HOW THE DRUG WAR IS ERODING OUR CIVIL LIBERTIES

Wiretapping, 'reverse-stings' all diminish citizens' rights


ORIGINAL ARTICLE

By Dan Gardner

 

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

Rights and Wrongs

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.

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.

 

 

 

 

 

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