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War, so the saying goes, is hell. And not just for soldiers in the line of fire. As no less an authority than Chief Justice William Rehnquist has noted, personal freedom is one of the casualties of war. In his 1998 book, “All the Laws But One: Civil Liberties in Wartime,” the chief justice wrote of the Civil War that “Lincoln and his Cabinet chose to suspend the writ of habeas corpus, interfere with freedom of speech and of the press, and try suspected political criminals before military commissions.” And, as the chief justice acknowledged, degradation of civil rights during wartime is not just a thing of the past. “There is no reason to think that future wartime presidents will act differently … , or that future Justices of the Supreme Court will decide questions differently from their predecessors,” Rehnquist wrote. Though we tend to forget it, America is now in the middle of a war — the one on drugs. This is a war that has been raging since at least the Nixon years, and that the Supreme Court has described by stating, “It is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods.” And, true to Rehnquist’s prediction, the Court may indeed be letting civil liberties fall victim in the heat of battle. Three cases involving alleged violations of civil rights resulting directly from the war on drugs have been argued so far this term. Three times the Supreme Court has been asked whether local governments violated the Fourth Amendment’s guarantees against “unreasonable searches and seizures” in their schemes to rack up more drug busts. DOGS OF WAR City of Indianapolis v. Edmond deals with roadblocks set up by city police. The cops put checkpoints in parts of Indianapolis that the police suspected had high levels of drug trafficking, posted signs warning that the roadblock was down the road, and then proceeded to stop each and every car that came on through. The police inspected a driver’s papers and, at the same time, led a dog around the car to sniff for drugs. Of the almost 1,200 people stopped, 55 were arrested for violating drug laws. In Ferguson v. City of Charleston, a public hospital established a procedure for testing pregnant women suspected of taking cocaine. If employees concluded that a woman who came in for prenatal care might be taking the drug (based on a list of criteria), they forced her to submit to a urine test. In some instances, newborn children were also tested. If a test came back positive, the mother was arrested or forced to enter a drug rehabilitation program and threatened with arrest if she failed to meet program requirements. The hospital did not keep records of the number of patients it tested. But of the 30 arrested, 29 were African-American. And in Illinois v. McArthur, a policeman had been tipped off that a man had marijuana in his home. While the officer was awaiting a search warrant, he barred the man from entering his own house unless escorted by the officer. (Another case worth noting is Kyllo v. United States, which the Supreme Court has accepted for review. The case turns on whether a cop performed an illegal search when he used heat-imaging technology to detect the presence of high-intensity lights for growing marijuana. A 2-1 majority of the 9th U.S. Circuit Court of Appeals held that the use of heat-imaging technology did not violate the Constitution. Judge John Noonan, dissenting, noted with keen understatement that “[a] variety of heat-producing activities can take place within the walls of a home” that most people would consider to be private. No one can seriously dispute that the procedures at issue in these cases are, to put it mildly, aggressive. As the Supreme Court has stated elsewhere, “There are few activities in our society more personal or private than the passing of urine.” The only debate here is whether the procedures are constitutional. But ultimately, the constitutionality of the searches is less interesting, and less important, than other questions that the cases raise. In Edmond, the Supreme Court in late November held that the roadblocks were indeed constitutionally impermissible. Justice Sandra Day O’Connor wrote in the majority decision, “Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.” The Court received wide praise for reaffirming the sanctity of the Fourth Amendment. “The Supreme Court last week drew an important line protecting privacy interests from the war on drugs by swatting down drug checkpoints run by the city of Indianapolis,” wrote the Washington Post editorial board. “The Supreme Court, in an important case last week, reaffirmed the fundamental Fourth Amendment principle that searches and seizures must be based on suspicion that a particular individual is engaged in wrongdoing,” agreed The New York Times in its editorial. But lost to all the well-wishers was the recognition that, if the facts of Edmond and the other cases were just a bit different, they would probably pose no constitutional problems at all. With the Indianapolis roadblocks, the main flaw may not even be what the police did, but how the city’s lawyers litigated. In his majority opinion for the 7th Circuit striking down the scheme as unconstitutional, then-Chief Judge Richard Posner stated that such roadblocks might be justified in cases involving “a flurry of drive-by shootings,” “threat of violence at a rally of motorcycle gangs,” and “Indian insurrection.” Which is to say, cases dealing with something approaching a real war. So, might the Supreme Court have upheld the policy if only the city had argued that the war on drugs had risen to the urgency of an armed conflict? With the urine-testing case, the state probably would win only if it had shown that the cocaine test was meant to advance a non-law-enforcement policy. Here the hospital tested the women only when it suspected them of using cocaine and then handed the results directly to the police. That starts to look a lot like law enforcement, meaning that the policy will probably be struck down as unconstitutional — especially in light of the Court’s holding in the roadblock case. But if the city had tested for a wider range of drugs, both legal and illegal, the case might have been on stronger footing. And if the police had charged the mothers with endangering their unborn children (instead of taking drugs), the government might have been on stronger Fourth Amendment ground (though such a tactic would, justifiably, have set off alarms regarding a woman’s right to bodily integrity and touched on abortion rights). BRAVE NEW WORLD So even if Edmond and Ferguson might not pass constitutional muster, their slightly altered, hypothetical counterparts probably would. This is not surprising because the war on drugs has already inflicted serious damage on the Constitution. To take one example, consider the Supreme Court’s 1984 decision in Illinois v. Gates. There, Rehnquist’s opinion for the Court adopted a new standard for granting search warrants, one that took into account the “totality of the circumstances” to discern whether an informant’s tip established probable cause. Gates thus overruled the Court’s prior — and stricter — standard. The earlier test required a magistrate to conclude that an informant’s tip revealed the basis of the informant’s knowledge, and that the veracity of the informant was established, in order to find probable cause to issue a warrant. And the facts in the case that led the Court to ease up the standard for issuing warrants? A couple was driving marijuana from Florida to Illinois. The key point is that, even if aggressive anti-drug tactics are legally sanctioned, they still hurt us all. On the trivial end of the scale, some people avoid eating poppy-seed bagels for fear (rational or not) of triggering a positive urine test. On the more serious side, indigent pregnant women, for whom prenatal care is already sorely lacking, might decide to stay away from hospitals altogether if they fear that they’ll be tested and confined as a result of their visits. And the effects of the drug war are not limited to what the federal and state governments do. Employers, for instance, now routinely demand urine samples from new hires. CRACKING US UP Most distressing, the war on drugs has tugged hard on the thread holding America’s diverse ethnic and racial communities together. Take the most vivid example — racial profiling in traffic stops. Remember, the cops aren’t harassing people to look for unsent tax returns. Because of the drug war, many predominantly black neighborhoods live under constant police surveillance. The overwhelming majority of pregnant women arrested in the Charleston case were African-American. And the roadblocks in Indianapolis were set up in high-crime areas — which is to say, most likely, in economically depressed neighborhoods where minorities live. It’s not hard to guess how affluent, white communities would react if they were subjected to the same treatment. Decades ago, speaking of the results of her country’s wars, the late Israeli Prime Minister Golda Meir said, “We may some day forgive the Arabs for killing our children, but we will never forgive them for compelling us to kill some of their children.” And us? We might, somehow, be able to win the war on drugs. But will we be able to forgive ourselves for doing it? Evan P. Schultz is associate legal editor at Legal Times.

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