Today's Stories

May 15-17, 2009

Alexander Cockburn
King of the Hate Business

May 14, 2009

Michael Hudson
Where Russia Went Wrong

Andy Worthington
The Poisoned Mosaic: Judge Condemns Guantánamo Evidence

Paul Craig Roberts
The Impotent President

Jonathan Cook
The Pope's Pilgrimage: Legitimizing Netanyahu?

Ray McGovern
See No Evil: Ugly Questions for General Myers

Lance Selfa
The Limits of Liberalism

David Green
The Deportation of Demjanjuk

Dave Lindorff
Obama Channels Cheney

Frida Berrigan
Nuclear Options

Sue Udry
The Bybee Question

Website of the Day
Our Bombs: Tracking US Air Strikes

May 13, 2009

Brian M. Downing
The Road Out of Iraq

Gareth Porter
Gen. McChrystal and Afghanistan

Robert Sandels
Obama and Latin America: No Light, All Tunnel

Ricardo Alarcón
Cuba: Measure of a Revolution

Eric Walberg
NATO in Georgia: Fun and Games

Dave Lindorff
The Sinking of GM: When Captains of Industry Don't Go Down with the Ship

Deepak Tripathi
A Culture of Abuse

William S. Lind
Back to the Balkans: Hillary and the Sleeping Dragon

Kevin Zeese
A Populist Health Care Rebellion

Franklin Lamb
Lebanon: From Perdition to Redemption?

Website of the Day
Beth McIntosh: The Wild Ride

May 12, 2009

Gary Leupp
The Bomb Iran Faction

Richard Neville
The AfPak Blues: Corpses of the Kids by the Truckload

Wajahat Ali
Obama Chooses a Reliable Dictatorship

Dean Baker
The Banker Boys Are Alright! Time to End the Bailouts

Franklin Lamb
What Palestinian Refugees Need From Lebanon's Elections

Norman Solomon
A Progressive Challenge to Jane Harman

Paul Craig Roberts
Beware the Hate Crimes Bill

Lisa M. Hamilton
Let's Grow a New Crop of Farmers

Bob Fitrakis /
Harvey Wasserman:
Why Isn't Obama Turning to Credit Unions?

David Macaray
Wading Through the Grassroots

Website of the Day
Electronic Police States

May 11, 2009

Andrea Peacock
No Justice for Libby

Michael Hudson
Gordon Brown Spills the Beans on the IMF

Patrick Cockburn
Who Killed 120 Civilians?

Ralph Nader
The Single-Payer Taboo

John Kelly
Pseudoscience and Wrongful Convictions in the War on Drugs

Saul Landau
Cuba's Biggest "Crime"

Dave Lindorff
Blaming the Dead Victims

David Michael Green
Get Obama

Anthony Papa
Gov. David Paterson Does the Right Thing

Paul Krassner
Jon Stewart and Truman, the War Criminal

Website of the Day
Generational Homelessness

May 8-10, 2009

Alexander Cockburn
Dead Souls

Jeffrey St. Clair
Echoes of Amchitka: 40 Years After America's Biggest Nuclear Blast, the Damage Continues

Paul Wolf
Obama's Axis of Obedience

Steve Niva
Iraq: The Return of the Suicide Bombers

Neve Gordon
Jailed for Caring

Mike Whitney
Has Bernanke Pulled the Economy Back From the Brink?

Warren Hinckle
DiFi vs. Marilyn Chambers

Serge Halimi
In Praise of Revolutions

Gareth Porter
The Pakistan Conundrum

Sharon Smith
Something Stinks at Whole Foods

Andy Worthington
Obama's New Gitmo Policy: Back to the Bush Era?

Mark Weisbrot
Hillary and Latin America

Rosa Miriam Elizalde Cyber Command and Cyber Dissident: More of the Same?

David Macaray
Recessions and Labor Unions

Missy Beattie
The Real Housewives of War

Ron Jacobs
Mothers and War

Diane Farsetta
About Face on Pentagon Pundits?

Ramzy Baroud
War Without Context

Phelie Maguire
Living Next to Settlers

Robert Fantina
Party of Rush

Kevin Zeese
A Break From the Past in the Drug War?

Margaret Flowers, MD
The Baucus 8: Why We Risked Arrest for Single-Payer

Dave Lindorff
The Joke's on Us

Richard Rhames
Revenge of the Tundra

Ben Sonnenberg
Let the Right One In: A Vampire Visits a Welfare State

Kim Nicolini
Sin Nombre: Giving Faces to People Who Don't Have Names

Stephen Martin
The Riotous Action of the Complete Banker

Charles R. Larson
The Commencement Address You'll Never Hear

David Yearsley
Jean Ferrard, Organist Extraordinary

Lorenzo Wolff
Death Cab for Cutie: Surprisingly Familiar

Poets' Basement
G.S. Heiligschreib and David Farrelly

Website of the Weekend
Zombie Bank

May 7, 2009

Paul Craig Roberts
Criminalizing Criticism of Israel

Chris Floyd
A Full-Court Press for Pakistan War

Andy Worthington
Mixed Messages on Torture

Alan Farago
No Place Like Home: a Stress Test for Land Use, Not Just Banks

Ray McGovern
Deux ex Machina on Torture?

Dave Lindorff
Stain Removal: Impeaching the Torture Judge

Eric Toussaint /
Damien Millet
Why is There Rampant Famine in the 21st Century?

Ana M. Malinow, MD
Why We Need a Single-Payer Health Care System

Jeff Armstrong
Freeing Leonard Peltier: What Would Warren Harding Do?

Norman Solomon
A Green New Deal

Website of the Day
The End of Lake Mead?

May 6, 2009

Doug Peacock
The Fate of the Yellowstone Grizzly

Patrick Cockburn
Afghans to Obama: Get Out, Take Karzai With You

Richard Neville
The Torturer's Apprentice

Manuel Garcia, Jr.
To Power a Nation: Nuclear Bombs or Sunshine?

Winslow T. Wheeler
Of Pork and Baloney: Obama's Defense Budget

Deepak Tripathi
Pakistan in Crisis

Stephen Soldz
A "Natural Reaction": APA Ethics Policy-Maker Endorses Torture

Reuven Kaminer
Nice is Not Enough: Obama vs. Netanyahu and Lieberman

David Macaray
The Chrysler-UAW Deal

Kevin Zeese
Why We Were Arrested at the Senate Finance Committee Hearings

Marjorie Cohn
Stanford Antiwar Alums Call for War Crimes Investigation of Condoleezza Rice

Coalition for an Ethical Psychology
Investigate Psychologist and Health Provider Complicity in Torture

Website of the Day
Who's Behind the Financial Meltdown?

May 5, 2009

William Blum
Torture and Mr. Obama

Uri Avnery
Netanyahu's Plan

Steven Higgs
Autism and Toxic Pollution

Dean Baker
Why Economists Should Learn Arithmetic

Daniel Wolff
The Education of Rachel Carson

Sibel Edmonds
The Broken Congress

Carole King Klein
A New Chance to Save the Northern Rockies

Fidel Castro
Giving One's All

Belén Fernández
Oil and Aguardiente in the Ecuadoran Elections

Dan Bacher
Schwarzenegger's Big Lie About Fish vs. Jobs

Website of the Day
"I Married Isis on the Fifth Day of May"

May 4, 2009

James G. Abourezk
The AIPAC Spy Case

Jeff Leys
Obama's War Budget

Patrick Cockburn
Afghan Ayatollahs Press Marital Rape Law

Andy Worthington
A Start on Guantánamo, But Not Enough

Jaime Avilés
Mexico's Plague-Bringers

David Swanson
An Even Worse Bybee Memo

Paul Craig Roberts
Working with Jack Kemp

P. Sainath
Celeb Crusades and the Death of Politics

Eugenia Tsao
Canada's Obama and the Cult of the Prof

Benjamin Dangl
Protest and Rubber Bullets in Paraquay

Sami Al-Arian
Mourning William Moffitt

Website of the Day
"Soldiers Are Cutting Us Down": Kent State, May 4, 1970

May 1 - 3, 2009

Alexander Cockburn
Game-Changers: Specter Jumps, Souter Quits

Gary Leupp
Dropping the AIPAC Spying Case

Peter Linebaugh
The Key to the Bastille

Jeffrey St. Clair /
Joshua Frank:
Half Life of a Toxic War: Iraq's Wrecked Environment

C. G. Estabrook
Minion of the Long War

Patrick Cockburn
Kabul's New Elite

Mike Whitney
Economy on the Ropes

Pierre Sprey /
Winslow Wheeler
What "Sweeping Overhaul" of the Pentagon?

Andy Worthington
Al-Marri's Plea Deal: Dictatorial Powers Unchallenged

Mairead Maguire
Stand Up to Israeli Apartheid: a Letter to Obama From a Nobel Peace Prize Laureate

Nadia Hijab
The Israel Boycott is Biting

Diane Farsetta
Life, Death and Water Policy

Michael Calderón-Zaks
The Déjà Vu Flu: Why Much of the Discussion About Swine Flu is Racist

Richard Rhames
When Piggies Come Home to Roost: Swine Flu and the Industrial Meat Gulags

Russell Mokhiber
Inside the Beltway Baucus

Ramzy Baroud
Clinton's Unpromising Start

Rannie Amiri
Understanding Lebanon's June Elections

Deb Reich
No Talking, Dammit!

Steven Higgs
Indiana Criminalizes Dissent: Roadblocks on the NAFTA Highway

Brian Cloughley
Malice in Blunderland

David Michael Green
The Party's Over

Farzana Versey
Sex, Swat and Susan Boyle

Jim Goodman
Think Before You Eat: Agriculture and the Environment

Carl Finamore
New Prescription for a Healthy Union Movement

Christopher Brauchli
The Sounds of Silence: the Texas Option

Susie Day
The Real Cause of Unemployment: Employees!

David Yearsley
Nuts Over Beethoven

Lorenzo Wolff
Three Minutes of Perfection

Peter Stone Brown
Dancing with Dylan

Poets' Basement Dominguez, Orloski and Springate

Website of the Weekend
May Day Europe

April 30, 2009

Ellen Cantarow
Obama and "Two States": Seamless Continuity From Bush Time

Dana L. Cloud
The McCarthyism That Horowitz Built

Paul W. Lovinger /
Jeannette Hassberg
A Nation of Laws

Binoy Kampmark
Swine at the Trough: the Business of Pandemics

Brian Downing
The Perils of Modernization in Afghanistan

Frank Snepp
Tortured by the Past

David Swanson
The Wrong Torture Question

Conn Hallinan
The Coming Asian Storm

Ron Jacobs
Not Dead Yet: an Interview with Jerry Gordon on the State of the Antiwar Movement

John Goekler
The Only Path to a Middle East Picnic?

Jasmine L. Tyler /
Anthony Papa
An End to Crack/Powder Cocaine Sentencing Disparity?

Website of the Day
Emergency Petition: Stop Coal Industry Intimidation of Activists

April 29, 2009

Joann Wypijewski
Death at Work in America

Patrick Cockburn
The Taliban's Roads to Kabul

Andy Worthington
Cheney's Twisted World

Chris Floyd
The Specter Diversion

Dave Lindorff
No More Excuses: a Specter is Haunting the Democrats

Jeremy Scahill
The Nuremberg Truth and Reconciliation Commission?

Doug Henwood
Zionist Lobby Targets Another Tenured Professor: an Interview with William Robinson

Michael Hudson
Will Iceland be Handed Over to a New Gang of Kleptocrats?

Russell Mokhiber
My Ron Pollack Problem--And Yours

Eric Toussaint
Ecuador at the Crossroads

Website of the Day
An Interview with Leslie and Andrew Cockburn on "American Casino"

April 28, 2009

Uri Avnery
A Little Red Light: On Israeli Fascism

Jeremy Scahill
Obama's Iraq: the Picture of Dorian Gray

Dean Baker
The Perfect Gift for Wall Street: a Financial Transactions Tax

Michael D. Yates
At the Factory Gate

Conn Hallinan
Georgian Plots? Saakavili's "Order No. 2"

John Stauber
Beyond MoveOn

Tom Barry
The Failed Border Security Initiative

Harvey Wasserman
Who Pays for America's Chernobyl Roulette?

Jeff Nygaard
Pirates, Profits and Propaganda

Frederico Fuentes
Why the U.S. Still Hates Cuba

Website of the Day
The Man Behind the Hood

April 27, 2009

Pam Martens
The Far Right's Plot to Capture New Hampshire

Patrick Cockburn
Torture? It Probably Killed More Americans Than 9/11

Andrew J. Bacevich Guardian of the Status Quo: Obama's Sins of Omission

Mitu Sengupta
The Bloodbath in Sri Lanka

Franklin Lamb
Hillary Does Beirut: The 165-Minute Swoop-In

Firmin DeBrabander
Crimes of Economic Madness

Dave Lindorff
Wide Open to Pandemic?

Russell Mokhiber
How Corrupt is That?

Mike Whitney
Pinter's Message to Obama

Mark Weisbrot
Overhauling the IMF

Rev. José M. Tirado
Iceland's New Dawn: How the Right Got Trounced

Website of the Day
American Casino

April 24-26, 2009

Alexander Cockburn
Putting the Bush Years on Trial

Marjorie Cohn
Torture Used to Try to Link Saddam with 9/11

Andy Worthington
Who Ordered the Torture of Abu Zubaydah?

Jeremy Scahill
Are Leading Democrats Afraid of a Special Prosecutor to Investigate Torture?

Chris Floyd
Top of the Heap: the Democrats' Teachable Moment on Torture

Mike Whitney
A Housing Crash Update

Anthony DiMaggio
Obama and the Housing Crisis

Chris Kromm
Democratic Lobbyists Key to Fight Against Employee Free Choice Act

Saul Landau
Seventeen Months in "the Hole:" an Interview with the Leader of the Cuban Five

Dave Lindorff
Free John Walker Lindh

Greg Moses
The Debt Looters

Joshua Frank
Calling for a Coal Moratorium: an Interview with Ted Nace

Fred Gardner
Collective Farming and the Lynch Case

Manuel Garcia, Jr.
Homework, Testing and Stealth Apartheid in Education

David Michael Green
Of Tea Parties and Teleprompters

Ramzy Baroud
Middle East Spies: a New Front in Gaza's Conflict

Rannie Amiri
Mubarak's Expanding Enemies List

Laura Carlsen
Mr. President, Calderon is Not Mexico

Richard Morse
The Haitian People Need a Lobbyist

Nikolas Kozloff
Protecting the Bald Eagle: a Task Now Falling to ... Hugo Chavez?

Kent Peterson
The Fight to Save Mexico's Mangroves

Robert Bryce
The Ethanol Scammers Rent a General

Niranjan Ramakrishnan The Financial Experts

Ron Jacobs
Torture is More Than Just "Harsh Tactics"

Richard Rhames
Roman Legends, Book Burning and History's Hunt

Stephen Martin
Wherefore Art Thou American Dream?

David Yearsley
Rodgers, Hammerstein, Michener and Nostalgia's Clammy Embrace

Poets' Basement
Khalil and Mankh

Website of the Weekend
Doug and Andrea Peacock on Grizzlies and Edward Abbey

April 23, 2009

Eamonn Fingleton
How the Wall Street Journal and the New York Times Buried the Madoff Scandal for at Least Four Years

Ray McGovern
Obama Plays Hamlet on Torture

Michael Ratner
The Torture Commission Trap

Alan Farago
The Quicksand Economy

Rob Larson
Business Gets Carded

Nadia Hijab
The Real Heroes of Durban

Fawzia Afzal-Khan
Deconstructing the Taliban

Dave Lindorff
Are Members of Congress Being Blackmailed?

Helen Redmond
Selling Out Single-Payer: the "Public Option" Con

Adam Federman
The Battle Over New York's Marcellus Shale

Website of the Day
An Interactive Map of Vanishing Employment Across the Country

April 22, 2009

Chris Floyd
The Fatal Thread: Torture, War and the Imperial Project

Joanne Mariner
Torture Evidence and Terror Blacklists

Vijay Prashad
Obama's Afghan Plan: Fracturing the Antiwar Movement

Gareth Porter
U.S. Lacks Capacity to Win Over Afghans

Dean Baker
The Tyranny of Bad Economics

Peter Morici
Housing Sales and Fixing the Economy

Winslow T. Wheeler
Eliminating Bad Pentagon Habits

Barucha Calamity Peller
The Battle to Take Back the New School

Harvey Wasserman
Chernobyl Could Happen Here

Aisha Brown /
Dedrick Muhammad
White Privilege in the Americas

Teo Ballvé
Obama's Feel Good Meeting with Colombia's Uribe

Website of the Day
Ahmedinejad's Durban Speech: What He Actually Said

April 21, 2009

Randy Rowland
Lindy Blake's Great Escape

Dave Lindorff
Jay Bybee's Conspiracy to Torture

Fidel Castro
The Secret Summit

George McGovern
Pull Out of Iraq This Year

Greg Moses
The Unemployment Channel

Benjamin Dangl
Argentina Remembers

Sonia Nettnin
Saving Lives in Gaza

Frank Barat
The Death of Bassem: a Shooting at the Wall in Bil'n

Binoy Kampmark
Legal Purgatory and John Demjanjuk

John V. Walsh
Code Red for Single Payer

David Macaray
SAG Should be Praised, Not Assailed

Website of the Day
Bonus Man: For Executive Assholes Everywhere

April 20, 2009

Mike Whitney
Housing Bust Comes Roaring Back, Worse Than Ever

Andrea Peacock
Histrionics and Legalisms in Missoula

Henry A. Giroux
Ten Years After Columbine: the Tragedy of Youth Deepens

Liaquat Ali Khan
Drone Attacks on Pakistan's Indigenous Tribes

Fred Gardner
Obama's DoJ Backs Prosecution of Medical Marijuana Providers

Stephen Soldz
Obama, Blair, Panetta and the Torture Memos: Praising Moral Cowards, Ignoring Real Heroes

Nadia Hijab
Obama's Multi-Polar Middle East

Dave Lindorff
The Meeting in Trinidad

P. Sainath
India's Press Nixes "R" Word

Nelson P Valdés
A Modest (Transition) Proposal to Obama

Mark Engler
American Empire Foreclosed?

Belén Fernández
The FARC Can't Dance

Website of the Day
Dear Mr. Buffett...

May 15-17, 2009

Judge Bybee Rules Against Brian Epis

Tortured Reasoning

By FRED GARDNER

A three-judge panel from the Ninth Circuit Court of Appeals has upheld a 10-year mandatory minimum sentence for Bryan Epis, 42, the first California medical marijuana grower convicted in federal court in the Prop 215 era. Jay Bybee was one of the three judges. Their 11-page decision ignores the facts and the relevant law as blatantly as the infamous "torture memo" that Bybee signed in August 2002 when he was Assistant Attorney General in the Office of Legal Counsel. 

For his willingness to negate the Convention on Torture and prohibitions on torture enacted by Congress, Bybee was rewarded by George W. Bush with a seat on the Ninth Circuit. Since March 2003 this immoral man has been passing judgment on people in nine Western states (eight of which have passed medical marijuana laws, BTW).

Bryan Epis's house in Chico was raided by DEA agents in June, 1997. They confiscated 458 small plants from a 15'-by-15' room in his basement, along with Epis's computer and files. Epis had been growing for himself and four other physician-approved medical users, and donating a small surplus to a newly formed local dispensary. Two of the patients died before Epis came to trial in 2002; the other two testified that Epis had been growing for them.

Assistant U.S. Attorney Samuel Wong offered Epis a deal: plead guilty to criminal cultivation of 100 plants within 1,000 feet of a school (which carries a five-year mandatory minimum sentence) and avoid being charged with conspiracy to grow 1,000 plants (which carries a 10-year mandatory minimum). Epis chose to go to trial.  

Because it was a federal case, compliance with Prop 215 was irrelevant and not to be mentioned to the jurors. Defense attorney Tony Serra nevertheless let them know that Epis was growing for medical users. And Judge Frank Damrell instructed them that they were forbidden to take "medical use" into account. Similar scenarios have played out in some 30 federal courtrooms in the 215 era.

At least 50 California medical-marijuana growers and distributors are doing time or are in the pipeline to federal prison.

The Spreadsheet Ploy

When Epis was on the witness stand, Wong projected on the courtroom wall an Excel spreadsheet detailing costs and sales for a rapidly expanding dispensary business. Epis could not immediately identify or explain the spreadsheet. Wong claimed that it was part of Epis's "marketing plan" for the Chico dispensary -proof that he intended to operate long enough to grow 1,000 plants and make millions of dollars. Wong introduced the spreadsheet and two pages from the "marketing plan" into evidence and quoted a few sentences to suggest that Epis's goal was vast profit. He subsequently led DEA agent Ronald Mancini and a Butte County Sheriff's deputy through "expert" testimony explaining line-by-line that the spreadsheet revealed how much marijuana Epis planned to grow. By January 1998 he would be "netting $1,856,000 per week." From his small basement room.

Epis realized belatedly that the spreadsheet and the lines being quoted as evidence against him came from a 16 page rough-draft proposal for a "Silicon Valley Cannabis Club" that he had briefly considered launching in San Jose after Prop 215 passed. After testifying, Epis went home and found 10 pages of the Silicon Valley proposal -the context of the spreadsheet- that he had drafted in '97 and then forgotten about.  (In '97 Epis, 30, was a third-year law student with an eight-year-old daughter. The Silicon Valley proposal was partly an exercise in writing a business plan. Instead of moving to San Jose, Epis stayed in Chico and developed a hotel reservation website, BestLodging.com.)

Tony Serra tried and failed to admit into evidence the incomplete Silicon Valley proposal that Epis had found. Damrell commented on the record, "I'm not gong to allow the jury to hear what the San Jose City Council is doing with medical marijuana clubs." Serra said he thought the prosecution had supplied the whole document on discovery. Wong convinced Damrell -and Serra- that he had only supplied the spreadsheet and the marketing-plan pages he had cited. Serra should have trusted his memory, searched his files, and found the original. But he fell for Wong's bluff, and so the document that would have linked the spreadsheet to Epis's San Jose daydream, not his Chico reality, got marked as "Defense Exhibit A" but not admitted into evidence.

Epis was convicted of growing 100 small indoor plants and conspiring to grow 1,000 plants within 3.3 football fields of Chico Senior High School. He was denied bail and sent to prison at Lompoc in September 2002. He was later transferred to Terminal Island. 

Attorney Brenda Grantland took on Epis's appeal. She reviewed the case file and realized it was incomplete. Tony Serra told her that during the move of his office from Pier Five to North Beach, things had been misplaced. Among the missing items was the marked copy of Defense Exhibit A, the Silicon Valley proposal with six pages missing that hadn't been accepted as evidence.  Grantland did find an unmarked copy of the 16-page proposal in a notebook filled with clippings about medical marijuana and the business climate in San Jose. She also found the copy that the government provided to the defense on discovery. A special hearing was held in October 2003 to determine whether this copy of the Silicon Valley proposal could be admitted into evidence. Wong argued that the copy was not the same document as the one that had been marked Defense Exhibit A, and that introducing "new material" was not allowed at this hearing.  Grantland complained that prosecutorial misconduct had occurred at trial when Wong misled Serra and the judge into believing that the whole proposal had not been made available on discovery.

The paths of Bryan Epis and Jay Bybee first intersected in June 2004 when the Ninth Circuit panel heard oral arguments from Grantland challenging Epis's conviction on numerous grounds, including prosecutorial misconduct. Bybee was a newcomer to the bench. The dominant figure on the panel, according to Grantland, was a brilliant, elderly judge named Donald Lay. Grantland says it was Lay's doing that the panel allowed Epis out on bail and remanded the case to Judge Damrell for re-sentencing in light of the Ninth Circuit's ruling in the case of Raich v. Ashcroft. (Californians Angel Raich and Diane Monson had been medicating legally under state law with marijuana grown in California. The Ninth Circuit ruled that there had been no impact on interstate commerce, therefore the feds didn't have jurisdiction to prosecute them. Grantland argued that the same principle applied to Epis's grow in Chico.)

The U.S. Supreme Court ruled against Raich and Monson in June 2005. In preparation for the re-sentencing hearing ordered by the Ninth Circuit, Grantland asked to see the evidence seized from Epis' home. She suspected that the "marketing plan" that was the lynchpin of the prosecution case may have been altered on the computer.  After much stalling, Wong told the court that except for the most important government exhibits, all the evidence, including the backup  hard drive from Epis' computer, had been destroyed.  Grantland wanted a hearing to determine whether this had been done intentionally, and whether the agents who testified against Epis knew that the spreadsheet and marketing-plan excerpts related to Silicon Valley. Damrell agreed that she could depose the agents involved. Wong filed a motion arguing that the case had been remanded to Damrell only for resentencing, and that the question of prosecutorial misconduct was beyond the court's jurisdiction. Damrell acquiesced.

At an interview called a "safety valve debriefing" in March 2006, Wong deposed Epis, who was hoping to qualify for the "safety valve" exception to the 10-year mandatory minimum. Wong asked Epis about his relations with others involved in the grow, trying to establish that Epis had been the supervisor. He also asked whether the spreadsheet and excerpts from the marketing plan that Epis couldn't explain on the witness stand were indeed plans for expansion in Chico. Epis said no, they related to Silicon Valley. Wong then called for an evidentiary hearing to confirm that Epis was lying.

That hearing was held in February 2007. According to Grantland, Agents Redmond and Mancini both "admitted having seen the complete Silicon Valley proposal.... They both admitted that the figures in the spreadsheets were identical to the figures in the Silicon Valley proposal."  Moreover, the spreadsheets related to a dispensary that would be buying and selling marijuana, whereas Epis was charged as a cultivator. And the amount that Epis could grow in his basement (within 1,000 feet of  the high school) was minuscule compared to the amounts projected on the spreadsheet. 

At sentencing in September 2007, Damrell ruled that Epis may have not spoken the truth when he failed to recall whether a man named Keith Dusek did more than put up mylar to advance the grow project. Wong pressed Damrell to specify Epis's false statements for the record, noting "it impacts on whether Exhibit 27 [the Excel spreadsheet] was misused by the prosecution." Damrell said, "Let the Ninth Circuit sort that out. I'll not make that finding."

Wong tried to get Damrell to find that Epis had falsely claimed that the marijuana grown in his basement did not leave Chico. "How is that relevant?" Damrell asked. "That's something for the Ninth Circuit to consider. This is a sentencing hearing we're dealing with now. The horse has left the barn on those issues as far as this court is concerned."

Damrell re-sentenced Epis to the 10-year mandatory minimum, allowing him to stay free on bail pending appeal to the Ninth Circuit. The wise Judge Lay had died, replaced on the three-judge panel hearing the Epis case by Johnnie Rawlinson, a Clinton appointee considered to be a lightweight and right-winger. The panel reviewed the record and briefs, dispensed with oral arguments, and filed its decision April 8. It was written by either Bybee or Michael Daly Hawkins (a former federal prosecutor appointed by Clinton). Rawlinson filed a one-sentence statement concurring "in the result" -an opportunistic little maneuver that distances her from faulty logic.

Ignoring the Facts and the Law

Blatantly ignoring relevant facts and precedents was a characteristic of Bybee's torture memo. Harold Koh, the Dean of Yale Law School, testified before Congress that "the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read." He said it contained "five obvious failures," one of which was to ignore the existing zero-tolerance policy on torture by U.S. interrogators.

According to the 11-page written decision in the Epis case, "It was not an abuse of discretion for the district court to find that the prosecutor did not solicit or allow to go uncorrected any false testimony related to the spreadsheet." But the district court never made a finding in this regard! Grantland had tried unsuccessfully to get Judge Damrell to hold an evidentiary hearing on prosecutorial misconduct. "They can't just affirm findings that the judge didn't make," she exclaimed upon reading the decision.

Similarly, the Bybee-or-Hawkins decision stated, "The district court did not err in holding that Epis had not met his burden of showing that any of the destroyed evidence would have been exculpatory or that the government destroyed the evidence in bad faith." But Judge Damrell was appalled by the destruction of evidence (which took place at four separate locations and despite DEA procedures meant to safeguard against it). Damrell agreed that Grantland could attempt to establish prosecutorial misconduct by deposing the agents who authorized the destruction of evidence. When Wong moved that such an inquiry was beyond the narrow scope of the hearing, Damrell called it off. There was no "holding" that the evidence had been destroyed inadvertently.

The decision dooming Epis to 10 years in prison glossed over his argument concerning the ambiguous legal situation that prevailed in 1997. In the years ahead the Ninth Circuit itself would agree that there can be a "medical necessity" defense for growing marijuana, and that Californians could grow, obtain from caregivers, and use marijuana for medical purposes. The U.S. Supreme Court would reverse the Ninth Circuit on these points, but until they ruled on Raich, their trend had been towards states'rights.

The decision defines the piddly little indoor garden as "a large-scale marijuana growing operation." This trumping up of the threat to justify inordinate punishment is also characteristic of Bybee's torture memo, which transforms occasional terrorist acts into a jihad so threatening to the United States that we have to abandon our legal and ethical standards. 

Bybee's claim that government agents are immune to prosecution if they are "only following orders" from the President is the defense rejected by U.S. and allied prosecutors at the Nuremberg war crimes trials. Legal scholars contend that Bybee's memo was part of a plan by the Bush-Cheney administration to violate the laws of war -a conspiracy that would be a war crime in itself. Federal judges have lifetime appointments but involvement in a conspiracy to commit war crimes would be grounds for impeachment.

Grantland is planning to ask the Ninth Circuit to hold en banc hearing in which 11 judges would consider Epis's appeal. "They're going to have to remand it to Damrell and tell him 'Your hands are not tied, make findings.'"

Bye, Bye Bybee

Jeanmarie Todd was circulating a petition from thinkprogress.org to impeach Bybee before she learned of his  role in the Epis case. When she found out, she e-mailed, "Oddly enough, I used to know Jay Bybee when he was just an ambitious attorney at a top DC law firm and a member of the same Mormon Church congregation I attended (The "singles ward" meeting in Chevy Chase, MD.). I would never have guessed he'd become the author of torture-enabling memos, a judge in the 9th circuit, and one ruling the wrong way on an issue so close to my heart. Now that I think about it, the same pretzel logic and compartmentalized thinking that would allow such an intelligent person to remain a fundamentalist christian would also be necessary to protecting his brain from the cognitive dissonance of justifying horrific treatment of fellow human beings, and the same blinders-on refusal to actually look at the scientific evidence that would enable one to "believe" in the purported evils of marijuana and the criminalization thereof."

Jeanmarie was president of the Mendohealing collective that got wiped out in February when their Fort Bragg farm was raided by law enforcement. Her beau, David Moore, is in the Mendocino County jail. David would offer comfort, Bybee would authorize pain. One's a prisoner, one's a judge.

The thinkprogress petition quoted Bybee authorizing government interrogators to:

• slam a detainee's head against a wall: "any pain experienced is not of the intensity associated with serious physical injury."

• slap a detainee's face: "The facial slap does not produce pain that is difficult to endure."

• place a detainee into stress positions: "They simply involve forcing the subject to remain in uncomfortable positions."

• waterboard a detainee: "The waterboard... inflicts no pain or actual harm whatsoever."
 
I wonder how long it would take Judge Bybee to change his learned opinion if it was his head being slammed against the wall?

Brenda Grantland e-mailed an Impeach Bybee petition from MoveOn.org with these comments: 

"The news about Judge Jay Bybee being the author of the DOJ  torture memos broke just a few days before our first (and only) oral argument in Epis' case, back in 2004.  I have always had a bad feeling about Bryan's fate being in his hands... Bybee was appointed without the public or Congress knowing about his advocacy of illegal conduct by government agents. Had those facts been revealed, he would never have been confirmed...  Bybee is not fit to sit in judgment of others. If he would tolerate torture by federal agents as a means of obtaining confessions, all prosecutorial misconduct would be tolerable."

Fred Gardner edits O'Shaughnessy's, the journal of cannabis in clinical practice and can be reached at fred@plebesite.com.

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