Wiretapping. As a result of the War on Drugs, Americans increasingly are being overheard. Although human monitors are supposed to minimize the interception of calls unrelated to the purpose of their investigation by listening only long enough to determine the relevance of the conversation, wiretaps open all conversations on the wiretapped line to scrutiny. Court-authorized wiretaps doubtless are necessary in some criminal cases. In drug cases, though, they are made necessary because the “crimes” arise from voluntary transactions, in which there are no complainants to assist detection.
The potential is great, therefore, for abuse and illegal overuse. Stopping cars on public highways. It is commonplace for police patrols to stop “suspicious” vehicles on the highway in the hope that interrogation of the driver or passengers will turn up enough to escalate the initial detention into a full-blown search. Because the required “articulable suspicion” rarely can be achieved by observation on the road, police often rely on a minor traffic violation – a burned-out tail-light, a tire touching the white line – to supply a pretext for the initial stop.
In the Alice-in-Wonderland world of roving drug patrols, however, even lawful behavior can be used to justify a stop. The Florida Highway Patrol Drug Courier Profile, for example, cautioned troopers to be suspicious of “scrupulous obedience to traffic laws. ” Another tactic sometimes used is the roadblock. Police set up a barrier, stop every vehicle at a given location, and check each driver’s license and registration. While one checks the paperwork, another walks around the car with a trained drug-detector dog.
The law does not regard the dog’s sniffing as the equivalent of a search on the theory that there is no legitimate expectation of privacy in the odor of contraband, an exterior olfactory clue in the public domain. As a result, no right of privacy is invaded by the sniff, so the police do not need a search warrant or even probable cause to use the dog on a citizen. Moreover, if the dog “alerts,” that supplies the cause requirement for further investigation of the driver or vehicle for drugs. Monitoring and stigmatizing.
In the world of anti-drug investigations, a large role is played by rumors, tips, and suspicions. The Drug Enforcement Administration (DEA) keeps computer files on US. Congressmen, entertainers, clergymen, industry leaders, and foreign dignitaries. Many persons named in the computerized Narcotics and Dangerous Drug Information System (NADDIS) are the subject of “unsubstantiated allegations of illegal activity. ” Of the 1,500,000 persons whose names have been added to NADDIS since 1974, less than five percent, or 7,500, are under investigation by DEA as suspected narcotic traffickers.
Nevertheless, NADDIS maintains data from all such informants, surveillance, and intelligence reports compiled by DEA and other agencies. The information on NADDIS is available to Federal drug enforcement officials in other agencies, such as the Federal Bureau of Investigation, the Customs Service, and the Internal Revenue Service. State law enforcement officials probably also can gain access on request. Obviously, this method of oversight has troubling implications for privacy and good reputation, especially for the 95% named who are not under active investigation.
Another creative enforcement tactic sought to bring about public embarrassment by publishing a list of people caught bringing small amounts of drugs into the US. The punish-by-publishing list, supplied to news organizations, included only smallscale smugglers who neither were arrested nor prosecuted for their alleged crimes. Military surveillance. Further surveillance of the citizenry comes from the increasing militarization of drug law enforcement. The process began in 1981, when Congress relaxed the Civil War-era restrictions of the Posse Comitatus Act on the use of the armed forces as a police agency.
The military “support” role for the Coast Guard, Customs Service, and other anti-drug agencies created by the 1981 amendments expanded throughout the 1980s to the point that the US. Navy was using large military vessels – including, in one case, a nuclear-powered aircraft carrier – to interdict suspected drug smuggling ships on the high seas. By 1989, Congress designated the Department of Defense (DOD) as the single lead agency of the Federal government for the detection and monitoring of aerial and maritime smuggling into the U. S.
DOD employs its vast radar network in an attempt to identify drug smugglers among the 300,000,000 people who enter the country each year in 94,000,000 vehicles and 600,000 aircraft. Joint task forces of military and civilian personnel were established and equipped with high-tech computer systems that provide instantaneous communication among all Federal agencies tracking or apprehending drug traffickers. The enlarged anti-drug mission of the military sets a dangerous precedent.
The point of the Posse Comitatus Act was to make clear that the military and police are very different institutions with distinct roles to play. The purpose of the military is to prevent or defend against attack by a foreign power and to wage war where necessary. The Constitution makes the president commander-in-chief, thus centralizing control of all the armed forces in one person. Police, by contrast, are supposed to enforce the law, primarily against domestic threats at the city, county, and state levels.
They thus are subject to local control by the tens of thousands of communities throughout the nation. To the extent that the drug enforcement role of the armed forces is expanded, there is a direct increase in the concentration of political power in the president who commands them and the Congress that authorizes and funds their police activities. This arrangement is a severe injury to the Federal structure of our democratic institutions. Indeed, the deployment of national military forces as domestic police embarrasses the US.
in the international arena by likening it to a Third World country, whose soldiers stand guard in city streets, rifles at the ready, for ordinary security purposes. The dual military/policing role also is a danger to the liberties of all citizens. A likely military approach to the drug problem would be to set up roadblocks, checkpoints, and roving patrols on the highways, railroads, and coastal waters, and to carry out search-and-destroy missions of domestic drug agriculture or laboratory production. What could be more destructive to the peoples sense of personal privacy and mobility than to see such deployments by Big Brother?