DEAs Soviet-like Behavior

     Crime was determined not as an infraction of the law but as any action which could threaten the state and society. Legal scholars even said that “criminal repression” may be applied in the absence of guilt.  They said, “Do not look in the file of incriminating evidence to see whether or not the accused rose up with arms or words. Ask instead which class they belong to and what is their background, education, and profession. These are the questions that will determine the fate of the accused.” [1]

     The purpose of public trials was not to demonstrate the existence or absence of a crime – that had been predetermined by the appropriate authorities – but to provide a forum for propaganda for the instruction of the citizenry, and defense lawyers were required to take their client’s guilt for granted [2]…

• The legal doctrine of the former Soviet Union [1][2]

Battlefield mirroring is a well-known phenomenon to military strategists whereby enemies engaged in a conflict will start to adopt the tactics of their adversary so that, over time, through adaptation and feedback loops, they become indistinguishable in their actions. The Drug Enforcement Administration was created in the 1970s by the Nixon administration as they declared the War on Drugs. Later, it was revealed by the attorney general that its true goal was to target black civil rights activists and antiwar protestors.  But the goal was not just prosecution and incarceration, as destructive as those are to any community.  The main goal was to terrorize these groups into silence.  A secondary goal was disenfranchisement, as a felony conviction makes it impossible to vote in many jurisdictions. And since marijuana was used by both groups at a higher rate than the general population of that time, these tactics were extremely effective.  Depriving millions of their liberty and families and of their right to be heard and vote, and terrifying tens of millions more into silence.

But to Congress and the public, the goal of the DEA was to reduce drug availability and use in America.  Fifty years and one trillion dollars later, these problems are worse than they have ever been.  With drug use and overdose at an all-time high.   To deflect from these abject failures, the DEA has decided to go after a much softer target, physicians who treat pain, addiction, and ADD. These conditions almost always necessitate the prescribing of controlled substances, and since the Controlled Substances Act of 1970, the DEA has a tool to use as a weapon to target physicians.  Starting with clearly criminal, non-doctor-owned operations to garner public support, they have now moved on to target any doctor who focuses on these areas, despite the fact these medications are critical to treatment.

The creation of the false metric of “overprescribing” has allowed the DEA to convince the public that bad doctors are the cause of all our overdose troubles, and if we just lock enough of them up, things will be better.  But they have a problem.  Federal law prohibits

“any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided…, …or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.” 42 USC 1395.

So, how can they hope to control prescribing? The answer is an easy one: by adopting the strategies of our former adversary, the Union of Soviet Socialist Republics.

Contrary to what most people think, authoritarian regimes are an excellent way to control people if their individual happiness and well-being are of no concern to those in authority.  In the mid-1990s, the US Supreme Court ruled that it was legal to execute an innocent citizen as long as their trial was technically correct.  This was necessary to begin the movement toward mass incarceration that was being called for at that time.  And continues today. To process a large number of people through the federal conviction system, it was necessary to remove impeding roadblocks like the rights of the accused or even the concept of innocence itself.  We see this principle used all the time when an overzealous law enforcement action results in the death of a person who was not breaking any laws.

Immediately, the press is informed that, while yes, the person hadn’t been doing anything illegal at the time of their death, they had a “long history” of doing something or other objectionable to someone somewhere.  A good example is the young man shot to death in Ferguson, Missouri.  Very quickly, law enforcement was providing the media with footage of him arguing with someone in a tobacco store, reporting that he was extorting or strong-arming someone, knowing that people won’t care as much about the death of someone whose actions they disapprove.  We like to pretend in this country that juries are neutral arbiters of justice, but in truth, they are human beings like everyone else, influenced more by emotions than by logic, as documented in an article by Reuters.

The same action is being taken by the DEA when they target doctors.  The doctor took CASH (not a crime) and prescribed millions of morphine dose equivalents (also not a crime but conflated in the next article as millions of opiate pills) to over a thousand patients (over an extended period, also not a crime). Prescribing “dangerous medications in dangerous combinations” (literally what doctors are supposed to do; safe medications in safe combinations are over the counter) and did not perform “adequate” (in their opinion) physical examinations.  How is any of these legal in light of 42 USC 1395?  The answer is that it is not legal, but since there is no law enforcement agency to police federal law enforcement (other than themselves), there is no way to stop them.

Some will argue that the Controlled Substances Act gives the DEA jurisdiction over the practice of medicine, but this argument is not supported by the law or the US Supreme Court.  The DEA has the right to issue controlled medication certification to prescribing providers and to rescind that certification through civil proceedings if they feel that federal rules regarding the use of controlled medications have been violated. The CSA also gives them the right to charge NONCERTIFIED persons with a crime if they possess or distribute controlled substances.  NOWHERE does any law say that the DEA/DOJ/Federal government has the right even to make the argument that a physical exam is somehow insufficient or even required at all.  That authority is left to the states.

Some states require a physical exam before a medication like an opiate can be prescribed. Other states require a physical exam AND a thorough review of past medical records (FL), while some states require one OR the other, but not both (AR). The DEA is going into all of these states and arresting doctors for non-crimes.  Paying expert prosecution witnesses to convince a jury that the doctor SHOULD have done something differently or had put a patient at “too much” risk. These non-evidence-based metrics have never been accepted by the medical community.  This is a clear violation of physician and patient rights, and the federal government is, in fact, exerting control over the practice of medicine and dictating the manner in which medical services are provided—a clear violation of the law.

To be clear, the federal government has the right to prosecute doctors who commit true fraud, charging for visits that didn’t occur or for procedures or treatments not rendered.  The states clearly have the right to prosecute doctors for any truly criminal conduct, like selling prescriptions without visits or trading prescriptions for sex.  What the federal government clearly does not have the right to do is to try to influence the practice of medicine.  They are neither qualified nor legally allowed to do this. Only the states have this authority. There is, in fact, no federal medical license for this very reason.  All federal physicians must be licensed in one of the US states to practice, and only the states, through their respective medical boards, have the right to influence medical practice.

How much medication a doctor prescribes is not the concern of the federal government.  If prescribing rates are considered excessive, the states have a mechanism to deal with this.  Many doctors don’t like their state medical boards, but I can assure you defending yourself to persons knowledgeable about the practice of medicine is infinitely preferable to trying to do the same to people who understand nothing about medical science and have decided that even if you didn’t do anything wrong THIS time, you still need to go away, as a warning to others.  The sad thing is that instead of doctors standing together and speaking out when this started in earnest after the 2016 CDC guidelines were issued, everyone kept their heads down so as to avoid being targeted themselves.  Exactly as the DEA intended.

Other branches of the US Government have pursued a more evidence-based, less Soviet approach to these issues.  The US Department of Health and Human Services has clearly stated that it is amending its guidelines to allow providers to prescribe controlled medications to treat OUD via telehealth without requiring an in-person visit, allowing both methadone and buprenorphine to be prescribed via visual communication and buprenorphine through audio-only communication, so a telephone call. These are controlled medications. But how much does this really help? DHHS also says that it is appropriate to use benzodiazepines with opiates in patients where it’s the doctor’s opinion that the benefit outweighs the risk, but that doesn’t keep the DEA from arresting and prosecuting doctors for it or from convincing a jury to convict with false expert testimony.

So, where does this leave us?  The United States of America signed the World Health Organization Constitution on the 22^nd of July, 1946, and it was ratified on the 14^th of June, 1948, making it legally binding.  This constitution states that “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition…”,” Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”

The World Health Organization went on to assert that… “WHO remains fully committed to ensuring that people suffering severe pain have access to effective pain relief medication, including opioids.”  While still acknowledging their concerns regarding the misuse of medications prescribed for the management of pain, stressing the need for a balanced approach with an understanding of the difference between acute and chronic pain. WHO has gone so far as to declare morphine itself a vital pain medicine, arguing that its restricted distribution is “unequal and does not fulfill the medical need.” Going on to say, in a report titled “Left behind in pain,” that there are two crises. First is the scourge of illicit fentanyl that has killed so many Americans. I have written about this at length.

The US government’s actions in the War on Drugs, and specifically its actions since 2016, are in violation of its obligations to the people and a violation of the Constitution itself, which makes clear that all power not clearly given to the federal government is reserved to the people. Article VI, Clause 2 of the US Constitution states that “ all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;” The US government’s actions are thus proven to be unconstitutional and in violation of its own and international law. The DEA must immediately stop dictating the practice of medicine to the people of the United States of America, or the government itself needs to be charged in the International Criminal Court with crimes against humanity.