Joe Biden’s War – Part 6 – Civil Liberties

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“It behoves every man who values liberty of conscience for himself, to resist invasions of it in the case of others: or their case may, by change of circumstances, become his own.” – Thomas Jefferson

Last summer, Prince George County Police in Maryland intercepted a package containing 32 pounds of marijuana that was addressed to a local woman. On July 29, undercover police officers went to the residence as part of a SWAT team to deliver the package. An older woman first came to the door and told them to leave it on the porch. Soon after, a middle-aged man who’d been walking his dogs picked up the box and put it inside.

With that, the police made their move. They invaded the home, quickly shooting a potentially dangerous dog, then another. They kept the suspects cuffed until they had enough time to search the home for evidence. Eventually, the police left without being able to make any arrests. Why? Because the person whose home had been invaded was Cheye Calvo, the mayor of the town of Berwyn Heights. He and his family were completely innocent of any crimes.

Instead, a FedEx employee and his accomplice were soon arrested and charged with a scheme to send illicit packages to random addresses and immediately intercept them. Unfortunately for Mayor Calvo, his wife, his mother-in-law, and their two beloved black Labradors, the police didn’t figure this out until sometime after they crashed through their front door and handcuffed them for several hours as their once playful dogs bled to death from bullet wounds a few feet away.

What’s worse, even after it was obvious that the Calvos weren’t involved in any drug trafficking schemes (nothing was found in his home to indicate that the illicit package was meant for his wife), the County Sheriff’s Office continued to insist that they were “persons of interest” for over a week. To this day, the police still have yet to apologize for shooting their dogs, or for acknowledging any mistakes on their part.

More amazingly, when Mayor Calvo later started to take steps to get justice for the actions of the invading officers – who he says chased down and shot one of his dogs as it was scared and running away – a SWAT team member from Wisconsin wrote a letter to the National Review defending the actions of the police and criticizing the mayor for making such a big deal out of this.

Just as Thomas Jefferson envisioned a free America.

At the founding of this country, Jefferson and others had a vision for a nation where individual rights were solidly protected from potential abuses by the government. They created a Bill of Rights whose intent was to provide a set of basic rights for individuals that would serve as an obstacle to any government intent on violating the free will of its citizens, whether it was related to their words, their religious affiliation, or their political leanings. This set of rules has been fundamental to how America became the place where people escaped from tyranny to found a better life, and subsequently became the most powerful and wealthy nation on the planet. The modern drug war, however, has put many of these rights, and America’s reputation as a land of freedom, in peril.

The 4th Amendment states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The invasion of the Calvo’s home was far from an isolated incident in America today. Even the Mayor himself, who admitted he’d paid little attention to the drug war before he became one of its countless victims, quickly recognized that while his situation was reported on throughout the country’s papers, when these raids target people in poorer neighborhoods, they often remain hidden.

Radley Balko, Senior Editor of Reason Magazine, has been documenting the increasingly militaristic approach to the drug war for a number of years. Over the past two decades, the use of SWAT teams to enforce drug warrants has skyrocketed. The initial rationale for using SWAT teams in law enforcement was to diffuse potentially dangerous situations, like hostage takings. Today, however, these units are used far more frequently than that, often to arrest people for low-level drug offenses. Balko’s white paper from 2006 , “Overkill,” detailed the incredible overuse of these invasions, primarily in low-income areas.

The tragedies listed throughout “Overkill” are far too numerous to list here, but the trend continues. SWAT teams still routinely carry out home invasions against average drug suspects. It’s not uncommon for these invasions to target completely innocent people, as happened not only with the Calvo’s, but also with 92-year-old Kathryn Johnston of Atlanta, who was gunned down last year by police whom she mistook for robbers.

Beyond the massive uptick in police home invasions, the 4th Amendment has been watered down in several other ways. Through a number of court decisions, it’s now far easier for police to search a person’s car or other personal belongings. Confidential informants who provide evidence that lead to SWAT team raids have often been untrustworthy individuals with ulterior motives. Entrapment is a common tactic in the drug war, sometimes sending young people to jail for unwittingly helping an undercover cop in their school obtain drugs. Just this month, the Supreme Court gave prosecutors greater ability to use evidence obtained in an improper search, another in a long line of exceptions to what used to be unquestioned principles.

It hasn’t been solely law enforcement who’ve pushed this trend, but judges, prosecutors, and politicians, who have repeatedly failed to question the traditional wisdom about the relative dangers of both drugs themselves and the prohibition of drugs. In the 1980s, as this escalation began, drugs were repeatedly declared as one of the greatest threats to our liberty as a nation. The logic behind these proclamations was absurd even then, but as the years have gone by, it’s become more and more obvious that the methods required to completely eliminate drugs from our society are far more of a threat to our liberty. Today, it’s far harder to say that we’re still secure in our persons, houses, papers, and effects, yet politicians still rarely dare to question the idea that the drugs that millions of American adults continue to take are the bigger threat.

The weight that this has put our criminal justice system under is starting to impact another one of our basic rights. The 6th Amendment states that:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Over a series of court rulings from the 1930s through the 1970s, the right to counsel has been guaranteed to any defendant facing a potential jail sentence, whether in federal or state courts. But as the number of people we’ve been sentencing to jail since then has jumped exponentially, the budgets for providing public defenders have been stretched to the breaking point all over the country.

In November, the New York Times reported that public defenders’ offices in seven states have been refusing to take new cases, or have sued to have the numbers of cases sent to their office limited. The state of New Hampshire has been forced by shrinking budgets to put a freeze on jury trials in February. Instead of getting adequate representation or a trial by their peers, defendants in drug trials across the country are being pushed into taking unfair plea bargains or given inadequate counsel. And thanks to legislation pushed through by Joe Biden, many drug defendants can have their assets seized, even if they have yet to be convicted of any actual crime. These powers have contributed significantly to the already alarming 7 million Americans who are now in jail, on probation, or released on parole. This is an economic problem now as well as a human rights and Constitutional one.

With the need to reduce budgets in this economic climate only getting more pressing, the ability for our criminal justice system to provide an adequate defense for the hundreds of thousands of people who get arrested for major drug crimes every year – over 800,000 Americans were arrested for marijuana offenses alone in 2008 – is at a clear breaking point. Sadly, only one member of the United States Senate, Senator Jim Webb of Virginia, has even raised this as an issue that our government needs to address. For the vast majority of our elected representatives, the fear of delving into a touchy political issue still outweighs working to avert an impending disaster.

Finally, the 1st Amendment is not immune from the drug war’s reach. It states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Several aspects of this fundamental principle have been affected by our nation’s jihad against drugs. Native Americans who’ve long used psychoactive substances in their religious rituals have had to fight in the courts to maintain the free exercise of such activities. They’ve recently been able to come out victorious, but the law continues to maintain strong distinctions between the free exercise of religion and the use of mind-altering substances within a religious setting, whenever the sincerity of the religion can be doubted.

And in a high profile case last year, an Alaska student who was punished for displaying a banner with the words “Bong Hits 4 Jesus” fought his suspension all the way to the Supreme Court and lost. The desire to preserve an educational environment where drugs are too dangerous even to make jokes about outweighed a young man’s freedom of speech. That was arguably a minor case and not something that keeps most people up at night, but there continues to be an atmosphere where speaking one’s mind concerning drugs and the drug war is seen as a threat.

This month, the El Paso City Council unanimously passed a resolution asking to look at legalization as an option for combating the violence across the river in Juarez, Mexico, which had over 1,600 murders in 2008. In response, Democratic Congressman Silvestre Reyes and other local officials warned the council to retract the resolution or face the loss of federal funding. Enough members of the City Council were cowed by the threats that they were split 4-4 in an attempt to override the Mayor’s veto.

The drug war violates the spirit of the 1st Amendment in ways that we remain reluctant to talk about. Our belief that the sole act of taking mind-altering substances is a special or unique threat different from other forms of self-expression is not grounded in anything substantive. It’s a faith-based belief that few Americans openly challenge, but tens of millions of Americans clearly know to be false. One can argue that drugs are dangerous if one were to drive a car. That’s true, but we’ve made drunk driving illegal without having to keep all forms of alcohol outlawed, and hardly anyone believes that a return to alcohol prohibition is a smart alternative.

The 1st Amendment attempts to guarantee Americans free will, the ability to establish our own moral compass without interference from the government. The drug war is premised on the belief that our free will can be dangerous – that there are freedoms that are too perilous for us and can lead to the destruction of society itself. Jefferson’s quote above still continues to be a relevant warning against that kind of thinking.

I’m not a lawyer. I can’t claim to know all the precedent that went into the court rulings that have come down in the past three decades that have slowly ripped away some of our basic rights. But we’ve seen a slow progression towards what many of us see in various police states around the world – armed forces charging into homes, the lack of a functioning system for trying people properly, and a massive prison population that now surpasses any other on the planet by far. And amidst all these warning signs, companies like Blackwater have been angling for roles to participate in the drug war right here at home.

While I’m not a lawyer, my own background has certainly played a part in pointing me towards these conclusions. Since leaving college with an Engineering degree in the late 1990s, I’ve tested flight controls at Boeing and office productivity software at Microsoft (among other things). My career has focused primarily on identifying flaws in very complex systems. Like many who’ve had political awakenings during the Bush years, though, I’ve become drawn to the deteriorating situations that we now face as a nation – with our foreign relations, our economy, and the growing divide in America between the haves and the have-nots. I come away from this exploration with a strong belief that the way we treat drugs in our society is a central flaw in many of these failings.

I certainly can’t say that the drug war is the only factor in these problems, but I’m struck by how it’s not just a major one, but one that we remain totally incapable of discussing openly and honestly. This unbalanced approach to the drug war has been the norm from the 1980s, when Joe Biden helped create a Drug Czar’s office that was mandated to take one side in the legalization debate and treat the other side as if it were an act bordering on treason. It may seem hard to believe that even as recently as 1976, Jimmy Carter ran for President with the decriminalization of marijuana as part of his platform. And he won.

It’s that fear of open discussion that still hangs like a dark cloud over this issue and allows it to do so much damage – with only minimal attention from the national media to boot. The Constitution itself doesn’t completely settle the debate between a criminal justice approach to drug addiction or a harm reduction approach. Science, past results, and simple common sense does. But the fact that our criminal justice system has so thoroughly eroded our Constitutional rights, and the fact that the people who’ve established this drug war dogma have had to resort to squelching free speech in order to maintain it, should be an awfully strong clue about the damage it’s doing.

America has long been seen as a leading force when it comes to protecting civil liberties. Even if it hasn’t been perfect itself, it’s been a place that the rest of the world has looked up to for moral certitude and principled resistance to tyrannical governments. During the Cold War, we were champions of the free world, fighting against a Soviet Union that locked up political dissidents in gulags and denied its citizens the kinds of basic rights that Americans enjoyed. It’s not controversial to point out – especially in the last eight years – that these positive perceptions have been dealt a serious blow, but a particular contrast arose this year that demonstrated in a unique way how we’ve managed to turn even the old Cold War dynamic on its head.

This past summer’s brief conflict between Georgia and Russia certainly showed this in one big way. Georgia started the war by invading the South Ossetian capital Tskhinvali, primarily because they sought to be independent of the government in Tbilisi. Russia launched a counter-attack, and a few weeks later recognized the independence of two breakaway republics, South Ossetia and Abkhazia. Some pointed out that this situation tended to mirror the way that we’ve defended Kosovo and declared it independent, and they’re right. We allowed ourselves to play the role of tyrant in what was once the justification for fighting the Cold War in the first place.

So how does the drug war fit into this? In October, the Hungarian Civil Liberties Union released a report and video about how the drug war is waged in Georgia. In a country of between 4 and 5 million people, they’ve been arresting over 50,000 people every year for drug offenses. And they make no distinction between drug use and drug trafficking. Georgian police need no evidence other than a suspicion of guilt before hauling a person off to jail for a mandatory drug test. Peter Sarosi of the HCLU reported that 62% of the people arrested for drug use in 2007 tested negative. In other words, nearly 1% of the entire country of Georgia was arrested, taken to jail, and forced to take a drug test…which they then passed.

In one year.

Of course, I’m not arguing that Russia is the most liberty-protecting place on Earth. That would be foolish. Moscow still has a horrendous record on democratic reforms, free enterprise, and especially freedom of the press. But in 2004, the once hard-line Russian Parliament went in the direction of Holland, Portugal, and Spain, and decriminalized drug use. They also eliminated jail sentences for those who were caught with small amounts of drugs. So in a conflict where many of our politicians fell back on Cold War stereotypes of good versus evil, we wound up supporting not only the aggressor, but a nation who was annually locking up over 1% of its population for something that isn’t even a crime just across the border in Russia.

Unlike his experience in foreign policy and his knowledge of the Middle East (which I’m often impressed by), Joe Biden’s history as a drug warrior likely wasn’t a factor in him becoming Vice President. But as he sets out to play a very critical role in advising a President who might be scrutinized like no other, will he be a continual stumbling block for the reform we desperately need on this front? Will he be the devil on Barack Obama’s shoulder about the drug war in the same way that Dick Cheney was the devil on George Bush’s shoulder about the war on terror?

I have no idea where Joe Biden got the idea to use the old Russian term “czar” for the job of reducing America’s drug problems. It was an odd choice for a government post in a nation still waging the Cold War. We took aim at the “enemy” in this war, only to find out a generation later that the gun was pointed at ourselves the entire time. The “war on terror” followed the same dynamic. Yet despite the fact that terrorism is a more ominous threat than drugs, Americans tended to grasp the consequences of going down the authoritarian path in that “war” more than we ever did when it came to drugs. We need to recognize that the dangers of both are the same.

Czar Nicholas II, the last czar of Russia, once said “There is no justice among men.” He spent his rule making this statement a self-fulfilling prophecy, maintaining a massively repressive regime. In fact, he presided over the era in which most of my own great-grandparents fled Russia and came to the United States. America’s reputation had been built on being the antidote to that belief, that we can build a land where justice is not only attainable, but a right. Instead, we find ourselves today with a dire need to restore that reputation, both at home and abroad.

In Mexico last week, a drug suspect is claiming to have dissolved 300 bodies with chemicals near the United States border. Afghanistan is set to become a larger-scale conflict with heavier casualties. And cities and states across the country are trying to figure out how to maintain their justice systems on thinner budgets. None of these problems will be solved by a “czar.” They will be solved by focusing on science, rejecting the politics of fear, and treating our fellow man with dignity. Joe Biden was instrumental in ushering in an era where open discussion about this topic was treated as a threat. Now, as he assumes the second highest post in this nation, it’s imperative that he recognize that it’s the lack of an open discussion about this issue that’s the real threat.