In the recent movie True Believer, James Woods plays Eddie Dodd, a lawyer who once defended high-profile '60s protestors and now represents drug dealers who drive Porsches and pay cash. How could he sell out his ideals like that? asks a young law school grad who comes to work for Dodd, expecting the crusading hero he read about in law school. In a line the scriptwriters may or may not expect the audience to buy, Dodd replies that he hasn't sold out, that the battle for constitutional rights is now being fought in drug cases.
Cynical and fictional though he is, Dodd is right. More and more, Americans are being asked to sacrifice essential liberties to secure temporary safety from the "scourge of illegal drugs."
Over the last several years, the Supreme Court has steadily weakened citizens' Fourth Amendment protections against government searches. Considered in isolation, some of the decisions seem reasonable—why shouldn't the police be able to search people's curbside garbage, when anyone who wants to can carry it away? But the trend is ominous. Again and again, the Court has diluted the need for warrants or probable cause, and always in the name of fighting drugs.
It has, for example, declared that having a police helicopter hover only 300 feet above your yard doesn't constitute a search and therefore doesn't require a warrant. Now, I live near a police station that regularly dispatches helicopters to pursue suspects, and I know from firsthand experience that there are few things more intrusive than having a helicopter circle your house with a giant spotlight in the middle of the night—even when it turns out to have the wrong address. To allow such invasions of private property without a search warrant obliterates both the spirit and the letter of the Fourth Amendment.
More recently, the Court has upheld blanket drug testing of both Customs Service employees and railroad workers involved in accidents, even when there is no reason to suspect a particular person of using drugs. Indeed, Customs officials acknowledge that there is no drug problem among their workers and that drug tests of 3,600 employees have turned up only five positive results.
The government's only real reason for requiring such invasive tests, concluded Justice Antonin Scalia in his dissent, is to set an example of antidrug vigilance: "What better way to show that the Government is serious about its 'war on drugs' than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity?…I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search."
Nor has the erosion of liberties been limited to court decisions or to the Fourth Amendment. Drug czar William Bennett, whose very title connotes absolute power, made headlines when he analogized his position to Abraham Lincoln's, implicitly (some thought) advocating a suspension of habeas corpus rights. While Bennett did not actually call for abrogating that constitutional protection, he did declare that "the Constitution is not a suicide pact" and should be ignored when the end justifies that means. "This war is not for delicate sensibilities. This is tough stuff," he said.
So far, Bennett has used his czarist powers to block imports of semiautomatic weapons, even though drug dealers often prefer already-illegal automatic weapons. And he is asking for $80 million and extra police powers to fight drugs in the District of Columbia. Among the powers Congress is only too ready to grant is a curfew on young people. Going to or from a job will be the only legal reason for being outside after hours. Going on a date, running to the 7-Eleven for a snack, taking a walk—just generally exercising the fundamental right to be outside minding your own business—won't pass muster. And, of course, the curfew will undoubtedly ensnare more blacks than whites.
To try to wipe out the drug trade, we can give the police greater and greater powers and create new crimes, such as curfew violations, to yield new arrests. But the jails are already overflowing with drug suspects. In New York City, suspects caught in drug sweeps now spend three or four days in jail before being arraigned, versus a day and a night before the city created its Tactical Narcotics Teams (alias TNT). Courts there are so clogged that the Manhattan district attorney says he needs $3 million more just to hire enough attorneys and support staff to process cases. The jails are so crowded with prisoners waiting for trial that the city is going to turn its homeless shelters into makeshift jails.
The public hysteria over drugs is pushing the police to extremes. They are being called on to do the impossible—to rid a drug-loving nation of narcotics. Under such pressures, the police are bound to violate citizens' rights. Last year, for instance, two families in south-central Los Angeles experienced a terrifying ordeal, as police burst into their apartments, held them at gunpoint, ripped out walls and bathroom fixtures, shot up their television sets, and did tens of thousands of dollars of damage to the building in a futile search for drugs. The police department later admitted that the raid was uncalled for and violated department policy because it was led by low-ranking officers. In the current political climate, however, we can only expect such raids to become more common.
"History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure," wrote Justice Thurgood Marshall in his ringing dissent in the case involving the railroad-workers. Marshall is wrong on many things, but he is right about this.
This article originally appeared in print under the headline "Neither Liberty, Nor Safety".