By Ted Galen Carpenter
President Richard M. Nixon proclaimed a "war" on illegal drugs nearly three decades ago. In 1986, President Ronald Reagan gave substance to that metaphor by issuing a presidential directive that drug trafficking constituted a national security threat. Reagan's directive thereby authorized the U.S. military and U.S. intelligence agencies to become involved in the effort to prevent drugs from entering the United States. Advocates of the prohibitionist strategy now routinely refer to drug use, no matter how casual, mild or infrequent, as a threat to America's safety and well being akin to an armed menace posed by enemy states or terrorist movements. Given that mindset, it is perhaps appropriate symbolism that we have reached the point when the White House Office of National Drug Control Policy is directed by a general (albeit a retired one)--Barry McCaffrey.
It might be tempting to sneer at the drug warriors' rhetorical overkill, but that would be a serious mistake. For the war mentality is not confined to the arenas of propaganda and personnel. Far more troubling is the mounting evidence about the way in which the prohibitionist strategy against drugs is actually being implemented. The tactics now in use suggest that the term "war" is no longer merely a metaphor.1
As in any war, there is an ever-growing roster of innocent victims: people who had the bad fortune to run afoul of warriors pursuing their objective with single-minded intensity, or who were simply in the wrong place at the wrong time. There are also the inevitable undesirable (albeit usually unintended) side effects. Periods of war are not known for fostering the health of civil liberties. The history of armed conflicts involving the United States demonstrates the truth of that observation. The War Between the States saw President Abraham Lincoln's illegal suspension of the writ of habeas corpus, the trial of civilians before military tribunals, and other abuses. America's entry into World War I impelled the administration of Woodrow Wilson to impose pervasive censorship, jail pacifists and other opponents of the war, and preside over a veritable reign of terror against German-Americans. During World War II, President Franklin Roosevelt ordered the detention of Japanese-Americans in "relocation centers"--a euphemism for concentration camps. The Vietnam War saw the military, the Central Intelligence Agency, and the Federal Bureau of Investigation illegally conduct surveillance of anti-war groups--and attempt to discredit them through disinformation campaigns.2 That historical record alone should give pause to those Americans who believe that it is proper for the U.S. government to wage a war against the decision of their fellow citizens to use certain mind-altering substances. Only incurable optimists would argue that America's thirty-years war against drugs has been a success. Although the percentage of Americans using illegal drugs is down from the peak levels of the late 1970s and early 1980s, use is still widespread and, indeed, is significantly higher than it was when Nixon issued his declaration of war. Despite the expenditure of more than $300 billion dollars by federal, state, and local governments over those three decades, (the federal government alone spent $16 billion in 1998) on efforts to stem the trade, drugs remain cheap and easily available throughout the United States. Prices of cocaine and other drugs have generally shown a downward trend--a reliable indicator of a plentiful supply.3
The original Thirty-Years War, which brought so much misery to the people of Central Europe, finally ended with the Treaty of Westphalia in 1648. Unfortunately, no comparable end to the current thirty-years war is in sight. (Perhaps the drug warriors, with a nod to history, seek to replicate the Hundred-Years War between England and France). As is so often the case with failing wars, fanatical proponents prefer escalation to surrender or even a compromise settlement. It is indicative of such a mentality that advocates of the drug war seek additional increases in an already bloated budget and wage campaigns of vilification against such modest proposals as legalizing the limited medical use of marijuana.
Calls to escalate the war on drugs must be firmly rebuffed. The current drug war has already caused major social disruptions, both in the United States and several drug-producing countries in Latin America, and has badly eroded important liberties guaranteed by the U.S. Constitution.4 An escalation could cause social and political havoc in portions of the Western Hemisphere and pose a mortal threat to the remaining civil liberties of Americans--even in cases far removed from the drug issue.
Some Prominent Examples of Collateral Damage
Critics of the war on drugs have documented a variety of disastrous side-effects of the prohibitionist strategy.5 They have pointed out that more than 60 percent of the inmates in federal prisons and 25 percent of the inmates in state prisons are incarcerated for drug offenses. The explosion in the size of prison populations (increases of 160 percent at the federal level and 126 percent at the state level between the mid-1980s and mid- 1990s alone)6 has not only caused overcrowding but has led to the early release of prisoners--including some individuals convicted of violent crimes--to make cells available for drug offenders. Books and studies by anti-prohibitionists have also shown how the drug war has led to violent struggles between rival gangs over control of the black market in American cities, spawning a spiraling crime rate during the 1980s and early 1990s until most of the turf battles were sorted out.7 Those conflicts not only destabilized entire neighborhoods but produced a tragically long list of unlucky victims who were caught in the crossfire. Other studies have noted that, given the economics of prohibition, such a result was inevitable--as should have been learned from the similar upsurge of violence in the 1920s when the United States government attempted to outlaw the sale of alcoholic beverages.8 Still other analyses have provided compelling evidence that the war on drugs has led to the inexorable erosion of the protections against unreasonable searches and seizures provided by the Fourth Amendment.9 Police have far greater latitude than they did a few decades ago to search automobiles (and sometimes the occupants) following routine traffic stops. Motorists who fit the "profile" of probable drug couriers developed by law enforcement bureaucracies are especially at risk for such stops and the subsequent searches.10
The situation is not yet as bad with regard to the searches of homes and businesses, but there are enough ominous trends. Search warrants are frequently issued on information provided by an informant that law enforcement authorities believe to be credible. In a distressing number of instances, that assumption of reliability proves to be unfounded--sometimes with tragic consequences. The preferred method of conducting raids in suspected narcotics violation cases: "no-knock" break-in-the-door searches of homes--often in the middle of the night--have compounded the danger. In August 1999, such a raid resulted in the death of a 64-year-old grandfather. He and his family were asleep in their beds when police searching for illegal drugs broke down the front door. The victim was shot in the back as he, apparently believing (not unreasonably) that a break-in by criminals was underway and his family was in danger, reached into a nightstand drawer where he kept a gun. No drugs were found anywhere on the premises.11 Typically, the drug warriors and their defenders dismiss this episode as a tragic accident. Unfortunately, such "accidents" are becoming all too common.12
The war on drugs has undermined the Fourth Amendment's protection against unreasonable seizures at least as badly as it has the protection against unreasonable searches. Rep. Henry Hyde (R-IL) and others have documented how all levels of government have increasingly exploited the power to seize and keep property allegedly involved in the commission of a crime.13 The abuses are legendary. Authorities have sought to have property worth tens of thousands of dollars forfeited even for minor drug offenses. They have seized valuable property on little more than their personal suspicion that an individual is involved in drug trafficking. Law enforcement agencies have refused to relinquish the confiscated items even when an accused party is not formally indicted for a crime, and in some instances when a defendant has been acquitted of the alleged crime. Because such forfeiture proceedings can be considered civil rather than criminal trials, the burden of proof for the government is far lower than the requirement of "beyond a reasonable doubt" in criminal cases. Apparently reflecting the attitude that all is fair in war, prosecutors do not seem to mind that they are getting a second shot at an accused based on the absurd fiction that depriving someone of valuable property is not, in a strictly legal sense, "punishment" and, therefore, does not require conviction of a criminal offense.
As discussed below, abuses of the government's seizure and forfeiture powers have now moved far beyond the arena of drug cases. Nevertheless, the drug war has been the principal factor in the malignant expansion of that authority, just as it has been for the lowering of the barriers against arbitrary searches. One cannot look at the damage that has been done to the Fourth Amendment without recognizing that it has been a casualty of the war on drugs.
An especially worrisome trend, but an inevitable one, is the growing militarization of the drug war. Amendments passed in 1981 weakened the provisions of the Posse Comitatus Act that barred the military from involvement in domestic law enforcement. It was no coincidence that the amendments were approved specifically to enable the military to assist law enforcement agencies in the enforcement of the drug laws. In the intervening years, the definition of "assist" has grown ever more expansive and flexible.14
Proponents of the drug war have tried to draw the military into the struggle in numerous ways throughout the 1980s and 1990s. In 1988 Congress explicitly directed the National Guard to assist various law enforcement agencies in counternarcotics operations. The following year President George Bush created six regional joint task forces (JTFs) in the Department of Defense to coordinate the activities of the Pentagon and domestic police agencies in anti-drug activities. Most ominously, the JTFs were authorized to respond to requests from law enforcement agencies for military reinforcement in drug cases.
To its credit, the military hierarchy has generally tried to resist the pressure for deeper involvement, even though in the immediate post-Cold War period it seemed that the drug war was one of the few missions that might prevent the downsizing of the Pentagon's budget and force structure.15 Leaders of the uniformed services quite correctly fear that such quasi-police functions are a dangerous diversion from the military's primary role: protecting the American people from foreign military threats. Resistance to calls by the White House for a more extensive role in the fight against drugs led to a surprisingly public tiff between Barry McCaffrey and Secretary of Defense William Cohen in 1997.16
Nevertheless, the military has been drawn, however reluctantly, into even the domestic phase of the drug war. Units of the U.S. Marine Corps began patrolling the border with Mexico in a vain attempt to stem the flood of illegal drugs coming into the United States. The military's comparative advantage--described by one cynic as an unparalleled ability to smash things and kill people--was not well suited for such a delicate mission. In the spring of 1997, a Marine anti-drug patrol encountered 18-year-old goat herder Esequiel Hernandez; shots were exchanged and Hernandez ended up dead. Despite a concerted attempt by the military to justify the actions of its troops, the Justice Department finally settled a wrongful death lawsuit with the Hernandez family for $1.9 million.17
The tragedy has done little to dissuade drug war advocates that the campaign against drugs should be conducted as a real war, and that the military therefore has a crucial role to play. Just weeks after the Hernandez killing, the House of Representatives voted to station 10,000 troops along the Mexican border to combat drug trafficking.18 Representative Charles Norwood (R-Ga) remained equally militant a year later, stating "Put the 82nd Airborne on maneuvers down there [at the border] if you want to stop drugs."19 In the years since the Hernandez incident, National Guard units have been used to raze 42 alleged crack houses in Indiana and to drive drug dealers from open-air markets in Washington, D.C. As law enforcement analyst Diane Cecilia Weber writes, National Guard units "in all 50 states fly across America's landscape in dark green helicopters, wearing camouflage uniforms and armed with machine guns, in search of marijuana fields."20
For a nation that once viewed even the concept of a standing army with suspicion, the spectacle of military forces--active duty or National Guard--having a significant domestic presence is more than a little unsettling. But the logic of waging a "war" against the production, sale, and use of certain substances inevitably led to an expanded role for the military in that struggle. Symptomatic of the danger inherent in viewing drug use as a national security threat was the comment by Attorney General Janet Reno on the occasion of a 1994 technology transfer agreement between the Pentagon and the Justice Department. Reno challenged the military to "turn your skills that served us so well in the Cold War to helping us with the war we're now fighting daily in the streets of our towns and cities across the Nation."21 The point that apparently eluded Reno and others who advocate the militarization of the crusade against illegal drugs is that there is a vast difference between having the military confront enemy armed forces and using similar tactics against American civilians.
Washington's war on drugs has resulted in a growing list of international casualties as well.22 The prohibitionist strategy has spawned a lucrative black-market trade in several Latin American countries--most notably the Andean nations of Bolivia, Peru, and Colombia. (Conservative estimates--including those of the Colombian government--are that illegal drugs amount to between one-quarter and one-third of Colombia's exports, or approximately $4 billion a year.)23 The lure of massive black market profits, in turn, has produced pervasive corruption and a host of other social dislocations. Although such effects have occurred to some extent in all drug-producing or drug-transiting countries in the Western Hemisphere, they have been the most alarming in Colombia and Mexico.
The situation in Colombia has reached the point where there are now serious doubts about the survivability of the country's democratic system. Marxist rebels, allied with drug-trafficking organizations, now control more than 40 percent of Colombia's territory. They also commit kidnappings, assassinations, and other violent acts with near impunity even in those areas under the government's nominal control.24 An increasingly worried U.S. government is now funnelling weapons and other aid to the Colombian armed forces, despite evidence of serious human rights abuses committed by some military units. American "advisers" are assisting the military's anti-drug efforts inside the country, and rumors continue to circulate that the United States may intervene with its own ground forces if the situation continues to deteriorate.25
Even the outside chance of a U.S. military intervention in Colombia to prevent a "Narco-Marxist" regime from coming to power is alarming enough. But even more distressing is that the pattern of pervasive corruption and rising violence convulsing Colombia is being replicated in Mexico.26 The prospect of similar chaos taking place in America's next door neighbor is not one that even the most adamant advocates of a noninterventionist foreign policy for the United States could view with indifference.
Calls for Escalation
As victory in the war against illegal drugs remains as elusive as ever, the level of frustration on the part of drug war supporters has grown. That development, in turn, has led to accusations that the war has not been prosecuted with sufficient vigor and that an even more hardline policy is needed. During the 1992 presidential campaign, Ross Perot contended that, if he were elected, the federal government would wage a "serious" war on drugs--implying that the ongoing campaign had been half-hearted and ineffectual.
Criticism of that sort has burgeoned during the Clinton years. When the president initially sought to scale back the bloated personnel levels of the White House Office of National Drug Control Policy by more than 50 percent, congressional Republicans and other drug warriors reacted with howls of rage and vilification, accusing the president of pursuing a defeatist strategy. Even when Clinton reversed course and sought record funding levels for the federal government's portion of the drug war, the criticism did not abate. Indeed, in the past two years it has actually become more pervasive and vitriolic. Congressional critics have excoriated the administration for not pumping more military aid into Colombia to help the Bogota government combat the insurgency of the Marxist-narco trafficker alliance. (Many of those same Republicans conveniently forget that just a few years ago they were calling for economic sanctions against Colombia and a complete cut-off of military aid because of Bogota's lack of cooperation in Washington's drug war strategy.)
Some of the critics also blame the administration for a modest rise in the percentage of American teens using drugs. Although the substantive features of any alternative strategy--other than a return to the fatuous "just say no" propaganda campaign championed by First Lady Nancy Reagan in the mid-1980s--remain vague, the rhetoric of the critics implies even more dangers to the health of civil liberties in the United States. What is one to make, for example, of Rep. Bill McCollum's criticism of the administration's alleged unwillingness to wage "an all-out drug war"?27 If the annual expenditure of $16 billion for the federal government's anti-drug campaign (plus billions of dollars at the state and local level), filling America's prisons with drug law offenders, and pressuring the governments of drug-producing countries to wage low-intensity conflicts against their own populations are not the characteristics of an "all-out" war, one shudders to contemplate what such hardliners as Perot and McCollum have in mind.
Unfortunately, we have glimpses of what they may have in mind. The opposition of uncompromising pro-drug war forces to even the very modest legislation pushed by Henry Hyde to correct the worst perversions and abuses of the government's seizure and forfeiture powers is one example. For ardent supporters of the drug war the injustice of innocent people being stripped of their property without conviction in a criminal trial is apparently an acceptable price to pay for the goal of victory.
But some drug warriors favor even more repressive measures. The most ominous proposal comes from the United Nations. The UN's International Narcotics Control Board's 1997 report called on member states to criminalize opposition to the war on drugs. Citing the 1988 UN Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, the INCB claimed that all governments are obligated to enact laws that prohibit "inciting" or "inducing" people to use illegal drugs. If such a vague restriction on freedom of expression were not odious enough, the INCB contends further that member governments are also obligated to ban speech that "shows illicit drug use in a favourable light" or any advocacy of "a change in the drug law."28
If enacted in the United States, such legislation would, of course, be a flagrant violation of the First Amendment. But it must be remembered that censorship measures--including the banning of opposition to administration policies--have on occasion been a feature of American life during wartime, and received the imprimatur of the courts. It is also not reassuring that the U.S. government has pledged to cooperate with the INCB's global anti-drug efforts. Although the Clinton administration did not explicitly endorse the censorship recommendations, neither did it state explicitly that the United States rejects such proposals--even though it certainly could have added that caveat.
Unfortunately, the UN bureaucracy is not the only source of intolerance regarding views critical of the war on drugs. Ardent drug warriors have repeatedly smeared advocates of legalization as constituting a "fifth column" in the struggle against illicit substances and stated or implied that pro-legalization views are illegitimate. Typical of the smear tactics was an article by Mary O'Grady, the Americas column editor at the Wall Street Journal, arguing that "American coke-heads" were guilty of "underwriting" political turmoil and other societal misery in Colombia.29 Presidential candidate Steve Forbes and other supporters of the drug war have similarly argued that proponents of ballot initiatives legalizing the medical use of marijuana are acting as fronts for the international drug cartels.
When a group of 500 luminaries from around the world--including Nobel Laureate Milton Friedman, former Secretary of State George Shultz, and former UN Secretary General Javier Perez de Cueller--signed a public letter arguing that the global war on drugs was causing more harm than good and urging that alternatives be considered, the editorial page of the Wall Street Journal reacted with a crude smear attempt. "It occurs to us to suggest that the future of the debate would profit if all of these people stated publicly whether they themselves use any of these drugs recreationally."30 One can almost hear an echo of the droning question asked so frequently by Senator Joseph McCarthy: "Are you now, or have you ever been, a member of the Communist Party?"
Such manifestations of neo-McCarthyism are clearly designed to silence opposition to the drug war and are unworthy of an honest debate on an important public policy issue. Unfortunately, it is also all too typical of a "wartime" mindset in which opponents are seen, not merely as people who hold a different point of view, but as traitors to a noble cause.
Those who might be tempted to dismiss the dangers of efforts to gag proponents of drug legalization should be aware that government officials have already sought to implement censorship measures (albeit more limited ones than the comprehensive bans suggested by some drug warriors). For example, authorities in Maryland prosecuted an individual for publicly divulging the identity of two undercover narcotics officers. Attempting to prohibit such disclosures by charging the defendant with "obstructing and hindering a police officer," Maryland officials endeavored to give undercover narcotics officers the same protection that Congress afforded to CIA and other intelligence agents during the Cold War.31
Although the Maryland Court of special appeals eventually overturned the conviction on the grounds that it violated the defendant's state and federal constitutional rights to freedom of speech, several aspects of the case remain troubling. First, the fact that Maryland authorities sought to impose such censorship in the first place is worrisome; second, the defendant was convicted at the trial court level; and third, the Court of Appeals decision overturning the conviction was on a divided vote. It is hardly reassuring that a minority of the justices were willing to allow such a violation of the First Amendment's guarantee of freedom of speech to pass constitutional muster.
Attempts to impose censorship are not the only manifestations of a drive to escalate the war on drugs and use even more draconian measures than those pursued to this point. Police officers and other members of outreach programs in the public schools now routinely suggest that students report illegal drug use--even by other family members--to their teachers or other authorities. Rarely do they bother to mention to impressionable youngsters that such revelations could subject parents, siblings, or other relatives to criminal prosecution and possible imprisonment.
Tragically, such incitements to snitch sometimes get the desired result. In September 1999, a 16-year-old Maryland girl turned in her parents to police for growing marijuana in their home. The police promptly arrested both parents and charged them with two felonies and two misdemeanors, and state child protective services officials have at least temporarily stripped the couple of custody of their daughter.32 Nor is this an isolated episode. The previous week an 11-year-old Jacksonville, Florida boy saw his father and stepmother carted off to jail after he reported their indoor marijuana garden to authorities. Earlier in the year, a 16-year-old boy, upset at his family's impending move from New York to Washington tipped police off about the stash of marijuana in his parents' bedroom. Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws states that his organization receives at least one call a month from an attorney or defendant whose child has turned in a parent for marijuana use or possession.33 Since it is unlikely that NORML is informed of every incident--much less those instances in which a child snitched on a family member for using or possessing other drugs--the actual number of cases is undoubtedly larger.
Encouraging in any manner whatsoever children to turn-in family members to the police for violating the drug laws has an ugly totalitarian aura. It is reminiscent of the similar campaigns in the name of ideological conformity in Nazi Germany, the Soviet Union, and Maoist China, which Americans once regarded as an odious practice unique to police states. That it occurs at all in the United States is an alarming indicator of how the concept of a "war" on drugs is warping our society. It has no place in an America that values individual liberties--much less to the promotion of "family values."
The Expanding Scope of Collateral Damage
The corrosive consequences of the drug war are not confined to the crusade against narcotics. Perhaps the most insidious effect of the war on drugs is how it has conditioned the American people to think in prohibitionist terms generally. Francis X. Kinney, deputy director for strategy at the Office of National Drug Control Policy, states simply, "Drugs are illegal because they are harmful."34 But using that standard inevitably puts American policy on a very slippery slope. A good many things are--or at least may be--harmful to their users, including tobacco products, alcoholic beverages, and high-fat foods. If the government can ban certain drugs on that basis, what is the barrier to governmental action to criminalize those other products? The only barrier would seem to be strong political resistance. But depending on that for protection removes a whole range of behaviors from the arena of personal choice to the arena of political struggle in which the outcome is anything but certain. Potentially, the rights that Americans enjoy today about what substances they put into their bodies could be far more limited in the future.
That is not an excessively alarmist conclusion. After all, most currently illegal drugs were legal earlier in this century. Conversely, America has already had one fling with an attempt by Congress to outlaw alcoholic beverages. No less a drug war luminary than Thomas Constantine, director of the Drug Enforcement Administration, has stated publicly "When we look down the road, I would say 10, 15, 20 years from now, in a gradual fashion, smoking will probably be outlawed in the United States."35 The ever-tightening restrictions on the marketing of tobacco products--the banning of billboard advertising, the elimination of vending machine sales, the attempt to bar sales to anyone under 21 years of age, statutes and ordinances prohibiting smoking in restaurants, office buildings and other "public" locales--all point in that direction.
The situation with respect to alcoholic beverages is not yet as dire, but the assault on the legitimacy of drinking has taken on new vigor in the past six or seven years. (Indeed, one might argue that the alcohol beverage industry is about where the tobacco industry was some two decades ago: beset by annoying but not yet life-threatening restrictions.) The trend, though, is troubling enough. Under the guise of a campaign against drunk driving, all 18 to 21-year-old Americans have already been stripped of their legal right to drink. Anti-alcohol crusaders are now mounting offensives on several fronts. One of the most significant is the effort to have Congress mandate a nation-wide standard declaring that any driver with a blood alcohol level of 0.08 or higher be considered legally drunk. Such a measure passed the Senate and was just narrowly rejected by the House in 1998.
Aside from the fact that the standard itself is draconian (a 100 lb woman consuming one drink on an empty stomach would find herself at or perilously close to the limit), proponents candidly admit that the .08 mandate would be merely an interim measure. Their ultimate goal is to ban anyone who has consumed any amount of alcohol from driving. Ominously, Karolyn V. Nunnallee, national president of Mothers Against Drunk Driving, notes "studies show that many people are dangerously impaired at lower levels."36
There are indications that the focus on the (admittedly very real) menace of drunk driving is largely a pretext for a much broader attack on the alcohol industry--and even more fundamentally on the legitimacy of drinking such beverages at all. Some of the "anti-drunk driving" measures stretch credulity to the breaking point. For example, the U.S. Senate passed a bill in March 1998 banning passengers in a car from drinking. The same measure sought to ban sales entirely from drive through liquor windows, although senators rejected that provision by a vote of 56 to 43.37 Similar campaigns are underway at the state and local levels to ban not only such drive-through sales, but even the right of convenience stores and gas stations to sell alcohol.
Reminiscent of the campaigns against tobacco advertising, the advertising of alcoholic beverages has come under increasing fire as well. Some of the criticism is transparently silly--for example the allegation that the Budweiser frogs were a nefarious attempt by Anheuser-Busch to target children as potential consumers. (One wonders what such critics think of the new ad campaign featuring Louie the lizard and his friend; perhaps lizards inherently have less appeal to children.) Given the tobacco precedent, however, the tendency to smirk at such excesses should be resisted. Once again, there is a broad-range attack underway on the right to market an ostensibly legal product.
True, there is no imminent prospect of national legislation outlawing tobacco products and alcoholic beverages. But the same result can be achieved incrementally as well as in a legislative blitzkrieg; it merely takes longer. After all, the great experiment in Prohibition during the 1920s did not occur out of the blue. Indeed, as scholars have shown, the roots of national Prohibition went back more than half a century before the ratification of the 18th Amendment and the enactment of the Volstead Act. And it began innocuously enough, with temperance campaigns to encourage more responsible drinking or, preferably, voluntary declarations of abstinence. The campaign gradually escalated to the passage of local prohibition ordinances, followed by the enactment of similar laws on the state level in more and more states. Only then was there a drive to enact a comprehensive national ban. The tobacco and alcohol industries today face a similar "death by a thousand cuts."
The key point is that the prohibitionist mentality is insatiable by nature. Once the public accepts the logic that it is appropriate to outlaw the sale and possession of certain substances (marijuana, cocaine, and other drugs) because they are "harmful," other substances are vulnerable to attack on that same basis. And who can dispute the argument that tobacco products and alcoholic beverages are often harmful to their users? A mountain of scientific evidence has implicated cigarette smoking as a cause of numerous health maladies. Similarly, millions of Americans battle alcoholism, and the effects of that condition impact family members and other innocent parties. Excessive alcohol consumption is a factor in numerous cases of violence as well as other anti-social acts--in addition to the problem of drunk driving. Indeed, one can make the argument that alcohol and tobacco cause as many or more societal problems than do currently illegal drugs. For example, a 1998 study by Columbia University's National Center on Substance Abuse found that alcohol, more than any illegal drug was closely associated with violent crimes, including murder, rape, assault, and child and spousal abuse. Twenty-one percent of state inmates convicted of violent crimes committed them under the influence of alcohol alone, according to the report. Only three percent were high on crack or powder cocaine and just one percent were under the influence of heroin.38
Proponents of drug legalization have often invoked precisely such points to expose the hypocrisy of the drug war and to call for treating illegal drugs the same as tobacco and alcohol. It was right to point out the flagrant inconsistency of treating various mind-altering substances in such widely different fashions. But drug-war opponents should perhaps have been more sensitive to the reality that the inconsistency could be resolved in two ways. One solution would be to apply the alcohol and tobacco model to illegal drugs. But the other possibility would be to apply the drug war model to alcohol and tobacco.39 The chances of the second scenario are now at least as great as prospects for the first.40 Indeed, Gro Harlem Brundtland, the head of the World Health Organization, has virtually declared war on tobacco. She has called for a world-wide ban on all tobacco advertising and for a package of other international controls, including very high levels of taxation.41 That approach is little more than prohibition on the installment plan.
The conditioning of the American people to accept whatever is necessary to prosecute the war on drugs creates other dangers in addition to the possibility that a prohibitionist strategy might someday be applied to alcohol and tobacco. The erosion of fundamental civil liberties that began with the drug war is rapidly expanding into other arenas.
For example, just as the courts have lowered the barriers to automobile searches to facilitate police efforts anti-drug efforts, the courts have also countenanced such measures as "sobriety checkpoints" (roadblocks) to combat drunk driving and Immigration and Naturalization Service checkpoints to help apprehend illegal aliens. A colleague of mine encountered such an INS checkpoint on the main highway between San Diego and Los Angeles--some 50 miles from the U.S.-Mexico border--while on his way to a speaking engagement. INS agents (together with members of the California Highway Patrol) pulled cars over--whether randomly or based on some mysterious "profile" was not clear--and interrogated the unlucky motorists. My colleague (who is not Hispanic) was one of those detained. He was asked where he was coming from, what his destination was, if he traveled that route frequently, and what his business was in Los Angeles--as if any of that information was properly the business of INS bureaucrats.
Some Americans (and unfortunately most state and federal courts) have rationalized such intrusions as a "minor inconvenience" that enables law enforcement personnel to pursue a greater good. But it was not that many decades ago that Americans assumed they had a right to drive down the nation's highways and not be molested by authorities conducting investigative fishing expeditions. It would have been considered a revolutionary (and odious) notion that a motorist could be routinely stopped when there was no reasonable cause to believe that he had violated any law. Checkpoints to conduct even cursory interrogations, examine one's papers, or otherwise interfere with one's freedom to travel from place to place were considered the features of dictatorial societies, not an America that regarded itself as the citadel of freedom.
Abuses of the government's seizure and forfeiture powers, which had become a hallmark of the drug war, have also now expanded into other areas. Authorities in several cities have begun to seize the automobiles of individuals accused of soliciting sex from prostitutes. In early 1999, New York City mayor Rudolph Giuliani expanded the concept still further by ordering the seizure of automobiles of people arrested for drunk driving.
As in the cases of drug war property seizures, valuable property is taken by the authorities upon arrest--before the accused party has been convicted of any crime. The Alice in Wonderland concept of "punishment first, verdict later" seems now to be the operating doctrine of U.S. law enforcement. And as in the drug war cases, there is no guarantee that even a "not guilty" verdict will result in the return of property. Mayor Giuliani, in fact, explicitly stated that the city might retain seized property in cases where an acquittal did not seem (to whom?) warranted by the facts.42 Nor is there any greater protection for the rights of innocent third parties in the new non-drug seizure and forfeiture cases. One key case that went to the U.S. Supreme Court involved a woman who jointly owned an automobile with her husband, who had been arrested for soliciting sex from a prostitute. Although no one disputed the fact that she was in no way involved in the alleged violation of the law (indeed, she was mightily annoyed at her husband), the Court nevertheless upheld the government's seizure and forfeiture actions depriving her of her share (50 percent) of the auto's value.
The drug war has produced other more subtle, but equally dangerous trends. It has led to the militarization of police departments and an increase in the level of force used by those departments in situations that have little or nothing to do with illegal drugs.43 It has emboldened federal authorities to pursue measures that would further dilute the expectation of privacy that customers have when doing business with their bank.44 Such efforts include the aborted "know your customer" rule proposed by the Federal Desposit Insurance Corporation in early 1999 that would have required banks to know where there customers got their money, how they got it, and monitor accounts to determine whether transactions were "normal." The proposed rule--withdrawn at least temporarily after a storm of public protest--would have greatly expanded the already disturbing requirements that banks spy and report on their own customers.45
Although it is possible that such an array of abuses of government power might have become the norm even in the absence of a war on drugs, that is most unlikely. The erosion of key civil liberties coincides with the onset of, or with the incremental escalation of, the drug war. Many of the practices that are now becoming pervasive in various areas of law enforcement either began as features of the drug war or received a huge boost from that struggle. The crusade against drugs has conditioned the American people to listen to the siren song that it is necessary for them to give up a few of their freedoms for the greater good of ridding the nation of the scourge of drugs. Once that rationale is accepted, it becomes ever easier for authorities to use the same argument in the name of combatting other "scourges"--such as drunk driving, prostitution, illegal immigration, and the alleged conspiracy by tobacco companies to snare American children.
Adopting a prohibitionist strategy against certain drugs was a bad enough course of action. But using the metaphor of "war" for such a campaign has created an assortment of disasters. Americans now face a fundamental choice: they can end the failed crusade against drugs or they can watch as those disasters both burgeon in size and multiply in number.
Notes
1. Indeed, the war on drugs even includes a full-blown propaganda campaign featuring a $195 million media blitz on the evils of drug use. That figures makes the government's anti-drug advertising campaign larger than the campaigns of such companies as American Express, Nike, and Sprint. Roberto Suro, "Government Blankets Media With Anti-Drug Message for Youth," Washington Post, July 9, 1998, p. A9 Return to Text
2. For a discussion of the destructive effect of wartime policies on the First Amendment and other constitutional protections of civil liberties, see Ted Galen Carpenter, The Captive Press: Foreign Policy Crises and the First Amendment (Washington: Cato Institute, 1995), pp. 13-44; 107-119; 125-131; 141-150. Return to Text
3. Glenn Frankel, "U.S. War on Drugs Yields Few Victories," Washington Post, June 8, 1997. p. A1.Return to Text
4. Peter Andreas aptly describes these tendencies as signaling the rise of the "crimefare state," which has supplanted the Cold War era specter of a "national security state." Peter Andreas, "The Rise of the American Crimefare State," World Policy Journal (Fall 1997): 38-45. Return to Text
5. For a good overview, see Steven Wisotsky, Beyond the War on Drugs: Overcoming a Failed Public Policy (Buffalo, NY: Prometheus, 1990). Also see James Bovard, Lost Rights: The Destruction of American Liberty (New York: St. Martin's Press, 1994), pp. 199-257. Return to Text
7. Sam Staley, Drug Policy and the Decline of American Cities (New Brunswick, NJ: Transaction, 1992). Return to Text
8. Mark Thornton, The Economics of Prohibition (Salt Lake City: University of Utah Press, 1991).Return to Text
9. Even some early analyses warned of the trend and noted that the war on drugs was the principal factor in the narrowing of Fourth Amendment protections. See Silas J. Wasserstrom, "The Incredible Shrinking Fourth Amendment," American Criminal Law Review 21, no. 3 (Winter 1984): 257-401.Return to Text
10. Advocates of the drug war defend profiling even though they admit the process snares a disproportionate number of young minority males. See Clayton Searle, "Profiling in Law Enforcement,"Washington Times, September 9, 1999, p. A 21. Searle is the president of the International Narcotics Interdiction Association. Return to Text
11. Barbara Whitaker, "A Father is Fatally Shot By the Police in His Home, and His Family Is Asking Why," New York Times, August 28, 1999, p. A7. Return to Text
12. For some earlier examples, see Michael Cooper, "Family Says Police Raided Wrong Home," New York Times, May 8, 1998, p. A23; Kit R. Roane, "Again, Police in Search of Drugs Raid the Wrong Home," New York Times, March 21, 1998; and Timothy Lynch, "Drug War Is Slowly Diluting Constitutional Safeguards," Los Angeles Daily Journal, December 2, 1998. Return to Text
13. Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? (Washington: Cato Institute, 1995). See also Terrance G. Reed, "American Forfeiture Law: Property Owners Meet the Prosecutor," Cato Institute Policy Analysis no. 179, September 29, 1992. Return to Text
14. Diane Cecilia Weber, "Warrior Cops: The Ominous Growth of Paramilitarism in American Police Departments," Cato Institute Briefing Paper no. 50 (August 26, 1999), pp. 3-5. Return to Text
15. For a discussion of the attempts during the 1980s to enlist the military as a major participant in both the foreign and domestic phases of the war on drugs, see Ted Galen Carpenter and R. Channing Rouse, "Perilous Panacea: The Military in the Drug War," Cato Institute Policy Analysis no. 128, February 15, 1990. Return to Text
16. Bradley Graham, "Drug Control Chief Won't Let Pentagon Just Say No," Washington Post, November 24, 1997, p. A17. Return to Text
17. For a discussion of the Hernandez episode and its implications for the military's participation in the war on drugs, see William Branigin, "Questions on Military Role Fighting Drugs Ricochet from a Deadly Shot," Washington Post, June 22, 1997. Return to Text
18. Stephen Chapman, "When the War on Drugs Comes Home," Washington Times, August 26, 1997, p. A13. Return to Text
19. Quoted in "Some Lawmakers Clueless About Life on the Border," San Antonio Express-News, May 24, 1998. Return to Text
20. Weber, p. 5 Return to Text
21. Quoted in "Technology Transfer From Defense: Concealed Weapon Detection," National Institute of Justice Journal, no. 229 (August 1995): 35. Return to Text
22. See Ian Vasquez, "The International War on Drugs," Cato Handbook for Congress--The 106th Congress (Washington: Cato Institute, 1999), pp. 597-605. Also see Council on Foreign Relations,Rethinking International Drug Control: New Directions for U.S. Policy (New York: Council on Foreign Relations, 1997); Kevin Jack Riley, Snow Job? The War Against International Cocaine (New Brunswick, NJ: Transaction, 1996); and Francisco Thoumi, Political Economy and Illegal Drugs in Colombia (Boulder, Colo: Lynne Rienner, 1995) Return to Text
23. Larry Rohter, "Colombia Adjusts Economic Figures to Include Its Drug Crops," New York Times, June 27, 1999, p. A3. Return to Text
24. Serge F. Kovaleski, "Rebel Movement on the Rise," Washington Post, February 5, 1999, p. A27; Karen DeYoung, "Colombia's U.S. Connection Not Winning Drug War," Washington Post, July 16, 1999, p. A1; and Larry Rohter, "U.S. Anti-Drug Chief, in Colombia, Speaks of 'Regional Crisis,'" New York Times, July 27, 1999, p. A4. Return to Text
25. Douglas Farah, "U.S. Ready to Boost Aid to Troubled Colombia," Washington Post, August 23, 1999, p. A1; and Serge F. Kovaleski, "Colombia Abuzz With Talk of Intervention," Washington Post, August 23, 1999, p. A13. Return to Text
26. John Ward Anderson, "Mexican Drug Crisis Echoes Bloody Colombia Pattern," Washington Post, August 11, 1997, p. A1; Tim Golden, "U.S. Officials Say Mexican Military Aids Drug Trafficking,"New York Times, March 26, 1999, p. A1; Tim Golden, "Elite Mexican Drug Officers Said to Be Tied to Traffickers," New York Times, September 16, 1998, p. A1; and Douglas Farah, "Drug Corruption in Mexico Called 'Unparalleled,'" Washington Post, February 25, 1999, p. A17. Return to Text
27. Bill McCollum, "Waving the White Flag in Drug War?" Washington Times, March 10, 1998, p. A17. Also see "A Timid War on Drugs," editorial, Washington Times, December 29, 1997, p. A14.Return to Text
28 . Quoted in Phillip O. Coffin, " A Duty to Censor: UN Officials Want to Crack Down on Drug War Protestors," Reason, August-September 1998, p. 54. Return to Text
29. Mary Anastasia O'Grady, "American Coke-Heads Underwrite Colombia's Misery," Wall Street Journal, August 20, 1999, p. A11. Return to Text
30. "500 Drug Geniuses," editorial, Wall Street Journal, June 10, 1998, p. A18. Return to Text
31. That measure was the Agents Identities Protection Act, passed in 1982 following the "outing" of several agents by former CIA agent Philip Agee and the death of one of those agents. For a discussion, see Carpenter, The Captive Press, p. 128. Return to Text
32. Melissa Healy, "Parents Reach Out to Informant Daughter," Los Angeles Times, September 9, 1999, p. A3. Return to Text
34. "It's Time to Rally the Troops in Our War on Drugs," Letter to the editor, Washington Times, June 20, 1998, p. A14. Return to Text
35. Sex, Drugs and Consenting Adults with John Stossel, ABC News Special Report, May 26, 1998, transcript #98052601-j13, p. 14. Return to Text
36. "Americans Are Fed Up with Drunken Drivers," letter to the editor, Washington Times, February 5, 1998. Return to Text
37. Lance Gay, "Drinking Passengers Hit By Senate Vote," Washington Times, March 6, 1998, p. A6.Return to Text
38. Christopher S. Wren, "Alcohol or Drug Link Seen in 80% of Jailings," New York Times, January 9, 1998, p. A11. Return to Text
39. Critics have correctly pointed out that a prohibitionist strategy--or even a "prohibition-lite" approach of very high taxes on tobacco products--would create (and in some foreign countries already have created) a lucrative black market. See Bruce Bartlett, "Hiking Cigarette Taxes Is Good for (Illegal) Business," Wall Street Journal, May 12, 1998, p. A22; Nick Brookes, "Black-Market Bonanza,"Washington Post, May 20, 1998, p. A25; and Robert Levy, "High Taxes Fuel Black Market," USA Today, January 5, 1999. Return to Text
40. An especially worrisome development is the growing tendency of prominent drug warriors to link illegal drugs and the two legal products. In a Washington Post op-ed arguing that marijuana is a hard drug, former HEW secretary Joseph Califano makes that linkage on several occasions. For instance, in a passage arguing that marijuana was a "gateway" to harder drugs, he nevertheless adds the observation that "virtually all teens who smoke marijuana also smoke nicotine cigarettes and drink alcohol." Later, he argues that marijuana affects the level of dopamine in the brain, and "may prime the brain to seek substances such as heroin and cocaine that act in a similar way." But then he adds a comment that again undermines his ostensible argument, noting that studies have found that nicotine also affects dopamine levels. One must at least consider the possibility that Califano is building the foundation for the case that, not only is marijuana a dangerous drug that must remain outlawed, but that alcohol--and especially cigarettes--must logically be treated the same way. Joseph A. Califano, "Marijuana: It's a Hard Drug,"Washington Post, September 30, 1997, p. A21. Return to Text
41. Betsy Pisik, "WHO Leader Seeks Treaty in Tobacco Fight," Washington Times, October 21, 1998, p. A11. Return to Text
42. For a blistering critique of Giuliani's initiative, see Stephen Chapman, "Exceeding Reasonable Limits," Washington Times, February 27, 1999, p. D8. See also Alan Finder, "Questions Over City's Plan Against Drunk Drivers," New York Times, January 23, 1999, p. A16. Return to Text
43. See Weber; and Timothy Egan, "Soldiers of the Drug War Remain on Duty," New York Times, March 1, 1999, p. A1. Return to Text
44. Joe Davidson, "U.S., in Anti-Drug Move, Plans to Lower Threshold for Money-Transfer Reports,"Wall Street Journal, May 20, 1997, p. A4; and Richard Rahn, "Treasury's Newest Assault on Privacy,"Investor's Business Daily, August 12, 1997, p. A28. Return to Text
45. Solveig Singleton, "Let Federal Eyes Ogle Your Account?" Washington Times, February 10, 1999.