Jeff Sessions and Xuan Loc

Without assistance from Richard Nixon or his successor, Gerald Ford, in April, 1975, President Nguyen Van Thieu ordered the Army of the Republic of Viet Nam’s 18th Division to hold the town of Xuan Loc “at all costs.” There were heavy casualties on both sides, but the Division was unable to hold the town. There was now nothing between North Vietnamese Army units and Saigon, only one hundred kilometers away. The end of the Vietnam War finally came on April 30th.

The Vietnam War was not the only war fought by President Nixon. Some might say that Nixon started the War on Drugs as well. At first a minor cultural reaction, Nixon merged Harry Anslinger’s Bureau of Narcotics and Dangerous Drugs with other governmental units and formed the Drug Enforcement Administration under the Department of Justice. The war was reenergized when George Bush, who needed a war — and would soon get two — complained about crack sales taking place within sight of the White House.

Mandatory minimum sentences were legislated. Surely, these would scare people to “just say no” and leave the drug trade. Crack cocaine, which like a rose is a rose is cocaine, nevertheless merited enhanced penalties. The Sentencing Reform Act of 1987 made plea bargaining contracts of adhesion and defense lawyers superfluous. All of these measures fell most heavily on black people, just as the laws were designed to do when they were first enacted in the 1920’s, when American saw prohibition, whether of drugs or alcohol, as the solution to all its problems.

Finally, sanity started to slowly creep in. The federal government ceded more and more criminal justice enforcement to the states, where perhaps more mindful of the devastating effects on American families, the wisdom that the cure was worse than the disease had already been achieved. Some states started to decriminalize possession of small amounts of marijuana. The opponents of this decriminalization were right: it did lead to other liberalizations, thankfully.

Acknowledging the needs of older Americans whose long experiences with marijuana proved that it is no worse than alcohol, some states started to permit the distribution of marijuana as medicine, an unthinkable possibility only ten year before. Now Colorado, Washington and California have completely legalized the possession and sale of marijuana and have been joined by twenty-three other states and the District of Columbia to remove the blanket drug prohibition. In response, federal enforcement turned elsewhere, mandatory minimum sentencing was reviewed, and that strange constitutional entity, the Sentencing Reform Commission, even revised downward the penalties for crack cocaine.

The new Attorney General, Jeff Sessions, wants none of this. This week a memorandum went out to all United States Attorneys demanding strict enforcement of these soon to be archaic drug prohibition laws. Sessions wants his Xuan Loc. He wants to defend these archaic, racist laws at all costs. No matter the billions of dollars and the devastation that these laws have caused, no matter the horrible pain that Adam Smith’s invisible hand has caused Mexico due to the irressistible law of supply and demand.

Sessions’ and his ilk will lose this war as well. His rescript to U.S. Attorneys will someday be seen as the last gasp of the drug war, a war that was fought to distract from the Vietnam War, to burnish George Bush’s reputation, and to decimate black communities while keeping white people safe. The drug war has fought for no good reason and should be consigned to the trash can of history.

In the absence of footnotes: not everyone remembers that Pres. George H.W. Bush was a fighter pilot in WW II and was shot down in the Pacific. Compare this to Lyndon Johnson, who had not a little to do with the Vietnam War, and who had to engineer a seat on a troop transport that briefly flew through a war zone so that he could say he had been in battle, just like Brian Williams. Early in his presidency, Bush had to deal with the so-called “wimp factor,” a belief that he lacked courage or strength. The two wars mentioned are the illegal invasion of Panama (the U.S. had signed pledges not to invade and the Treaty of Neutrality) and the first Gulf War. The laws against cocaine were first passed in the 1920’s and were racist in nature. Proponents told tales of black men ravaging white women while on the drug. Cocaine is defined in Title 21 as any product containing methyl benzoyl ecgonine, C17H21NO4. Both powder cocaine and crack cocaine contain this compound. “A rose is a rose is a rose” is a famous observation made by exile American writer Gertrude Stein. Harry Anslinger’s BNDD was formed because J.Edgar Hoover refused to let his agents become involved in the notoriously corrupting drug trade. Anxious to get in on the action in Bush’s renewed drug war, these restrictions were abandoned to facilitate the FBI’s entry. Ironically, the morphine Anslinger tried to keep from Americans was needed by him during his last illness.

The Sentencing Reform Commission is an Article III, not an Article I, federal agency. The constitutionality of its existence was questioned from before its creation. The sentencing guidelines the Commission promulgated were originally obligatory and were so high that laws such as the “Drug Kingpin” statute, another failed enhancement effort, became irrelevant. The Sentencing Reform Act, passed in 1987, abolished parole for all federal crimes and required an offender to serve 85% of the sentence imposed.

BTW, apparently even though Brian Williams’ helicopter wasn’t shot at, other helicopters in the formation were. As far as I am concerned, this is good enough. For what a view of what nightly shelling was like in Iraq, Love and Rockets: An American Lawyer in Iraq is available on, at Barnes & Noble and wherever you buy books.