A society of suspects: the War on Drugs and civil liberties

A decade after Pres. Reagan launched the War on Drugs, all we have to show for it are city streets ruled by gangs, a doubled prison population, and a substantial erosion of constitutional protections.

On Dec. 15, 1991, America celebrated the 200th anniversary of the Bill of Rights. On Oct. 2, 1992, it marked the 10th anniversary of an antithetical undertaking - the War on Drugs, declared by Pres. Ronald Reagan in 1982 and aggressively escalated by Pres. George Bush in 1989. The nation's Founders would be disappointed with what has been done to their legacy of liberty. The War on Drugs, by its very nature, is a war on the Bill of Rights.

In their shortsighted zeal to create a drug-free America, political leaders - state and Federal, elected and appointed - have acted as though the end justifies the means. They have repudiated the heritage of limited government and individual freedoms while endowing the bureaucratic state with unprecedented powers.

That the danger to freedom is real and not just a case of crying wolf is confirmed by the warnings of a few judges, liberals and conservatives alike, who, insulated from elective politics, have the independence to be critical. Supreme Court Justice Antonin Scalia, for example, denounced compulsory urinalysis of Customs Service employees "in the front line" of the War on Drugs as an "invasion of their privacy and an affront to their dignity." In another case, Justice John Paul Stevens lamented that "this Court has become a loyal foot soldier" in the War on Drugs. The late Justice Thurgood Marshall was moved to remind the Court that there is "no drug exception" to the Constitution.

In 1991, the Court of Appeals for the Ninth Circuit declared that "The drug crisis does not license the aggrandizement of governmental power in lieu of civil liberties. Despite the devastation wrought by drug trafficking in communities nationwide, we cannot suspend the precious rights guaranteed by the Constitution in an effort to fight the "War on Drugs.'" In that observation, the court echoed a 1990 ringing dissent by the chief justice of the Florida Supreme Court: "If the zeal to eliminate drugs leads this state and nation to forsake its ancient heritage of constitutional liberty, then we will have suffered a far greater injury than drugs ever inflict upon us. Drugs injure some of us. The loss of liberty injures us all."

Those warnings are cries in the wilderness, however, unable to stop the relentless buildup of law enforcement authority at every level of government. In fact, the trend toward greater police powers has accelerated. One summary of the Supreme Court's 1990-91 term observed that its criminal law decisions "mark the beginning of significant change in the relationship between the citizens of this country and its police."

Despite such warnings, most Americans have yet to appreciate that the War on Drugs is a war on the rights of all of us. It could not be otherwise, for it is directed not against inanimate drugs, but against people - those who are suspected of using, dealing in, or otherwise being involved with illegal substances. Because the drug industry arises from the voluntary transactions of tens of millions of individuals - all of whom try to keep their actions secret - the aggressive law enforcement schemes that constitute the war must aim at penetrating their private lives. Because nearly anyone may be a drug user or seller of drugs or an aider and abettor of the drug industry, virtually everyone has become a suspect. All must be observed, checked, screened, tested, and admonished - the guilty and innocent alike.

The tragic irony is that, while the War on Drugs has failed completely to halt the influx of cocaine and heroin - which are cheaper, puren and more abundant than ever - the one success it can claim is in curtailing the liberty and privacy of the American people. In little over a decade, Americans have suffered a marked reduction in their freedoms in ways both obvious and subtle.

Among the grossest of indicators is that the war leads to the arrest of an estimated 1,200,000 suspected drug offenders each year, most for simple possession or petty sale. Because arrest and incarceration rates rose for drug offenders throughout the 1980s, the war has succeeded dramatically in increasing the full-time prison population. That has doubled since 1982 to more than 800,000, giving the US. the highest rate of incarceration in the industrialized world.

It has been established that law enforcement officials - joined by US. military forces - have the power, with few limits, to snoop, sniff, survey, and detain, without warrant or probable cause, in the war against drug trafficking. Property may be seized on slight evidence and forfeited to the state or Federal government without proof of the personal guilt of the owner. Finally, to leverage its power, an increasingly imperial Federal government has applied intimidating pressures to shop owners and others in the private sector to help implement its drug policy.