Jay Stanley

ACLU

June 2011 marks the 40th anniversary of President Richard Nixon’s declaration of a “war on drugs” — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world’s largest incarcerator. Throughout the month, check back daily for posts about the drug war, its victims and what needs to be done to restore fairness and create effective policy.

Wars have the effect of building the power of the government security establishment. World War I, World War II, the Cold War, and the “war on terror” helped transform America from a country that was deeply suspicious of standing armies, to today’s “Top Secret America” in which gigantic security agencies, shielded from public oversight by a veil of secrecy, have sweeping powers to spy on their own citizens.

These wars have transformed America from a place where most people’s interactions with employees of the federal government was limited to their postmaster, into one in which millions of citizens routinely face sometimes intimidating government agents checking their papers, ordering them about, searching them, groping their genitals, and putting their hands down their pants, as in today’s airline security lines.

The so-called “war on drugs” is no exception to this pattern. Future generations will look back on the “war on drugs” as a crude, barbaric and inhumane response to the social and public health problem of drug abuse. And they’ll look back with dismay at how our primitive “drug war” had ugly repercussions in so many areas.

One of those areas is the growth of government surveillance. The “war on terror” has been the primary driver of expanded surveillance in the past decade — but the “war on drugs” is sometimes overlooked as also having played a key role in eroding our privacy rights. It is a “war” that takes place not on some foreign battlefield, but in the lives of Americans — their homes, cars, phones, purses and bodies — and in fighting this war the authorities have found justification for extending their power into all such realms.

The result has been a ferocious assault on American’s privacy rights:

Electronic surveillance. The drug war has always been a central justification for more surveillance powers, from traditionally wiretapping through modern laws such as the 1990s telecom spying law CALEA. Sometimes government agencies also seek new powers by citing terrorism but mainly use those powers in attempts to wage the war against drugs. As researcher Chris Soghoian has pointed out, if you look at the latest (2009) government reports, more than 86 percent of law enforcement wiretaps were used as part of narcotics investigations. And after 9/11, the government insisted that it needed new powers to carry out “sneak and peek” searches to “avoid tipping off terrorists” — and was granted those powers by the Patriot Act. However, records show that only 3 of the 763 “sneak and peek” warrants obtained in 2009 were for terrorism probes, while over 60 percent were for drug investigations.

Prescription databases. As part of the battle against prescription drug abuse, most states have created prescription drug monitoring databases that collect and store the details of individuals’ medical prescriptions, which can then be checked by police, pharmacies and doctors for “suspicious” patterns. These databases are funded by the federal government which is also “prodding” them into linking the state databases together into a single distributed national database.

Financial monitoring. The war on drugs led to the creation of a sophisticated government surveillance system for the monitoring of financial activities — which was later expanded dramatically on the rationale of detecting terrorist financing. Laws require any business or tradesperson to report large cash transactions as well as a variety of other “suspicious” transactions to the government, which maintains a database of those transactions. As we detailed in this 2004 ACLU report, the government can also issue sweeping orders requiring financial institutions to check for records of particular individuals or organizations, and requires a broad array of businesses to check government financial black lists before doing business with anyone.

Use of military in law enforcement. The drug war ultimately represents a military solution to public health problems. Perhaps it is unsurprising then that it has contributed not only to the militarization of law enforcement as police officers increasingly adopt the tactics and equipment of soldiers, but also to a growing involvement of actual U.S. military forces in law enforcement missions. Congress has eroded the nation’s traditionally strict separation of the military from civilian law enforcement, and the military is authorized to “assist” police in enforcing drug laws by providing training, equipment, bases, intelligence and research to law enforcement. Soldiers are involved in combating foreign drug operations and patrolling the borders to keep out contraband, and National Guard aircraft search for marijuana fields across the U.S. and sometimes help storm suspected domestic drug houses. These precedents have also set the stage for military involvement in privacy-problematic Fusion Centers.

GPS tracking devices. The courts are divided on whether the authorities can place a GPS device on a person’s car without a warrant, but some courts have ruled that the police may use these tracking devices without probable cause that you’ve committed a crime. Many of these cases are drug investigations. And the implications are significant for all Americans, because how our courts rule on this question may well determine whether our location can be tracked with our cell phones by the government without a warrant.

Aerial surveillance. After police arrested a man for growing marijuana by flying over and photographing his fenced-in backyard, the Supreme Court in 1986 ruled 5-4 that we do not have Fourth Amendment privacy protection from warrantless naked-eye aerial observation of private spaces. This ruling may have broad repercussions as unmanned “drone” aircraft become cheap and common.

Aside from fueling routine surveillance, the drug war has of course had negative effects on our privacy in many other areas as well, from the terrorizing of school children with suspicionless, military-style drug sweeps (what kind of lesson does that teach children?), to broad programs of unjustified drug testing, to anti-privacy court rulings prompted by drug searches in a variety of areas from (highly fallible) drug-sniffing dogs to the right of the police to search through your garbage without a warrant.

Not only America’s real wars, but also its rhetorical “wars” have pushed us along our current path towards a surveillance society. The “War on Drugs” has had a lot of terrible effects — and this growth of routine surveillance in America is certainly one of them.

To understand the role that the “war on drugs” plays in feeding the power and budgets of our security establishment, imagine an America in which drugs were no longer against the law. A vast array of “criminal activity” would no longer be criminal. Subtract anti-drug activity, and subtract the war against terrorism, and what would our security agencies do with themselves? Sure there are always going to be other crimes — but the reduction in the mission of our security agencies would be dramatic. And that tells you why, separate from whether or not they may be necessary, the law enforcement and security establishment needs these “wars.”

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