A Threat to Freedom?

By Richard Lacayo

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.

With reporting by Scott Brown/Los Angeles and Barbara Dolan/Chicago