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5

Prosecuting the War on Drugs

One of the early battles Nixon faced grew out of the Controlled Substances Act itself, Section 601, which established the National Commission on Marihuana and Drug Abuse. Nixon, who appointed nine of the commission’s thirteen members, likely saw the commission as an opportunity to produce propaganda in support of the War on Drugs; the commission was tasked with producing a report on drug use.1 Many members of Congress praised the creation of the commission, while several other members raised questions about marijuana: its effects and its inclusion in the Controlled Substances Act, specifically under Schedule I. One opponent, Representative Gilbert Gude (R-Md.), stated the following on the House floor on September 24, 1970:

I am particularly pleased by the section establishing the Commission on Marihuana and Drug Abuse. I sponsored legislation to establish a Marijuana Commission which was approved by the Judiciary Committee. This section owes much to the thought and effort of the Gentleman from New York [Democratic Congressman Ed Koch]. I hope the Commission can clear up some of the confusion and conflicting reports that have made it so difficult to formulate a sound policy on marihuana.2

Whereas Gude raised concerns and questions about the commission, Nixon had clear opinions about marijuana and obvious expectations about the value of the work of the well-funded ($1 million) commission.3

President Nixon selected as chairman of the commission Raymond Shafer—a former Pennsylvania governor, a Republican, and an old friend. Commission members and staff began working in spring of 1971, and the final report, Marihuana: A Signal of Misunderstanding, was delivered to President Nixon and Congress in March 1972. Nixon expected it to provide him with ammo in the drug war, but he didn’t get what he wanted. Like the La Guardia Report before it, the Shafer Commission’s report infuriated those in government who were committed to marijuana prohibition, chief among them the president of the United States.

The report explicitly opposed the legalization of recreational marijuana, stating, “Society should not approve or encourage the recreational use of any drug, in public or private. Any semblance of encouragement enhances the possibility of abuse and removes, from a psychological standpoint, an effective support of individual restraint.”4 However, the report forcefully challenged the historical, scientific, legal, and sociological underpinnings of the prohibition of marijuana. It challenged earlier policy choices: Were they the result of sound analysis or of historical and cultural biases built on false assumptions? It questioned the legitimacy of reports connecting the use of marijuana with increases in criminal activity.

The report also explored the societal and financial costs of criminalizing the possession and use of marijuana. In the face of a prohibition-centered War on Drugs, the Shafer report was damning, stating, “The Commission is of the unanimous opinion that marihuana use is not such a grave problem that individuals who smoke marihuana, and possess it for that purpose, should be subject to criminal procedures.”

Marihuana: A Signal of Misunderstanding was transmitted to Congress and the president just days after the passage of the Drug Abuse Office and Treatment Act, which funded an expansion of the War on Drugs. Nixon unambiguously expressed his concerns over the report in advance of its publication. During an Oval Office meeting with Chairman Shafer on March 22, 1972, Nixon made his interests clear and sought to steer Shafer away from the type of report Nixon now expected:

You’re enough of a pro to know that for you to come out with something that would run counter to what the Congress feels and what the country feels and what we’re planning to do, would make your Commission just look bad as hell. And I think in, I think that, and on the other hand, you could probably render a great service, that doesn’t mean we’re going to tell you what it’s going to be, but we’re going into this too.5

Nixon was unable to prevail upon his friend, and the report ended up reflecting some of Nixon’s greatest fears. During a news conference a few days after the report’s release, the president was asked about his reaction to it. His public statement on the report was brief, dismissive, and clear:

I met with Mr. Shafer. I have read the report. It is a report which deserves consideration and it will receive it. However, as to one aspect of the report, I am in disagreement. I was before I read it, and reading it did not change my mind. I oppose the legalization of marihuana and that includes its sale, its possession, and its use. I do not believe that you can have effective criminal justice based on a philosophy that something is half legal and half illegal. That is my position, despite what the Commission has recommended.6

The report’s release was timed badly for the president: Congress was debating appropriations for his drug war efforts, and 1972 was an election year. Ultimately, though, Nixon was able to sideline the report, avoid fallout, and continue with his War on Drugs. Having largely won the battle against Ray Shafer, Nixon pushed forward with his reelection campaign. His strategy was to use drugs as a wedge issue to stoke fear in voters and drive them to his cause, and he mentioned drugs in no fewer than twenty-four official statements between September 1 and Election Day. On October 28, 1972, less than two weeks before the election, Nixon held a campaign rally in Cleveland, Ohio, and claimed credit for dramatic reductions in drug use in the United States, attributing those successes to his administration’s efforts. He closed his speech by talking about what he wanted to do in the next four years, and with the typical din of dog-whistle politics told the audience, “By winning the war on crime and drugs, we can restore the social climate of order and justice which will assure our society of the freedom it must have to build and grow.”7

Eleven days later, Richard Nixon was reelected, winning more votes than any other president up to that point in history (over 47 million), carrying forty-nine states, and earning 520 electoral votes. In his second term, Nixon did not change the direction of his drug policy, nor mute its aggression. He devoted his first State of the Union Address in his second term exclusively to drug abuse prevention, closing the speech by singling out marijuana and powerfully opposing its legalization.8 Later that month, on March 28, 1973, Nixon took one of his last significant actions in the War on Drugs when he submitted to Congress a request to allow the “Reorganization Plan No. 2 of 1973” to go into effect. Congress acceded and on July 1, the Drug Enforcement Administration (DEA) was established in the Department of Justice. This change in the U.S. government’s drug policy bureaucracy was the most significant in American history, both up to that time and since. The new agency would “absorb the associated manpower and budgets” of essentially all of the drug enforcement programs scattered throughout government departments and agencies: the Bureau of Narcotics and Dangerous Drugs, the portion of the Bureau of Customs portfolio “pertaining to drug investigations and intelligence,” the Office for Drug Abuse Law Enforcement, and the Office of National Narcotics Intelligence.9

The new agency’s jurisdiction, mission, manpower, and funding were substantial to begin with and would grow dramatically over time. In 1974 the DEA had 4,075 employees and a budget of $116 million ($557 million in 2014 dollars). By 1985 it had 4,936 employees and a budget of $362 million ($796 million in 2014 dollars). In 2014 it had 11,055 employees and a budget of $2.882 billion.10 The DEA would engage not only in domestic drug enforcement but would also act internationally, working closely with the CIA and other agencies to extend the War on Drugs beyond the U.S. borders, particularly into Latin America.