structure designed to promote adherence to the constitutions separation of powers (an allocation giving Congress the power to enact criminal prohibitions against torture) instead promoted its evasion.

Yet, the Office of Legal Counsel was hardly alone in contributing to the torture and abuse of detainees that Abel recounts in several chapters of his book. While Bush administration defenders touted the importance of flexibility in U.S. counter-terrorism, organization theorists had long recognized the importance of systems, planning, and process in security management and response. Indeed, while Abel criticizes vague and erroneous legal guidance and inadequate criminal prosecution for what went wrong in U.S. detention operations, it would be a mistake to view the prisoner abuse at Abu Ghraib, for example, as a rule-of-law failure alone. Among other things, as military investigators ultimately found, pre-war planning had not included planning for detainee operations in Iraq. Indeed, the 372nd Military Police Company the unit in charge of military police operations at Abu Ghraib during the period when the worst abuses were taking place was a combat support unit with no training at all in detainee operations.

It is entirely reasonable for Abel to focus his book on the performance of legal structures, rather than, for example, political or military institutions. But ignoring the multifarious causes of disasters like Abu Ghraib risks overstating the extent to which the failure belongs to legal structures alone. It may also obscure the importance of reforms beyond those that checks to the rule of law alone can reasonably provide.

Conclusion

In this era of extreme political polarization, it is essential to remain clear-eyed about the distinctions between official behaviors that violate the rules, and those that compromise the rule of law. The post-9/11 era featured more than its share of policy and organizational failures, and far more rule-breaking in the treatment of detainees than any good government should tolerate. And efforts by leaders and advocates to craft what remedy they still can for those behaviors should and do continue. But it would be a mistake to sell short the extent to which commitments to the rule of law in the national security realm remain. Despite stark legal and policy disputes over the propriety of the military detention of U.S. citizen Yaser Esam Hamdi, an alleged Taliban fighter handed over to U.S. forces in Afghanistan in 2002, the Supreme Court voted 8-1 to require that Hamdi have access to legal counsel and an opportunity to challenge the legality of his detention before an independent court. Even this past year, though members of Congress differed sharply over the wisdom of the Soleimani strike, one of the very few bills that won bipartisan majorities in both the House and the Senate was war powers legislation aimed at securing Congresss institutional involvement in any decision to embark upon a major new conflict with Iran. And despite Trumps extraordinary efforts to engage the uniformed military in policing domestic political protests, the bipartisan condemnation of those efforts, as well as condemnation from within the military itself, should offer some reassurance that America has thus far weathered the post-9/11 era with some core rule-of-law beliefs intact.

Where one can find them, such bipartisan expressions of a commitment to shared principles are essential in helping to shore up slipping confidence in governmental institutions. They enable officials to rebuild some muscle memory of what it is like to govern across partisan lines and to reinforce normative beliefs in laws ability to constrain power. And they offer some cause for hope that when the inevitable next set of rule violations arise, there remains a rule-of-law system still able, over time, to correct itself.

Deborah Pearlstein is professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School in New York. From 2003 to 2007, she served as director of the Law and Security Program at the Washington, D.C.-based NGO Human Rights First.

Image: U.S. Air Force (Photo by Tech. Sgt. Gregory Brook)

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Counter-Terrorism and the Rule of Law - War on the Rocks

Before Donald Trump began his run for president, there was a war against journalism in the United States. President George W. Bush used the Espionage Act and sought to jail reporters who refused to give up their sources, not to mentionkillingjournalists in war zones. When President Barack Obama, a constitutional law scholar, came to power, he did so claiming that he and Joe Biden would represent the most transparent administration in history. But then reality set in. During his eight years in power, Obamas Justice Department used the Espionage Act against whistleblowers more than all of Obamas predecessors combined. They continued the Bush Justice Departments war on journalists, includingthreatening to jail then-New York Times reporter James Risen if he did not testify against his alleged source.

Despite its prosecutions of whistleblowers, Obamas administration understood that use of the Espionage Act was controversial and widely denounced by press freedom organizations. Attorney General Eric Holder sought to implement some guardrails against spying on journalists, though the administration maintained it had the right to do so in some circumstances. Still, Obama commuted whistleblower Chelsea Mannings draconian 35-year prison sentence. During Trumps tenure Manning was jailed again for nearly a year for refusing to testify in front of a Grand Jury. Obamasadministration also declined to indict WikiLeaks founder Julian Assange and at least one other alleged whistleblower accused of leaking documents about the drone assassination program. Trumps administration dug both cases out and moved forward with espionage prosecutions, which remain active.

Cyclists pass a truck with a protest sign reading #FreeSpeech with pictures of Chelsea Manning, left, and WikiLeaks founder Julian Assange, right, in Washington, D.C., on April 16, 2019.

Photo: Brendan Smialowski/AFP via Getty Images

Trump came to power following a political campaign in which he attacked the free press, adopted fascist slogans to denounce reporters, and denied that basic facts were true. Trump harbored a Nixonian hatred of the press and lived in constant fear of leaks, particularly about his personal finances.

In a clear effort to send chills through the government and as a warning to any would-be whistleblowers, Trumps Justice Department went on a rampage using the Espionage Act. Its first major prosecution was against a National Security Agency contractor named Reality Winner. The Justice Department accused Winner of leakingtoa news outlet an NSA documentthat showed Russian efforts to penetrate software used in some U.S. voting systems in 2016. Othernews organizations have stated that the outlet was The Intercept.Winner accepted a plea agreement to one count of felony transmission of national defense information and was sentenced to five years, the longest prison term of any whistleblower convicted under the Espionage Act. It was an unconscionable act by a vindictive administration.

The Trump Justice Department weaponized its indictment of Winner in an effort to smear The Intercept and to encourage the media to focus on other journalists rather than the contents of the NSA document in question or the unjust use of the Espionage Act. Unfortunately, many publications took the bait and played into Trumps malignant anti-press crusade.

When indictments of whistleblowers happen and FBI investigations are launched, journalists should scrutinize and confront the actions of intelligence and law enforcement agencies and assess what these attacks mean for the freedom of the press. Instead, so many media outlets seemed to want to aid the Trump administration in making this about what journalists did or did not do making the publication the target, instead of focusing on the secrets that whistleblowers exposed or the dangerous weaponizing of the Espionage Act by both Democratic and Republican presidents.

I believe that The Intercept made serious errors in its editorial process on theRussia story, and I advocated both publicly and internally for The Intercept to explain exactly what happened. I believe that some of these mistakes were preventable. At the same time, there were serious legal concerns that anything The Intercept said in public could be used against Winner and other sources, and our attorneys implored The Intercepts editors to say nothing. I understood the legal logic. Our editor-in-chief ended up making a statement acknowledging that we had failed to live up to our standards and taking responsibility for the institutionalfailure.

This was a complicated situation, and I believe the facts make clear that Winner would likely have been arrested regardless of any mistakes made by The Intercept. She was one of just six people in the entire U.S. national security apparatus to print the document in question and the only one to use a government computer to send emails (which were unrelated to the Russia story) to The Intercept. That doesnt absolve The Intercept, but it is an important part of this story that is seldom mentioned. And we all know the Trump administration prioritized punishing leakers and was willing to use the full force of the state to do so. It was disturbing that the overwhelming focus of the reporting on Winner bysome media outlets was not on the contents of the document she allegedly revealed or that the Trump administration was wielding the Espionage Act like a weapon in order to threaten any would-be whistleblowers. The lead prosecutor made the outrageous statement that Winner was the quintessential example of an insider threat. The Intercept deserved criticism and scrutiny, but the problem was that it often came at the expense of holding the chief villains of the story accountable.

Joe Biden speaks with the press before departing Charlotte, N.C., on Sept. 23, 2020.

Photo: Jim Watson/AFP via Getty Images

President Joe Biden has an opportunity to right some of these wrongs. He should publicly commit to ending the use of the Espionage Act against whistleblowers. Congress could also amend or repeal the act so that it cannot be used for such purposes. Biden should also take actions to end the persecution of Assange and return to the Obama-era position that Assange should not be prosecuted by the United States. We thought it was a dangerous precedent to prosecute Assange for something that reporters do all the time,saidMatthew Miller, an Obama Justice Department spokesperson. The Espionage Act doesnt make any distinction between journalists and others, so if you can apply it to Assange, theres no real reason you couldnt apply it to [the New York Times]. Biden should immediately pardon Winner and secure her release from a coronavirus-infested prison. He also should drop the case against former intelligence contractor and war veteran Daniel Hale, who is facing trial under the Espionage Act for allegedly leaking documents on the U.S. drone and assassination programs.

We have just seen the end of a dangerous administrationthat openly waged war against journalism. For four years, the president of the United States used the Justice Department as his personal law firm and a political cudgel against his perceived enemies, including the press. Even if Biden doesnt agree with the principles I am advocating, he could declare these Espionage Act indictments to be the toxic fruit of the poisonous and discredited Trump Justice Department. And media outlets should remember the next time a whistleblower is arrested that the most important task for journalists is to hold those in power to account rather than allow themselves to be used in a government distraction campaign.

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Biden Should End Espionage Act Prosecutions of Whistleblowers and Journalists - The Intercept

In the waning, groaning days of the Trump administration, with nary a week left until it leaves office, the Trump administration's U.S. Department of Agriculture issued its final rule governing hemp production. While the final rule, much to the dismay of hemp farmers, leaves the Drug Enforcement Agency in their businessfarm bill be damnedthere are other reasons to be cheerful.

The USDAs final rule expands the harvest window before getting tested (at a DEA lab, naturally), allows alternative forms of disposal or remediation for "hot"hemp that is higher than 0.3% THCand raises the negligence threshold of THC before mandatory disposal up to 1% THC.

Related: Marijuana legalization could supercharge CBD at retail

The transition from prohibition to a legal and regulated system takes time, noted an optimistic Shawn Hauser, partner and chair of the hemp and cannabinoids department at the Vicente Sederberg law firm, and USDAs final rule is a historic step forward for hemp in the U.S.

Fellow hemp attorney Garrett Graff, managing partner at the Hoban Law Group, described it as a "two steps forward and thenstagnant" type of deal.

Related: 2020 election could raise the fortunes of hemp and CBD

Time will tell, said Graff, whether a new administration, secretary of agriculture and Congress, how quickly that progress and further work can be realized.

There is actually quite a bit of progress that still needs to happen. It starts with the new Biden administration and ends with guess who? Heres our list of 12.

Under the governing legislation, the Federal Food Drug and Cosmetic Act, lies the loophole that the FDA can assert enforcement discretion around anything else in the Act. Specifically, the FDA can write in stone what has essentially been its de facto response to CBD in supplements, which is to let the market flourish freely. Announcing that would give comfort to large mainstream retailers and other interests to hop in the cannabinoid game with both feet in the deep end of the pool. This, many hemp observers keep saying, is what is keeping the market from reaching its full fruition. As of yetthe FDA has neither initiated such a notice-and-comment rulemaking for enforcement discretion, nor committed to doing so.

For example, the FDA wants to see amended last Congress H.R. 8179the Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2020 (it will have a new number in the new Congress but the same title)to include only CBD and none of the other cannabinoids or other ingredients derived from the plant. The FDA wants to save as much of the rest of the Cannabis sativa plant for pharmaceutical intereststhis despite the agency essentially losing the plant to the unregulated people via medical marijuana laws (now numbering 36 states and four territories) and recreational marijuana (another 15 and three territories).

We know, we know. Not bloody likely. We give you this chestnut of a quote from the FDA that leaves no doubt about the direction it seeks to steer the hemp and CBD market:We are also concerned that by including these other hemp-derived compounds in the bill language, it could disincentivize potential drug development of these compounds and instead encourage the use of these compounds in dietary supplements. Cannabinoids as anything other than pharmaceuticals? Youd think "drug"was the FDAs middle name or something.

Could you imagine? The Marijuana Opportunity Reinvestment and Expungement Act was already introduced into Congress last year and actually passed the U.S. House in December. It died in the Republican-led Senate, but all Congress is now run by Democrats. It could go all the way in the 117thCongress. The MORE Act would remove pot from the Controlled Substances Act, eliminate all records of weed crimes and more. The MORE Act was considered DOA in the Senate, said Jonathan Miller, counsel for the U.S. Hemp Roundtable. But now that the Senate is Democratic, theres a lot more likes to it. We could see marijuana legalization in the next Congress. The MORE Act would instantly remove the Drug Enforcement Agency from meddling with hemp farmersand could fundamentally shift the supply market. THC would matter only in finished goodsthink kombucha: If you want the high-alcohol booch, go to the liquor store;otherwise, see the healthy beverage cold box of local retailers.

Whats more innovative than the cannabis industry in the last five years? Tesla? Consider this: delivery methods and activation times make a big difference. Think of all the different delivery formatsfrom tinctures and gummies to lotions and vaporizers. Different formats have different times to take effectvapes hit the body immediately, tinctures taken sublingually take a little longer, balms even longer to get through the skin andgummies and tablets have to metabolize in the liver before going into the bloodstream.

Brands that understand that different activation times and how long they last yields different results will prosper. Maybe a vape pen product is for acute anxiety. Maybe a topical is for chronic muscle pain. Maybe tablets are for daily wellness. Combine that with consistent source material, so consumers know what to expect from a product time after time, and thatwill give reliability to the market and help it mature.

Merrick Garland had his 15 minutes of fame when President Obama nominated him to the Supreme Court in early 2016, only to see Republicans stymie the normal process for more than a year in the hopes Republicans would win the White House in 2016 and could nominate their own judge. But Garland is back afterbeing nominated by President Biden as attorney general, and some think this could have significant effects. After all, it was Obama Attorney General Eric Holder who, not three months into the Obama tenure, in April 2009announced the Department of Justice would not interfere with states that have their own cannabis laws. Overnightthe green rush was on, and itcontinues to this daydespite first Trump Attorney General Jeff Sessions being a well-known drug warrior. Garland, said Miller, will eliminate politics behind the scenes and allow hemp to be an agricultural issue, not a controlled substance issue.

FDA could announce CBD upper intake levels per serving; this is actually a slippery slope. There is no other dietary supplement ingredient that has any such proviso or warning around upper intake levels. And the FDA back in the 1970s wanted to create a rule that any vitamin or mineral supplement product formulated to contain more than 100% of the RDA should be sold only in pharmacies. It took the famous Proxmire Amendment of 1976 to put the FDA back in its place. So we hold a jaundiced view of giving the FDA this authority.

Yet the British regulatory agency has come out with 70 mg per day CBD as being the upper safe limit per serving. We dont know of any CBD supplement that has higher than 70 mg per serving, so thiswould not cause companies to disruptively reformulate. But any number would give some semblance of legitimacy to food, beverage and supplement interests that the FDA is ready to authorize access to hemp phytochemicals. Oreos with CBD? Pepsi CBD? It would be the first new ingredient given access to the multinationals in half a century. It would go a long way to deal with the great storage experiment that was the 2019 overharvest.

Yes, to guarantee hemp crops will certifiably stick to below 1% THC. But also to help farmers in different regions and different growing conditions grow hemp best where they are. The high and dry climate of Colorado is a world away from humid, rainy Kentucky. You wouldnt want to plant the same seeds in both places. Farmers would love nothing more than to have a uniform yield and uniform compliance with their hemp crop. Thanks to the work of companies that specialize in providing stable seed genetics with value-added traits, the fledgling industry is almost there.

After farmers grow it and before either industry uses it for things like bioplastics, textiles or other building materials or retailers put supplements on store shelves, there is the processing of hemp that has to happen. It helps if facilities are close to farms. Right now there are precious few hemp processing facilities. Investors need to step up. And maybe government mandates around purchasing American-made sustainable materials can help. If only there was a president claiming to want to build back better.

According to a Vote Hemp survey, more than half of all hemp business respondents are concerned about regulationsspecifically, disrupting the CBD supply chain, criminal action against CBD producers and decreased willingness from retailers to stock CBD products. Were thinking banking guidance from the Treasury Department, if not Congress, would help. That way companies dont have to work on black market-style cash-only transactions.Plus, banks need to be educated because no legislation can force a bank to make a risk decision they feel uncomfortable with.

Interstate transportation guidance from the U.S. Department of Agriculture would help ensure crops can travel around the country without Barney Fifes in backwards states causing unnecessary problems. The hemp industry had hoped such relief would come from Congressional action, but Vote Hemp presidentEric Steenstra says Republican Senators Mitch McConnell and Mike Crapo have been the roadblocks here. Perhaps a newly reformulated Congress can push this through now.

You, yes you. Cannabis needs you, and Congress needs to hear from you. Because while the hemp industry, which includes retailers, wants to see expanded access, there are other competing interests out there that do not. And you wont be surprised to hear that Congress often does the job of the highest bidder and not the highest good. Dont forget that we have consumer groups rallying against getting Congress involved, said Rend Al-Mondiry, attorney at the Amin Talati Wasserman law firm. We have some reluctant members of Congress that dont want to sidestep the FDA. Plus, we have the FDA asking for things like mandatory NDI notifications and CBD serving limits and also pushing for changes to DSHEA, and pharma continuing to shape the process. As a famous American poet once crooned, Theygot the guns but we got the numbers, gonna win yeah were taking over, come on!

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12 things the hemp CBD industry needs to succeed under Biden - New Hope Network

Kristen Clarke, Nominee to head the Civil RIghts Division off DOJ

On January 6, the fateful day that insurrectionists stormed the Capitol, President-elect Joe Biden announced his nominees to lead the Department of Justice. That is perhaps why the news of those nominees hasnt gotten the attention they usually garner.

But that was also the day we learned that Democrats won the two Georgia run-off elections, giving them a bare majority in the Senate. Perhaps the timing was simply a coincidence, but Bidens nominee to be the next attorney general, Merrick Garland, will finally get the hearingsand probable confirmationhe was denied when former President Barack Obama nominated him for the Supreme Court. While Garland might not have been the first choice for that position by many liberals, there is a sense that justice will be served.

Nowhere in the federal government will the task of rebuilding after Trumps presidency be more urgent than at the Department of Justice. Former Attorney General Jeff Sessions worked tirelessly to decimate everything accomplished by the Obama administration, while William Barr politicized the department by using it to defend Trump and his associates.

Garland has a massive task ahead of him. But Biden also announced the three leaders who will join him in those effortsall women.

Lisa Monaco has been nominated to be Deputy Attorney General, the position previously held by Rod Rosenstein. After being a career prosecutor at DOJ, Monaco served as Assistant Attorney General for National Security and as White House Homeland Security and Counterterrorism Advisor in the Obama administration. Of particular note is that she created the first nationwide network of national security cyber prosecutors.

Vanita Gupta has been nominated to be Associate Attorney General. From 2014-2017, she served as acting director of DOJs Civil Rights Division. I profiled Gupta during that time. She currently serves as President and CEO of The Leadership Conference on Civil and Human Rights.

Kristen Clarke has been nominated to be the director of DOJs Civil Rights Division. As a prosecutor in that division, she handled hate crimes, human trafficking, police misconduct, voting rights, and redistricting cases. Clarke currently serves as president and executive director of the National Lawyers Committee for Civil Rights Under Law.

These three choices tell us a lot about Bidens priorities for the Department of Justice. While all three women have demonstrated competence and experience, two of them have dedicated their entire careers to fighting for civil rights.

Fox News personality Tucker Carlson didnt waste any time going after Clarke. That will come as no surprise to the Biden team or Clarke because attacking the person Democrats nominate to run the Civil Rights Divisionwhich former Attorney General Eric Holder called the crown jewel of the Justice Departmenthas become a time-honored tradition on the right. President Bill Clintons nominee, Lani Guinier, was attacked for writings that were deemed to be too radical, and Obamas nominee, Debo Adegbile, was smeared for being part of a team that filed an appeal to the death sentence of Mumia Abu-Jamal, who had been convicted of murdering a Philadelphia police officer.

So why have Republicans been so intent on attacking Democratic nominees to run the Civil Rights Division at DOJ? It was created in 1957, under Dwight Eisenhower, and assigned the task of enforcing federal statutes prohibiting discrimination based onrace, disability, religion, and national origin. It has become the battleground for issues such as voting rights, prosecution of police brutality, and defense of affirmative action. Here is how Clarke identified the task before her.

Under Republican administrations since Reagan, that work has been undermined. Ari Berman documented what happened in the 1980s.

The Reagan administration had already embarked on a radical makeover of the DOJs Civil Rights Division, which enforced the VRA. The assistant attorney general for civil rights, William Bradford Reynolds, believed that government-imposed discrimination had created a kind of racial spoils system in America favoring historically disadvantaged minorities over whites, an argument that no head of the Civil Rights Division had ever made before. During Reynolds tenure ending busing became more important than desegregating schools, dismantling quotas became more important than integrating the workforce or academia and preventing proportional representation became more important than achieving a multiracial government.

During George W. Bushs presidency, the Civil Rights Division not only faced charges of corruption, but the focus also changed from promoting voting rights to voter suppression via allegations of fraud. Here is what Joseph Rich, former head of the Voting Rights Section,wrote about that:

It has notably shirked its legal responsibility to protect voting rights. From 2001 to 2006, no voting discrimination cases were brought on behalf of African American or Native American voters. U.S. attorneys were told instead to give priority to voter fraud cases, which, when coupled with the strong support for voter ID laws, indicated an intent to depress voter turnout in minority and poor communities.

Of course, lies about voter fraud have been a staple of the Trump administration. But another story that got lost amidst all of the focus on the Georgia Senate run-off elections and the insurrection at the Capitol is that Trumps DOJ is seeking to undermine the basis for prosecuting cases of discrimination.

The Justice Department has submitted for White House approval a change to how it enforces Title VI of the Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. The regulation covers housing programs, employers, schools, hospitals, and other organizations and programs.

Under the change, the department would continue to narrowly enforce the laws protections in cases where it could prove intentional discrimination, but no longer in instances where a policy or practice at issue had a disparate impact on minority or other groups.

Eliminating disparate impact as a standard would mean that defendants must prove that they have been victims of an intent to discriminate, something that would make cases of systemic racism impossible to prove.

Carlson had to go back to Clarkes days as a Harvard student in the mid-1990s to find material to attack her. For example, as president of the Black Students Association, she had invited an antisemitic speaker to an event on racism. Clarke has admitted that was a mistake and apologized. Several groupsincluding the National Council of Jewish Women, the Jewish Democratic Council of America, and the American Jewish Congresshave stepped up to defend her against Carlsons attacks. Here is part of a Twitter thread from Bend the Arc: Jewish Action:

The second attack Carlson waged against Clarke has to do with a letter she wrote to the Harvard Crimson in 1994 touting the genetic differences between Blacks and whites and explaining that melanin endows Blacks with greater mental, physical and spiritual abilities. At the time, views touted by Richard Herrnstein and Charles Murray in the bookThe Bell Curvewere being used to question the intellectual ability of Black students. Clarkeexplained that she was attempting to express an equally absurd point of view fighting one ridiculous absurd racist theory with another ridiculous absurd theory. That might not have been a wise strategy, but of course, Carlson didnt want his viewers to know the truth about the context of her remarks.

Republicans dont support the enforcement of civil rights laws. That is why Clarke has become the latest target of a smear campaign that is only likely to grow as she faces confirmation. But make no mistake, Biden has nominated a team that will do all that is necessary to restore the ideal of equal justice under the law.

Read more:
The Attacks on Biden's Nominee to Run the Civil Rights Division at DOJ Have Already Started - Washington Monthly

A masked Scary Movie-type character sits holding a coffee cup emblazoned with an emoji at a kitchen counter and, in a sing-songy voice, says: Terri wants to defund the police. Defund the police? Thats scary liberal!

The attack ad against North Carolina state Senate Democratic challenger Terri LeGrand from her GOP incumbent opponent, Joyce Krawiec, is a humorous, flippant bite that was just a blip in terms of the overall spending during 2020s historically expensive electionjust a few hundred dollars and around a few thousand impressions on Facebook, according to the sites political ad tracker.

It was also categorically false, blatantly misrepresenting LeGrands position on police reform.

But advertising like Scary Terri,coupled with the millions of dollars that outside groups spent to push similar messaging, a strong turnout for President Trump and a under-estimated GOP voter registration effort, worked for Republicans in North Carolina and elsewhere at the state level.

The GOP gained four seats in the North Carolina House and Democrats netted just one in the state Senate in a year when Democrats focused on state House and Senate races and unprecedented donations poured in from all around the country because of a focus on the upcoming redistricting, a process of drawing legislative lines that takes place only every 10 years and is a key in who controls Congress and statehouses.

Given the massive amount of funding and focus on statehouse races, this project, funded by the North Carolina Open Government Coalition, sought to isolate and analyze how campaign finance and interlocking national and state power networks work in state legislative races. North Carolina made history with the most races where one or both candidates exceeded the $1 million mark, said Anna Beavon Gravely, the executive director of NC FREE, an organization that advocates for business interests and tracks money in politics.

We did this through network analyses, a type of spatial analysis most often used in fraud detection, counter-terrorism and other fields. Visual analyses of the relationships between different kinds of people and entities in North Carolinas legislative races are rarely if ever applied to campaign finance data outside of academic research settings.

The resulting visuals and underlying data allow for a more nuanced understanding of the financial interplay between candidates, their donors and the myriad other groups that play a role in funding politics at the state level. The analysis also helps show how an ad like Scary Terri, and the money that pays for such ads, are important factors in determining the balance of power.

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A look from a birds eye view of campaign finance spending in legislative races shows a somewhat unsurprising picture given the stakes in the 2020 election: both parties and candidates awash in campaign cash from various sources.

A closer look reveals how power players interact.

Any analysis of campaign finance spending is just a partial picturein this case, the numbers analyzed are through the third quarter of last year, as fourth quarter financials were due this week; the project used only a subset of total data available due to technical issues associated with how the data is stored by the North Carolina State Board of Elections; and some groups are not required to disclose what they spend on campaigns or advertising. The project also only analyzed committee transfers rather than all spending.

Given limitations in tracking campaign finance data, this analysis focused on the 10 most expensive and 10 closest legislative races. We also examined state House and Senate races as a whole by analyzing committee transfers through the third quarter of last year. Those numbers and the resulting network analysis show how money moved within Democratic and Republican networks. The analysis revealed:

The network visualizations below are a way to explore each of these trends.

For the Senate District 31 race, one of the most expensive races we examined, its easy to see in the visualization below how many special interest PACs have given to Senator Krawiec, the Republican incumbent. The colored dots and lines represent specific large corporate interests from specific sectors (use the key on the left to see which ones), and the graphic shows them closer and with specific transfers to Krawiec.

The Democrat in the race, LeGrand, received special interest dollars second-hand. In this case, four Democratic incumbents in safe races sent dollars to LeGrand, some of whom received money from special interest PACs. While they are relatively small amounts, it shows that even candidates who dont directly receive large dollars from special interests may be a recipient of that money through other means.

LeGrand had outraised her opponents by about $730,000 through the third quarter, a total of $1.9 million, state campaign finance numbers show. She lost by six percent to the Republican incumbent.

Campaign dollars are a key ingredient in any election, and experts say that when the final figures are reported,the total may go north of $60 million for the state House and Senate races alone. Adding the presidential and U.S. Senate campaigns and independent expenditures on advertising from national groups, the total amount spent on politics in North Carolina in the 2019-20 cycle may be close to $1 billion.

The visualization below shows the 10 closest and 10 most expensive races in the statehouse last year. The special interests that were a part of this analysis are at the center of this network visualization.

That means that even though they are physically closer to the GOP candidates in the visualizationmeaning that they give more direct contributions to those candidatesbeing in the center means that they are powerful players for both parties. Interestingly, even though our analysis isolated specific races, other candidates appear because they play a role in passing along money. Democratic Representative Graig Meyer is one of the biggest contributors. Hetold us in an interview that because he is in a wealthy district and had no challenger, he was able to fundraise on behalf of other Democrats to try to win back a majority. (Search for him in the visualization, and you can confirm that he does indeed take money from a variety of special interests and others andpass it along to candidates in these races.)

A decade ago, Democrats vowed 2020 would be different.

In North Carolina and elsewhere, the 2010 Tea Party wave ushered in majorities in Congress and in statehouses across the country. The GOP and conservative groups focused an unprecedented amount of time, effort and money at the state leveland reaped their reward through controlling the legislative redistricting process and drawing lines that favored Republicans.

Last year, Democrats said they would rise to the challenge in part by having dedicated groups fundraise specifically around state legislative races and the redistricting issue. The National Democratic Redistricting Committee was led by former Attorney General Eric Holder and groups like Flippable also vowed unprecedented resources for state races.

The analysis below shows how establishment Democratic money flows around even with new players such as the NDRC and Flippable in the game. Groups closely associated with Democratic causes are at the center, with tentacles to the most number of candidates. The N.C. Democratic Party and the associated N.C. Democratic Executive Committee (DEC) are on the periphery of the visualization. Its clear that those driving money to the greatest number of candidates in the state are the groups at the center like Planned Parenthood, Emilys List and Lillians List, which funds progressive female candidates.

Overall, one might expect North Carolinas Democratic power players to be at the center. The size of the squares indicate how many candidates and groups they are giving money to (not the size of the donations). So, while a lot of money flows through the in-state Democratic Party committees, the national Democratic interest groups give to a far greater number of candidates. It is a striking example of how out-of-state groups are building influence using a different strategy than in-state Democratic power brokers.

The NDRC gave the maximum contribution to 38 Democratic campaigns in North Carolina through the third quarter, the data show. The bulk of its spending, about 85 percent, went to the several state Democratic Party entities. Flippable maxed out to more than two dozen Democrats but gave about two-thirds of its total spending to the state Democratic Party.

Of the 20 races that the Coalition analyzedthe closest by result and the most expensive by third quarter totalDemocrats handily outspent Republicans. Democrats outspent Republicans by a total of $2.7 million in those 10 close races and $2.9 million in the 10 most expensive races.

The visualizations of races below show a similar dynamic as the S.D. 31 race discussed above. The Republicans are receiving more special interest cash, while Democrats in safe races help fund those in these more competitive districts. It is also likely that more groups tend to give to Republicans, as indicated by their wide constellations in this graphic, because they are the incumbents. In other words, the number of state corporate interests giving to Republicans is one way of understanding why its difficult to be a challenger running against entrenched money and power.

In the 10 expensive races analyzed, Ricky Hurtado and Brian Farkas, in H.D. 9 and H.D. 63 respectively, were the only Democrats to eke out close victories. Democrats won four of the 10 closest races.

It is becoming increasingly difficult, if not impossible, to break through the noise with state and local issues, said Representative Graig Meyer, a Democrat who headed the partys efforts to try to win back the N.C. House.

Democrats were not able to combat a defund the police mantra from the GOP, amplified in outside mailingwhich falsely represented the Democratic House candidates positions, he said. Coupled with the GOPs strong turnout, it made for a difficult year in a state Trump won by 1.4 percent statewide.

In my mind what it shows is that Trump and the Republicans were able to bundle their negative messages effectively up and down the ticket, Meyer said in an interview. The media universe that were in right now makes it very difficult to have an in depth discussion of any issues down at the local legislative level.

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In contrast to Democratic spending, the GOP visualization shows in-state groups wielding the most amount of influence. The leaders in the party itself are the influential players.For example, GOP House Speaker Tim Moores campaign committee has one of the largest squares, indicating that he gives to a large number of candidates on his side of the aisle. Also unlike the Democrats, the PACs associated with the Republican Party have the most number of donations to the partys candidates.

Dylan Watts, director of the Senate Republican Caucus that controls the Senate Majority Fund, agreed. He said Trumps get-out-the-vote effort coupled with strong fundraising and messages that worked he cited the LeGrand Scary Terri ad as a favoritewere the keys to victory. Republicans hit the defund the police messaging in mailers, on TV, and on Facebook.

Republican donors were receptive throughout, Watts said. When they realized how much was on the line and how much was against, they stepped up, Watts said.

Groups like Citizens for a Better NC, an independent expenditure group, also spent vast sums in the state, giving the GOP a cushion across its races, Watts said. The group was one of several shadowy GOP groups WRAL sought to track, finding it difficult, if not impossible, to see where the money attacking Democrats had originally come from.

The data also show that corporate PAC donors play a role in helping the GOP maintain its majority.

Most political action committees (PACs), or organizations that receive contributions and spend on candidates or issues, are partisan and only donate to candidates from one party. But corporate PACs tend to contribute to incumbents regardless of party. The NC Realtors PAC, Duke Energy Corporation PAC, and the Blue Cross & Blue Shield of NC Employees PAC were the three largest contributors among corporate PACs this cycle. All three backed incumbents in the House and Senates five closest races6 Republicans and 2 Democrats. For example, both Democrat Sydney Batch and Republican John Szoka from a nearby district received the support of the highest spending corporate PACs. Both were incumbents.

In all of the races for House and Senate that ended within a margin of 10 points, these PACs either contributed to the Republican candidate or didnt contribute at all.

Meyer, a Democratic House member, decried the corporate money in his GOP counterparts campaigns. There are times when I wonder, how can corporations continue to financially support candidates that consistently use rhetoric and take action that is in conflict with some of those corporations stated values?, he said of donations to Republicans.

Meyer said GOP messaging was a dog whistle to stoke race-based fears and animosity, but it successfully drowned out local issues.

North Carolinas statewide political spending this cycle may total more than $1 billion including the U.S. Senate and presidential races. The idea that we would spend nearly a billion dollars on campaigns in the middle of a pandemic and a huge economic crisis, its just ridiculous, Meyer said.

To change the system, Democrats will have to win majorities. And to do that, theyll need campaign cash. I feel so conflicted, Meyer said. Im sickened by the fact that thats what you have to do.

This project was funded by the North Carolina Open Government Coalition, which is a nonpartisan nonprofit group dedicated to improving access to public information and educating citizens about the importance of government transparency.

Jeremy Borden is an independent researcher and journalist who lives in Durham, N.C, and writes at Untold Story. Michael Taffe covers the General Assembly as a reporter based in Chapel Hill, N.C. Kathy Qian is the Co-Founder and Executive Director of Code for Democracy, a 501(c)(3) nonprofit that builds automated tools that uncover hidden relationships between campaign contributions, political narratives, and legislative outcomes in US politics.

This project, sponsored by the North Carolina Open Government Coalition, used data from the N.C. State Board of Elections and the Federal Elections Commission through the third quarter.

The North Carolina data presented significant challenges that could have introduced potential errors into our dataset. Specifically, candidate committees and PACs are required by law to report receipts and expenditures to the State Board of Elections on a quarterly basis. But while the Federal Elections Commission (FEC) collects unique identifier codes for both the contributor and recipient committees for federal transactions, North Carolinas State Board of Elections collects a free response entry for the names of recipient committees.

This means that there can be significant ambiguity in identifying recipient committees when there are differing committee name formats or typos on disclosure reports. While this can be annoying for traditional campaign finance analyses that total amounts contributed or received, it makes it nearly impossible to build a comprehensive network of campaign spending in the state without significant amounts of manual labor de-duplicating committee names and matching them to their appropriate State Board of Elections identifiers.

We are immensely grateful to Michael Taffe for taking on the majority of this intensive labor.

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