The rights and wrongs of the wars on drugs and terror

by John MacBeath Watkins

One of the great disasters of the American experiment was the prohibition of selling alcohol. Making alcohol illegal simply made large numbers of people into criminals, and gave career criminals a steady source of income. Al Capone would have been a criminal without prohibition, but he would not have been as rich or as powerful.

In the Pacific Northwest, rum running was controlled by a former policeman named Roy Olmstead. Unlike Capone, Olmstead never allowed his men to carry guns. It was much better for business to have his rivals arrested by the police on his orders than to have them attract a lot of attention by killing his rivals.

Olmstead had so many politicians and police in his pocket he thought he was untouchable. He was brought down, in the end, by the then-new technology of wiretapping. Olmstead got a four-year sentence and an $8,000 fine, but he spent a substantial portion of his ill-gotten gains fighting for the principle that it was unconstitutional to wiretap without a warrant. In 1928, the supreme court ruled against him. The decision was overturned the year after his 1966 death, so that now, a warrant is required. But this was the beginning of the intrusive enforcement of the drug wars.

Alcohol prohibition ended in 1933, but it was only part of a larger effort to make all recreational drugs illegal. Many states made marijuana and other drugs illegal between 1900 and the end of Prohibition, and the United States led an international effort to make all opium, coco, and cannabis cultivation, production, transport and sale illegal. By 1937, the effort had largely succeeded.

Alcohol was the favorite drug of most Americans at the time. Germans felt particularly oppressed by prohibition, because beer was such an important part of their culture. Cannabis is commonly referred to by its Spanish name, marijuana. It was a drug favored by American Hispanics. Opium and cocaine were favored, for the most part, by lower-class people who found they could become euphoric at a lower cost with these drugs.

The German immigrants thought Prohibition was in some was an effort to make their culture (big on beer) illegal. Prohibition of other drugs that appealed to other subgroups was, to some extent, defining those groups as outsiders. And so, when those drugs were made illegal and the same sort of intrusive policing was applied to these groups, it did not worry most Americans, because they did not apply to them. Only after marijuana became widely used by middle-class whites did we see a movement to make marijuana legal.

From a practical standpoint, the war on drugs has been a disaster. It has been costly, it has ruined lives, and it has enriched criminals. It has also changed the way the nation is policed.

When there is a great deal of money in doing something illegal, people will take that risk. But illegal activities are not policed the way legal commerce is. I once knew a former smuggler who said he dropped out of the trade when everyone started carrying guns. I also met he former skipper, before and after that individual did time for getting caught with 2,500 lb of marijuana on his boat (he was caught before I met him.)

When an illegal trade turns violent, this increases the risk of enforcing the law. The result has been a more militarized police force, more likely to break down doors and throw stun grenades.

It has also led to some bad laws. For example, civil forfeiture, a process where police can seize vehicles or cash on the mere assumption that they were involved in the drug trade, which has resulted in some fairly questionable practices that have enriched police budgets. Funds from the seizures can be used for salaries, retirement funds, overtime, and a variety of other police spending priorities. Because it is a civil proceeding, no criminal conviction is required in most states, nor even a criminal charge against the person the property is seized from. In fact, in civil forfeiture, the agency seizing the property takes action against the inanimate object being seized.

Once they have alleged the inanimate object has taken part in a crime, prosecutors file a claim with a title such as The People vs. $10,000, and institute a civil action that lacks many of the protections of a criminal case. In the case of criminal forfeiture, the prosecutor would have to prove that the property being seized was the fruit of a criminal act or acts. In civil forfeiture, the burden is on the person whose property was seized, and in some cases if they challenge a forfeiture and lose, they must also pay the state's costs for defending the case.

For most of the history of the United States, civil forfeitures were rare, and used primarily when it was impossible to arrest the owner of the property. Use of civil forfeiture exploded during the 1980s as government at all levels ramped up its war on drugs. Even when the owner is present and could easily be prosecuted if there were proof of a crime, civil forfeiture is used to gain funds for police departments.

Seized property was worth $2.5 billion in 2010.

This has effectively become a back door for circumventing the Bill of Rights, in particular the 4th Amendment, which reads.

The right of the people to be secure in their persons, houses, papers, and effects,[a] 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

There are jurisdictions in this country where people cannot be secure in their effects, because a traffic stop can result in the seizure of their car and their cash. No evidence of criminal behavior need be present, only property that is sufficiently tempting, such as plenty of cash. Stops in many jurisdictions tend to disproportionately target African Americans and Hispanics.

It's pretty obvious that civil forfeiture provides incentives for police to seize property regardless of the likelihood it was the fruit of a crime. But this is only one of the corrupting influences on police departments from the war on drugs. Any quick on-line search will find fairly recent instances of police being indicted for stealing from drug dealers, because who are they going to call to report the crime?

I've seen the damage drugs can do. I'm not an advocate of their use. But we didn't get rid of prohibition because we thought alcohol did no harm, we did so because prohibition did more harm, eroding our liberties, enriching criminals, and corrupting our legal system. Now we deal with much of the harm alcohol does as a public health problem, and some of it in connection with specific harmful behaviors such as drunk driving.

How we are to deal with the problems created by drug use is not the purpose of this essay; I am more concerned here with how the drug war erodes our liberty. And it certainly is not the only threat. The war on terrorism has had a similar effect. And both are tied to cultural outsiders. We made illegal the drugs mainly used by minorities while re-legalizing alcohol, which was the drug of choice for most whites.

Terror again touched the tribal nerve. Conservatives who were in the forefront of advocating a war on terror that would target Muslim militants were outraged in 2009 when the Homeland Security Department issued a report on the threat of domestic terrorism by right-wing militants. The report said the threat was not restricted to hate groups, but said, “It may include groups and individuals that are dedicated to a single-issue, such as opposition to abortion or immigration,”

Nothing shocking there. After all, Eric Rudolph, an anti-abortion activist, confessed to four bombings, including the one at the Atlanta Olympics that killed a bystander and wounded 111 people. But the very notion that people on the right who set off bombs and killed people who were white, Christian, and conservative could be classed with Muslim militants because of the similarity of their acts was offensive to those on the right.

This reveals the tribalist element of their emotional reactions. After all, it is often those who worry most about Shariah law that insist the America is a Christian nation, and that its laws are based on Christianity. For such people, it is not merely the behavior, but the identity as well that matters in defining the enemy.

War, in general, is the enemy of freedom, because it causes frightened people to accept extreme measures. And war, all too often, brings out our tribalism and our prejudice against the groups we fight against. It is therefore terrible policy to have a “war” that cannot be won. Drugs will continue to exist and be abused no matter how we make war on it, because who is going to surrender? The drugs? Terrorism is a tactic, not a person, group, or government. It, too, lacks the capacity to surrender.