Thursday, July 25, 2002

By Glenn Harlan Reynolds

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But how can we trust our government to spot terrorists when it thinks that glow sticks are items of "drug paraphernalia?"

This sounds like a joke, but it isn't. Last year, the Department of Justice and the DEA tried to prosecute concert promoters in New Orleans under the federal "crackhouse law." That law makes it a felony to maintain a building or facility for the purpose of drug consumption. Traditionally, the law has been applied to places that are, well, crack houses. But — calling glow sticks and bottled water "drug paraphernalia" — then-U.S. Attorney Eddie Jordan attempted to jail three New Orleans concert promoters by reasoning that (1) people come to raves; (2) people who come to raves sometimes use drugs; (3) concert promoters must know this (especially in light of the presence of "drug paraphernalia"); and so, (4) a rave must be an event that takes place "for the purpose of drug consumption" under the law.

The federal district court made short work of this claim, dismissing the charges and calling them a violation of the First Amendment. But that hasn't stopped our drug warriors.

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Now Sen. Joe Biden, D-Del., has introduced a bill (the "Reducing Americans' Vulnerability to Ecstasy Act of 2002," cutely called "the RAVE Act"), also sponsored by Sens. Chuck Grassley, R-Iowa, Orrin Hatch, R-Utah, Patrick Leahy, D-Vt., and Richard Durbin, D-Ill. The bill would essentially write into the crackhouse statute the same approach already rejected by the district court in New Orleans. According to The Washington Post:

When he introduced the bill in June, Sen. Joe Biden, D-Del., said "most raves are havens for illicit drugs," and congressional findings submitted with the bill label as drug paraphernalia such rave mainstays as bottled water, "chill rooms" and glow sticks.

My three-year-old nephew is fond of bottled water and glow sticks, and usually needs a "chill room." Presumably Biden regards him as a dangerous criminal.

The RAVE Act should, all by itself, serve to explode Democratic claims that it's only the Republicans who pose a danger to civil liberties: nothing in the Bush administration's anti-terror plans would criminalize bottled water. Unfortunately, the RAVE Act (what is it with these cutesy acronyms, anyway?) also suggests that there's a lot of raving going on in Washington — raving lunacy.

The real story is that federal law enforcement efforts against ecstasy have proved impotent. Frustrated by this failure, they've targeted electronic music concerts ("raves") not because they're especially important targets (they're not) but because they're easy, and public, targets.

Unable to endure the continuing evidence of drug-war failure, the drug warriors are lashing out, hoping that the ignorant will be convinced that they're earning their pay. Congress is playing along because, basically, Congress isn't up to the job of riding herd on the massive drug-war bureaucracy.

The drug war has been a massive failure: a waste of money, of lives and of time. It's also been accompanied by extensive inroads on traditional American freedoms: property forfeitures, "no-knock" searches, expanded wiretap authority, and the destruction of financial privacy, to name just a few.

These are inroads that have served the agendas of bureaucrats but that haven't done anything to solve the problem that was claimed as their justification. And the drug war's combination of intrusiveness, corruption and ineptitude calls into question the government's ability to carry out the war on terrorism.

Will the drug war serve as a model for the war on terrorism? Some within the federal bureaucracy seem to think it should, and it's easy to understand why: The drug war may have been a disaster for America, but it has been a three-decade gravy train for bureaucrats. And if Congress can't ride herd on the drug war bureaucracy, it probably won't be able to oversee the terror-war bureaucracy either.

Not being a bureaucrat, I think the drug war is a terrible model. In fact, I think it's an argument against creating a Homeland Security bureaucracy at all. If we can't trust the government to tell a glow stick from a hypodermic needle, then I don't think we can trust it to tell the difference between an American and a terrorist.

I'm willing to support an invasion of Iraq and of other enemy nations like Saudi Arabia or Syria. I'm not willing to support an approach that will turn the United States itself into an occupied country — something the drug war crowd has come a long way toward doing on its own.

Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com . He is co-author, with Peter W. Morgan, of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society ( The Free Press, 1997 ).