Losing The War On Drugs: The War On Civil Liberties, Part 8

HOW THE DRUG WAR IS ERODING OUR CIVIL LIBERTIES

Wiretapping, 'Reverse-Stings' All Diminish Citizens' Rights

Patrick Dorismond probably never knew that the men who killed him were
police officers. Standing on a New York City street corner one night in
March, Mr. Dorismond and his friend, Kevin Kaiser, were approached by
three men who, Mr. Kaiser later recalled, looked like "derelicts." They
asked Mr. Dorismond if he had any marijuana.

The men were undercover police officers. They didn't know Mr. Dorismond or
his friend. They had not seen him do anything suspicious. They were simply
approaching people based on a vague "profile" of where pot dealers might be
found and what they might look like. Mr. Dorismond, a black man, fit the
profile.

Mr. 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 Mr. Kaiser described as "animal noises." The cop
later explained he was trying to make a joke.

What happened next isn't clear. The police say Patrick Dorismond threw a
punch. Mr. 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 Mr. 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.

Patrick Dorismond's slaying was tragic and unintended, but it wasn't an
accident. It was the end-point of a logical progression.

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 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, including in Canada.

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, Mr. 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, Mr. Glasser notes,
that wiretapping in America was an invention of alcohol prohibition.

Investigating drug offences 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 pro-active, notes 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 pro-active. 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 constantly search
for new ways to investigate people's private actions. That search, backed
up by governments that give police the lawful authority to use the
techniques they invent, steadily erodes civil liberties.

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. They used disguises and went
undercover. Informants offered bribes to catch corrupt police officers.
These tactics were virtually unknown before Prohibition.

They were also seen by much of the contemporary American public as
offensive to personal liberty. One Prohibition agent quit in disgust,
calling the new methods "damnable and un-American." Jurists were horrified
by wiretapping, and even Mabel Willebrandt, the federal official in charge
of Prohibition enforcement, said wiretapping was "a dangerous and
unwarranted practice."

But the shock 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
American 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 numerous other "exceptions" to constitutional
protections, such as the "open fields" doctrine: The protection against
unreasonable search, the Supreme Court said, was only meant for the home,
so police were allowed to enter private land without warrants or even
reasonable suspicion of criminal activity.

Prohibition was abolished in 1933, but the new police tactics and powers
stayed. The police, the courts, and the public had grown used to
them. Today, public and police alike see tactics like wiretapping as
indispensable tools in maintaining public order. In fact, they are rarely
used to investigate anything except drug violations and other consensual
crimes such as gambling. Mr. Glasser notes that every year in the United
States, more than 90 per cent of wiretaps involve drug and gambling
investigations. In 1996, 72 per cent of all wiretaps involved drug
investigations. Kidnapping, extortion, larceny, theft, loan sharking, usury
and bribery investigations combined accounted for just 2.8 per cent of all
wiretaps.

The acceptance of novel police techniques prepared the way for even more
intrusion into citizens' private lives. New tactics were invented on the
basis of the old, and when these became the norm, still more techniques of
intruding into private lives were devised.

Any consensual act made criminal -- such as prostitution and gambling --
will foster this progression; it is not confined to drug use. But how far
the cancer will spread depends on the size of the criminal market involved,
and how zealously authorities try to wipe it out. American alcohol
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 UN estimates
drugs are worth $400 billion U.S. a year, or about eight per cent of world
trade). 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.
So is electronic surveillance. Personal financial privacy has also been
sacrificed to drug enforcement. 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 has also become common, thanks to drug
cases. Paid testimony is notoriously unreliable -- a fact illustrated
again this year when it was revealed that a man who had been paid $2.2
million U.S. by the Drug Enforcement Agency to take part in "reverse
stings" had repeatedly lied on the witness stand. The informant had taken
part in some 300 drug cases involving 445 defendants, some of whom got life
sentences.

Heavily militarized police units are increasingly used for drug
enforcement. Traditionally, the United States had a strict policy of not
allowing the military to be involved in domestic policing, but that has
been substantially loosened to give the military a domestic role in the War
on Drugs. Police forces have also been encouraged to adopt military
weaponry and tactics to fight the organized, well-armed gangs involved in
the illegal drug trade, leading to rapid growth in paramilitary units
within police departments. The role of militarized police units all but
requires them to set aside the old police ethic of public service in favour
of the military mentality of public suppression. And militarized police
units are dangerous: When they make mistakes, innocent people die.

In one case that is far from unique, Mario Paz, a 65-year-old grandfather
in Los Angeles, was awakened one morning last year by a SWAT unit's stun
grenades. He was shot and killed in bed. The police, it turned out, were
looking for a drug dealer who had once lived next door but had moved
several years before the raid.

The sentences given to those convicted of drug crimes also cast grave
shadows on civil liberties, particularly in the United States, where
legislators have, unlike Canada, steadily increased the "mandatory minimum"
sentences for drug convictions. The American 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 which American politicians have made mandatory for drug
offences 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 judges claimed the constitution didn't prohibit
disproportionate sentences; three other judges said that while there is a
bar on grossly disproportionate punishments, the drug crisis was so serious
that this sentence was not disproportionate. The sentence 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 the
requirement for obtaining a search warrant. 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 can often be had based
on nothing more than an anonymous tip. That change came as a result of
rulings in drug cases. In fact, "virtually the entire destruction of the
strength of Fourth Amendment rights," notes the ACLU's Ira Glasser, "has
been 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 only seized after its owner is charged 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 the owner's 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 is never convicted of a crime, or never even charged with a
crime. In 80 per cent of forfeitures, in fact, charges are never laid.

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 were occasionally put on
trial. Some were executed.) Thus, it's even irrelevant that the owner
didn't know the property was used for criminal activities or tried to stop
those activities. 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. In court, the property is presumed "guilty," and the former owner
has to prove, according to a tougher standard than the police had to meet
originally, that the property is "innocent."

Since 1985, the American government has taken property worth more than $7
billion U.S. this way.

Until the drug war, civil asset forfeiture was almost a dead letter,
"anachronistic residue," as Ira Glasser puts it. 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 were even
allowed to keep the proceeds of forfeiture, leading to wild enthusiasm for
its use across the United States. The return of this medieval concept to
modern American law, says Mr. Glasser, is entirely due to drug prohibition.

Alan Young is familiar with the drug war's erosion of civil liberties in
the United States, and while he acknowledges differences between the
American and Canadian situations, he insists there's no reason for
Canadians to feel smug. "Everything applies to Canada," he says, "but in a
less rabid form."

Mr. Young points to the gutting of the American Fourth Amendment protection
against unreasonable search and seizure. The Canadian equivalent to the
Fourth Amendment is Section Eight of the Charter of Rights and Freedoms.
Like the American Fourth Amendment, Section Eight requires judges to decide
what is a "reasonable" search or seizure, and as with the Fourth Amendment,
that standard is being lowered, though perhaps not as drastically as in the
United States.

Standards are dropping, says Mr. Young, because judges in drug cases are
"influenced by what they consider to be the sinister nature of the drug
trade" and by the obvious difficulties police have investigating
consensual, private acts. But once the standards are lowered in drug cases,
they are also lowered for other sorts of criminal cases. "The zeal to fight
the War on Drugs, or to assist the state in fighting the War on Drugs, has
led to a watering down of some of the Charter safeguards."

The courts have allowed an equally serious change in how they deal with
illegally obtained evidence. Generally, if police obtain evidence using
illegal means -- such as searching a home without a warrant -- it cannot be
admitted at trial if that would "bring the administration of justice into
disrepute."

Courts dealing with drug cases, however, have steadily lowered that hurdle.

"You have this series of cases," says Mr. Young, "where the police are
invading homes, trespassing on property, and the evidence is always being
admitted, and it's always drugs." Again, this affects the criminal law
generally. Even outside of the context of drug law, Mr. Young says, it has
become "virtually impossible to ever get a remedy for an unreasonable
search in this country."

Canadian judges have, however, shown a greater readiness to scrutinize and
block new drug war tactics than have their American counterparts. In 1999,
the Supreme Court of Canada refused to allow into a trial some evidence
obtained by "reverse sting" -- a tactic in which the police themselves sell
drugs to buyers they later arrest. To permit the police to break a law that
applies to everyone else, the court said, would violate the rule of law.

But the decision was moot. The federal government anticipated the ruling
and, a year before the case was even argued before the Supreme Court, it
passed legislation specifically authorizing reverse stings. The Supreme
Court's decision thus only applied to the case before it. Today, the
selling of illegal drugs is a standard tool available to police.

Numerous other undesirable or invasive practices can be traced to the War
on Drugs. Mr. Young cites telewarrants, the practice of giving police
search warrants with nothing but a phone call to a judge. And he points to
airport strip searches. "Any traveller who comes to Pearson," he notes,
"could be subject to what in South Park would be (called) an alien anal
probe." The only basis for deciding who will receive this gross personal
intrusion is "a very vague drug courier profile and perhaps some evasive
answers to a question."

American research shows just 15 per cent of searched travellers are found
to have drugs. That means 85 per cent of people "having their inner
sanctums violated are innocent people just returning from vacation. And
that would not be happening save and except for the drug war."

The War on Drugs has also fostered censorship in Canada. Section 462.2 of
the Criminal Code bans any publication that advocates illicit drug use,
something that could conceivably cover everything from head shop magazines
on how to grow marijuana to Aldous Huxley's The Doors of Perception. It is
easily the most extreme form of censorship in Canada since it, unlike any
other restriction of speech in Canadian law, expressly forbids the
communication of certain ideas, including political and philosophical ideas.

Acting as a defence lawyer in the mid-1990s, Alan Young convinced a lower
Ontario court to declare section 462.2 an unconstitutional violation of the
Charter of Rights. Justice officials planned an appeal but dropped it,
Mr. Young claims, "because they knew they would lose." That kept the
Ontario decision from becoming a precedent across the country, and it kept
section 462.2 in the Criminal Code. Charges continue to be laid under the
section, and literature seized. It's happening all the time, says Mr.
Young, although a quick call to the responsible Crown attorney, and a copy
of the Ontario judgment, are usually enough to get the charges dropped. The
section hasn't been killed but at least its effective use isn't spreading.

The same cannot be said for the cancer that drug prohibition injected into
civil liberties. It continues to spread in new and startling ways.

A few years ago, a United Nations board called on all nations to ban speech
that is positive about drug use (as Canada did with section 462.2), and
even broadly hinted that those who advocate abolishing drug prohibition
should be censored.

In the United States, the Customs Service recently asked Congress to give
it the power to search all outgoing mail for drugs, abolishing a
centuries-old tradition that the privacy of the mail is sacrosanct. The
U.S. Postal Service argued against the change. Congress has yet to decide.

Congress is set to pass the "Methamphetamine Anti-Proliferation Act," which
will allow police to conduct "secret searches and seizures" -- meaning they
can search a home, make copies of material such as computer files, and
leave, without ever telling the occupant they were there. The bill will
also make it a crime to tell someone how to make drugs or indicate where
they can buy drug paraphernalia. Even creating a link on a Web site that
directs people to such information would be a criminal act.

American police have also invented yet another form of invasive
search: Traffic is stopped at random checkpoints where drug-sniffing dogs
check each car. If a dog reacts, that is taken as reasonable grounds to
search the vehicle. The U.S. Supreme Court will soon hear a constitutional
challenge of the practice. If it is upheld, Ira Glasser says, it will
effectively be the end of the Fourth Amendment.

In Canada, too, the erosion of civil liberties by the drug war continues.

The government of Ontario is to introduce a system of civil asset
forfeiture modelled on American legislation. Under existing federal
legislation, alleged proceeds of crime can be seized only if a criminal
charge is laid; if the person is found not guilty at trial, the assets are
then returned.

But Ontario intends to empower a special police team to seize property
without having to lay criminal charges or prove guilt in a criminal trial.
The police will only have to satisfy a judge that the property is connected
to crime. Owners who object to having their property taken will have to go
to court and prove their property isn't connected to crime.

The federal government also recently passed its latest money laundering
legislation. While Canada has long had provisions allowing authorities to
seize funds earned through crime, specific "money laundering" legislation
was only introduced in the late 1980s after heavy pressure from the United
States. The latest law takes this process several steps further in the
direction favoured by the U.S. Customs officers have been given the power
to seize cash crossing the border if the right paperwork isn't filled out.
Financial institutions are required to make "Suspicious Transaction
Reports" to the government if clients match vague criteria of
"suspiciousness" -- and managers could go to jail if they tell clients of
the reports.

The law, which the Canadian Bar Association has called "truly excessive,"
also forces lawyers to inform on clients, undermining the crucial principle
of solicitor-client privilege. "A countrywide network of spies and
informers" will be created, in the words of Alan Gold of the Canadian
Criminal Lawyers' Association.

A new government agency will monitor the flow of information and decide
what to do with it.

Federal Justice Minister Anne McLellan declined to be interviewed about
Canadian legislation on illegal drugs.

Canada Customs is planning to create a system to track suspicious
travellers by requiring airlines to assemble personal information on every
person who travels to Canada and forward it to Customs before a plane
touches down.

Information would include gender, citizenship, frequency of flying, place
of origin and so on. If these happen to fit Customs' "profiles" of drug
couriers, the person in question could be subjected to special attention.
Customs initially planned to demand even more information, such as a
traveller's income, ticket class and dietary needs, but backed down when
the federal Privacy Commissioner objected.

The federal government is also 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 War on Drugs and the money laundering linked
to it, along with gambling and prostitution.

For those concerned with civil liberty, the cancer spawned by drug
prohibition looks relentless and frightening. Ira 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. "That itself, in its enforcement, creates huge secondary problems."

It is impossible to enforce drug prohibition without eroding civil
liberties. 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," says Mr. Glasser. 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."

Dan Gardner is a Citizen editorial writer

Ran with factboxes entitled, "Rights and wrongs" and "Losing the War on
Drugs" which have been appended to the end of this story.

The Justice Ministers' Plan Also Calls For:

- - Research to identify the sources of offensive violence in youth-oriented
media.

- - Development of a national awareness campaign to assist parents, teachers
and youth in helping reduce the impact of violent media images on children.

- - Examination of issues relating to exposure of children and youth to media
violence through the Internet.

Ministers also endorsed a proposal from Manitoba to make it an offence to
use computer networks to lure children for the purpose of committing an
assault or other such crime on them. "People are entering our homes, not
through the front door, but through the Internet now," said Gord
Mackintosh, the Manitoba attorney general.

B.C. also strongly backed the initiative. Ms. McLellan had said prior to
the two-day meeting that she was open to introducing the new provision.

Rights and Wrongs

The U.S. Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

Canadian Charter of Rights and Freedoms, Section Eight

Everyone has the right to be secure against unreasonable search or seizure.

Section 462.2 of the Canadian Criminal Code:

Every one who knowingly imports into Canada, exports from Canada,
manufactures, promotes or sells instruments or literature for illicit drugs
use is guilty of an offence and is liable on summary conviction

a) for a first offence, to a fine not exceeding one hundred thousand
dollars or to imprisonment for a term not exceeding six months or to both; or

b) for a second or subsequent offence, to a fine not exceeding three
hundred thousand dollars or to imprisonment for a term not exceeding one
year or both.