The Pot Republic

Interview John Russo

John Russo

As Oakland's city attorney from 2000 until June 2011, Russo represented the City Council as it sought to issue licenses for the industrial production of cannabis. Though he says he agreed with the City Council's intentions from a public safety perspective, his office withdrew from representing the city of Oakland on the issue of cannabis production after receiving a letter [PDF] from a U.S. attorney in February 2011 warning that the city's actions could violate federal drug laws. He tells FRONTLINE, "Growing cannabis is clearly illegal under federal law, and there isn't an adequate protection under state law to shield the city of Oakland from future litigation." This is the edited transcript of an interview conducted on June 10, 2011.

Back in 2010, there was an effort to regulate and license marijuana cannabis cultivation. What problem would that be trying to address or trying to solve?

There were legitimate concerns that the growing of medical cannabis in Oakland was being done in residential neighborhoods, and we were having fires and other problems with the overloading of utilities, because people were hiding where they were growing it.

They were growing marijuana in homes and in basements?

In homes. They were taking over entire homes, not just basements. Homes were being rented in some of our neighborhoods, and hydroponics were being used and all types of indoor apparatus to grow cannabis, because there was this need for it at the medical dispensaries.

“The federal government is trying to create a boundary and say: 'We can de facto live with you guys doing this in small amounts. ...We'll look the other way with that. But this business of trying to make a business of it, we're not OK with that.'”

Now California law is very clear in Proposition 215 that you can have marijuana if you have a prescription from a doctor. But what Proposition 215 never really addressed was, how are you going to get that cannabis? How will it be grown? And that was a big blank in the law.

So you could use medical marijuana with a doctor's recommendation, but there were no laws on how to grow it or distribute it?

Well, there was a little bit, and to be fair, the California Legislature has weighed in on this, as have the courts. But there are issues about who can grow, and the only people who can grow in California are the patients themselves or their caregivers.

So then the issue becomes what is a caregiver. And there's been this attempt, understandably on the part of the dispensaries, to have themselves be designated the caregivers. But the courts are not very positively disposed toward that. They see caregivers as being more in line as medical professionals, nurses, people who are taking care of folks who are very sick, not the dispensary itself. And there has been a recent decision in California that says that dispensaries in and of themselves, the mere fact that they are a cannabis dispensary does not make them a caregiver. So who's going to grow?

The point here is all of a sudden in California you could legally use medical marijuana if you had a doctor's recommendation, but California didn't really create a system for distribution or production?

Well, distribution, yes. Production is the problem. Distribution is through the dispensaries. And Oakland was one of the first cities to jump in, in terms of how to license dispensaries, to limit them -- not too close to a school, not too close to each other, not to create a district, those sorts of things. But the production is the piece of the puzzle that was not clearly and adequately addressed in the original legislation that the people of California passed back in 1996. …

So Oakland somehow wanted to regulate and license marijuana, cannabis production.

In 2010. And here's the thing. At the same time, there was a ballot measure to tax, license and regulate the production of cannabis. Had that measure passed, what Oakland City Council was trying to do would clearly be legal under state law. You still have a problem with federal law, but it would clearly be legal under state law.

When Proposition 19, [PDF] the legalization of cannabis measure, failed -- and it didn't fail by much -- but when it failed, that clearly put Oakland City Council in a difficult place. They had already passed a law saying that they were going to license and tax and go forward. Now they have a problem with implementation because they don't have the color of state law, and the federal government has made it very clear that they do not look kindly upon this.

So all of a sudden Oakland is exposed.

Oakland was legally exposed in a way that they would not have been if Proposition 19 had passed.

You had some concerns about these plans?

Oh, I didn't. Actually, it's interesting. I don't have personal concerns. I actually agree with what the council was trying to do.

There were only two elected law enforcement officials in California who supported Proposition 19, and I'm one of them. I don't believe marijuana should be treated differently than alcohol is treated. …

But my role as city attorney requires me to advise the city, the corporation, my client, to advise the City Council based on the realities of what the law is today, not what we would all perhaps like to see the law be. And that created a lot of trouble and conflict. …

Once 19 is out of the equation, it's very difficult to see how this can be done under state or federal law. And if Oakland doesn't have the color of state law, then they are completely exposed legally as to the federal law. Because if state law authorizes it and the federal government decides we're going to come in and make an example of Oakland, let's say, then you can go to court as an Oakland official and say, "Well, I'm acting under state law, and there's a conflict of laws here."

Dozens of cases happen this way every year, where there's a conflict between federal law and state law. And there's doctrines of pre-emption and conflict of laws that all apply. You have a colorable argument if you're Oakland if Proposition 19 passes. Without the color of state law, you are completely bare legally, and that was a difficult and unhappy position for the city to be in.

I really wish it had been different, but there it is. That's the reality. We live in this world. And in this world, growing cannabis is clearly illegal under federal law, and there isn't an adequate protection under state law to shield the city of Oakland from future litigation.

What specifically about the ordinance did you think went potentially over the line in terms of state law?

I have to tell you it's still in play, so I really can't discuss to that level. What I can say is this: Under federal law, cannabis is illegal, medical or otherwise. Under state law, cannabis is legal, but only under the confines of Proposition 215. And what the city of Oakland City Council was trying to do was, I believe in good faith, trying to respond to a legitimate public safety concern, but they were responding in a way that was not authorized under state law broadly.

There certainly were hopes of tax revenue in this as well. … [Did that] also contribute to this becoming controversial?

There's no question. And I want to be clear: When I supported Prop 19, it wasn't because of tax revenues coming in. My reason for supporting the end of cannabis prohibition was very simple. Based on White House drug policy documents from several years ago, I believe the majority of revenue that the international drug cartels receive out of the United States, 60 percent of it is based on cannabis. So I want to cut that oxygen out of that fire.

And this is a public safety question. So the money that comes in on tax revenue is to me a minimal question. The question is, how much money do we spend busting people over cannabis when we should be directing limited public safety resources elsewhere?

Having said that, your question is was the City Council and the city of Oakland perhaps dazzled by the great riches that were going to come our way? Absolutely. They talked about it, calling it the "green rush," in line with the gold rush. This is the new green rush.

And you can understand. Municipal budgets are under tremendous stress; Oakland's budget is a disaster right now. The idea of being able very easily, by licensing four or five growers, to pick up several millions of dollars with minimal cost on the regulatory side, it was no surprise that some of the council members would really be attracted to that solution.

When you're talking about laying off police officers, closing libraries, closing down and shuttering park recreation centers, and along comes this idea that a minimal expense will allow the city to pick up several million dollars' worth of revenue, of course they were eager to do that.

And anyone who tells you otherwise isn't telling you the truth. That was a big part of what was driving the issue here. …

So how big of a factor is medical marijuana in terms of city politics here in Oakland?

It's pretty large. You know, the city has different industries, and the folks that are involved with medical marijuana have been very assertive in campaign donations and contributions. They are a factor. They donate to everybody, and that makes them a player. And you know, in Oakland, there are campaign donation limitations that are pretty strict for a large city, so as a politician, you're looking to every possible source, because nobody can give you very much.

If you can go to all these different dispensary operators and get each one of them and these other entrepreneurs who want to come in to do the licensing, bing, bing, bing, and you just pick up your $700 check here, your $700 check there, your $700, and you package it up, and it's part of the package.

Nobody should get the impression that the medical marijuana folks are able to buy and sell candidates. It's not at that level. The city law doesn't allow that to happen. But they are definitely a player.

They're involved with the nonprofits. So council members who have preferred nonprofits will go and say, "Can you please buy a table at this or that dinner?" They are full players just like the Chamber of Commerce, just like any of the other larger corporations. In fact, there's some large corporations in Oakland that are less aggressive in the political realm than the medical dispensary operators are.

And stepping out of Oakland for a moment, just looking at California's experience with medical marijuana in general, is there a little bit of a fiction here that, in terms of medical marijuana, that a lot of people are getting medical marijuana not really for medical purposes but that it's gone much more into the sort of recreational market?

Yeah, of course. There's no question that for many of the legalization advocates, not all of them, but for many of the legalization advocates, passing the medical marijuana initiative here 15 years ago was getting the camel's nose under the tent. It was critical to moving things forward.

You don't see this in Oakland, but in Southern California, for example, I'm always surprised when I get off the plane and I'm in a cab; I'm being driven to downtown L.A., and you see other cabs go by, and they have signs on them saying things like Dial-a-Kush. So you can call some guy, and he'll bring pot to your house. Come on. I mean, really, is that medicine?

Now, having said that, let's be honest: It's a very gray area when you start looking at advertising on television for so many different drugs and how many different antidepressants are prescribed for people in society. It's interesting that marijuana, which really I think falls very squarely in the same line as sort of beer, alcohol, going into antidepressants, that marijuana is somehow targeted. …

[Earlier] you said that some advocates, not all, saw this as a way of moving things forward toward full --

Full legalization, sure. In Oakland, in the mid-90s, when Proposition 215 passed, the mantra here in terms of licensing the dispensaries, and it was my mantra -- I was on the City Council -- was "Like a pharmacy, not like a liquor store." So several years later, when some of the dispensaries looked more like coffee shops in Amsterdam, we shut them down because the law didn't call for treating cannabis like alcohol. It called for treating cannabis like a prescription drug, so we wanted to treat those dispensaries that way.

There's no doubt that for many who were pushing medical cannabis, they were pushing it as an evolutionary position toward an eventual full legalization with regulation and taxation. And again, Proposition 19 got 47 percent. It almost passed. It will pass sometime in the next 10 years in California, which will set up the struggle between state law and federal law over how do we deal with cannabis.

So you started getting signals from the feds that this plan to license large-scale marijuana production was not a good idea?

Signals is a very subtle way of describing it. I was told very directly by contacts of mine within the federal administration and within the Justice Department to the effect of: "We are not going to let this happen. You do know we will not let this happen."

They weren't going to allow marijuana production to be licensed in Oakland?

It's not without some color of state law. I have the impression they wouldn't have allowed it even in color of state law, but we're not there. Where we are is the state law measure failed, and it's against federal law. And they were very clear with me verbally and came to visit me on two different occasions to tell me in effect: "What is Oakland doing? This is clearly not legal."

Yeah. What period of time are we talking about?

We're talking about August, September, October of 2010, prior to the vote on Proposition 19, but after Oakland had passed its original ordinance purporting to, at some date in the future, license the industrial production of cannabis.

So the Oakland City Council passes this ordinance to license large-scale marijuana growing, and you get calls from the feds.

I get visits from -- I don't want to give away my sources, but I got visits from two different Justice Department officials who I've worked with over the years on different issues, saying, in effect, "What is Oakland doing?," and "You know we're not going to allow this to happen. That can't happen." And my response at that time was, "Well, why don't we see what happens with Proposition 19?" That didn't seem to make them any less adamant about the federal position. But as the attorney for the city, I felt pretty strongly that if Proposition 19 passed, we would have some defense to federal action.

So this is a letter written to you from the U.S. attorney here in Northern California warning Oakland about the plans to license large-scale pot cultivation.

Yes. This letter [PDF] was no surprise. I had written to Attorney General [Eric] Holder after being instructed to do so by the Oakland City Council. Let me tell you, I told the Oakland City Council what I had been told by the federal officials, and some of them didn't believe me and insisted that I should inquire more formally. I did, and the result was this letter. …

This letter is very clear. This letter is in response to my letter to the attorney general saying: "We are contemplating going forward with issuing permits pursuant to the attached ordinance, the one the city had passed. What is the federal position on this?" And the result was this letter from U.S. Attorney [Melinda] Haag here in the Northern District of California.

And what's the essence of the letter?

The essence is this is clearly illegal; you can't do this; we're concerned that it is contrary to federal law.

I'll read it. "It authorizes conduct contrary to federal law and threatens the federal government's efforts to regulate the possession, manufacturing and trafficking of controlled substances and that the department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana-growing warehouses in Oakland."

So civil and criminal remedies mean that city officials who are implementing this plan could be liable --

Yes, oh, absolutely. They say that here. And they say, "others who knowingly facilitate the actions." That was clearly directed at the officials in Oakland City Hall. And by the way, we'd already received a similar letter from the Alameda County district attorney saying expressly that people involved in facilitating this are subject to criminal sanction under state law.

So in other words, not only is this kind of pot growing illegal, but we're going to go after, potentially, any city officials who are involved in the program?

There's no question that was the warning, and I had expressed that already. It had been expressed to me verbally. I had expressed it [all] along, and this is a more formal recitation of that.

How did the Oakland City Council respond to this letter?

They weren't very happy about it, but I think they were more frustrated than anything else. I think they had made a lot of promises to potential licensees. They'd spent a lot of time on this project both from a policy perspective and politically for all the reasons we talked about earlier. And I think they were very frustrated, and some of them lashed out at my office, claiming that we had in effect provoked this letter.

One theory was that if we hadn't sent the letter to Holder, the federal government would have left us alone, and they would have just looked the other way. I don't share that feeling based on the conversations I had had with federal officials.

So some council members took to criticizing the representation they were receiving from the City Attorney's Office as a result of this letter, and the consequence of that was my office withdrew from representing the city on the issue of cannabis production.

You had raised these legal questions about the ordinance, but the City Council still went ahead with approving it. Is there a certain amount of embarrassment here that the City Council was swept up in this thing?

You'd have to ask them. I think they would probably say they were frustrated. Some of them would say they were sabotaged by my office. They'll have a million excuses other than the one giant elephant in the room, which is there's no state or federal authority for the licensure of production of industrial cannabis. It just doesn't exist. ….

[The letter says]: "We will enforce the Controlled Substances Act vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana even if such activities are permitted under state law." And that's been repeated in different letters. So here's my question: A lot of people in the pro-marijuana movement believe that as long as they're in clear compliance with state law they will not be a priority to the feds. Is that an accurate reading of the situation?

I think it was an accurate reading of the situation about a year ago. I don't know if it's accurate today. I'm not saying it isn't. I just don't know if it is.

There was very little question that the new administration, the Obama administration, came in saying, look, if people are acting consistent with state law in the medical marijuana context, the medicine context -- again, the dispensary as pharmacy, not as bar and grill -- we're just not going to expend limited resources messing with people who are sick, trying to get medicine, trying not to waste away if they have cancer or some other disease.

By pushing the envelope the way some cities have, it may be that they have upset that delicate balance that the feds felt they could maintain as long as people weren't treating marijuana like alcohol, like a recreational drug. As long as marijuana was being treated like a medicine, a lot of medical issues are engaged in our federal system at the state-law level.

In other words, cities like Oakland and other places maybe went over the line?

I think that's very clearly what U.S. Attorney Haag was saying in her letter: that you can't go over this line; you cannot start growing marijuana on an industrial basis.

Note: Nobody from the federal government has talked with Oakland in the more than 10 1/2 years that I've been city attorney. No one from the federal government has ever contacted us about our dispensary issues. It was only when the City Council very publicly took the step of licensing or purporting to license the industrial production of cannabis, then and only then did federal officials start contacting my office. So I'm not trying to pin the blame on any one city. I'm just saying that the going past the four corners of the medical marijuana state laws is discomforting to the balance that had been created between the feds and the states.

The letter to Oakland from the Justice Department was effective.

Well, Oakland has not issued any licenses. They have suspended their ordinance, but they have not repealed it. So this story's not over yet.

Isn't it the case that all the feds have done in terms of these priority issues, all they've ever talked about are individuals and their caregivers. The Ogden memo doesn't go into dispensaries, cooperatives that are growing large amounts of marijuana.

Correct.

Isn't there a little bit of a misinterpretation by some people of the Ogden memo?

Absolutely.

They're just saying they're not going to arrest individuals for using marijuana for medical reasons.

That's exactly right. But so there's the Ogden memo, and then there is the experience of the past two years, whereby the federal government has not aggressively pursued dispensaries. That's a little different than the prior administration. So I think it was easy to see why some people would just have read that, OK, as long as you're within the state medical marijuana law, you're OK with the feds. The feds never said we're OK with this. They just said we're not going to prioritize enforcement on this basis.

So as you know there's been a flurry of letters now that have gone from U.S. attorneys in other states -- Washington, Arizona, Rhode Island.

Yes.

And do you think it's fair to say that that process began here with this letter? Do you see a connection?

I understand that the letters that are being sent in other states are based primarily on the template of U.S. Attorney Haag's letter here in the Northern District of California. The warning to Oakland was the first, and that's become the basis for other states.

And how do you interpret that? What do you think is going on here? Is it a broader pushback, a containment? How would you describe what's going on?

I think that's exactly how you'd describe it. The federal government is trying to create a boundary and say: "We can de facto live with you guys doing this in small amounts, sort of grow your own, or have a caregiver grow a couple of plants that's going to take care of somebody who's truly sick, as long as they have a doctor's prescription. We'll look the other way with that. But this business of trying to make a business of it, we're not OK with that." That's what the feds are saying.

Keep it small then; keep [it] small scale.

At very small scale, very personal, not a commercial enterprise. The feds want to keep this on the ground of personal, individual liberty. They don't want it to become something that's subject to interstate commerce or any of the other type of broader commercial concerns, because the feds would be forced then to examine why cannabis is on the federal bad list to begin with.

So in other words, they'd have to deal with this at a federal level in terms of drug policy and laws, etc., and the Controlled Substances Act.

They would, and I think, based on many other similar, what are regarded as culture war issues, this is a political dynamite issue that the feds don't want to see come back as a question that they would have to address. I think they'd like to maintain the status quo at the federal level and then look the other way and maintain the status quo at the state level.

But as there's this constant pressure by pro-cannabis advocates to expand what can be done, the feds are pushing back. There's no question about it. It's political dynamite for the feds.

And what does this effort tell you about the Obama Justice Department?

I think it tells me that they are extremely moderate. I would do the same thing if I were in their position. We don't want to be spending inordinate amounts of limited resources fighting with different states about what states can and cannot do. So what it tells me is that they're extremely prudent.

I'm not talking about whether they're right or wrong. I happen to -- again, let me reiterate -- I happen to think cannabis ought to be treated like alcohol. Having said that, given the politics of the country, given where we are in our development on these types of issues, given the fact that pot is a cultural signal and icon in the 1960s culture wars that keep haunting us in our politics, I think it's very prudent on the part of the Obama administration to push back a little bit here. Now, I don't agree with it as policy, but as politics I understand it.

What do you expect will happen next?

I expect that local governments will back away from a confrontation, because I would imagine they'll be advised by their municipal attorneys that this is clearly going to be a problem under federal law, and unless our state law authorizes us to do this, we have no colorable conflict to litigate over. I don't know how far the feds are willing to push back. I'm not willing to speculate on how far they're willing to push back. I think time will tell.

If the feds have some kind of containment policy under way, can it be effective?

I don't think so. I think it's been a demonstrable failure. Cannabis prohibition is kind of like the old fairy tale of "The Emperor's New Clothes." Everyone knows that the emperor has no clothes on; no one's willing to say it. But the reality is you know and I know, and we're all going to pretend we don't know. But you know and I know that you can go to middle-class professional people's parties around both coasts and people are back in the yard toking on a joint. And it's the truth, and it happens.

The only people who are not at those parties are people like me who are elected officials. When you see that, you have to leave the party immediately, because God forbid you're at that party and something goes wrong, right? …

But you and I both know that professionals, middle-class people, working people, it's widespread. Prohibition is a failure. The only thing it has succeeded in doing is providing an easy stream of revenue to sociopathic drug cartels who are shooting people up in streets of places like Oakland. And that's why I oppose the prohibition.

Just like alcohol helped them make the Cosa Nostra in the '20s, and we're still living with that and the corruption that's entailed and the extortion and the murder that that entailed. We're doing the same thing with pot by handing this easy money to the cartels. I don't see why we would continue to do that. I think it's also a national security issue.

But what do you say to the argument that illegal marijuana cultivation has just exploded in California in the period since medical marijuana was legal?

That's absolutely correct. It has. And like I said earlier, the medical marijuana initiatives were really the first step on the part of a lot of the pro-cannabis people, the anti-prohibition people. It was a first step for many of them toward eventual legalization. Sure it's exploded, but it's exploded in California. It doesn't mean that there's people smoking more or less; they're just not importing it as much now.

The danger, of course, is that a lot of what's being grown in national parks and state parks in California is being controlled by illegal cartels and by drug organizations and criminal organizations.

And it's going out of state, where profits are higher.

Then that's why the feds are concerned about it. The feds are concerned about allowing industrial grow[s] in California because their attitude is people will come from all over and pick it up here.

Well, I think the reality is that's already happening.

That's right.

If you look at some of these cases around the state, you have growers who come here from Mexico or other parts of the United States. They grow here, and they export it. In fact, you talk to some federal officials, they say California may be one of the top exporters of high-grade marijuana in the world.

Right. Well, you hear people talk about that. You hear people talk about how the potency has just dramatically increased. And that's part of the danger. Part of those of us that believe it ought to be legalized and then regulated, part of it is the concern about potency and what that might do, what the psychological effects of that might be, and I don't know. I'm not a doctor, and I don't play one on TV; I don't know. But that's part of the concern.

I guess what I would say is sure, it's exploded. But it's illegal and it's exploded, so what do you do? What does that mean as far as what the demand is? Who's smoking all this? And the thing is, who's smoking it is Americans, just like Americans are taking tons of other drugs and Americans drink a lot of booze, but not as much as other countries.

You're aware of the situation in Mendocino, [where] they have an ordinance. They're licensing growers. You can grow up to 99 plants per parcel of land. And if you go through these hoops with the Sheriff's Department, they're kind of proud of this program. There's no other program like it in California. So if you have a county cultivation program that can make a strong argument that it's compliant with state law, what do you think the federal attitude toward that is based on these letters?

A year and a half ago, I think that type of program probably would have been OK. Right now I think it's anybody's guess. I'm not privy to what the feds' grander strategy is for this issue, so I wouldn't want to even hazard a guess as to whether or not the feds would look the other way. They won't allow it, but [they might] look the other way, or whether or not they would go after such a program as they have, say, in Mendocino.

So in terms of safety, all that, so what does the federal pushback mean for Oakland?

My guess is it will probably mean that the city of Oakland will have to find other ways to beef up their inspection of residential properties and to follow up on concerns. I have had people who have called this office say, "I think the folks next door to me are growing because I can smell it every time they open their door." Oakland will probably be compelled to do stronger enforcement and shut those types of places down.

But if they can't, the point is the federal pushback could undermine public safety.

Well, no, I don't know that that's true. Like I said, I think Oakland looked at it and said we know that someone's going to grow. We want to make sure that they're licensed to do it in industrial areas, not residential areas.

The fact that the feds say you can't grow it in industrial areas doesn't mean that Oakland can't do a better job of policing in the residential areas. Is it linked to the extent that Oakland doesn't have infinite resources? Absolutely, but if we really are concerned about residential fires, and if those can spread in our neighborhoods and put our fire people in harm's way, then Oakland needs to do a better job in responding to citizen complaints about what they're smelling and seeing in their neighborhoods.

So let's say that federal pushback is successful; states and counties back down. End of story?

No. Fifty years from now, cannabis is going to be legal. There's no question. If you look at government and you look at the deficits in all the states, and you look at the federal deficits, we are going to be forced as a society to pick and choose what are the things that we are going to stop people from doing.

The abuse of cannabis ought to be treated like the abuse of alcohol. It ought to be a medical issue, not a criminal justice issue, understanding, of course, that people who drive drunk should go to jail and people who would drive high should go to jail. People should be accountable for their actions.

But I just don't see us continuing this charade that we've had. And if you look at other issues that 50 years ago you looked at, say, at something like civil unions, same-sex unions, and as we're progressing we'll eventually have gay marriage, we'll have same-sex marriage. There's no question we're moving in those directions. It's going to happen. I don't think it will happen in my lifetime; nationwide I'm talking about. But I think eventually cannabis will be treated like any other recreational substance, which is, if you use it in moderation, we tax it; we license it; we regulate it; we make sure it's not really super-dangerous. I think we'll end up there just because we don't have the resources. We have other fights on our hands in terms of public safety.

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Posted July 26, 2011

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