"The security of one's privacy against arbitrary intrusion by the police…is basic to a free society."
—Justice Felix Frankfurter, in Wolf v. Colorado (1949).
"If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
—Justice Louis D. Brandeis, dissenting, in Olmstead v. United States (1928).
In viewing the recently disclosed willingness of the Nixon administration to embrace extreme measures in the name of national security, it is pertinent to contrast the widespread acquiescence of the public towards encroachments on personal freedom which have regularly been taken by government in the campaign against drugs. The "Watergate mentality" has its genesis in the imperial attitude that government knows what is best for its citizens and may use any means to accomplish its ends.
The President's 1970 "intelligence operations" plan, devised for Nixon by Tom Huston, was not unique in providing for illegal entry and bugging against political dissenters. Authorization for surreptitious entry is expressly contained in the no-knock sections of the Drug Control Act of 1970.
Under the omnibus Drug Control Act, police officials are authorized to enter premises "without notice" by smashing down a door or breaking open a window if there is probable cause to believe a warning would lead to destruction of the drugs being sought or endanger a person's life.
The emotion and fear resulting from legitimate concern over drug abuse has given rise to a misplaced reliance on the criminal law to solve the drug problem, which has led to drastic intrusions into the privacy of the individual. Several recent widely-publicized instances of mistaken narcotic raids in which narcotics agents terrorized innocent families in their homes at night have now led to the convening of a federal grand jury to investigate the tactics of the federal Office for Drug Abuse Law Enforcement (DALE). DALE was set up in 1972 pursuant to an executive order in which President Nixon stated "The menace of drug abuse threatens to sap our Nation's strength and destroy our Nation's character. It must be combatted in a variety of ways.…"
Experienced prosecutors and criminal defense attorneys are well aware of the habitual use of illegal entry, unauthorized wiretaps and perjury by narcotics agents. It is fair to say that improper police practices have become a way of life in narcotics law enforcement, at least in part because of the inherent difficulties in apprehending "criminals" who violate laws which prohibit consensual conduct. Rather than having a victim who is anxious to come forward to disclose the commission of a crime and assist in apprehending the transgressor—as in the case of such crimes as assault, burglary and robbery—none of the participants in a "nonvictim" crime voluntarily come forward to assist the police.
The insidious effects of delegating to the police the task of prohibiting consensual conduct such as drug use, gambling and prostitution have given rise to habitual improprieties on the part of the police because of the inherent incapacity of the criminal law to deal with such conduct.
THE WATERGATE-NARC CONNECTION
In this context it is disquieting and perhaps instructive—although not really surprising—to focus on the Watergate-Narc connection. Many of those in the center of the sordid Watergate affair have served in drug law enforcement earlier in their careers. Dr. Michael R. Aldrich in the June 1973 issue of the AMORPHIA REPORT points out that G. Gordon Liddy, E. Howard Hunt, Egil "Bud" Krogh, John Ehrlichman, John J. Caulfield, John Dean, III, Richard Kleindienst, Bernard Barker and John Mitchell all appear to have had some involvement in narcotics work, ranging from Operation Intercept and Operation Cooperation, to Operation Eagle in 1969, to a variety of other enforcement activities against drug traffic. The propensity of these individuals to participate in the Watergate bugging and coverup seems quite natural when viewed against their background in narcotics law enforcement and its unsavory aspects.
As noted in the above quotation from Justice Frankfurter's opinion in Wolf v. Colorado, "The security of one's privacy against arbitrary intrusion by the police…is basic to a free society." In a free society, education and persuasion are the only proper means of attempting to change private conduct which does not infringe the rights of others. For those who seek by the coercive means of the criminal law to impose their morality on others, the limitations of the criminal process in trying to cope with undesired types of consensual conduct is a formidable obstacle.
If respect for personal rights is to be preserved, the government must be constrained from outlawing consensual conduct and from intruding on privacy. The result of government intrusion on private conduct points us in the direction of the police state. Breaking and entering is a way of life only for those who lack respect for personal freedom. Let us hope that one of the positive effects of Watergate may be to lead us away from the police state and into the realm of freedom.