TIME: Almanac 1993/TIME Almanac 1993.iso/time/091889/09188900.052

Text File | 1992-09-23 | 6.4 KB | 123 lines

                                                                                NATION, Page 28

A Threat to Freedom?


Civil liberties could be a casualty of Bush's war on drugs


    When George Bush outlined his new antidrug strategy last
week, he put the stress on bringing home the war on narcotics.
Zeroing in on domestic drug consumption, the President's battle
plan called for harsher penalties for users and stepped-up law
enforcement. In Canton, Ohio, officials have already taken a
step in that direction. Last month the city council passed a law
making it a crime for anyone to be in any area, including the
city's public parks, where drugs or drug paraphernalia are being
sold. There was just one problem: people merely passing through
a park where drug sales were taking place could be subject to
arrest.

    "The real victim (in the drug war) is going to be the
constitutional rights of the majority of citizens," complains
Harvey Gittler, executive director of Ohio's A.C.L.U. In
response to the objections of civil libertarians, the Canton
council is meeting this week to scale back its new ordinance.
But there are indications that Americans are in a mood to fight
drugs, even if that means sacrificing some constitutional
guarantees. In a Washington Post-ABC News poll last week, 62%
of those questioned said they would be willing to give up "a few
of the freedoms we have in this country" to reduce illegal drug
use significantly. Majorities said they favored mandatory drug
tests for all citizens, police searches of the homes of
suspected drug dealers without a court order, and random police
checks of cars on the highway.

    Though Bush added little that is new to the roster of
antidrug strategies, some of the approaches he emphasized are
likely to fuel further debate over whether constitutional
guarantees will be a casualty of the war against drugs. A decade
of stepped-up antidrug efforts has already left its mark on
American law and life. Powerful state and federal forfeiture
laws permit the confiscation before trial of virtually any kind
of property remotely involved in or "intended for use" in drug
transactions. Drug-sniffing dogs search hallways in Houston
public schools. Public housing officials in some cities have
evicted the families of suspected drug users. Already, 43% of
all businesses with 1,000 employees or more have drug-testing
programs.

    In his speech last week, Bush called for even more drug
testing. But some legal scholars complain that random drug
testing of all employees, whether or not they are suspected of
using illegal substances, disregards the venerable notion of
"probable cause" -- that a search can be triggered only by a
well-founded suspicion of criminal action by a particular
individual. "When you start saying a search satisfies the Fourth
Amendment even though it's not based on any focused suspicion
at all, you've ripped the heart out of the Fourth Amendment,"
insists University of Michigan law professor Yale Kamisar.

    During its most recent term, the Supreme Court for the
first time outlined the situations in which workplace drug
testing would be permissible. The court approved testing for
railway workers involved in major accidents and for customs
employees seeking jobs that involve narcotics interdiction or
require them to carry a gun. Some civil libertarians were
encouraged by the fact that the rulings were narrowly crafted
to apply only to well-defined groups of workers, leaving open
the possibility that the court would not approve more
wide-ranging testing.

    But some legal experts have also begun to talk about an
emerging "drug exception" to the Fourth Amendment ban on
unreasonable searches and seizures -- a willingness by courts,
where drugs are concerned, to permit searches they might
otherwise disallow. In recent years, for example, the Supreme
Court has allowed expanded use of so-called drug-courier
profiles -- descriptions of a smuggler's characteristic behavior
and appearance -- as a basis upon which to stop and question
suspects, despite complaints that such profiles give police
license to stop blacks and Hispanics. It has also upheld the
right of police to inspect a drug suspect's garbage without a
warrant. "There is a sense that what they're dealing with is the
rights of drug dealers," says UCLA law professor Peter Arenella.
"But they're dealing in all our rights."

    Law-enforcement officials maintain that fears of rampant
intrusions into privacy are exaggerated. "Concern that police
or federal agents will be searching everybody's trash is kind
of ridiculous," says Federal District Judge Robert Bonner,
former U.S. Attorney in Los Angeles. Administration drug czar
William Bennett says he was "infuriated" by criticisms last week
that the Administration's program relied too heavily on law
enforcement at the expense of treatment. Complains Bennett: "If
anything like this kind of situation were going on in the
suburbs, residents would raise holy hell and say, `Call in the
police!' But if we're talking about the inner city, people are
saying, `Well, this sounds repressive.'"

    Sometimes the push and pull between tough tactics and
constitutional requirements result in a compromise. For years,
drug dealers had made Chicago's public housing projects their
roosting ground, selling from apartments and raking the hallways
with gunfire during turf wars. Last September the Chicago
Housing Authority launched "Operation Clean Sweep." Housing
authority agents and police made surprise apartment visits
looking for unauthorized residents, many of them alleged drug
dealers who had moved in with girlfriends. But some inspectors
tended to treat tenants like students in a dormitory, demanding
that visitors leave by midnight and nosing through drawers, in
effect conducting searches without a warrant.

    A suit filed by the A.C.L.U. resulted last month in a
modification of those tactics. Visitors may now obtain guest
cards allowing them to stay in a building for as long as two
weeks. And housing agents and police have agreed to stop house
and body searches. But the sweeps go on, to the relief of
tenants. "It's so much better since the sweeps," says Delores
Wilson, president of a tenants group. "Before, you could hear
machine-gun fire all during the day." The danger is that as they
search for a way out of the drug crisis, many other Americans
would settle for a similar trade-off: less freedom for more
security.