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FBI Director Calls On Congress To 'Fix' Phone Encryption By Apple, Google

Ryan J. Reilly   |   October 16, 2014    2:46 PM ET

WASHINGTON -- FBI Director James Comey called Thursday for "a regulatory or legislative fix" for technology companies' expanding use of encryption to protect user privacy, arguing that without such a fix, "homicide cases could be stalled, suspects could walk free, and child exploitation victims might not be identified or recovered."

Comey said he understood the "justifiable surprise" many Americans felt after former National Security Agency contractor Edward Snowden's disclosures about mass government surveillance, but he contended that recent shifts by companies like Apple and Google to make data stored on cell phones inaccessible to law enforcement went too far.

"Perhaps it’s time to suggest that the post-Snowden pendulum has swung too far in one direction -- in a direction of fear and mistrust," said Comey, speaking at the Brookings Institution in Washington in his first major policy speech since taking over the FBI 13 months ago.

"Justice may be denied because of a locked phone or an encrypted hard drive," he said.

The latest versions of smartphone operating systems from Apple and Google provide strong default encryption that cannot be broken even by the companies themselves -- as long as users store data like photos only on their own devices and not in the cloud.

Law enforcement officials like Comey worry that as a result, some kinds of data will "go dark" to investigators who need forensic data to solve crimes. But the companies and tech experts both say strong default encryption is necessary to protect users from unwanted intrusions into their privacy by governments and freelance hackers.

Comey said the FBI was seeing "more and more cases" in which law enforcement officials believed there was significant evidence on a laptop or phone they couldn't access due to encryption. It's not clear, however, that any of the cases he specifically referenced -- from a murder in Louisiana to a hit-and-run homicide in California -- could not have been solved with a traditional warrant to cellular service providers.

"Law enforcement has access to more data than they've ever had access to," Matthew Green, an assistant professor of computer science at Johns Hopkins University, told The Huffington Post. "We're just finally as a society trying to get back to a point where it's a little more in line with what law enforcement would have been able to get back in the '80s."

Snowden's revelations have provoked a crisis abroad for major U.S. tech companies, which could lose billions as foreign customers leery of American software and devices compromised by the NSA turn to other providers. Comey said that he was "not trying to jump on the companies," like Apple and Google, that implement encryption systems closed off to law enforcement and that he believed they were "responding to a marketing imperative."

The FBI director didn't propose any specific legislative solution, saying he simply hoped to begin a dialogue about the issue. He indicated that he wanted some way for manufacturers to provide law enforcement with access to their devices under a court order.

"We aren’t seeking a back-door approach," Comey said. "We want to use the front door, with clarity and transparency, and with clear guidance provided by law. We are completely comfortable with court orders and legal process -- front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks."

Green said that statement indicates Comey would be comfortable with either the government or tech companies themselves holding onto the tools necessary to decrypt messages and data.

But whether law enforcement has access to users' information through a legally mandated front door or a covertly installed back door, others argue that intentionally giving electronic devices privacy vulnerabilities carries great risks.

"Sophisticated adversaries" could use the same holes to siphon off data, said Christopher Soghoian, the principal technologist for the American Civil Liberties Union, in a question posed to Comey during a questions-and-answers period Thursday. Many have warned that those adversaries could include foreign governments like China or freelance hackers.

"I don't think that anybody with complete confidence can build an interception-proof system," Comey acknowledged. But, he added, "when you aggregate various risks and tradeoffs, the alternative doesn't make any sense to me."

The Justice Department and FBI have been raising their increasing concern over criminals or terrorists "going dark" for years. Any push in Congress to provide the government with more tools to access user data, however, will likely face opposition from the tech companies and from privacy advocates.

Sen. Ron Wyden (D-Ore.), a tech industry ally and NSA foe, tweeted in response to Comey's speech that he opposes "requiring companies to build back doors into their products."

"This Apple thing wasn't done on a whim," said Green. "I don't think you're going to see anyone back down right away."

The Civil Rights Chief DOJ Thinks Liberals Will Love, Conservatives Can Work With

Ryan J. Reilly   |   October 15, 2014   10:47 PM ET

WASHINGTON — The new acting head of the Justice Department’s Civil Rights Division is a liberal activist lawyer who has spoken out on the “disastrous” war on drugs, the “morally bankrupt” prison industry, “out of control” police militarization, and the “broken” asset forfeiture program. She has called for the legalization of marijuana and wants the government to eliminate -- not just roll back -- mandatory minimum sentences.

Vanita Gupta also has a lot of Republican friends.

Gupta, the 39-year-old deputy legal director of the American Civil Liberties Union, is set to take over the Justice Department’s Civil Rights Division on an acting basis next week. An official familiar with the process confirmed that President Barack Obama plans to nominate her to take the role permanently.

If Gupta is tapped for the civil rights post on a permanent basis, she’d undoubtably be one of the Obama administration's most liberal nominees. But she’s not just winning backing from her fellow civil rights attorneys and journalist Glenn Greenwald. Also weighing in with support are conservatives, including Grover Norquist, representatives of the legislative group ALEC, and former National Rifle Association President David Keene -- no fan of the Civil Rights Division’s work.

“Frankly, the Civil Rights Division is the worst place over there. It’s been awful,” Keene told The Huffington Post. But Gupta, he said, is “very different from what you would expect from the Obama administration.” He said he thinks she’s a good pick.

“If the administration had picked people like this in the first place, they may not be in the situation they find themselves in today,” Keene said.

Marc Levin, of the conservative criminal justice reform group Right on Crime, said he thought Gupta a good candidate because of her work across the aisle. But he said he doesn't expect she will sail through the confirmation process.

“Like any appointee to this position, because it deals with things like voter ID that are controversial and pretty partisan these days, I think that she may get questions or even opposition on that,” Levin said.

Lisa Nelson, president of ALEC -- the American Legislative Exchange Council -- said Gupta was great to work with. Despite their many differences on policy issues, the ACLU and ALEC have collaborated on sentencing reform.

"I would say that she was very helpful, she worked with my team," Nelson said. "It was a really good, positive relationship."

The Civil Rights Division, which Attorney General Eric Holder has described as the “crown jewel” of the Justice Department, has been without an acting head since Tom Perez became Labor Secretary in mid-2013. A previous candidate was rejected by the Senate due to his successful work on a convicted cop-killer's high-profile death penalty appeal.

Holder, on his way out the door, is looking to put a team in place that will continue his legacy civil rights and criminal justice reforms. That’s where Gupta comes in.

“I think Eric Holder’s legacy still has to be deepened and consolidated,” said Anthony Romero, executive director of the ACLU and, until Friday at least, Gupta’s boss. “The attorney general has made criminal justice reform one of his signature programs, but they’re still at their nascent stage. Clearly the need to reform our criminal justice system is going to take determination and tenacity and the ability to work with law enforcement officials to get the job done, and in every respect Vanita will continue the work started by Eric Holder and make sure she brings the ball across the finish line.”

Gupta has been doing civil rights work her entire career. Fresh out of law school, she joined the NAACP Legal Defense Fund as a Soros postgraduate fellow, with her salary paid by the Open Society Institute. There, she jumped into a massive drug case out of Texas involving a corrupt, lying, racist former rodeo cowboy, whose false testimony as an undercover narcotics agent sent dozens of people to prison for years. His salary, it just so happened, was paid by a Justice Department anti-drug grant.

Talking about her involvement in that case in 2003, Gupta told The New York Times that she wasn’t quite sure where she got her interest in civil rights, but mentioned an experience as a young girl. Her family was sitting in a McDonald’s in London when a group of skinheads walked in. They reportedly yelled “Go home Pakis!” and hurled french fries at Gupta and her family until they fled the restaurant.

Gupta has served as deputy legal director of the ACLU for the past four years, and was an attorney in the ACLU's Racial Justice Program before that. In recent months, she's overseen the ACLU's "entire Ferguson strategy," according to Romero, and had supervised an in-depth study of police militarization that was completed months before protests in the St. Louis suburb drew national attention to the issue.

“What Ferguson has laid bare is something that communities of color, kind of at the target of the war on drugs, have known for the last several decades, that policing in their communities is often highly militarized,” Gupta said in a recent interview. “The question will be that once the cameras leave Ferguson, once the Ferguson hashtag is no longer trending on Twitter, is there going to be the political will and resolve to actually address what has been a very alarming situation in local and state police departments around the country. Because there’s no question that this has really gone out of control.”

It wasn't immediately clear whether Gupta's ACLU work on Ferguson would raise a conflict once she takes over the Civil Rights Division, where she would be overseeing the broad civil rights investigation into the Ferguson Police Department as well as the division's involvement in the investigation of a Ferguson officer's killing of unarmed teen Michael Brown.

Holder held a conference call on Wednesday with representatives of several law enforcement groups to introduce Gupta, and at least one organization got a heads up about the announcement on Tuesday. For now, the law enforcement organizations that convinced lawmakers to nix the nomination of Debo Adegbile for involvement in the case of Mumia Abu-Jamal, who was convicted of murdering a Philadelphia police officer, are holding their fire.

“We haven’t articulated any particular statement at this time,” said Tim Richardson of the National Fraternal Order of Police.

Inside The Gitmo Force Feeding Hearing The Federal Government Didn't Want You To See

Ryan J. Reilly   |   October 7, 2014    7:44 PM ET

WASHINGTON –- On the fourth floor of a federal courthouse just blocks from the Capitol, two very different pictures are being painted of a 43-year-old Syrian man who has been held by the U.S. military for over 12 years more than 1,300 miles away.

In hearings this week, lawyers for Guantanamo detainee Abu Wa’el Dhiab are trying to persuade U.S. District Judge Gladys Kessler to issue a preliminary injunction stopping the military’s practice of force-feeding their client. Dhiab has been held at the Guantanamo prison facility since August 2002 after being arrested in Pakistan. Several government intelligence agencies agreed years ago that Dhiab could be released from Guantanamo, but he's still there with no departure date.

On one side of the current arguments are Dhiab's lawyers, who portray him as a peaceful father of four whose only way to protest against his indefinite detention is by refusing food and participating in hunger strikes. They allege that authorities in Guantanamo have withheld medical care to punish him. They point to documents that seem to show medical officials abandoning their care-taking roles and directing punitive actions against Dhiab -- removing his wheelchair and back brace, and even ordering that he no longer have access to boxer shorts and cotton socks.

On the other side are lawyers representing the federal government, who are in the awkward position of defending practices at a detention facility that President Barack Obama ordered closed in his first days in office. They describe Dhiab as an aggressive and mentally unstable man who is faking his injuries. They are also attempting to undermine the credibility of the expert witnesses who examined Dhiab and testified on the state of his physical and mental health.

It’s a debate the government didn’t want the public to see, citing national security concerns and requesting that nearly all of the arguments take place behind closed doors. But Judge Kessler denied the request to hold hearings out of the public eye, calling it “deeply troubling.” Instead, classified materials have been discussed in shorter closed sessions when necessary.

Some of the closed sessions have centered on videos of Dhiab's being forcefully extracted from his cell and force-fed, which a doctor who examined Dhiab and who has seen the videos described as “disturbing.” The government wanted to keep those videos secret as well, but Kessler has ordered edited versions of the videos to be released. The videos are classified as “secret,” and Dhiab’s team expects it to take weeks, if not months, for the government to edit them in a way that obscures the identities of Guantanamo personnel. The government could also appeal Kessler’s ruling.

In court, lawyers for the government and the detainee sometimes seem to be discussing completely different situations. They even use different terms: The defense attorneys talk about “force feeding,” while the government uses the phrase “enteral feeding” (though a Justice Department lawyer slipped up and said “force feeding” while cross-examining one of the doctors). The divide was on display during opening statements Monday, when Dhiab attorney Eric Lewis called the government's treatment of his client "unworthy of us as a nation,” while Justice Department attorney Andrew Warden said the American military has offered "high-quality medical care" to the man.

Lewis, a lawyer in private practice, said in his opening statement that his client “does not want to die” and that he “wants to be treated like a human being.” He contended that authorities in Guantanamo routinely chose the more coercive and degrading option, instead of trying to solve conflicts reasonably, and that his client was a victim of a “get-tough strategy to get rid of the hunger strikes.”

Warden alternatively said that Guantanamo personnel treated Dhiab in a “humane and medically appropriate fashion” and that force-feeding was “not a painful procedure.” A restraint chair, he insisted, was “not used as a punishment.” Warden asserted there was “no medical reason” that Dhiab couldn’t walk, accusing him of faking medical conditions. Yet he also noted that a doctor had issued an order last month allowing Dhiab to use a wheelchair until February, suggesting it was unnecessary for the court to get involved.

Both doctors who testified on Monday -- Sondra Crosby, who has specialized in treating refugees, and retired Gen. Stephen Xenakis -- said that medical authorities in Guantanamo had been inappropriately involved in disciplining Dhiab.

Crosby, who described Dhiab as cooperative when she met him, said there were a number of instances in which she believes medical personnel stepped over the line. The distinction between medical treatment and disciplinary action “has been blurred,” she said.

“I cannot think of any medical reason why a doctor would issue an order to discontinue medical items” in Dhiab’s case, Crosby testified. “On the surface, it seems punitive.” She said Guantanamo has a “system that is not set up to care for complex patients” like Dhiab.

Xenakis, who focused mostly on Dhiab’s mental state, said he saw his examination of the detainee and his testimony as an “extension” of his military service. He said he did not believe that the government’s treatment of Dhiab furthered the safety of the United States.

While the government maintains that Dhiab is malingering, Xenakis testified he didn’t think that was so, referencing his experiences during the Vietnam War. He said that he had seen a “lot of young men who didn’t want to be in the Army” who had been malingering, but that he didn’t see signs of that in Dhiab’s case.

Xenakis testified that Dhiab had made “very reasonable” requests that were denied by authorities in Guantanamo, who he said even overruled the recommendations of medical officials. He said that Dhiab gets depressed about his life in Guantanamo, but that he didn’t think the detainee wanted to hurt himself and didn’t think he was capable of striking out at the guards. Dhiab is “being provoked” by the way the guards treat him, Xenakis said.

On Tuesday, Dr. Steven Miles testified that forcible extractions of detainees from their cells are “a form of punishment” and that the overall treatment of hunger strikers was part of a “punitive strategy to deter hunger striking,” according to an account from the human rights group Reprieve, which is helping to represent Dhiab.

"Three medical experts have now testified that there is something rotten at the core of Guantánamo -- treatment of hunger strikers is not proper medical care but a punitive strategy to try to break them,” Reprieve attorney Cori Crider said in a statement. “We've forced the government to give Mr. Dhiab his wheelchair back, but they still won't promise not to take it away tomorrow. The authorities have shown time and again that without the Court stepping in, they will abuse our client, and we are here trying to put a stop to it."

As of his last weigh-in, the 6-foot-5-inch Dhiab weighed 152 pounds, which the government claims is roughly 40 pounds below his ideal weight.

Judge Denies DOJ's 'Deeply Troubling' Request To Close Gitmo Force Feeding Hearing

Ryan J. Reilly   |   October 2, 2014    5:29 PM ET

WASHINGTON -- A federal judge in Washington, D.C., on Thursday denied the federal government's request to seal the courtroom for a hearing on the force-feeding of a detainee on hunger strike at the U.S. military detention center in Guantanamo Bay, Cuba.

U.S. District Judge Gladys Kessler ruled Thursday that the public should be allowed to witness arguments in the case, specifically pointing out that Justice Department attorneys waited "less than two weeks prior to the start of the long-scheduled hearing" to make their request.

Closing the courtroom for the entire hearing on a preliminary injunction, she wrote, would be an "extraordinary step," which she called "deeply troubling."

Kessler noted that the case of detainee Abu Wa'el Dhiab has "received a good deal of publicity in the press" and that there was a lot of interest in the topic of Guantanamo Bay in general.

"With such a long-standing and ongoing public interest at stake, it would be particularly egregious to bar the public from observing the credibility of live witnesses, the substance of their testimony, whether proper procedures are being followed, and whether the Court is treating all participants fairly," she wrote in her ruling.

Kessler wrote that the government "seems to have forgotten the words of the Supreme Court" when it ruled in 1984 that openness "enhances both the basic fairness of the ... trial and the appearance of fairness so essential to the public confidence in the system."

Cori Crider, an attorney for Dhiab with the group Reprieve, said in a statement that "sanity prevailed" in the case and that they were looking forward to making their arguments in open court.

"This was a brazen attempt by the Obama Administration to shut the American people out of their own courtroom. And how sad to see the Justice Department deliberately undermining one of the central pillars of our democracy: open justice," Crider said. "This has been a rather poor showing from what was supposed to be the most transparent administration in history."

This story has been updated to include a statement from Cori Crider.

Paige Lavender   |   September 25, 2014   10:46 AM ET

WASHINGTON -- Attorney General Eric Holder, the first African-American to hold the nation’s top law enforcement position, announced on Thursday his plan to resign the post he’s held for nearly six years as soon as a successor can be confirmed.

At the formal announcement at the White House, an emotional Holder thanked President Barack Obama for what he called the “greatest honor” of his professional life.

“I have loved the Department of Justice ever since as a young boy I watched Robert Kennedy prove during the civil rights movement how the department can -- and must -- always be a force for that which is right,” Holder said. “I hope that I have done honor to the faith you placed in me, Mr. President, and to the legacy of all those that served before me.”

Holder, 63, said he would leave the Justice Department in “the months ahead,” but said he “will never leave the work” and would “continue to serve and try to find ways to make our nation even more true to its founding ideals.”

Obama, who has a close personal relationship with Holder, did not name a candidate to replace him. Holder discussed his plans with Obama on several occasions over the last few months, and finalized his decision at the White House residence over Labor Day weekend, according to a DOJ official. If Holder stays in office until December, he will become the third-longest serving attorney general in the history of the United States.

Obama praised Holder’s long career, noting that he worked with six presidents of different parties, and credited him with restoring the Justice Department’s Civil Rights Division.

"He believes, as I do, that justice is not just an abstract theory. It’s a living and breathing principle," Obama said.

Holder had worked "to make sure that those words 'life, liberty and the pursuit of happiness' are made real for all of us," Obama added.

Holder, a frequent target of Republicans in Congress over the past several years, has made criminal justice reform his top priority in the last year. His Justice Department took significant steps in dialing back the war on drugs, encouraging judges to use discretion in sentencing low-level drug offenders and taking on what Holder decried as "draconian" mandatory minimums.

While his drug reform efforts did earn him some praise from Republicans, many members of the GOP took Holder's exit as an opportunity to criticize the outgoing attorney general.

“Eric Holder is the most divisive U.S. Attorney General in modern history,’’ Rep. Darrell Issa (R-Calif.), a frequent Holder antagonist, said in a statement. “By needlessly injecting politics into law enforcement, Attorney General Holder’s legacy has eroded more confidence in our legal system than any Attorney General before him. Through strong arming reporters, practically ignoring high level wrongdoing, blocking his own agency Inspector General’s access to information . . . Attorney General Holder abused his office.’’

Holder earned praise for his achievements in civil rights, going to bat against voter ID laws and racial profiling, and speaking openly about racism in the United States. However, his civil liberties record left progressives disappointed.

"During his tenure, DOJ approved the drone killing of an American far away from any battlefield, approved the NSA’s mass surveillance programs, failed to prosecute any of the Bush administration torturers, and presided over more leak prosecutions than all previous Justice Departments combined," American Civil Liberties Union executive director Anthony D. Romero said in a statement. "Our hope is that his successor will take his baton and continue to focus on reforms that will positively affect the lives of millions, and also seriously address issues that have yet to receive adequate attention such as the closing of Guantanamo Bay detention camp."

In an interview with The Huffington Post earlier this year, Holder said he had no firm plans about when he would step down.

"In terms of my own thinking of how long do I stay … I talk about tasks and trying to see certain things through," Holder said. "I want to try to get a few things done before I ultimately leave."

According to a report in the Washington Post, those "few things" included his progress on sentencing reform, as well as the way he handled the protests in Ferguson, Missouri, after unarmed black teenager Michael Brown was shot to death by a police officer.

As a private citizen, Holder wants to find ways to help restore trust between law enforcement and minority communities, according to a Justice Department official. Holder visited Ferguson, Missouri, last month and has focused much of his career on civil rights issues.

Holder has plans to visit Scranton, Pennsylvania, on Friday, where he'll complete his goal of visiting all 93 U.S. attorney's offices.

Holder has spoken about his resignation before, telling The New Yorker in February he was planning to leave office sometime this year.

This is a developing story and has been updated.

Former DOJ Civil Rights Nominee: Principles More Important Than A Job Title

Ryan J. Reilly   |   September 15, 2014    2:13 PM ET

WASHINGTON -- President Barack Obama's former nominee to head the Justice Department's Civil Rights Division said Monday that he hopes young lawyers won’t stop getting involved in important civil rights cases, even though the Senate refused to confirm him due to his representation of a controversial client.

Debo Adegbile came under attack by conservatives after he was nominated to become assistant attorney general of the Civil Rights Division because he was at the NAACP Legal Defense Fund when the organization represented Mumia Abu-Jamal, who had been convicted of murdering a Philadelphia police officer. Abu-Jamal avoided the death penalty because the trial judge gave the jurors confusing instructions that a federal appeals court found violated the Constitution.

Seven Democrats helped Republicans in the Senate block Adegbile's confirmation back in March, while he was serving as senior counsel to the Senate Judiciary Committee. The law firm WilmerHale announced on Monday that Adegbile would be joining as a partner and that he would be withdrawing his nomination for the top Justice Department post.

In an interview with The Huffington Post, Adegbile said he stands by his actions in the Abu-Jamal case. He revealed that he found out only "moments" before the Senate vote that his nomination might be in trouble and said the Obama administration never expected his work on the Abu-Jamal case to dominate the discussion about his nomination.

"I think if you look into it, it would be a rare situation in which somebody was blocked from public service for having successfully vindicated the Constitution of the United States," Adegbile said.

"In our system, you get counsel, you make your case to the court, and then the court rules and we agree as a society, as a civilized society, to abide by that rule of law. Therefore I don't think that there was a lot of focus in my participation in that defense as being disqualifying in any way," Adegbile said of the vetting process before his nomination.

Asked whether he agreed with Sen. Tom Harkin (D-Iowa), who suggested that Adegbile would have been confirmed if he were white, Adegbile said he'd leave that assessment to others.

"From my perspective, civil rights in our nation have been contested since the beginning of time, and I guess my vote suggests that they're fairly hotly contested today, amongst other events that are unfolding across the country. So I was not surprised that there would be some opposition," he said.

"The chips fell where they did. Whether it's politics or something else is better for other people to assess," he continued. "What I have come to focus on is that in life and as a professional, the principles for which you stand are more important than the office that you hold. I'm very proud to have worked to vindicate the principles of the constitution, and I hope to continue to have those opportunities in the future."

Adegbile, who will focus his practice in WilmerHale's Litigation/Controversy Department, said he "immediately began to consider" his alternatives after the vote in March. He said he had previously collaborated with WilmerHale when he was at the NAACP Legal Defense Fund and that several friends and colleagues have worked there.

"Once the events of March unfolded, I started to think about what I may want to do next. Though I did enjoy my service to Sen. Leahy on the Judiciary Committee, my family is in New York and I wanted to find a way to have a law practice that was going to continue to be as interesting as my past had been, but also it was important for me to be back in New York and Wilmer was at the top of the list," Adegbile told The Huffington Post.

His message for young lawyers would be for them to work on cases that are important to them and not to get discouraged by what happened to his nomination.

"I was considered to be AAG for Civil Rights because of the work that I've done in my life, and not in spite of it. Every young lawyer should engage in those cases and matters that are important to them, and let the chips fall," Adegbile said. "The nation will be better for it."

Huffington Post Statement On Arrest Of Reporters In Ferguson

Ashley Alman   |   August 13, 2014   11:26 PM ET

Huffington Post reporter Ryan Reilly and Washington Post reporter Wesley Lowery were arrested Wednesday in Ferguson, Missouri, where they were reporting on the protests that have erupted following the death of Michael Brown, an unarmed African-American teenager who was shot by a police officer last week.

In response, Washington, D.C. Bureau Chief Ryan Grim issued the following statement:

We are relieved Ryan Reilly and Wesley Lowery are safe, but we are disturbed by their arrest and assault.

Ryan was working on his laptop in a McDonald's near the protests in Ferguson, MO, when police barged in, armed with high-powered weapons, and began clearing the restaurant. Ryan photographed the intrusion, and police demanded his ID in response. Ryan, as is his right, declined to provide it. He proceeded to pack up his belongings, but was subsequently arrested for not packing up fast enough. Both Ryan and Wesley were assaulted.

Compared to some others who have come into contact with the police department, they came out relatively unscathed, but that in no way excuses the false arrest or the militant aggression toward these journalists. Ryan, who has reported multiple times from Guantanamo Bay, said that the police resembled soldiers more than officers, and treated those inside the McDonald's as "enemy combatants." Police militarization has been among the most consequential and unnoticed developments of our time, and it is now beginning to affect press freedom.

  |   August 13, 2014    8:45 PM ET

The Huffington Post's Ryan J. Reilly and the Washington Post's Wesley Lowery were arrested Wednesday evening while covering the protests in Ferguson, Missouri after the death of unarmed black teenager Michael Brown, who was shot by a police officer last week. The journalists were released unharmed, but their detentions highlighted the town's ramped up police presence, which has left numerous residents injured by rubber bullets, pepper spray and tear gas during protests held every night after Brown's death.

SWAT officers roughed up the reporters inside a McDonald's, where both journalists were working. Reilly snapped a photo, prompting cops to request his identification.

"The officer in question, who I repeatedly later asked for his name, grabbed my things and shoved them into my bag," said Reilly, who appeared on MSNBC's "All In with Chris Hayes" shortly after his release to recount the arrest. "He used his finger to put a pressure point on my neck."

"They essentially acted as a military force. It was incredible," Reilly said. "The worst part was he slammed my head against the glass purposefully on the way out of McDonald's and then sarcastically apologized for it."

Reilly said it will be difficult to hold the officer "accountable for his actions," as the officer did not respond to Reilly's repeated requests for his name or other identification. He said he can't be "100 percent sure" whether the officer was aware that he's a reporter, "but that really shouldn't matter in this equation."

Reilly believes he was arrested because he declined to present the officer his identification when asked for it, he said.

See tweets from Reilly and Lowery below:

The Huffington Post called the Ferguson Police Department to inquire about the status of Reilly shortly after tweets indicated that he had been arrested. The person who picked up the phone -- who identified himself as "George" -- said he couldn't give any information at this time and that there was no one who could do so. Asked for his last name, he mumbled something quickly. When pressed for the spelling of his name, he hung up.

The Huffington Post called back and again asked for information on Reilly. We were simply put through to the "Ferguson jail" voicemail. On the third try, George again insisted he didn't have any information at this time and referred us to the city's website for email information. When again asked for his last name, George simply hung up.

The Los Angeles Times' Matt Pearce spoke with the Ferguson police chief:

After the incident, Lowery and Reilly both emphasized their experience was minor compared to those of other protesters who have been swarmed by SWAT teams and hit with rubber bullets and tear gas:

UPDATE: Aug. 13, 9:49 p.m. ET -- Another Huffington Post reporter, Christine Conetta, tweeted at 9:44 p.m. ET she'd been hit with tear gas at a protest in Ferguson:

This piece has been updated with more tweets from Lowery and more information about the arrests.

Eric Holder Says He Wasn't Playing Race Card When Decrying GOP Opposition

Ryan J. Reilly   |   April 14, 2014    2:36 PM ET

CHARLESTON, S.C. -- Attorney General Eric Holder said he wasn't referring to race last week when he strayed from prepared remarks during a speech before a civil rights group in order to discuss the way he has been treated at a House Judiciary Committee hearing.

"I didn't say there was a racial component. I was very careful not to say that," Holder told The Huffington Post on Friday, when asked about his comments before the Rev. Al Sharpton’s National Action Network.

In his speech last Wednesday, Holder said that he and President Barack Obama have faced "unwarranted, ugly and divisive adversity."

"What attorney general has ever had to deal with that kind of treatment? What president has ever had to deal with that kind of treatment?" Holder asked during his National Action Network speech.

Although much of the media coverage of Holder's comments interpreted them as a reference to racial divisions, he told HuffPost that he was referring to a lack of civility in Washington.

"I think what we have seen is kind of a breakdown in civility in Washington, D.C., and that becomes important because I think it has substantive impact," Holder said. "We are celebrating the 50th anniversary passage of the 1964 Civil Rights Act. If we had a Congress or an executive branch-legislative branch relationship in the way that we now have one, where there's this lack of civility, I wonder whether or not you could have forged the necessary compromises, things that involved personal relationships, in order to get such a landmark piece of legislation passed.

"And that's essentially what I was decrying, the fact that we can't somehow separate whatever our personal feelings are and focus on our functions as members of the executive branch or as legislators. I think that I've done a pretty good job in doing that, but it's frustrating at times," Holder said.

Holder also noted that he hadn't planned to mock Rep. Louie Gohmert (R-Texas) during his appearance last Tuesday before the House Judiciary Committee, but said Gohmert's strange "asparagus" remark last spring "sort of stuck" in his mind.

"I'm still not quite sure I understand it," Holder said.

Eric Holder Would Be 'Glad To Work With Congress' To Reschedule Marijuana

Ryan J. Reilly   |   April 4, 2014    1:29 PM ET

WASHINGTON -- The Obama administration would be willing to work with Congress if lawmakers want to take marijuana off the list of what the federal government considers the most dangerous drugs, Attorney General Eric Holder said Friday.

"We'd be more than glad to work with Congress if there is a desire to look at and reexamine how the drug is scheduled, as I said there is a great degree of expertise that exists in Congress," Holder said during a House Appropriations Committee hearing. "It is something that ultimately Congress would have to change, and I think that our administration would be glad to work with Congress if such a proposal were made."

Several members of Congress have called on the administration to downgrade cannabis on its own without waiting for congressional action. Under the federal Controlled Substances Act, the attorney general has the authority to "remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule." Holder didn't indicate Friday that he would be willing to do that unilaterally.

Although there haven't been any documented cases of deaths from overdosing on marijuana, the federal government treats it as a Schedule I drug with a "high potential for abuse," along with heroin, LSD and Ecstasy.

Re-categorizing marijuana would not legalize the drug under federal law, but it could make research into marijuana's medical benefits much easier and allow marijuana businesses to take tax deductions.

Several Republican lawmakers at the hearing questioned Holder's decision to allow Colorado and Washington to legalize and regulate marijuana and to take the states' actions into consideration when prioritizing federal marijuana prosecutions. But Holder said that he was "not sure that you're going to see a huge difference" between the cases the Justice Department was bringing before and after guidance went out to U.S. attorneys on which cases to prioritize.

"We're not blazing a new trail," Holder said of the decision to prosecute only certain cases based on the department's limited resources, noting that much of marijuana law enforcement happens on the state and local levels.

Any move to reschedule marijuana would probably face resistance from the Drug Enforcement Administration, which Holder oversees. DEA chief Michele Leonhart said this week that the growing acceptance of marijuana only makes her agents "fight harder."

Confused by the video above? See 4/20: How Weed Day Got Its Name

Senate Blocks Obama Civil Rights Nominee For Representing Death Row Inmate Mumia Abu-Jamal

Ryan J. Reilly   |   March 5, 2014   12:53 PM ET

WASHINGTON -- The Senate on Wednesday blocked the confirmation of Debo Adegbile, the former head of the NAACP Legal Defense Fund, to lead the Justice Department's Civil Rights Division.

Seven Democrats sided with all the Republicans in voting against the procedural motion to advance Adegbile’s nomination. The Democrats voting no were Sens. Heidi Heitkamp (N.D.), Joe Manchin (W.Va.), Mark Pryor (Ark.), John Walsh (Mont.), Joe Donnelly (Ind.), Bob Casey (Pa.) and Chris Coons (Del.).

Democrats needed 51 votes to advance Adegbile: The final vote was 47-52. Vice President Joe Biden came to the Capitol for the vote in case of a tie, but the Senate never got that close.

Before the vote, Sen. Patrick Leahy (D-Vt.) and Senate Majority Leader Harry Reid (D-Nev.) attacked their Republican colleagues for opposing Adegbile over his past representation of Mumia Abu-Jamal, who was convicted 30 years ago of murdering a Philadelphia police officer. As legal counsel for the NAACP Legal Defense Fund, Adegbile helped Abu-Jamal get his death sentence overturned.

"The attacks seem very similar to those that were made against Thurgood Marshall," Leahy said, referring to opposition to the future Supreme Court justice's appointment to a federal appeals court in the early 1960s by Sen. James Eastland (D-Miss.), a segregationist. Marshall was also the first head of the NAACP Legal Defense Fund.

But several Democratic senators also spoke against Adegbile's nomination, with Casey leading the way last week. Some of them are in tight reelection campaigns, and at least one, Coons, said the Civil Rights Division needs a leader who will help build a better relationship with the law enforcement community.

Reid said that Adegbile was being used as a "scapegoat for Republicans trying to stop people from voting."

The Justice Department's Civil Rights Division has been without a confirmed leader since former Assistant Attorney General Tom Perez became secretary of labor last year.

President Barack Obama later issued a scathing statement denouncing the Senate's vote.

"The Senate’s failure to confirm Debo Adegbile to lead the Civil Rights Division at the Department of Justice is a travesty based on wildly unfair character attacks against a good and qualified public servant," Obama said in a statement. "As a lawyer, Mr. Adgebile has played by the rules. And now, Washington politics have used the rules against him. The fact that his nomination was defeated solely based on his legal representation of a defendant runs contrary to a fundamental principle of our system of justice -- and those who voted against his nomination denied the American people an outstanding public servant."

The story has been updated with comment from President Obama.

Federal Prosecutor Tries A Radical Tactic In The Drug War: Not Throwing People In Prison

Ryan J. Reilly   |   February 27, 2014   10:12 PM ET

U.S. Attorney Bill Nettles is pursuing a bold new approach to the "war on drugs" in South Carolina. (Photo: North Charleston Police Department/Flickr)

In the video, Joey Lee Pyatt Jr. is standing shirtless in a dingy kitchen, a blue bandana tied around his neck. The door and floor are covered with sheets of clear plastic, and two young women, one in a white string bikini, the other in black lingerie, measure white powder on a digital scale and sort it into plastic baggies.

"Baggin' up a thousand grams," Pyatt raps into the camera, playing the role of proud drug lord.

In another scene, the aspiring rapper shows off the proceeds of his illicit business, standing in front of the Huckabee Heights housing project in Conway, S.C., as a man next to him nonchalantly tosses dollar bills in the air.

"Welcome to Conway," a sign along the highway reads in another shot.

According to law enforcement officials, Pyatt's artistic persona closely matched his life off screen. His blue bandana signaled allegiance with the Crips. He was arrested in 2012 for carrying a concealed gun in a bar. The projects where he rapped have indeed been hot spots for drug and gang activity.

Just a few blocks southeast of the projects is where Detective Tyres Nesmith of the Conway Police Department found Pyatt, shot and bleeding, just after 1 p.m. on Jan. 6 this year. He was sprawled on the ground in a cement driveway behind a blue one-story house.

"He was just laying there, right where that car is," Nesmith told me a few weeks after the shooting, sitting in her unmarked squad car and pointing to the spot where Pyatt had lain. "I was like, 'Hang on, hang on for me.'" Pyatt died at the hospital. He was 23.

At his funeral, mourners were decked out in blue bandanas, his mother had her hair dyed blue, and dozens of police officers were on hand to maintain order. Photo tributes popped up on Facebook referring to Pyatt as "C.I.P." -- Crip In Peace -- and a "fallen soldier."

Conway is a small city, with a population of about 16,000. Many residents work in tourism-related jobs in nearby Myrtle Beach. The drugs and gangs have made them feel unsafe at home. Dianne Davis, 56, said she tries "not to let the dark catch me" and described other Conway residents as barricading their doors with two-by-fours.

"I want to be able to stand on my porch," Davis said. "I have a beautiful garden."

"There are a lot of gangsters running around in that area," Jimmy Richardson said of the neighborhood where Huckabee Heights is located. Richardson is the chief state prosecutor for Horry County, which includes Conway, and a resident of the city himself.

To South Carolina's top federal prosecutor, however, the troubles in Conway present an opportunity. U.S. Attorney Bill Nettles is testing out a novel approach to dealing with drug-related crime, one that aims to clean up the streets by looking beyond mass arrests and incarceration. Conway is the third city in South Carolina to implement a version of the plan, and federal prosecutors in other states and the Justice Department are watching closely. If the program's success continues in South Carolina, it could become a model for law enforcement across the country.

"What I want to do is to make the people's lives who are law-abiding citizens in this community better," Nettles said on the two-and-a-half-hour drive to Conway from his office in Columbia last month. "Incarceration is no longer the goal, but is one of many tools available to allow you to effect your goal of improving their lives. It represents a fundamental shift, a seismic shift in terms of how you're viewing what you're doing."

"When you declare a 'war on drugs,' the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants," Nettles said. "Well, that's not the way it's supposed to be."


Nettles' plan is surprisingly straightforward. First, federal and local prosecutors identify local drug dealers with the help of the police, probation officers and community members. Next, they build criminal cases against them by reviewing records for outstanding warrants and conducting undercover drug buys. In most cases, arresting all the dealers would be the next order of business, but Nettles has a different idea.

While high-level dealers are still arrested and prosecuted, some low-level offenders are given another option. For them, Nettles stages something of an intervention. Together with the police, family members, religious leaders and other members of the community, prosecutors present the dealers with the evidence against them and give them a choice: Face the prospect of prison or participate in the pilot project.

The program, officially known as the Drug Market Intervention Initiative, helps the dealers find legitimate jobs and offers them help with drug treatment, education and transportation. The hope is that it provides them with the support and the motivation they need to turn their lives around.

The ones who are chosen know that not everybody gets this chance. The initiative in each city does not have endless resources. So only certain low-level offenders, those with limited criminal histories and no violent crimes in their past, are given the opportunity to avoid prison.

For a period of time, typically more than a year, they are monitored to make sure they remain law-abiding citizens. If they do, they will remain free of the criminal justice system. Until they complete the program, however, the threat of arrest based on the evidence already collected continues to hang over their heads. If officials receive complaints about anyone involved in the program, a judge can sign off on an already prepared arrest warrant.

"Basically we go and tell them, 'Go and sin no more.' If this community calls and says you're back at it, you're gonna be arrested," said Richardson, the Horry County prosecutor.

"These people are being regularly drug tested, they are in a stringent program, and if they fail out or don't show up or quit doing their stuff for work, I'm going to arrest them," Nettles explained. "That is what some people call a motivated employee."

Part of their motivation also comes from the fact that a steady paycheck can actually be more lucrative than the drug business. Contrary to the popular image of drug lords rolling in cash, many street-level dealers are barely getting by.

"Long-term, you very seldom see any drug dealers living in mansions," Richardson said. "Either they don't live to see that, or the money isn't there. There's no Scarface-type situations out there now in our local areas. Nobody is sitting up fat-cat rich, so that either means they're dying or they're in prison before they get the full benefit of what they're setting out to do."


Nettles speaks to residents of Conway, S.C., in January. (Photo: Ryan J. Reilly)

Nettles began developing his plan in early 2010, after President Barack Obama nominated him to serve as one of the country's 93 U.S. attorneys. He was somewhat of a surprising choice for the Justice Department post. Most U.S. attorneys have worked for the government or in the corporate realm -- Attorney General Eric Holder himself has spent nearly his entire career at the Justice Department, save for one stint as a D.C. judge and another with a white-collar law firm -- but Nettles had spent his career as a public defender and criminal defense attorney, often facing off against the very same federal prosecutors he now oversees.

Politically, too, Nettles sticks out in the conservative state, where the Confederate flag still flies on the grounds of the statehouse just blocks from his office. His friend Rep. Trey Gowdy (R-S.C.) once described Nettles' political beliefs as "to the left of Chairman Mao" on C-SPAN, leading Nettles to send the tea party favorite a copy of the Little Red Book of quotations from the former Chinese Communist leader.

Despite his background, Holder has called for "sweeping, systemic changes" to a "broken" judicial system and has spotlighted initiatives that help offenders to re-enter society and to enroll in drug or mental health treatment programs as an alternative to incarceration. Given his background as a defense attorney -- when his clients ranged from Olympic gold medalist Michael Phelps, who was the subject of a criminal probe after he was photographed with a bong, to accused murderers facing death sentences -- Nettles has also been interested in innovative approaches to criminal justice.

He was particularly drawn to a now-decade-old program that local law enforcement officials had launched in High Point, N.C.

The High Point plan is even more progressive than many of the programs that Holder has highlighted. Recognizing that the "war on drugs" was feeding the divide between minority communities and law enforcement, the High Point Police Department sought an approach that went beyond buy-busts and police raids. By pooling law enforcement, social service and community resources -- and getting drug dealers' family members involved -- officials were able to virtually eliminate open-air drug markets in High Point. In its West End neighborhood, violent crime was still down 57 percent five years after the program was implemented.

By late 2010, Nettles was ready to try the High Point model in his own state. He saw the city of North Charleston as a perfect place to initiate the experiment: The area had a high crime rate, and local law enforcement leaders were supportive of his plan.

"At the time it was the seventh-deadliest city in America, so I was thinking there was no way I could screw this up," Nettles said.

In North Charleston, federal and local law enforcement officials identified a total of 31 narcotics dealers. Most were arrested in January 2011 and charged on either the state or federal level, but eight were kept out of handcuffs. Four of those eight eventually fell back into their old habits and were arrested, but the other four stayed away from drug dealing. None of those four have re-offended, one is up for promotion as a sanitation worker, and another recently earned his GED.

Initially, the plan faced skepticism from narcotics officers on the ground, who referred to it as "hug-a-thug." Ultimately, they too were convinced it was a better strategy.

"We were inundated with telephone calls for the whole entire deployment, from the time we did the first call-in, from others interested in the program," said Assistant Police Chief Reggie Burgess, who oversaw the program in North Charleston. "We had corner boys from other surrounding cities outside of our jurisdiction come in and say, 'Hey, man, what can I do to get in this program?' ... They were telling us, basically, 'I'm a drug dealer and I want to get off the streets.'"

The program helped not only the drug dealers but also their families. If a job came with health care benefits, Burgess said, the former drug dealer could take his kids to the pediatrician, rather than rely on hospital emergency rooms.

"If we can affect one life, that's a ripple effect to that family," North Charleston Sgt. Charity Prosser, who initially resisted helping to run the program, told NBC's "Dateline" last year. "Their daddy's not in jail, they have someone there constant, someone to teach them right from wrong, to teach them responsibility. That, in itself -- if we could just save one, if we could just help one. The ripple effect? You're talking countless people. Countless."

The program was also a hit with residents of the Charleston Farms area of North Charleston and led to a significant drop in crime in that area.

After his success in North Charleston, Nettles helped roll out a similar initiative in the city of Aiken in 2013. When one of the offenders in the Aiken program re-offended, state prosecutors expedited an old burglary case, which led to a 12-year sentence. Others stuck with it.

One of the most positive impacts of the program has been on how the police related to their local communities.

"It was 'shock and awe' to our law enforcement system," Burgess said at a presentation about the program with Nettles and Assistant U.S. Attorney Lance Crick in July 2013. "We wanted them to help individuals that did not look at us very positively. We were the people standing in between them and their livelihood, dealing drugs. We had to change how we looked at these drug dealers. If we were going to give them the opportunity to do good in their lives, we had to put that attitude behind us."

It was that presentation that led Conway Mayor Alys C. Lawson to approach Nettles about implementing the program in her city.

"We were so enthusiastic. We really have a community that deserves this program," she said.


Police headquarters in Conway, S.C. (Photo: Ryan J. Reilly)

In Conway, Nettles and his local partners are doing things a bit differently from the initiatives in North Charleston and Aiken. Instead of quietly investigating the Conway drug market though undercover buys first, they're deliberately making their presence known to see if they can cut down on the drug trade before they even start.

"We're being upfront about it. We're going to flood this area with federal [confidential informants]," Richardson said. "We've already mapped it out. We know for the most part who the big players are, the first, second and third tier. A lot of the people in those areas, there's already evidence produced on those guys. Now, they don't know it, but I don't mind them knowing it."

"Press is free," said Conway Police Chief Reginald E. Gosnell, who credited the attention the program has received so far with helping the police make an arrest in Pyatt's death. At a community meeting in late January, Nettles asked residents to tell any of their friends or family members involved in the drug trade that "if they keep it up, we're gonna get them."

Local officials in several cities across the country have implemented versions of the High Point initiative. But the Justice Department's level of involvement in South Carolina stands out, especially since the federal government is notorious for its heavy-handed approach to drug enforcement. U.S. attorneys in West Virginia, Alabama and Virginia have participated in versions of the program as well, but Nettles has been its most enthusiastic promoter, earning the North Charleston program a mention in a speech by Deputy Attorney General James Cole, the "Dateline" special and notice from prosecutors nationwide.

Still, there are a number of obstacles to implementing the program on a larger scale. Helping drug dealers turn their lives around is a lot more complicated than locking them away. The program hasn't cost the U.S. Attorney's Office in South Carolina any money directly, but the model can require more overtime hours from local police. And long-term enthusiasm must be sustained among prosecutors and police officers, many of whom tend to measure success in terms of number of arrests made or years sentenced.

"It's harder work. The easy way to do these cases is to let law enforcement go in there, make a bunch of cases, they bring them to your office, they're in little folders, you send people to prison for a long time. That's the easy way. It's harder to go out here," Nettles said. "But it's rewarding. I find it immensely rewarding."

Supporters say the potential benefits of the program far outweigh the costs: Keeping another body out of state or federal prison and turning him or her into a contributing member of society is good for the bottom line.

Nettles will soon be rolling out the Drug Market Intervention Initiative in the state capital of Columbia, and other cities may follow.

"I'm just vain enough that I would like for the things that I've done to stay in place after I leave," Nettles said during the community meeting in Conway. "That's why I come to these communities here, so after I leave, someone will say, 'I don't know, that tall, skinny guy who looked like Jim Carrey, he had some little idea over here, and I want to do it again.'"

How Scalia Helped Screw Texas' Case Against Gay Marriage

Ryan J. Reilly   |   February 26, 2014    4:36 PM ET

WASHINGTON -- When U.S. District Judge Orlando Garcia of the Western District of Texas struck down the Lone Star State's ban on gay marriage on Wednesday, he cited the words of a man who is normally a friend to conservatives: Supreme Court Justice Antonin Scalia.

Garcia, a Clinton appointee who had previously served in the Texas legislature, could have cited any number of opinions to undermine the state's contention that the ability of many opposite-sex couples to procreate, as well as "tradition," justified denying equal marriage rights to same-sex couples.

But the federal judge didn't cite just any Supreme Court justice. He chose to quote from Scalia's dissent in the landmark 2003 case Lawrence v. Texas, which struck down the state's anti-sodomy law.

In 2003, Scalia was trying to argue that the Supreme Court was wrong to overturn laws based on moral choices. He wrote that the decision in Lawrence v. Texas called into question laws against same-sex marriage (and also, he believed, bigamy, adult incest and prostitution) because other justifications for banning same-sex marriage -- including those that Texas would cite in support of its own ban a decade later -- weren't legitimate.

In explaining why tradition alone can't form a rational basis for a law, Garcia pointed to Scalia's argument in the 2003 dissent that the phrase "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples."

And in explaining why the biological ability of many opposite-sex couples to procreate doesn't justify denying equal rights to same-sex couples, Garcia cited Scalia, too.

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," Scalia wrote at the time.

Garcia isn't the first federal judge to use Scalia's words to undermine a state's defense of a gay marriage ban. In Utah, Ohio, Virginia and Kentucky, federal judges fully embraced Scalia's predictions last year in his dissent in United States v. Windsor, the case that struck down key portions of the federal Defense of Marriage Act. Scalia wrote in that dissent that he believed the majority's logic would inevitably lead to other judges striking down same-sex marriage bans.

Feds Move To Fix Pot Shops' Banking Problems

Ryan J. Reilly   |   February 14, 2014    2:04 PM ET

WASHINGTON -- The federal government issued guidelines on Friday that officials said were intended to increase the financial services available to marijuana businesses that are legal under state laws.

Guidelines announced by the Treasury Department and a memo from a top Justice Department official were intended to ease concerns that the federal government would target banks working with marijuana-related businesses that are legal and regulated on the state level. Expanded banking access will enable them to function like traditional businesses, and implementing a reporting structure will allow the federal government to take a close look at how they operate.

Under the Treasury Department's plan, banks would file a "suspicious activity report," or SAR, for a wide range of financial transactions by any marijuana-related business, but they would specify that they did not believe illegal activity beyond simply dealing in the marijuana trade was taking place.

The Justice Department memo falls short of expressly protecting banks that work with state-compliant marijuana businesses from prosecution. It states only that banks working with businesses that don't violate one of DOJ's eight areas of concern related to the pot trade, like distribution of marijuana to minors, violence and the use of firearms, are less likely to be targeted by federal prosecutors.

"If a financial institution or individual offers services to a marijuana-related business whose activities do not implicate any of the eight priority factors, prosecution for those offenses may not be appropriate," Deputy Attorney General James Cole wrote in the memo, which was sent to federal prosecutors across the country on Friday.

While the phrase "may not be appropriate" falls far short of what the marijuana lobby and financial institutions were hoping for -- and the Cole memo didn't state outright that the move was meant to expand banking access for pot shops -- DOJ officials said easing the financial threat to marijuana businesses working in a cash-only environment was their intent.

"The Department shares the concerns of public officials and law enforcement about the public safety risks associated with businesses that handle significant amounts of cash," Justice Department spokeswoman Allison Price said in a statement. "These guidelines, together with the Treasury Department's guidance to financial institutions, are intended to increase the availability of financial services for marijuana businesses -- that are licensed and regulated -- while at the same time preserving and enhancing important law enforcement tools."

State-legal, state-licensed marijuana businesses often don’t have access to traditional banking, and cannot accept credit cards or open simple checking accounts, due to banks' fears that they could be implicated as money launderers. The businesses are forced into cash-only transactions, putting the retailers' safety at risk and creating issues involving taxes and employee payroll.

Treasury officials, based on their conversations with financial institutions, said they anticipated that the guidelines could encourage smaller and medium-sized banks to deal with marijuana businesses.

“While we appreciate the efforts by the Department of Justice and FinCEN, guidance or regulation doesn’t alter the underlying challenge for banks," said Frank Keating, the president and CEO of the American Bankers Association. "As it stands, possession or distribution of marijuana violates federal law, and banks that provide support for those activities face the risk of prosecution and assorted sanctions.”

Richard Riese, vice president of compliance at the ABA, told The Wall Street Journal that bankers are concerned about the legality of working with federally illegal businesses and have questions about how to effectively scrutinize the transactions made.

Bank of America’s policy, for example, has been to not accept any marijuana businesses as customers, and it’s unclear if the guidance proposed is enough to change that.

Currently, 20 states and the District of Columbia have legalized some form of marijuana, be it medical or recreational. The legal marijuana industry is expected to grow to $2.3 billion in 2014 in the U.S.. One study suggests that figure could balloon to over $10 billion by 2019.

“This is an important step,” Rep. Ed Perlmutter (D-Colo.), sponsor of the Marijuana Businesses Access to Banking Act, said in a statement. But Perlmutter also noted that the guidance doesn’t alleviate all liability for financial institutions interested in doing business with marijuana businesses.

“We need Congress to promptly consider and pass my legislation to provide certainty for financial institutions and the licensed marijuana related businesses to operate just like any other business,” Perlmutter added.

Rep. Jared Polis (D-Colo.), a co-sponsor of Perlmutter's banking legislation and sponsor of the Ending Federal Marijuana Prohibition Act, called the guidelines a "huge step in the right direction," but said the federal government's continued stance that marijuana is one of the "most dangerous" drugs needs to be reconsidered.

"The only true way to protect these small business owners is to remove marijuana from the list of schedule 1 narcotics," Polis said.

Dan Riffle, director of federal policies for Marijuana Policy Project, agreed that more needed to be done to resolve the conflicts between federal and state marijuana law.

"Rather than forcing federal agencies to work around our broken marijuana laws, Congress needs to act to permanently fix these problems by ending federal marijuana prohibition and allowing states to regulate marijuana in a manner similar to alcohol," he said.

The Treasury Department guidance:

FinCEN Guidance on Marijuana-Related Businesses

The Justice Department memo:

DAG Memo - Guidance Regarding Marijuana Related Financial Crimes