CIVIL LIBERTIES CAST ASIDE IN OVERZEALOUS DRUG WAR

Patrick Dorismond probably never knew that the men who killed him were
police officers.

Standing on a New York City street corner one night last March, Dorismond
and his friend Kevin Kaiser were approached by three men who, Kaiser later
recalled, looked like "derelicts."

They asked Dorismond if he had any marijuana. The men were undercover
police officers. They didn't know Dorismond or his friend. They had not
seen him do anything suspicious. They were simply approaching people based
on a vague profile of pot dealers. Dorismond, who was black, fit the profile.

Dorismond, an off-duty security guard, said no, he didn't have any
marijuana. He told the scruffy would-be drug buyers to get lost. One of the
men responded with what Kaiser described as "animal noises." The cop later
said he was trying to make a joke.

What happened next isn't clear. The police say Dorismond threw a punch.
Kaiser says the police threw the first punch.

However it started, there was a brawl that brought more officers rushing
in. A police gun was fired, and Dorismond died.

The issue of who threw the first punch is important for deciding whether
police broke the law, but it doesn't change the cold reality of what
happened that night: A man minding his own business was approached by
police officers hoping he would commit a crime if they mentioned marijuana.

It's called a "buy-and-bust," a common police tactic that edges up to the
line of entrapment but, provided certain minimal requirements are met,
doesn't cross it. And the use of that tactic started the chain of events
that led to an innocent man's death.

When governments decided to criminalize certain drugs, they created a
cancer of police power that has spread ever since, eating away at civil
liberties.

That cancer has led police officers, sworn to protect innocent people, to
endanger them with sting operations. It is a tactic now in widespread use
around the world.

Ira Glasser, executive director of the American Civil Liberties Union,
insists that the war on drugs must also, by force of logic, mean war on
civil liberties. To understand why, he asks a fundamental question: What
kind of police power is appropriate in a free society?

To answer, he points to John Stuart Mill's classic "harm principle": People
should be free to do what they choose so long as they don't harm others. By
that standard, the ingestion of marijuana and other drugs by adults in
private is a question of personal choice, no different than the consumption
of cholesterol "or indeed the kinds of thoughts you allow to enter your
head and what comes out of your mouth."

The right to make these sorts of choices, Glasser says, is "the most
fundamental civil liberty you can have as an individual." By forbidding
people to choose to ingest certain drugs in private, governments violate
the harm principle.

Once that's done, the disease begins to spread, because to enforce laws
that intrude into private choices, "you necessarily have to intrude on
people's personal space and privacy."

It's no accident, Glasser notes, that wiretapping in America was an
invention of alcohol prohibition. Investigating drug offenses is often very
difficult, for an elementary reason: Unlike most crimes, there's no victim
in drug crimes. The seller of the drugs wants to sell them; the buyer wants
to buy. Neither is going to complain to the authorities that the law has
been broken.

That means the police have to be proactive, says Alan Young, a professor of
criminal law at Osgoode Hall Law School in Toronto, "as opposed to the
traditional role of being reactive, of receiving complaints and then
investigating."

The undercover police officers who asked Patrick Dorismond for marijuana
were being proactive. The buy-and-bust technique they used is not necessary
in investigating non-consensual crime; it was invented to enforce drug
prohibition.

The difficulty of enforcing drug laws forces police to search constantly
for new ways to investigate people's private actions.

Alcohol prohibition lasted only 13 years in the United States, but in that
short time, the power of police to intrude into the private lives of
Americans exploded. Officers learned to bug rooms and tap phone calls. They
set up speakeasies to catch booze suppliers. Informants were offered bribes
to catch corrupt police officers.

These tactics were virtually unknown before Prohibition. They also were
seen by many as offensive to personal liberty.

But this wasn't enough to stop the hunt for new police tactics. The police
were, after all, just doing what had to be done, given the difficult task
they had been handed. As a federal commission noted in 1931, alcohol
prohibition was "the first instance in our history in which the effort has
been made by constitutional provision to extend the police control of the
federal government to every individual and every home in the United States."

Many judges opposed the expansion of police tactics, but, influenced by the
crisis atmosphere and the noble goals of the anti-alcohol crusade, the
courts often failed to stop it. Wiretapping seemed to clearly violate the
U.S. Constitution's Fourth Amendment protection against unreasonable search
and seizure, but the Supreme Court approved it by a 5-4 vote in 1928.

Judges crafted many other "exceptions" to constitutional protections.
Prohibition was abolished in 1933, but the new police tactics and powers
stayed; everyone had grown used to them. Today, the public and the police
alike see tactics such as wiretapping as indispensable tools in maintaining
public order.

In fact, they are rarely used to investigate anything except drug
violations and consensual crimes such as gambling.

But how far the intrusions will spread depends on the size of the criminal
market involved, and how zealously authorities try to wipe it out.
Prohibition in the 1920s produced a huge illegal market and a national
crusade to end it, so the intrusions into civil liberty were serious.
Illegal drugs today are an even bigger, worldwide market.

The drive to wipe out that trade is intense and international, so the
damage drug prohibition does to civil liberties is also great in most
nations. But the war on drugs is most intense in the United States, and
that is where authorities have been most active in attacking civil
liberties. Buy-and-bust operations such as the one that went haywire and
killed Patrick Dorismond are part of the daily routine across the United
States.

Money-laundering legislation, inspired almost exclusively by the war on
drugs, forces banks to gather and supply a huge array of information about
their clients to government agents.

The use of paid informants also has become common, thanks to drug cases.
Paid testimony is notoriously unreliable--a fact illustrated again last
year when it was revealed that a man who had been paid $2.2 million by the
U.S. Drug Enforcement Administration to take part in "reverse stings" had
lied repeatedly on the witness stand.

The informant had taken part in about 300 drug cases involving 445
defendants, some of whom got life sentences.

Heavily militarized police units increasingly are used for drug enforcement.

The U.S. Constitution, like most modern constitutions, forbids "cruel and
unusual punishment," which, according to established American law, includes
sentences that are "grossly disproportionate" to the seriousness of the
crime being punished.

Yet some of the sentences U.S. politicians have made mandatory for drug
offenses are, by any reasonable definition, out of all proportion to the
crimes involved: One man in Michigan, a first-time offender convicted of
merely possessing cocaine, was given life in prison with no chance of parole.

When his case reached the U.S. Supreme Court in 1990, two conservative
justices said the Constitution didn't prohibit disproportionate sentences;
three other justices said that while there is a bar on grossly
disproportionate punishments, the drug crisis was so serious that this
sentence was not disproportionate. It was upheld.

The shrinking of the Fourth Amendment protection against unreasonable
search and seizure, begun during alcohol prohibition, has been drastically
advanced by drug prohibition. The most dramatic change has been in
obtaining search warrants.

Originally, police had to show judges reliable, verifiable evidence that
criminal activity was taking place inside a home to get a warrant. Now, a
warrant often can be had based on nothing more than an anonymous tip. That
change came as a result of rulings in drug cases.

Of the drug war's many assaults on American civil liberties, perhaps the
most extreme is what is called civil asset forfeiture.

Ordinarily, property is seized only after its owner is charged with and
convicted of a crime and the property can be shown to be the fruits of that
crime. Civil asset forfeiture, however, does away with the need to prove
guilt. To seize any sort of property, police simply have to show that the
property was somehow connected to illegal drugs.

To do that, the police must meet only a civil law standard of proof--a far
lower standard than that required to convict someone of a crime.

It doesn't matter if the owner of the property never is convicted of a
crime or never even charged with a crime. In 80 percent of forfeitures, in
fact, charges never are filed.

Civil asset forfeiture is based on the medieval legal notion that the
property itself is "guilty." (In medieval law, animals, too, could be
guilty. Cows, goats and other barnyard animals occasionally were put on
trial and executed.) Thus, it's even irrelevant that the owner didn't know
the property was used for criminal activities or tried to stop them.

A Kansas couple who owned and operated a motel had their business taken by
the government in 1999 because drug sales had taken place on the
property--even though the couple had nothing to do with the drug sales and
had installed floodlights and fences in an effort to keep drug traffickers
away from their property.

The only way to fight civil forfeiture is to go to court after the property
is taken.

Since 1985, the American government has taken property worth more than $7
billion this way. Until the drug war, civil asset forfeiture was almost a
dead letter. But in 1970, and again in 1984, the concept was revived as a
way of hitting drug traffickers without the difficulty of proving them
guilty of crimes.

Police forces even were allowed to keep the proceeds of forfeiture, leading
to wild enthusiasm for its use. The return of this medieval concept to
modern American law, says Glasser, is entirely due to drug prohibition.

Congress is set to pass the Methamphetamine Anti-Proliferation Act, which
would allow police to conduct "secret searches and seizures"--meaning they
could search a home, make copies of material such as computer files, and
leave, without telling the occupant they were there.

The bill also would make it a crime to tell someone how to make drugs or
indicate where they could buy drug paraphernalia. Even creating a link on a
Web site that directs people to such information would be criminal.

Police in the United States also have invented another form of invasive
search: Traffic is stopped at random checkpoints where drug dogs sniff each
car. If a dog reacts, that is taken as reasonable grounds to search the
vehicle.

The U.S. Supreme Court soon will hear a constitutional challenge of this.
If the action is upheld, Glasser says, it effectively will be the end of
the Fourth Amendment.

The U.S. Customs Service checks airline passengers against "profiles" of
drug couriers using information such as gender, citizenship, frequency of
flying, place of origin and so on.

Customs initially planned to demand even more information, such as a
traveler's income, ticket class and dietary needs, but it backed down when
privacy advocates objected.

The federal government also is planning to further expand the number of
illegal acts police will be allowed to commit in the course of their duties.

The main target is the drug trade and the money laundering linked to it,
along with gambling and prostitution. For those concerned with civil
liberties, the cancer spawned by drug prohibition looks relentless and
frightening. Glasser says it's even worse than it looks because "it can't
be fixed."

The source of the disease, he insists, is the decision of governments to
intervene in the personal choices of citizens by forbidding the use of some
drugs.

"It is impossible to enforce drug prohibition without eroding civil
liberties," Glasser says. "It is impossible to ban drugs without
wiretapping and strip searches and buy-and-bust operations. It is
impossible to do it without endangering innocent people, or even, as in the
sad case of Patrick Dorismond, killing some of them.

"You don't do away with policing because some cops beat people up. You deal
with the police brutality," Glasser says. But there is no treatment for
this cancer except, he says, "to get rid of prohibition.

"That was true during alcohol prohibition, and it's true now."