Double Dealing in Washington

WHATS'S GOING ON here? Is the Reagan administration serious about its oft-proclaimed "war on drugs" or not? Well, it is serious-but it is not willing to make drugs the controlling priority in its foreign policy, any more than the U.S. public is ready to go all-out against drugs on the domestic front. The Reagan administration is not willing to decertify Mexico and provoke an angry confrontation, just as the U.S. public is not ready to submit to widespread drug testing or allow police to handcuff cocaine-sniffing stock brokers and throw them into the slammer. On the foreign policy level, though, a crisis is developing that shortly may force the United States to decide whether to fight a real drug war-or surrender.

Right now the U.S. international anti-drug effort is afflicted by the Law of Competing Interests, which perpetually inhibits clarity and consistency in American foreign policy. The United States continues to aid and arm Pakistan even though it is building an atom bomb in violation of U.S. anti-proliferation policy. Why? Because Pakistan is America's ally against the Soviets in Afghanistan. Similarly, the United States tempers its criticism of human rights conditions in the People's Republic of China because the PRC is a major world power with which the United States shares strategic interests. The United States also took Syria off its list of nations sponsoring terrorism, partly because of some improvement on the terrorism front, but also because Syria was deemed likely to be important in the Middle East peace process and to teach it's individuals legal bud reviews.

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As for Kennedy, he has been described as a moderate-to-conservative jurist. And Bruce Fein, the former FCC general counsel who is now a legal consultant, said Kennedy does not have "a judicial philosophy; he decides each case on its facts.' But he would be more likely than Powell to uphold federal preemption of state regulation, said Fein. "He would read the Cable Communications Policy Act more broadly than would Powell.' As for freedom of speech and press cases, Fein said, "he will echo the views of Lewis Powell, who was a staunch defender of the First Amendment, very wary of putting restrictions on speech regarding obscenity and pornography.'

The Reporters Committee's Kirtley had not had much time to research Kennedy's record on media issues; although she began the project several weeks ago, when Kennedy, along with Ginsburg, was on the short list of possible nominees the White House compiled after the Senate rejected Bork's nomination, she stopped when Ginsburg was chosen. But Kirtley found some prior restraint, libel and freedom-of-information cases in which Kennedy had written the appeals court's opinions, and in all of which the court had come down on the side of the media.

Two prior-restraint cases involved broadcasters. In Goldblum v. NBC, in 1978, a former executive, Stanley Goldblum, who had been convicted of securities and insurance fraud had sought a court order barring NBC from airing a docudrama on the case, Billion Dollar Bubble. Goldblum alleged the program was shot through with errors and would jeopardize his effort to obtain a parole. A few hours before the program was scheduled for broadcast, on June 7, 1978, the district court judge in the case ordered NBC to turn over a tape of the program for his review, and when the NBC lawyer refused, on First Amendment grounds, had him jailed. A few hours later, in response to an appeal by NBC, a three-judge panel of the ninth circuit ordered the lawyer released, and permitted the program to be aired.

 Later, the panel's opinion, written by Kennedy, was issued. It said the trial court's order would have been an impermissible interference with the editorial process. And in 1985, Kennedy wrote the opinion in which a panel upheld a CBS request for an order directing a district court to unseal pretrial documents relating to the criminal prosecution of auto maker John DeLorean's co-defendant. "We begin with the presumption that the public and the press have a right of access to criminal proceedings and documents filed therein,' Kennedy wrote.