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In January, columnist Evan P. Schultz described our society’s counternarcotics efforts as a “war on drugs” (” Casualties and Cases of the Drug War“). He worried that civil liberties were “fall[ing] victim in the heat of battle.” The phrase “war on drugs” lends itself to a lot of such evocative rhetoric. But it distorts the truth. Those of us who enforce the nation’s drug laws don’t consider it a war, and we don’t treat civil liberties as acceptable casualties. That’s not the reality, and probably never was. The word “war” implies an all-out, sacrifice-everything crusade. Here are a few facts: The drug trade is backed by the largest criminal syndicates in the world, with billions of dollars in assets and sophisticated business networks, enhanced with the best communications, transportation, legal counsel, and political influence that money can buy. But the Drug Enforcement Administration’s budget is a mere $1.5 billion — about 25 percent less than the budget of a single county in Northern Virginia. Everything the federal government spends on drugs comes to about $19 billion, roughly one-third of which goes for education and treatment. Another significant amount pays for things that would be useful even if we didn’t have a drug abuse problem, such as alternative crop development in impoverished countries and the Coast Guard. All federal domestic narcotics enforcement totals about $9 billion. That’s not insignificant, and you won’t hear me complain. But contrast that with the total Department of Defense budget — $280 billion — and you tend to see my objection to the analogy. This isn’t a war. The billions in drug spending that don’t go to law enforcement point up another problem with the military analogy. We’re setting ourselves up to fail if we believe that this war can be “won” in the conventional sense. The public health threat of drug abuse requires counternarcotics efforts — prevention, treatment, and enforcement — that continue for a long time. STRIKING A BALANCE In the meantime, Americans are engaged in an ongoing debate over where to strike the balance between the right of the citizenry to be free from unreasonable search and the necessity of protecting the public from those who would prey upon us. No reasonable person wants the balance tipped to one extreme or another. It is impossible to defend every police practice in pursuit of drug crime, and I won’t. Some of them, such as racial profiling, are morally repugnant. I’m happy that we have an independent judiciary to strike down these types of practices. But in a society as large as ours, a few horror stories make too easy a target. A handful of cases can’t describe the true practices of the majority of policemen and women. The level of education, training, and professionalism in American law enforcement has increased over the last few decades. The federal agents and local police with whom I’ve worked are dedicated to doing their job the right way. They understand, they accept, and they follow appropriate, lawful procedures. Some of Schultz’s comments criticizing Supreme Court decisions simply reflect a lack of understanding about the practice of law in this area. For example, in Illinois v. Gates(1984), the Court did not “ease up the standard” for granting search warrants. It just acknowledged that there can be no formulaic recitation of factors to establish probable cause, but rather a commonsense decision as to whether, given all the circumstances, there is a fair probability that evidence of a crime will be found in a given place. Where there is insufficient indication of the basis of knowledge or the veracity of an informant, a search warrant based on that informant’s tip will not be granted both before and after Gates. Moreover, as with any balance between important but competing interests, the right decision sometimes favors one side and sometimes favors the other. I could cite a number of cases (in addition to those cited by Schultz) in which the balance has been struck in favor of civil liberties. Take the Supreme Court’s decision in Dickerson v. United States(2000), upholding the Mirandadoctrine (a position that was supported by the Justice Department and a number of other law enforcement agencies), or the Court’s decision in Flippo v. West Virginia(1999), rejecting the notion of a “murder scene” exception to the warrant requirement. CONGRESS CARES Schultz also could have looked to congressional efforts to find the happy medium. Last year, legislators passed asset forfeiture legislation that makes it more difficult for the government to seize drug assets it believes are tainted. And Congress’ reaction to the FBI’s e-mail intercept program, dubbed “Carnivore,” has been largely negative — out of concern for civil liberties. As yet another example, Congress, concerned about perceived prosecutorial abuses in several high-profile cases, enacted the so-called McDade Amendment in 1999. The amendment, which exposes federal prosecutors to the myriad of state ethical regulations, was passed despite concerns that it might restrict prosecutors too much. So today federal prosecutors in Oregon may not prosecute cases involving ordinary undercover drug buys — an indispensable investigative practice both constitutional and court-sanctioned — because of a state court interpretation of a state ethical rule. Narcotics enforcement does raise complex and important civil liberties issues. These are issues we take seriously. But thoughtful debate is not advanced by simplistic characterizations, superficial analysis, or absolutist positions. Moreover, respect for privacy and concern for individual rights are fundamental to the American character — and considerably more durable, even in the ranks of law enforcement, than Schultz believes. John Roth is chief of the Department of Justice’s Narcotic and Dangerous Drug Section and has been a federal prosecutor in Michigan, Florida, and Washington, D.C., for 14 years. The opinions expressed here are his own and not necessarily those of the Justice Department.

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