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

• Author: Wisotsky, Steven

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.

Ironically, just as the winds of freedom are blowing throughout central and eastern Europe, most Americans and the nation's politicians maintain that the solution to the drug problem is more repression - and the Bill of Rights be damned. As Peter Rodino, former chairman of the House Judiciary Committee, said in expressing his anger at the excesses of the Anti-Drug Abuse Act of 1986, "We have been fighting the war on drugs, but now it seems to me the attack is on the Constitution of the United States."

In the beginning, the War on Drugs focused primarily on supplies and suppliers. Control at the source was the first thrust of anti-drug policy - destruction of coca and marijuana plants in South America, crop substitution programs, and aid to law enforcement agencies in Colombia, Peru, Bolivia, and Mexico.

Because this had no discernible, lasting success, a second initiative aimed to improve the efficiency of border interdiction of drug shipments that had escaped control at the source. There, too, success was elusive. Record numbers of drug seizures - up to 22 tons of cocaine in a single raid on a Los Angeles warehouse, for instance - seemed only to mirror a record volume of shipments to the U.S. By 1991, the amount of cocaine seized by Federal authorities had risen to 134 metric tons, with an additional amount estimated at between 263 and 443 tons escaping into the American market per year.

As source control and border interdiction proved futile, a third prong of the attack was undertaken: long-term, proactive conspiracy investigations targeted at suspected high-level drug traffickers and their adjuncts in the professional and financial worlds - lawyers, accountants, bankers, and currency exchange operators. This has involved repeated and systematic attacks by the Federal government on the criminal defense bar, raising dark implications for the integrity of the adversarial system of justice. Defense lawyers have been subjected to grand jury subpoenas, under threat of criminal contempt, to compel disclosures about their clients. Informants have been placed in the defense camp to obtain confidential information. In each instance, the effect has been to undermine the protections traditionally afforded by the attorney/client relationship. This demonstrates the anything-goes-in-the-War-on-Drugs attitude of the Department of Justice, which publicly defended using lawyers as informants as "a perfectly valid" law enforcement tool.

As these expanding efforts yielded only marginal results, the war was widened to the general populace. In effect, the government opened up a domestic front in the War on Drugs, invading the privacy of people through the use of investigative techniques such as urine testing, roadblocks, bus boardings, and helicopter overflights. Those are dragnet methods; to catch the guilty, everyone has to be watched and screened.

Invading privacy

Drug testing in the workplace. Perhaps the...