Given the high-profile that applications to the Foreign Intelligence Surveillance Court have acquired in the past few weeks, you would think that the processing of such applications would not be apt to hit a snag over Colorado marijuana. But this being Washington in 2018, where trivia often trumps reason, you would be wrong.
The Department of Justice has a National Security Division, the mission of which is to protect the United States from national security threats through legal means, and to coordinate national security efforts of prosecutors, law enforcement agencies and the broader intelligence community. Among other duties, the head of the seemingly critical division is one of three people at the top of the Justice Department to sign off on applications for FISA warrants before they go the FISA Court. The other two are the Attorney General, Jeff Sessions, and the Deputy Attorney General, Rod Rosenstein.
Trouble is, John Demers, the man President Trump nominated last September to head Justice’s National Security Division, is waiting to be confirmed by the Senate because Cory Gardner, Republican Senator from Colorado, has a beef with Attorney General Sessions over enforcement of Federal marijuana laws in Colorado. Yes, you read that right. There is no permanent presidential appointee in charge of combatting terrorism at the Justice Department because a Republican senator has put discretionary federal marijuana enforcement above U.S. national security in his priorities.
It is not that Demers in unqualified, or a troublesome nominee, or beats his wife or is a sexual predator. A Harvard Law graduate who clerked on the Supreme Court for Justice Antonin Scalia, he was second in command at the National Security Division during the George W. Bush Administration and later a Vice President at Boeing. He was approved unanimously by both the Senate Judiciary and Senate Intelligence Committees, where even the Democrats considered him “unobjectionable” and a sterling nominee. Among other duties, if confirmed Demers will play a significant role in the federal government’s national security and anti-terrorism efforts, including developing and presenting the Justice Department’s legal positions before the Foreign Intelligence Surveillance Court.
Senator Gardner is upset because federal law deems the growing and distribution of marijuana a crime, while Colorado law does not. During the Obama years, the Justice Department announced that it would just look the other way on marijuana in states, such as Colorado, that legalized it. Attorney General Sessions rescinded that directive, announcing that if Congress thought marijuana should be legalized, well, Congress could change the law.
But where there were other drug-related violations of law – particularly where drug cartels, drug lords and related criminal activity were involved, the feds could prosecute, regardless of what Colorado thought about it. Sessions simply used his discretion, like his predecessors did, to give U.S. Attorneys the ability to use the tools given them by Congress.
Certainly Senator Gardner, being an able-minded member of Congress, could get a group of his colleagues together and introduce legislation to change the federal law if he were inclined. But he probably knows Congress is incapable of doing much of anything, so keeping Demers, and our national security, hostage is just a lot easier.
John Demers is not the only nominee awaiting Senate confirmation – there are at least 200, with over 30 at the Justice Department alone. Ask a Republican Senator why so many and they will blame the Democrats – who indeed often use everything in their power to delay nominations in order to try to keep the Trump Administration from succeeding.
So along comes Cory Gardner, a moderate Republican and otherwise reasonable fellow, who not only does the Democrats’ work for them, but hands them a big campaign issue as well. Gardner is the chairman of the National Senatorial Campaign Committee, which bills itself as “the official committee dedicated to strengthening the Republican Senate Majority,” and which raises money to help re-elect Republican senators and elect new ones. And ironically, the Committee’s website announces that it “Makes America Stronger.”
Except, apparently, when it comes to fighting terrorism. You can be sure that a Democratic campaign theme in the fall election will be the ineffectiveness of the Republican-dominated federal government, and its inability to get anything accomplished. How will Senator Gardner deal with that (and let’s hope there are no terrorist attacks before the election) given his obstruction at the National Security Division of the Justice Department?
That one Senator is capable – and willing — to hold up the machinery of the federal government, particularly in an area as important as protecting the country from terrorism – is nothing short of irresponsibility, and is the worst kind of example of how politics dominates everything in Washington, including reason.
Let’s hope that Senator Gardner comes to his senses, deals with the problems his constituents have in Colorado like a statesman, and let’s John Demers get to work.
Alfred S. Regnery is Chairman of the Law Enforcement Legal Defense Fund. He served in the Reagan Justice Department.