by Steven Wisotsky

		[T]he history of the narcotics legislation in this
	country "reveals the determination of Congress to turn the
	screw of the criminal machinery - detection, prosecution and 
	punishment - tighter and tighter."

		We don't need [a search warrant].  We work in the
	drug department.

	Nineteen eighty-seven, the bicentennial of the Constitution, provides
an appropriate occasion to examine the condition and direction of
constitutional rights in the United States.  The framers of the Constitution,
animated by the spirit of William Pitt's dictum that "[u]nlimited power is apt
to corrupt the minds of those who possess it," carefully parcelled out
governmental power and controlled its exercise.  After ratification in 1787,
this central constitutional preoccupation with limiting governmental power
manifested itself in the call for the adoption of a Bill of Rights.
Disregarding the enigmatic, perhaps tautological ninth and tenth amendments,
the core of the Bill of Rights is a code of criminal procedure designed to
ensure fair treatment and make it difficult for the government to secure a
criminal conviction.  Beyond the realm of criminal prosecutions, the function
of constitutional guarantees, especially the first and fourth amendments, is to
carve out "zones of privacy" for the exercise of personal autonomy.  These
rights of self-expression and "privacy and repose" are essential "to secure
conditions favorable to the pursuit of happiness."
	This Essay traces the current retreat from the historic constitutional
mission of shielding citizens from governmental overreaching.  That retreat
results principally from continuing escalations in the paramilitary march of
the War on Drugs on our legacy of limited government and natural rights. Since
the early 1980s, the prevailing attitude has been that cracking down on drugs
is imperative.  As a result, the three branches of government have deferred
very little to constitutional and nonconstitutional limits on the exercise of
governmental power in the domain of drug enforcement.  What Laurence Tribe
describes as the Constitution's "pivotal, even mythological place in our
national consciousness" is rapidly being eroded by a positivist, bureaucratic
attitude that we can - must - do whatever is deemed necessary or expedient in
waging the War on Drugs.  This situation would be bad enough if the War on
Drugs worked effectively to control the supply of illegal drugs.  It is tragic
when the curtailment of "zones of privacy" is accompanied by the tripling of
cocaine imports to the United States, the emergence of marijuana as a leading
domestic agricultural product, and insistent demands for yet further
escalations in the War.
	The story begins on October 2, 1982, with a Presidential speech
denouncing illegal drugs: "The mood towards drugs is changing in this country
and the momentum is with us.  We're making no excuses for drugs - hard, soft,
or otherwise.  Drugs are bad and we're going after them."  President Reagan
continued this hard-line rhetoric in another speech that month, pledging an
"unshakable" commitment "to do what is necessary to end the drug menace" and
"to cripple the power of the mob in America."*

	*[The President called for (and got) more of everything: (1)
	more personnel - 1020 law enforcement agents for the Drug 
	Enforcement Agency (DEA), Federal Bureau of Investigation
	(FBI), and other agencies, 200 Assistant United States 
	Attorneys, and 340 clerical staff; (2) more aggressive law
	enforcement - creating 12 (later 13) regional prosecutorial
	task forces across the nation "to identify, investigate, and 
	prosecute members of high-level drug trafficking enterprises,
	and to destroy the operations of those organizations;" (3) 
	more money - $127.5 million in additional funding and a
	substantial reallocation of the existing $702.8 million budget
	from prevention, treatment, and research programs to law
	enforcement programs; (4) more prison bed space - the addition
	of 1260 beds at 11 federal prisons to accommodate the increase
	in drug offenders to be incarcerated; (5) more stringent laws -
	a "legislative offensive designed to win approval of reforms"
	with respect to bail, sentencing, criminal forfeiture, and the
	exclusionary rule; (6) better interagency coordination - 
	bringing together all federal law enforcement agencies in "a
	comprehensive attack on drug trafficking and organized crime"
	under a Cabinet-level committee chaired by the Attorney General;
	and (7) improved federal-state coordination, including federal
	assistance to state agencies by training their agents.]

	Legal scholars rarely pay much attention to Presidential rhetoric in
analyzing legal developments.  But, in this situation, it would be a serious
mistake to disregard the tough talk and political posturing.  Attitude, above
all else, drives the counterrevolution in criminal law and procedure.  The idea
that the end of "getting" drug traffickers justifies just about any means
seems an idea whose time has come.  One federal judge, in a 1977 opinion,
the evolving jurisprudence of hostility in condemning drug dealers as
"merchants of misery, destruction and death" whose greed has wrought "hideous
evil" and brought "unimaginable sorrow" upon the nation.  He concluded his
opinion by denouncing drug crimes as "unforgivable."  This attitude propels the
trend toward creating a drug "exception" to the law: if the conduct is
literally unforgivable, then draconian measures are justified.
	In this Essay, I will draw a somewhat impressionistic sketch of the
emerging "drug exception" to the Bill of Rights and other protections of
individual liberties.  Not only does the crackdown attitude penetrate every
aspect of the contemporary federal criminal justice system - legislation,
adjudication, investigation, and prosecution - it also reaches into lives of
ordinary people not accused of crime.  Ideas, after all, have power.


	To understand the power of the social forces at work in the War on
Drugs, it is critical to recognize that President Reagan (and later the First
Lady) did not try to impose a preachment from above upon an indifferent public.
Rather, they harnessed a preexisting momentum for a crackdown on drugs.  At the
time of his 1982 declaration of War on Drugs, some 3000 parents' groups had
already organized nationwide under the umbrella of the National Federation of
Parents for Drug Free Youth.  Within the government, the pressures for
Presidential action had been building for some time.  The Attorney General's
Task Force on Violent Crime had recommended "an unequivocal commitment to
combating international and domestic drug traffic."*  In the Senate,
twenty-eight Senators had banded together in the Drug Enforcement Caucus to
"establish drug enforcement as a Senate priority."  Finally, the House Select
Committee on Narcotics Abuse and Control had urged the President to "declare
war on drugs."  The President did just that.

	*[The call for the augmentation of drug enforcement resources
	was not unprecedented.  Under the Nixon Administration, a
	buildup in the size and scope of the federal drug enforcement
	bureaucracy also occurred.  At the end of June 1968, the 
	Bureau of Narcotics and Dangerous Drugs had 615 agents.  By
	June 1970, this number had increased to over 900.  Legislation
	had also authorized the addition of at least 300 more agents
	during 1971.]

	Energized by this hardening attitude towards illegal drugs, the
Administration acted aggressively, mobilizing an impressive array of federal
bureaucracies and resources in a coordinated - although futile - attack on the
supply of illegal drugs, principally cocaine, marijuana, and heroin.  The
Administration hired hundreds of drug agents and cut through bureaucratic
rivalries like no Administration before it.  It acted to streamline operations
and force more cooperation among enforcement agencies.  It placed the FBI in
charge of the Drug Enforcement Administration (DEA) and gave it major drug
enforcement responsibility for the first time in history.  And, as the
centerpiece of its prosecutorial strategy, it fielded a network of Organized
Crime Drug Enforcement Task Forces in thirteen "core" cities across the
	To stop drugs from entering the country, the Administration attempted
to erect a contemporary antidrug version of the Maginot Line with the National
Narcotics Border Interdiction System (NNBIS), a network designed to coordinate
surveillance and interdiction efforts along the entire coastline of the United
States.  As part of that initiative, NNBIS floated radar balloons in the skies
over Miami, the Florida Keys, and even the Bahamas to protect the nation's
perimeter against drug incursions.
	The CIA joined the war effort by supplying intelligence about foreign
drug sources, and NASA assisted with satellite-based information about coca and
marijuana crops under cultivation.  The Administration also initiated financial
investigations, aided by computerized data banks and staffed by Treasury agents
specially trained to trace money laundering operations.  The State Department
pressured foreign governments to eradicate illegal coca and marijuana plants
and financed pilot programs to provide peasant farmers with alternative cash
crops.  Mutual assistance treaties to expose "dirty" money secreted in tax
haven nations and to extradite defendants accused of drug conspiracies against
the laws of the United States were concluded.
	The government also literally militarized what had previously been only
a rhetorical war by deploying the armed forces of the United States in drug
enforcement operations.  The Department of Defense provided pursuit planes,
helicopters, and other equipment to civilian enforcement agencies, while Navy
E-2C "Hawkeye" radar planes patrolled the coastal skies in search of smuggling
aircraft and ships.  The Coast Guard, receiving new cutters and more personnel,
intensified its customary task of interdicting drug-carrying vessels at sea.
Finally, for the first time in American history, Navy vessels, including a
nuclear-powered aircraft carrier, interdicted - and in one case fired upon -
drug smuggling ships in international waters.  On a purely technical level, the
Administration could rightly claim success in focusing the resources of the
federal government in an historically large and single-minded attack on the
drug supply.
	What were the results of this extraordinary enforcement program?  It
set new records in every category of measurement - drug seizures,
investigations, indictments, arrests, convictions, and asset forfeitures. Yet,
despite the Administration's accumulation of impressive statistics, the black
market in drugs, especially cocaine, has grown to record size.  This rapid
market growth occurred in the face of President Reagan's doubling and
redoubling of the federal antidrug enforcement budget from $645 million in
fiscal year 1981 to over $4 billion in fiscal year 1987.*  This budgetary
expansion seems all the more remarkable when compared to the equivalent budget
for fiscal year 1969 of $73.5 million.  The social "return" on the extra
billions spent during that time has been a drug abuse problem of historic
magnitude, accompanied by a drug trafficking parasite of international
dimensions.  A web of black market pathologies, including cocaine cowboy
killings, corruption of public officials, and subversive "narcoterrorist"
alliances between Latin American guerrillas and drug traffickers, feed on the
mega-billions circulating in the drug underworld.

	*[Earlier this year (1987), the Office of Technology
	Assessment concluded:

	Despite a doubling of Federal expenditures on interdiction over 
	the past five years, the quantity of drugs smuggled into the
	United States is greater than ever .... There is no clear 
	correlation between the level of expenditures or effort 
	devoted to interdiction and the long-term availability of
	illegally imported drugs in the domestic market.]

	Of course, all of this was and is utterly predictable.  The attack on
the drug supply through an aggressive program of enforcement at each step -
interdiction, arrest, prosecution, and punishment - results in what Professor
Herbert Packer has called a "crime tariff."  The crime tariff is what the
seller must charge the buyer in order to monetize the risk he takes in breaking
the law.  The criminal law thereby maintains hyperinflated prices for illegal
drugs in the black market.  For example, $2-$3 gram of pure pharmaceutical
cocaine becomes a $80-$100 gram of 35 percent street cocaine.  This type of law
enforcement succeeds to some unknown extent in making drugs less available - to
the extent that demand is elastic or sensitive to price.  But it also pumps
vast sums of money into the black market, as much as $100 billion per year.
The flow of these illegal billions through the underground economy generates
pernicious pathologies that harm the security and well-being of the nation.
	Confronted by these threatening developments, both the public and the
politicians predictably react in fear and anger.  The specter of uncontrolled
and uncontrollable drug abuse and black marketeering leads to frustrated
reaction against the drug trade.  The zeal to "turn the screw" on the
"merchants of misery, destruction and death" leads directly to the adoption of
stringent, punitive measures that aggrandize governmental powers at the expense
of individual liberties.
	This reactive, almost reflexive growth of governmental power and the
correlative squelching of personal liberty are the framework for the next
sections of this Essay.  It focuses on two closely related if not inseparable
phenomena: (1) the government's sustained attack, motivated by the perceived
imperatives of drug enforcement, on traditional protections afforded to
criminal defendants under the Bill of Rights, and (2) the gradual but
perceptible rise of "Big Brotherism" against the public at large in the form of
investigative detentions, eavesdropping, surveillance, monitoring, and other
intrusive enforcement methods.

                          II.  THE ASSAULT ON JUSTICE


	In his original declaration of War on Drugs, President Reagan announced
a "legislative offensive designed to win approval of reforms"  with respect to
bail, sentencing, criminal forfeiture, and the exclusionary rule.  He succeeded
in almost every respect.  The Administration's march toward a tougher set of
investigative and prosecutorial powers drew much of its energy from the
widespread belief that the criminal justice system was treating drug
traffickers with excessive leniency.  For example, in 1981 the United States
Attorney for the Southern District of Florida (Miami) articulated that
perception in a written statement to the Attorney General:

		Currently, a first time offender associated with multi-
	ton quantities of marihuana, kilogram quantities of cocaine or
	tens of thousands of methaqualone tablets expects: not to be
	arrested; if arrested, to be immediately set free on bail pending
	trial; if tried to have representation by the best lawyers money
	can buy; if convicted, to remain free on bail pending appeals,
	all the way to the Supreme Court; if eventually sentenced, to
	receive a sentence of two, to three years and to serve less than
	10 months in "a clean well-lighted place" (perhaps even receive
	probation); and, when released after a few months in prison, to
	have millions of dollars in narcotics profits waiting.

	In short, the system was too soft in every respect.  What was needed,
according to this view, was a toughening of all phases of the criminal justice
system, from investigation and pretrial procedure to sentencing and the
appellate stages of a prosecution.  The goal of the crackdown was to make the
system more effective in catching drug violators, to facilitate their
conviction once indicted, and to punish them more severely upon conviction.
According to this theory, publicity about the heightened certainty of
conviction and the greater severity of punishment would deter others from
trafficking in drugs.  The drug supply would diminish and drug abuse would
therefore decline.  In other words, extending, expanding, and intensifying the
existing system of enforcement would correct the failures of the past, and the
drug control system would finally begin to work effectively.
	However simple-minded the analysis, it seemed to coincide with common
sense and soon prevailed.  In the late 1970s and early 1980s, representatives
of the DEA, Customs, and other enforcement agencies came before congressional
committees and repeated the theme.  Drug traffickers had a free hand because
enforcement agencies were underfunded, understaffed, and underequipped.  Not
only that, the agencies were hampered by excessively restrictive laws that tied
their hands in the fight against drug violators.  Representative Hutto, for
example, complained that federal law conferred too many protections upon
potential defendants: "[I]n the war on narcotics, we have met the enemy, and he
is the U.S. Code.  I have never seen such a maze of laws and hangups . . . . "
Legal obstacles to efficient investigative action needed to be removed.  The
entire Congress apparently shared that perception, becoming a prolific source
of antidrug initiatives.  In just the first year of the Ninety-seventh
Congress, over one hundred bills proposing to "reform" some aspect of the
criminal justice system were filed; more than three-fourths specifically
proposed harsher treatment for drug offenses or drug offenders.  Most of the
bills concentrated on restricting bail for accused drug offenders, followed in
frequency by proposals for mandatory or more severe sentences for convicted
drug traffickers.
	To facilitate conviction of those arrested, two bills proposed to
eliminate the exclusionary rule.  Two others proposed to dilute the rule by
adopting a "good faith exception" to the fourth amendment's warrant
requirement, a step partially taken in a drug case by the Fifth Circuit Court
of Appeals and later by the United States Supreme Court.  Other proposals
sought to toughen the laws on asset forfeiture and the reporting requirements
of the Currency and Foreign Transactions Reporting Act.  Congress actually
succeeded in curtailing restrictions on the use of the military forces in drug
interdiction under the Posse Comitatus Act and loosened the Tax Reform Act of
1976 to facilitate disclosure of IRS file information to other enforcement
	Apart from the sheer number of the proposed laws, this legislative
activity was noteworthy for its manifestation of a "get-tough,
do-whatever-is-necessary" attitude.  In its most reasonable form, legislators
voiced the matter as one of creating disincentives, of raising the ante.  They
would make the drug business riskier and therefore less attractive "by
significantly increasing the risk of conviction and certainty of long prison
sentences."  The crackdown showed its most pugnacious mentality in the proposed
Arctic Penitentiary Act, which proposed creating "an American Gulag" of remote
prison camps for drug offenders.  So intense was the legislative activity that
one could fairly say that drug enforcement became the top priority, indeed the
organizing focus, of the entire federal criminal justice system.  And, in its
zeal to shore up the sagging system, Congress did not hesitate to attack the
"enemy."  If the Bill of Rights, tradition, or statutory protections stood in
the way of the war effort, then they had to go.
	After the initial flurry of activity in the 1981-1983 period, the
legislative offensive produced an even more aggressive and effective assault on
justice in the passage of the Comprehensive Crime Control Act of 1984 (CCC
Act).  This Act marked an historic rollback of the rights of those accused of
crime.  The accused first feels the impact of the Act soon after arrest on drug
charges when he applies for pretrial release.  The courts had previously "upped
the ante" in this area by restricting the use of cash bonds through Nebbia
hearings.  Devised in response to cases in which defendants had posted large
cash bonds and then absconded, Nebbia permitted the court to interrogate a
defendant about the source of his bail money and to reject drug money or any
cash bond when it did not provide adequate assurance that a defendant would
appear for trial.  Nevertheless, the traditional legal test for release on bond
remained intact: whether a released defendant would appear for trial.
	The CCC Act broke with tradition and precedent in authorizing pretrial
detention.  This law dispenses with pretrial release altogether for most
charges under the Controlled Substances Act if the court finds at a hearing
"clear and convincing" evidence that no conditions of a defendant's release
would reasonably ensure the safety of any other person or of the community.
But the CCC Act also creates a rebuttal presumption of a defendant's
dangerousness upon a judicial finding of "probable cause to believe that the
person committed an offense . . . [under] the Controlled Substances Act"
punishable by ten years or more in prison.  Since an indictment is predicated
upon probable cause, it seems that the judicial finding of probable cause could
be pro forma for defendants arrested after indictment.  Thus, any ten-year drug
charge alone can justify pretrial detention.  But there is no "rational
connection between the fact proved and the ultimate fact presumed," that is,
between a finding of probable cause to believe a defendant has committed a
ten-year drug felony and the presumption that detention is necessary to ensure
the safety of others.
	The potency of the preventive detention provision in the CCC Act
showed up in its early track record: between October 12, 1984, and May 10,
1985, the Department of Justice won 704 motions for pretrial detention and lost
only 185.  More than pretrial liberty is lost in such cases; a defendant's
statistical chances of securing an acquittal suffer greatly from pretrial
detention.  At this writing, constitutional challenges to the law have produced
conflicting rulings by several circuit courts of appeal.  The Second Circuit
has twice declared part of the statute unconstitutional, while other circuits
have rejected constitutional attacks.  The Second Circuit's ruling in _United
States v. Salerno_ was reversed by the Supreme Court, although it did not
involve the dubious statutory question discussed above.  However, when the
Supreme Court finally rules on the validity of the presumption, the Act's
authorization of pretrial detention marks an historic shift in attitude about
the rights of those accused of crime.
	Under the CCC Act, greater restrictions now apply to post-conviction
bail as well.  Formerly, courts granted bail pending appeal liberally unless
the government could show that a defendant was likely to flee or posed a
danger to others.  The CCC Act shifts the burden on this issue to the
defendant.  It also requires that a convicted defendant be detained unless his
appeal "raises a substantial question of law or fact likely to result in
reversal or an order for a new trial."*

	*[The CCC Act also "ups the ante" in sentencing.  First, it
	raises the maximum term of imprisonment for many drug offenses,
	including one kilo or more of cocaine, to 20 years and increases
	the maximum fine tenfold to $250,000.  Second, it provides a
	powerful stick for the collection of fines through devices 
	such as imprisonment for willful to pay the fine.  Third, it
	provides for an alternative fine of twice the gross gain of the
	drug deal or other crime.  Fourth, it adds forfeiture, formerly
	limited to CCE and RICO offenses, as a penalty for all felony
	violations of the Controlled Substances Act.  Upon conviction
	(in addition to fines), the government acquires title to any 
	"property used or intended to be used" to facilitate commission
	of a drug violation and any money or property, including land,
	that was obtained directly or indirectly through such violation.
	Money or property realized by forfeitures goes to a law 
	enforcement fund for use in paying informers, rewarding state
	and local enforcement agencies, and a variety of other purposes.]

	One of the most serious incursions into the rights of criminal
defendants arises from the Department of Justice's tactic of using the criminal
forfeiture provisions of the CCC Act against fees paid to defense counsel.
When so used, prosecutors claim that the fee received by counsel represents
derivative contraband, in other words, the proceeds of a controlled substances
violation.  Upon conviction of the client, the government asks the court to
order the fee forfeited to the United States under the relation-back doctrine
that legal ownership of property derived from unlawful activity vests in the
government at the time of the criminal act.  Since very few cases result in
complete acquittal of defendants charged in multicount drug conspiracy
indictments, defense counsel confront a thorny problem.  Preparation and trial
of a major drug conspiracy case typically take months of concentrated work.
Even if one agrees that defense lawyers have come to expect excessive fees in
drug cases, the prospect of no fee at all is an extreme curative.  Even more
extreme action results from pretrial orders prohibiting a defendant from
transfering funds to retain counsel in the first instance.
	Forfeiture of fees seriously cranks the balance wheel of justice in the
government's favor.  It hurts defendants by discouraging experienced attorneys
from working on such cases, and by diverting energy of counsel from defense of
the substantive charge to defense of the fee.*  In fact, potential for
forfeiture effectively converts the fee arrangement to a contingent fee, which,
ironically, the Code of Professional Responsibility prohibits in criminal

	*[While it would be easy to overdramatize the impact of the
	assault on defense counsel, it has succeeded in driving out
	one of Miami's most highly regarded drug defense lawyers,
	"Diamond" Joel Hirschhorn.  In announcing his retirement from
	drug cases, Mr. Hirschhorn cited both the stigma of drug 
	defense and the threat to fees: "It's just not worth the 
	aggravation to represent major drug dealers.  The government
	comes after your fees.  It's not worth it .... I'm doing tax
	fraud.  And I like to do one murder case a year.  It's OK to
	represent a murderer.  Everyone approves of that."]

	While the Department of Justice has issued guidelines to constrain
prosecutorial discretion, and some courts have declared fee forfeiture
unconstitutional, the validity of attorney's fee forfeitures under the right
to counsel clause of the sixth amendment remains unresolved.  Whatever the
final resolution of the issue, the attempt to apply forfeiture to attorneys'
fees is most noteworthy for what it reveals about the attitude of the forces of
justice in the War on Drugs.  Consider, for example, the rather cavalier
position toward the sixth amendment's guarantee of the right to assistance of
counsel taken by two representatives of the Department of Justice:

	If all of the defendant's ill-gotten gains are subject to 
	forfeiture, then any fees paid from illegal sources are 
	appropriately included.  Under the Constitution, defendants
	are entitled to legal advice, not to high priced advice.
	Moreover, such advice cannot be paid for by ill-gotten gains.

The superficial logic of this argument ignores fundamental questions.  How can
the law justify isolating those accused of drug offenses from all other
defendants for this special treatment?  Does not the "ill-gotten gains" logic
apply with equal force to tax evasion, bank robbery, or almost any other
offense?  If taken to the full extent of its logic, the government's rationale
would mean that no criminal defendant could retain private counsel without
first proving that he has an "untainted" source of money to pay the fee.
Forfeiture of defense fees stacks the deck against the defense by effectively
requiring that drug defendants be represented by public defenders with limited
resources and excessive case loads.  What, after all, is the point of such a
rule except to tilt the scales of justice by weakening an accused's ability to
defend himself?
	The hostility reflected in the attempt to forfeit attorney's fees in
drug cases shows up in other assaults on the attorney-client relationship, such
as the government's frequent use of subpoenas against defendants' lawyers to
obtain information and records harmful to their clients.  This scenario occurs
in a variety of ways, all involving the government's efforts to convert defense
lawyers into sources of information against their own clients.  The process
frequently starts with a grand jury subpoena compelling defense counsel to
disclose the amount, source, and method of payment of the fee received,
information that the courts generally deem not protected by the onfidentiality
of the attorney-client privilege.  Thus, attorneys must testify or turn over
the subpoenaed records to avoid contempt sanctions.  A defendant's knowledge
that his lawyer is giving potentially incriminating testimony to a grand jury
certainly casts a pall over the attorney-client relationship and may ultimately
require the lawyer to disqualify himself as defense counsel.  If new counsel is
retained, however, the grand jury could begin the process all over again _ad
	In some cases the government has exercised its power to pit the defense
lawyer even more directly against his client as a witness.  For example, under
the Continuing Criminal Enterprise Act, the government must prove that the
defendant derived "substantial income" from a series of drug violations.  By
subpoenaing defense counsel to testify as to the amount of his retainer, the
government may attempt to prove the element of income.  The lawyer thus is
converted into a witness against his own client, who will often become a former
client, since withdrawal is required when the lawyer's "testimony is or may be
prejudicial to his client."  One of the nation's leading criminal defense
lawyers calls this "reprehensible" and "disastrous":

		When the lawyer is a witness called by the prosecution,
	there is actual prejudice to the client.  Even a mere production
	of the attorney's records is counter to the defendant's interest.
	. . .  In either circumstance, whether the attorney is called as
	a witness or whether the records are subpoenaed, the attorney
	becomes a witness for the prosecution or a witness for the 
	defense.  Because the attorney's testimony is directed to a 
	material element of the offense, it seems that withdrawal is
	mandated.  The next step is painfully obvious.  There appears to
	be an unlimited discretion within the government to select the
	defendant's counsel.

	For these reasons, the CCC Act is perceived by many defense lawyers as
"one of the most threatening steps yet taken by Court or Congress against
traditional attorney-client relationships."*  Yet things can always get worse,
and worsen they did in the most recent escalation of the War on Drugs embodied
in the Anti-Drug Abuse Act of 1986.

	*[Congress drove yet another wedge between lawyer and client
	in a provision of the Deficit Reduction Act of 1984.  It 
	requires that attorney's fees of more than $10,000 in cash
	must be reported to the IRS on Form 8300 along with the name,
	address, and tax number of the person who paid the fee.  The
	very filing of the form puts the client, who may not have been
	charged with any crime, at risk of investigation.]

	The Anti-Drug Abuse Act further impairs the attorney-client
relationship by creating new offenses of (1) money laundering and (2) knowingly
engaging in monetary transactions exceeding $10,000 in property derived from
"specified unlawful activity."  Because of its _mens rea_ requirement, the
first of these provisions arguably does not create the chilling effect on the
attorney-client relationship that led the American Bar Association to pass a
resolution expressing its concern about the latter.
	Quite apart from its impact on the attorney-client relationship, the
Anti-Drug Abuse Act of 1986 epitomizes the spirit of crackdown that forms the
theme of this Essay.  In the summer of 1986, Washington was in "a frenzy over
drugs" with Democrats and Republicans racing to "outperform" one another.  In
this environment, the House of Representatives put together a hastily drafted,
multibillion dollar antidrug bill that contained extreme measures, including a
subsequently deleted death penalty for certain drug-related deaths.
	The bill that finally became law casts a wide net in its fifteen
titles.  Among other things, it imposes some of the severest penalties in the
United States Code, including mandatory minimum prison sentences.  For example,
the Act provides minimum penalties of five and ten years in prison depending
upon drug and weight involved: possession with intent to distribute five
kilograms of cocaine commands a minimum penalty of ten years to life.  Even
five grams of cocaine base requires not less than five years, and up to a
maximum of forty years in prison.  In both cases, the range rises to a minimum
of twenty years to life if death or serious bodily injury results from the use
of such substances.  These penalties apply to "first time drug offenders;" a
defendant with a prior state or federal drug conviction receives a mandatory
life term under these circumstances.  A life term is also mandatory for an
individual defendant convicted of a continuing criminal enterprise if specific
weight thresholds are crossed or if gross receipts exceed from the proscribed
activities $4 million within one year.
	These are very severe penalties, more stringent in fact than sentences
typically meted out to first-time robbers or rapists.  The combination of very
long maximum terms of imprisonment and mandatory minimum terms arguably takes
the government to the edge of its power, trenching upon the limits imposed by
the cruel and unusual punishment clause of the eighth amendment.
	In _Solem v. Helm_, the United States Supreme Court stated that the
"principle that a punishment should be proportionate to the crime is deeply
rooted and frequently repeated in common-law jurisprudence."*  It explicitly
rejected "the State's assertion that the general principle of proportionality
does not apply to felony prison sentences."  The Court found "meritless" the
dictum in _Rummell v. Estelle_ that "'the length of sentence imposed is purely
a matter of legislative prerogative.'"+

	*[Helm had been convicted of six nonviolent felonies before
	1979, when he was convicted of uttering a "no account" check
	for $100 and was punished under the South Dakota's recidivist
	statute, sentenced to life in prison.  By statute, a life
	sentence carried no possibility of parole, although executive
	clemency remained a possibility.  The United States Supreme
	Court struck down Helm's sentence on eighth amendment grounds.]

	+[In _Rummell_, the Court held that a mandatory life sentence 
	for three petty theft offenses imposed pursuant to a Texas
	recidivist statute did not violate the eighth amendment.]

	The _Helm_ Court identified three "objective factors" to be considered
by courts in determining whether a particular sentence is disproportionately
severe: (1) the gravity of the offense and the harshness of the penalty, (2)
the sentence imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions.
	At a bare minimum, _Helm_ establishes that Congress is not free to
impose whatever penalty it chooses on drug offenders.  The imposition of prison
terms is limited by a legal principle of proportionality.  Determining when
that line has been crossed is an exceedingly subtle task, and this Essay will
not engage in the extended analysis required by the _Helm_ criteria.  They call
out for a Brandeis brief on the actual harms resulting from the various drugs
in relation to the harms caused by other crimes.  Perhaps this issue of
ultra-severe penalties will reach the Supreme Court, along with the related
issue of the validity of mandatory minimum sentencing of first offenders, but
the prospects for judicial relief from legislative overreaching are not good.
	The "turn the screw" quotation that begins this Essay comes from a case
in which the Court upheld consecutive sentences of imprisonment for a single
agreement to import marijuana on the grounds that it violated two separate
conspiracy statutes.  The Court held that Congress intended to authorize
"double" punishment, "in effect determin[ing] that a conspiracy to import drugs
and to distribute them is twice as serious as a conspiracy to do either object
singly."  The Court also rejected the petitioner's double jeopardy clause
argument on the rather expansive ground that "the question of what punishments
are constitutionally permissible is not different from the question of what
punishments the Legislative Branch intended ... to be imposed.  Where Congress
intended to impose multiple punishments, imposition of such sentences does not
violate the Constitution."  Although three Justices distanced themselves from
that assertion in a concurring opinion, there were no dissents.  The decision
not only reflects the crackdown attitude of the courts; it also reflects the
positivist idea that laws are valid simply because they are enacted.
Disproportionate and mandatory sentencing statutes will not face a serious
challenge if they are reviewed from this perspective.
	One last thing should be said about these various offensives against
defendants in drug cases.  When viewed in isolation, each measure may arguably
be reasonable.  But their cumulative impact appears calculated to render an
accused drug offender as helpless as possible to mount a successful defense and
to subject him to stringent punishment following the almost inevitable
conviction.  The prevailing attitude seems to be that drug defendants deserve
the worst treatment meted out by the system, and that indictments should be
easy to obtain and to prove.  More stringent substantive laws, less effective
procedural protections - in short, more governmental power and less individual
liberty - are seen as the prescription for the ills of drug abuse and drug
trafficking.  Actions carried out under this paradigm dishonor the tradition of
limited government and, in the case of pretrial detention and fee forfeiture,
nibble away at the spirit of "the bedrock, axiomatic and elementary principle"
embodied in the presumption of innocence.  The new regime pays little deference
to tradition or principle, justifying departures from constitutional
protections on the grounds of a drug "crisis."  In this single-minded
dedication to "getting" drug violators, the end has come to justify most any
means.  Worse, since the overall effect on the drug supply is de minimis, the
only real point of these heavy-handed methods is their symbolic statement - in
response to societal anger about drugs, the government reserves its nastiest
procedures, its most potent legal weapons, for drug cases.  Is this not a form
of scapegoating?  Do not drug dealers in the 1980s occupy a political-legal
status similar to that of Communists or "subversives" in the 1950s?*

	*[Of course, obvious differences separate drug dealers from
	those who merely advocate an unpopular ideology.  The analogy,
	however, makes the point that drug dealers today have become
	as much a magnet for the fears and suspicions of the public as
	the "subversives" of the McCarthy era.  See E. EPSTEIN, AGENCY
	OF FEAR (1979) (arguing that President Nixon's War on Drugs
	substituted drugs for subversives during 1971 to exploit
	public fears for political ends).]


	In the past three or four decades, those whose rights were damaged by
legislative or prosecutorial excesses could generally turn to the federal
courts for protection.  But the War on Drugs steamroller has flattened judicial
barriers as well.  In case after case, the courts have whittled away vital
protections for the accused.  This process has reached its apogee in the realm
of search and seizure.  The individual's right to be free from unlawful
searches and seizures conflicts directly with the inherent intrusiveness of
drug enforcement techniques such as wiretaps and the use of informants and
undercover agents.  Historically, drug enforcement has precipitated a
tug-of-war between the government's search and seizure powers and the privacy
rights of individuals.  This conflict has shaped the contours of contemporary
fourth amendment jurisprudence in a decisive way.
	In recent years especially, the courts have almost always upheld the
government.  The Supreme Court's 1982-1983 term was marked by "the overwhelming
importance of the Fourth Amendment in drug cases."  In almost all of these
cases, even when particular convictions were reversed, the Supreme Court put
its imprimatur on the enforcement techniques of the drug agencies, upholding
the power of drug agents to use the airport drug courier profile to stop,
detain, and question citizens without probable cause;* to subject a traveller's
luggage to a sniffing examination by drug-detector dogs without probable cause;
to make warrantless searches of automobiles and closed containers therein; to
conduct surveillance of suspects by placing transmitters or beepers in
containers in vehicles; to search at will ships in inland waterways; and to
obtain a search warrant based on an undisclosed informant's tip.

	*[Drug courier profiles vary from airport to airport, but all 
	are based on an informal compilation of common traits associated
	with drug smugglers; they have been criticized for allowing
	impermissible intrusions on fourth amendment rights based solely 
	on an agent's "hunch."]

	The Supreme Court adopted a "good faith exception" to the exclusionary
rule for searches made pursuant to a warrant issued without probable cause and
authorized warrantless searches of "open fields" and barns adjacent to a
residence.  The Court significantly enlarged the powers of police to stop,
question, and detain drivers of vehicles on the highways on suspicion less than
probable cause or with no suspicion at all at fixed checkpoints or roadblocks.
The Court also validated warrantless aerial surveillance over private property,
the warrantless search of a motor home occupied as a residence, and the
warrantless search of the purse of a public school student.  In the realm of
search and seizure, the government won almost every test case in the Supreme
Court.  The government also made very substantial inroads in the Fifth and
Eleventh Circuit Courts of Appeals, probably the nation's leading "drug
circuits" as a result of their southern coastal locations.
	To question whether the government deserved in law to win these cases
misses the central point: such issues, presented within the relatively narrow
scope of a criminal prosecution, are always debatable.  Case-by-case analysis
obscures the larger social context: the government's relentless drive against
the drug supply generates the pressures to test and expand its enforcement
powers.  Moreover, when the Supreme Court "balances" the collective interest in
"effective" law enforcement against the individual's interest in due process
and personal liberty, the right of privacy must generally lose out to the
weightier social interest, especially if there is a shared perception of a drug
"epidemic."*  The Court has made the point explicitly: "The public has a
compelling interest in detecting those who would traffic in deadly drugs for
personal profit."  The result of the War on Drugs is thus a gradual, but
inexorable, expansion of enforcement powers at the expense of personal
freedoms.  The United States is measurably a less free society than it was five
or six years ago.

	*["We must balance the nature and quality of the intrusion on
	the individual's Fourth Amendment interests against the
	importance of the governmental interest alleged to justify the
	intrusion .... Respondent suggests that, absent some special 
	law enforcement interest such as officer safety, a generalized
	interest in law enforcement cannot justify an intrusion on an
	individual's Fourth Amendment interests in the absence of
	probable cause.  Our prior cases, however, do not support this

	During this time, defense lawyers have begun to joke nervously about
the "drug exception to the fourth amendment."  Apparently, their wry perception
has some basis in reality, for the Supreme Court itself, in one of its few
recent rulings against the government in a drug case, was moved to admit that
"[t]hose suspected of drug offenses are no less entitled to [fourth amendment]
protection than those suspected of nondrug offenses."  Despite this assertion
by the Court, commentators have captured the essence of the general trend in
articles such as _The Incredible Shrinking Fourth Amendment_ and _Another
Victim of Illegal Narcotics: The Fourth Amendment_. Even within Congress there
has been some concern.  Peter Rodino, Chairman of the House Judiciary
Committee, expressed his anger at the antidrug bill passed by the house on
September 10, 1986: "We have been fighting the war on drugs, but now it seems
to me the attack is on the Constitution of the United States."


	Is it fair to characterize these antidrug actions by the government as
desperate or mean-spirited trashing of the Constitution?  In a strictly
positivist sense, of course, the new laws create their own legitimacy.  But
when law becomes purely instrumental, when it loses its mooring in precepts of
fairness and fundamental rights, then the notion of the rule of law degenerates
into whatever majoritarian oppression commands a consensus at a given moment in
history.  Were not the Nuremberg Codes of 1933 a parliamentary product?  Does
not South Africa today obey its own laws in matters of race?  Legitimacy does
not follow automatically from legal existence alone.  On the contrary, the
American political-constitutional tradition draws heavily upon the "self
evident" truth that all men are created equal and are endowed by their Creator
with "inalienable rights," no matter what the law is.  An act of the
legislature "contrary to the great first principles of the social compact
cannot be considered a rightful exercise of legislative authority."  By
contrast, the War on Drugs has taken us a long way toward repudiating this
Enlightenment-based Jeffersonian-transmitted natural rights tradition.  In
doing so, the War on Drugs has set in motion forces that society may someday
regret, forces pointing toward an "Endarkenment" in legal thought and practice.
Already, anecdotal evidence suggests that the disrespectful attitude toward
individual rights fostered by the War on Drugs - the idea of a "drug exception"
to the criminal law - has seeped into the public consciousness:


	At about 8 a.m. Friday, a 27-year old woman thought she noticed
	a car following her as she drove home on Bird Road after dropping
	her two children off at a junior high school on Coral Way.
		"She decided to pull off the road to see if the car would
	pass her," [Detective] McDermott said.
		The car pulled up behind her and three casually dressed 
	men got out.  They brandished handguns and identified themselves
	as police.
		"They got into her car with her," McDermott said.  "She
	said they flashed some kind of badge...."
		The men drove the woman to her house, where they 
	handcuffed her and her husband.
		"They just said they were police and they were there to
	search the place and they proceeded to handcuff the couple and
	ransack the place," McDermott said.  "Her husband asked them if
	they had a search warrant and they said, 'We don't need one, we
	work in the drug department.'"

	The idea that those enforcing the drug laws need not abide by the
ordinary rules of the game leads easily to abusive enforcement practices.  Of
course, abusive enforcement, like beauty, is often in the eye of the beholder.
One's view of the importance of the drug enforcement enterprise tends to color
one's judgement about the legitimacy of enforcement tools.  But when the Miami
Herald, one of the principal advocates of the War on Drugs, editorializes
against "Drug War Overkill," the transgression must be gross:

	Judge Jose Gonzalez admonished U.S. marshals for seizing a $3.5-
	million Martin County resort without first seeking a Federal-
	court hearing.  Prosecutors asserted that the Manatee Resort had
    been purchased with drug profits, but the owner had not - and
	still hasn't - been charged with any crime.  In voiding the
	seizure, Judge Gonzalez noted that "neither Congress nor the
	people intended that the Bill of Rights be a fatality in the 
	War on Drugs."

	In a more sinister vein, the pressure to "get" the drug kingpins and
their lawyers occasionally tempts drug agents to cross the boundaries of
ethical law enforcement practices into the domain of entrapment or worse.


		Citing "outrageous" misconduct by governmental agents,
	a U.S. magistrate Wednesday sternly recommended dismissal of
	a 13-count federal indictment against accused cocaine kingpin
	Harold Rosenthal.
		U.S. Magistrate Peter Nimkoff accused under-cover Drug
	Enforcement Administration agents from Atlanta of trying last
	October [1983] to trick defense attorney Alan Ross of Miami into
	making incriminating statements about an alleged jailbreak
	attempt by Rosenthal.
		When Ross refused to take the DEA's bait, Nimkoff ruled,
	Atlanta prosecutors then used a deceptive affidavit to get a
	search warrant to read privileged attorney-client letters
	between Rosenthal and Ross.
		DEA agents later told the court that a cell-mate of
	Rosenthal's had told them that attorney Ross would furnish the
	money and cocaine for the escape.  And so DEA agent Donald 
	Carter, posing as a friend of Rosenthal's, went to Ross' office
	in Miami Oct. 25 to talk about the plot.
		But every time Carter mentioned drugs and escape, Ross
	kept replying that he didn't want to know anything about it.
	Ross repeatedly told Carter that all he did for Rosenthal was
	represent him in court.  And at his next meeting with Rosenthal, 
	Ross blasted his client for sending Carter to him.
		Though rebuffed by Ross, Carter and federal prosecutors
	in Atlanta didn't give up.  According to the file, they swore 
	out an artfully drafted affidavit, suggesting that Ross was 
	involved in the escape plan and avoiding mention of Ross' 
	refusals, in order to get the search warrant to intercept
	Rosenthal's mail.
		"It is as clear a misrepresentation of facts as ever
	there were,"  Ross argued to Nimkoff in June.  "Their zeal has
	blinded them to the parameters of decency."
		Nimkoff ultimately agreed.
		The prosecutors and agents "consistently and
	surreptitiously sought to breach the attorney-client privilege,"
	he ruled Wednesday, calling the action "so outrageous" as to 
	require dismissal.

Perhaps the attempt to ensnare Mr. Ross should be regarded as an aberrational
case rather than a harbinger of things to come.  On the other hand, some form
of enticement of defendants is more or less built in to the system of drug
enforcement, varying only in its subtlety or blatancy.  The
institutionalization of what the layperson might call "entrapment" stems from
the government's dependence on informants to make cases against parties to a
consensual transaction.  Informants are paid in effect to encourage or to
"create" crime by facilitating drug deals that provide occasion for agents to
make an arrest.  In the most blatant - but lawful - cases, the incentive system
includes payment contingent upon the making of an arrest, or worse, payment in
proportion to the number of kilos or the value of property seized.  In effect,
the system rewards free lance drug "investigators."
	An example of this type of entrepreneurship involves a woman who "set
up" at least forty men in South Florida.  Her tactics included seducing an
intended defendant and establishing a sexual relationship.  After a few weeks
of gentle pressure, she would arrange a drug deal between her reluctant
"boyfriend" and drug enforcement agents.  The "boyfriend" would be busted, and
the woman would get paid.  Magistrate Peter Nimkoff recorded his disapproval by
recommending dismissal of cocaine charges against a defendant victimized by
this technique.

                      III.  THE GROWTH OF BIG BROTHERISM

	Perhaps the public at large has no interest in the malignant effects of
drug enforcement on criminal justice.  After all, the attack on the rights of
criminal defendants in drug cases seems ordinarily to affect only an alien
"them" - those who inhabit the drug underworld - not "us," the mainstream of
society.  In short, drug enforcement procedures seem to have no impact on daily
life.  But in fact the tentacles of drug enforcement have begun to reach into
the lives of ordinary people, not just those involved in the drug business.
Civilian casualties in the War on Drugs continue to mount as all levels of
government increasingly resort to a formidable array of "Big-Brother-is-
watching" enforcement techniques.


	The War on Drugs has caused the United States to become an increasingly
monitored country.  Although telephone monitors are supposed to minimize
interception of calls unrelated to the purpose of their investigation by
listening only long enough to determine content, wiretaps open all
conversations on the line in question to scrutiny.  In 1983, court-authorized
wiretaps rose 60%, primarily in cases of suspected drug trafficking.  The
government sought and obtained 648 wiretaps.  None of its applications was
	In a nation of 230,000,000, the number 648 seems small, and the
Department of Justice has no doubt exercised restraint in selecting wiretap
targets.  On the other hand, the number might well be much greater if the DEA
and FBI had the personnel necessary to staff the listening posts and otherwise
administer the taps.*  The number would also likely to be larger if Congress
lowered the substantial statutory barriers under Title III of the 1968 Omnibus
Crime Control Act to obtaining an intercept order from a court.+  The pressures
of the War on Drugs will sooner or later crystallize the issue of reducing
those impediments, since expanded wiretap authority is probably the single most
potent investigative tool for drug conspiracy cases.  With or without that
"reform," the widening of the War on Drugs will almost certainly produce more
wiretaps next year and the year after that.  In any event, the precise number
of wiretaps should not be allowed to obscure the significance of the rapid
growth of this form of invasion of privacy.  Wiretaps compromise a fundamental
principle, and the War on Drugs continues to erode it by encouraging - or
demanding - the proliferation of electronic surveillance.

	*[It takes at least six persons to administer a single wiretap
	and listening post around the clock: the supervising agent, 3
	case (monitoring) agents, the technical agent, and the 
	supervising attorney.]

	+[The request for authorization to apply for an intercept order
	must travel up the chain of command from the field agent to the
	director or head of the investigating agency, to a review by the
	office of enforcement operations, which in turn makes a
	recommendation to the Assistant United States Attorney General. 
	The request must be in writing, accompanied by draft copies of 
	the application and order and a detailed affidavit containing 
	specific information establishing probable cause for the issuance 
	of the intercept order.  The request must also be approved  
	personally by the United States Attorney in whose district the 
	application is to be filed.  Only the Attorney General or a  
	specially designated Assistant Attorney General may authorize 
	an application to a federal judge for an order approving the 
	interception of wire or oral communications.
	        Departmental policy requires that the applications be
	filed with a court by supervising attorneys rather than by law 
	enforcement officers.  An order must confine the period of 
	authorization to what is "necessary to achieve the objective of
	the authorization," and cannot exceed 30 days.  After 30 days, 
	an extension may be sought by following the same procedures as 
	for the initial order.  Agents are required to record the
	intercept "if possible."  Monitoring and logging are required 
	by departmental policy.] 


	For years, cars and trucks laden with marijuana, cocaine and
	pills have been travelling north on Florida's Turnpike taking
	the cargo to northern buyers, lawmen say. ....
		Last month, troopers routinely patrolling the turnpike
	from Palm Beach to St. Lucie counties arrested 64 people on
	drug-related charges.  A month earlier, troopers had arrested
	only 14 persons.
		The seizures and the arrests are the result of a
	heightened awareness among the troopers who are now making a
	serious effort to arrest suspected smugglers.
		"We want them to stop using the turnpike," said Sgt.
	Phil Moan of Troop K, which is responsible for patrolling the
	entire length of the turnpike. ...
		Troopers, he said, became more suspicious of cars riding
	low in the back.  They also started looking closely at cars
	with out-of-state tags if there were no luggage or clothing
	visible.  Frequently, Moan said, smugglers will use air
	fresheners and perfumes to mask the odor of the narcotics.
		"They look harder and harder at every vehicle," Moan
		DEA's Lloyd said that state police agencies in other
	states are also making an effort to stop the ground
	transportation of narcotics.
		In New Mexico, he said, a state police program has been
	operating for several months.  One of the indicators officials
	in New Mexico watch for is Florida tags, he said.

According to the article, the Florida Highway Patrol relied upon a drug courier
profile that cautioned troopers to be suspicious of rental cars, "scrupulous
obedience to traffic laws," and drivers wearing "lots of gold," or who did not
"fit vehicle," and "ethnic groups associated with the drug trade."  The Florida
Highway Patrol's reliance on the drug courier profile was interrupted by a Palm
Beach County court ruling that articulated the civil liberties impact of the
challenged practice.  As recounted in a local newspaper:

		Circuit Judge Carl Harper blasted the profile as "so
	broad and indistinct as to ensnare the innocent as well as the
		Harper ruled that the hypothetical description of drug
	smugglers used by troopers to combat drug trafficking violates
	constitutional protections against unreasonable searches and 
		"While we have a horrendous drug smuggling problem here
	in South Florida, the ends simply do not justify the unlawful
	means occasionally employed to combat the problem," Harper said.
		The judge said the profile gives the troopers too much 
	leeway in pulling over cars to check out hunches that the vehicles
	may be carrying drugs....
		[Defense lawyer] Natale, hailing the ruling as a blow for 
	the rights of the public, said "Judge Harper was confronted with
	the question of, do we let the Florida Highway Patrol decide who
	can proceed up and down our highways free of unreasonable searches
	and seizures, or do you decide to use the Constitution and follow
	the laws?"
		Natale said patrol records showed a majority of the 
	motorists arrested through the drug profile were black, suggesting
	the profile merely gave troopers an excuse to pull drivers over
	and search their vehicles.

	Another tactic that police sometimes use is the roadblock.  Police set
up a barrier, stop every vehicle at a given location, and check the driver's
license and registration.  While one officer checks the paperwork, another
walks around the car with a trained drug-detector dog:

	Under the watchful eyes of government attorneys, nearly 1,500
	vehicles stopped last month by the Florida Highway Patrol for
	safety inspections were also checked for hidden contraband by
	drug-sniffing police dogs.
		One drug arrest was made.  Lady Luck and Citizen Band 
	radios were suggested as possible causes for the lack of more 
		Still, authorities said they were sufficiently pleased
	with the operation, staged at four roadblocks in North Florida,
	to expand it to other areas of the state as part of an
	intensified crackdown on drug trafficking.
		"I don't know how, where or when [they will resume], 
	but we want to send the message out that we will be aggressive 
	in the War on Drugs and will use every available tool,"  said
	Lee Gilreath, a special agent who coordinated the Florida 
	Department of Law Enforcement's role in the multi-agency

	The law does not regard the dog's sniffing as the equivalent of a
search on the theory that the odor of contraband is an exterior olfactory clue
in the public domain.  As a result, no right of privacy is invaded by the
sniff, so the police do not need a search warrant or even probable cause to use
the dog on a citizen.  If the dog "alerts," moreover, the signal fulfills the
cause requirement for further investigation of the driver or vehicle for


Note on wiretaps:
	After reading the section on wiretapping, I was a wee bit curious as to
the statistical trend in subsequent years...

(Librarian: What do you want with all these books on wiretapping?)
(Me: Well, I'm just curious about the statistics.)
(Librarian: Curiousity killed the cat you know!)
(Me: ACK! Thpfft! :-)

Here is the raw data for the period 1977-1988:

                     Intercept Orders Issued by Judges
         Number of Intercept Orders         Number of Extensions
Year    Total  Federal  State  Denied   Total  Federal  State  Denied
1977     626      77     549     0       165      10     155     1
1978*    570      81     489     -        -        -      -      -
1979     553      87     466     0       142      23     119     0
1980*    566      83     483     -        -        -      -      -
1981     589     106     483     0       208      66     142     0
1982     578     130     448     0       233     105     128     0
1983     648     208     440     0       310     164     146     0
1984     801     289     512     1       377     217     160     0
1985     784     243     541     2       450     242     208     0
1986     754     250     504     2       429     247     182     0
1987     673     236     437     0       402     212     190     0
1988     738     293     445     2       556     390     166     0

* The data for these years are posted from the reports of the following year.

	After President Reagan's announcement declaring War on Drugs on
October 2, 1982, the two year period following saw a dramatic rise in the 
number of federal intercept orders granted, (a 122% increase).  The number
of state intercept orders also followed the trend, with an approximate one
year lag time behind the federal rise.  Then a leveling off period with a
slight decline took place during the end of Reagan's second term.  Presently,
the rhetoric of the War on Drugs is heating up again, and already there is a
jump in the data for 1988.  Will this trend continue?  There was one other
major jump in the history of intercept orders.  This took place during the 
period of 1970-1973 after President Nixon declared War on Drugs.
	A steady rise in the number of federal extensions granted is also
apparent.  The data from 1988 show an extreme jump.  During the period of
1982 to 1988, the number of federal extensions of intercept orders has
gone through a 271% increase.
	Although the overall trend is upwards, the numbers are still 
relatively small compared to the overall population.  It is, however, an
area to watch closely, and the author of the above article has stated: as
failure and frustration in the War on Drugs inevitably rear their ugly heads,
the impediments to using one of the most powerful tools in drug conspiracy
cases, wiretaps, may likely be, out of necessity, systematically eroded.
	And finally, although at first it may seem that the numbers above 
represent all of the official governmental eavesdropping of each respective
year, this is not the case.  There are more intercepts:

           From: The Law of Electronic Surveillance by James G. Carr

	Although designed primarily to implement court-ordered and judicially
regulated electronic surveillance, Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 nonetheless directly and indirectly allows a
substantial amount of eavesdropping without a prior court order.  Some of this
activity occurs because of ambiguities or omissions in various definitions in
Title III.  Other warrantless eavesdropping occurs under provisions expressly
allowing such surveillance with the consent of a party or in emergency
situations.  Specific authority also is granted to telephone companies and the
Federal Communications Commission to engage in limited warrantless


	The political climate supporting the War on Drugs has generated
increasingly invasive monitoring of personal behavior.  In one manifestation of
the antidrug pressure, drug-detector dogs have been brought into public schools
to sniff out student lockers, which are searched when the dog alerts.  The
question arises whether students can claim the benefit of the fourth
amendment's protection from unreasonable search and seizure.  In a case
involving the search of a high school student's purse, the Supreme Court held
that students do have privacy rights under the fourth amendment, but that
searches may occur on "reasonable grounds for suspecting" that the student is
violating the law or school rules.  Although the Court rejected the _in loco
parentis_ rationale, characterizing the conduct of school officials as state
action for constitutional purposes, the Court's new "reasonable suspicion" test
will undoubtedly permit far more school searches than the probable cause

	*[At least one commentator has concluded that the Court created
	"an unprecedented exception to the probable cause standard....
	[T]he reasonable grounds' standard adopted by the Court will 
	promote unjustified searches in public schools since the privacy
	rights of students were not given adequate weight in the Court's
	balancing of relevant interests."

	The antidrug drive shows up in yet more intrusive ways.  A school
system in Bergen County, New Jersey voted to implement a more comprehensive
method of detecting drug violations by compelling students to submit samples of
their urine for testing in a drug laboratory.  The ACLU filed suit challenging
the program, and the court enjoined it as too broad.
	Once again, the outcomes in these situations matter less than the
persistence of the efforts and the attitudes they reveal.  The pressures
underlying these plans, abortive or not, continue to mount and take other
forms.  "Tipster" programs are another manifestation of the perceived necessity
to respond to the drug problem.


	[W]ell-meaning civic leaders have asked local citizens to turn
	in their peers....  Town elders in Lewisville, Texas, (population
	24,000) are offering a $100 reward to students who provide
	information about drug users or sellers at the local high school.
		Though various American high schools have encouraged 
	students to make anonymous tips on local drug pushers, only 
	Lewisville's has been desperate enough to post "wanted" signs
	and offer bounty.
		Last September, Lewisville High School's principal, C.
	Douglas Killough, solicited community leaders for commitments 
	to pay for the drug-reward program.....
		Lewisville's business community responded enthusiastically
	to the proposed program.  So many commitments were received, in 
	fact, that the local PTA ceased its solicitations.  "It only took
	us a few days..." recalled John Zepka, an executive committee 
	member of the Lewisville group.
		To date, the program's practical success has turned out
    to be less certain.  An assistant principal at Lewisville High,
	Malcolm Dennis, told the Dallas Morning News last week that "you'd
	be astonished at how well the students are cooperating.  Some
	have even turned in their best friends."
		But of the 30 students turned in to school authorities,
	principal Killough himself told us, only half have actually been
	found in possession.



		The federal Drug Enforcement Administration is keeping
	computer files on more than 1.5 million persons, including U.S.
	congressmen, entertainers, clergymen, industry leaders and
	foreign dignitaries, according to DEA Administrator Francis M.
	Mullen Jr.
		Many of the famous persons named in the computerized
	index system, known as NADDIS (Narcotics and Dangerous Drug
	Information System), are the subject of "unsubstantiated
	allegations of illegal activity," Mullen said....
		Mullen's letter stated that "less than 5 percent [or
	7,500 of the total 1.5 million persons whose names were added
	to the computer since 1974] ... are under investigation as
	suspected narcotic traffickers by DEA."
		The NADDIS computer system contains data from
	informants, suspects, surveillance and intelligence reports
	compiled by DEA and other agencies, Mullen said.

The information on NADDIS is available to federal drug enforcement officials in
other agencies, such as the FBI, Customs, and the IRS.  State law enforcement
officials can probably also gain access on request.  Obviously, this method of
oversight has troubling implications for one's personal interest in privacy and
good reputation, especially for the ninety-five percent named who are not under
active investigation.  A data bank of this kind becomes objectionable for other
reasons: the quality of the data is dubious, controls on access and disclosure
appear inadequate, and the consequences of being included could be severe.
Does one become a target of investigation as a result of such a listing?  And
what about the sheer number of listings?  At a certain point the numbers grow
too large for comfort.


	Another anecdote from the press illustrates yet a further result of the
antidrug crusade:

		"Public embarrassment" is the federal government's goal
	in publishing a list of names of people caught bringing small
	amounts of drugs into the United States - beginning tomorrow -
	says Dennis Murphy, a U.S. Customs spokesman in Washington.
		But critics of the plan, including Charles Sims, staff
	counsel for the American Civil Liberties Union in New York, say
	the list amounts to "slander" of people who have not been found
	guilty of any crime.
		The punish-by-publishing list, to be supplied to news
	organizations each Wednesday, will include only small-scale 
	smugglers who were neither arrested nor prosecuted for their
	alleged crimes, said Harry Carnes, Miami Customs District
		The "drug blotter" will include the name of each alleged
	smuggler, address, occupation, age, type and quantity of drugs
	being smuggled, method of travel and point of origin, Customs
	said in a prepared statement.
		Carnes said persons whose cases are dropped from 
	prosecution will automatically be put on the press list - with
	no option to request arrest as an alternative.
		"One principal reason for trials in this country is to
	decide who is innocent and who is guilty," Sims said.
		"When the police undertake to announce that people are
	guilty without a trial, then they are slandering people.... 
	They will be damaging people's reputations."
		Miami attorney Richard Sharpstein labeled the plan 
	"disgusting."  According to Sharpstein, people who are arrested
	on drug charges would have more legal rights than those who
	aren't arrested, but find themselves on the customs list.


	Millions of recreational boaters and small craft fliers are now exposed
to the possibility of an encounter with the Armed Forces of the United States.
By amending the Posse Comitatus Act in 1981 and authorizing the Navy to
interdict smuggling vessels at sea, Congress inflicted the first major breach
in the century-old wall of separation between civilian and military law
enforcement roles.*  Of course, even that sacrifice of principle to expedience
proved insufficient to fulfill the illusory quest to bring the illegal drug
supply under "control."  Accordingly, several members of Congress soon began
seeking a wider military role.  Some sought full and direct military
participation in drug enforcement, while others sought merely to expand the
military's back-up role.  In 1985, Congress reached a "compromise" position.

	*[The Posse Comitatus Act prohibits civil law enforcement by
	the military; however, amendments to Title X of the United
	States Code now allow the military to gather information, advise,
	lend equipment, and deploy personnel at the request of local
	law enforcement officials with jurisdiction over drug or
	immigration offenses.  The Navy was partially exempted from the
	restrictions of the Posse Comitatus Act by regulations 
	implementing the 1981 amendments, and Naval vessels typically
	assist in drug interdiction operations by transporting Coast
	Guard officers to a target vessel and towing seized ships back
	to port.]

		Congressional negotiators have agreed on a plan that
	allows the military to stop more drug traffickers headed for
	South Florida but does not give them the power to make civilian
		Rep. Charles Bennett of Florida had pressed for a stronger
	plan that would have given the military the authority to search,
	seize and arrest drug traffickers at sea.
		The Jacksonville Democrat settled for a compromise after
	his plan became a sticking point in negotiations.
		"The compromise isn't bad at all," Bennett said.  "It 
	strengthens our hand against drug smugglers, and that's what we
	were after."...
		The conferees agreed to spend $15 million for 500 new
	Coast Guard officers who will be stationed on naval ships in the
	prime drug trafficking routes in the Caribbean and off the Gulf
		The Navy ships will be able to stop vessels suspected of
	carrying drugs and the Coast Guard officers will be able to board
	and search the vessels and make arrests.
		The compromise allows the Navy to become more involved
	in the drug interdiction while avoiding the legal ramifications
	of having the military make civilian arrests.
		Opponents of more naval involvement fear that military
	arrests would infringe civil liberties and end up in lengthy 
	court cases.

	But what will happen next?  Surely, this latest enlargement of military
"assistance" will not "win" the War on Drugs; and therefore it cannot placate
the demands for still more intervention.  On the contrary, the 1985 compromise
represents only a transitional phase.  Its real significance lies in the
momentum generated for further enlargements of the military's enforcement role.
And the dynamics of the War on Drugs will carry that escalation even further.
The House of Representatives, for example, resolved that the President should
deploy the Armed Forces of the United States within forty-five days. Political
accommodation with the Senate took the silly edge off that vote, but the
pressure to "unleash the military" in the War on Drugs will not easily go

	*[The Defense Drug Interdiction Assistance Act of 1986 continues
	this trend by authorizing a substantial increase in funding for
	interdiction efforts and greater use of the military resources.]

                               IV.  CONCLUSION

	The historic dynamic of the American drug control movement has been
expansionary.  Pretrial detention, longer and mandatory prison sentences,
enhanced fines and property forfeitures, good faith exceptions to the
exclusionary rule, roadblocks, drug-detector dogs, wiretaps, informants,
undercover agents, extradition treaties, tax investigations, computers,
currency controls - the list grows and grows.  And still it is not enough.
Always the government needs more.
	The latest "imperative" in the War on Drugs is compulsory and sometimes
random urine sampling for traces of illegal drugs, a practice now followed by
one-fourth of Fortune 500 companies,* by many local governments, and by the
United States of America for its employees and the employees of federal
contractors.  The practice of watching an employee or applicant pee into a jar
would seem to implicate rights of privacy recognized by the fourth amendment,
and most federal courts have ruled that some showing of individualized
suspicion is required to compel a public employee to submit to urinalysis. But
exceptions have been carved out for some classes of employees, and the view
that the right of privacy does not protect bodily wastes has gained some
support.  Whatever the final resolution of the issue, the private sector will
remain largely free to require such tests.  Drug testing, of course, is only
part of a much larger picture.  The real question is this: what happens when
drug testing is absorbed into the culture without noticeable effect on the
black market in drugs?  What will the next round of escalation bring?

	*[General Dynamics, General Motors, Greyhound, E.F. Hutton, IBM,
	Mobil, The New York Times, The Teamsters, and United Auto Workers 
	are but a few of the enterprises that have recently instituted 
	some type of workplace drug testing.  One rationale for requiring
	that urinalysis be predicated upon individual suspicion is the 
	not-unlikely possibility of a false positive result:
		Two Navy doctors were almost drummed out of the service
	[in 1984] because they tested positive for morphine, the result
	of having eaten too many poppy seed bagels.  Indeed, the Navy
	program has seen huge errors - over 4,000 men and women were
	recalled at full back pay [in 1985] because they were discharged
	on the basis of a [false positive].]

    That question, ultimately, shows the truly insidious quality of the War
on Drugs: the drug enforcement system can never have enough power or
to win the war.  In the futile quest to control the uncontrollable, the
government follows the imperative to expand.  Legislative reforms, doubling of
"troops," administrative directives, task forces, executive coordination - all
of these have proven ineffective in controlling the drug supply.  Yet the
reflexive response of the system is always to do more, always to expand.  "In
one sense," said former Attorney General William French Smith, "to deal with
this problem, we have to blanket the world."
	Blanketing the world, of course, begins at home.  When one initiative
after another fails to produce any discernible or lasting impact on the black
market in drugs, the frustrated impetus for control carries the system to its
next "logical" extension.  The internal logic of the War on Drugs, coupled with
its insatiable appetite for resources and power in its futile pursuit, leads
inevitably to repressive measures.  The authoritarian logic of drug control was
noted, although not endorsed, by the President's Commission on Marijuana and
Drug Abuse more than a decade ago:

		Under certain conditions, perhaps, law enforcement alone
	might eliminate the illicit market in drugs.  To achieve this,
	though, would require, at the least, multifold increases in
	man-power, a suspension of Fourth Amendment restraints on police
	searches, seizures and wiretaps, wide-scale pretrial detention,
	abolition of the exclusionary rule and border controls so extreme
	that they would substantially hinder foreign commerce.

In a nutshell, the Commission suggested, a successful drug enforcement program
requires a police state.
	In the United States, warnings about a police state sound a bit
excessive, if not jejune, if one has in mind the nations of the Soviet Bloc.
Our contemporary reality is quite different.  The gradual accretion of
enforcement powers moves so slowly as to be invisible to the untrained eye.
The rights of citizens recede by gradual erosion, by relentless nibbling,
rather than gobbling.  Yet the danger to civil liberties is no less real,
especially in the realm of criminal justice.  Magistrate Peter Nimkoff of the
Southern District of Florida dramatized that reality in his resignation from
the federal court in protest of the continued erosion of the rights of those
accused of crime.  In an exit interview with the press, Nimkoff focused on the
War on Drugs as the source of governmental abuses of power:

	According to Nimkoff, many people have decided "that because
	drugs are such a horrible thing, we will bend the Constitution
	in drug cases," or "that there are two constitutions - one for
	criminal cases generally, and another for drug cases .... I think
	that's wrong .... It invites police officers to behave like 
	criminals.  And they do."
		Among his specific areas of concern are:
		* Government sting operations in which it is considered
	"sound police practice to get people to do bad things in order 
	that they can then be accused," Nimkoff said.
		* Use of informants who pretend to be criminals during
	ongoing investigations and then testify about what they did. 
	Nimkoff said that the use of civilian informants and assignment
	of police as undercover agents are "very, very dangerous"
		"Justice Brandeis said about 60 years ago that government
	is the omnipresent teacher, especially in a democracy," he said.
	"And that the police practices of our government teach moral
	lessons to our society.  And I think it is wrong and dangerous
	for the police to make a norm of deception...."
		"It's a very dangerous practice for the police to begin
	to behave like criminals in order to catch criminals, and to 
	encourage the commission of the offense instead of preventing
	its occurrence."
		Nimkoff said he's also troubled by the Comprehensive
	Crime Control Act of 1984, which he said undercuts the presumption
	of innocence and removed the traditional presumption that a 
	defendant is entitled to bond before trial.
		Although most criminal defendants are eventually found
	guilty, Nimkoff said, "I'm very reluctant to discard the 
	presumption of human freedom or the presumption of innocence ....
	To discard them is to engage in classically authoritarian

	Magistrate Nimkoff's resignation, however unusual, reflects a
traditional concern.  Even Justice Hugo Black, an advocate of aggressive
enforcement against the drug trade, warned of its ready capacity for excess:
"The narcotics traffic can too easily cause threats to our basic liberties by
making attractive the adoption of constitutionally forbidden shortcuts that
might suppress and blot out more quickly the unpopular and dangerous conduct."
As the War on Drugs converts paramilitary rhetoric into social reality, the
nation's threshold for extremist ideas rises.  Thus, the politics of the War on
Drugs generates proposals that only a few years ago would have been repudiated
as either absurd or excessive.
	In this climate of repression, politicians advocate capital punishment
for drug dealers, or isolating them in Arctic Gulags, or simply shooting drug
planes out of the sky without charges or trial.  What will tomorrow's political
agenda find tolerable?  A bill in the Florida Senate proposed to prohibit the
sale of "any magazine or other printed matter the dominant theme and purpose of
which, taken as a whole, is to advocate, advise, encourage, or glorify the
unlawful consumption, purchase, or usage of any controlled substance...."
Despite the bill's analogy to valid antiobscenity statutes, it almost certainly
violates the right of free speech under existing case law - even advocacy of
the violent overthrow of the government finds protection under the first
amendment, absent a "clear and present danger" of intended imminent violence.
But case law and history also demonstrate that war-time emergencies can justify
curtailment of constitutional rights, and the analogy to the War on Drugs
beckons.  "When a nation is at war many things that might be said in time of
peace ... will not be endured...."  Or when "our shores are threatened by
hostile forces, the power to protect must be commensurate with the threatened
	After a few more years of frustration with the War on Drugs, extremist
proposals may not seem so far-fetched.  Repeated expansions of governmental
powers have already gained acceptance as reasonable or "necessary" measures to
fight the War on Drugs.  Given the nature of the beast, we can expect the
demands for more power to spiral upward towards infinity.  There is no light at
the end of the law enforcement tunnel.
	Already, some of the authoritarian methods mentioned by the National
Commission on Marijuana and Drug Abuse, such as pretrial detention, have become
law.  Why not go further and abolish the exclusionary rule altogether,
authorizing drug agents to search for drugs, tap telephones, or seize financial
records without warrant, probable cause or reasonable suspicion?  Why not adopt
a bounty hunter system for suspected drug dealers and teach school children to
report their parents for drug possession?  Why not, in fact, bypass entirely
the cumbersome criminal justice system, with its tedious set of impediments to
investigation, prosecution, and conviction, and substitute a control system
consisting of civil sanctions: fines, asset seizures and forfeitures.  Control
over the offender's future conduct would come, as one law professor has already
proposed, through a civil injunction forbidding the defendant from violating
the drug laws in the future.  Violation of the injunction would be proved in a
civil contempt proceeding by a mere preponderance of the evidence, rather than
by proof beyond a reasonable doubt as required in a criminal prosecution: no
need for grand jury indictment, right to counsel, or even trial by jury. After
all, if the United States Code is the "enemy," it must be overcome.
	Personal freedom is the inevitable casualty of the War on Drugs.  The
zealous pursuit of drug offenders is manifested in the adoption of increasingly
stringent punishments for existing drug offenses, the proliferation of new
drug-related criminal legislation by Congress, more aggressive investigative
and prosecutorial initiatives, generally supported by judicial validations.
Taken together, these developments suggest that the legal system is evolving to
take the paramilitary rhetoric of the War on Drugs at face value.  Like the
wartime curtailment of civil liberties during both World Wars, the War on Drugs
is used to justify the application of _force majeure_.  In short, the War on
Drugs is producing a political-legal context in which drug enforcement
constitutes an exception to the principle that laws must comport "with the
deepest notions of what is fair and just."  In drug enforcement, most anything
goes.  This dishonors our legacy of limited government and natural rights,
those "principles of justice so rooted in the tradition and conscience of our
people as to be ranked as fundamental."  It also sets a very dangerous
precedent, for it is doubtful that drugs can be treated as sui generis in the
long run.  Inevitably, the drug exception will spill over to other areas of the
law.  We clearly face the danger of losing the ability, in Madison's immortal
phrase, to "oblige [the government] to control itself."