The rule of law

The rule of law

By David Borden

The rule of law

School board members in the town of Lockney, Texas, learned this week that they are not above the law: The Constitution and its Fourth Amendment, protecting all Americans from unreasonable search and seizure by the government, does not allow a public school to drug test all its children without individualized suspicion of drug use. It ought to have been obvious to the hopefully civicly educated board members that the drug-test scheme was unconstitutional and therefore illegal. But it wasn’t obvious, or they didn’t care, and defenders of liberty in Lockney had to take to the courts and brave public hostility to defend their rights.

It is hypocritical and dangerous for those claiming the mantle of law and order to themselves act unlawfully. But this very often happens in times of war. During World War I, for example, the Woodrow Wilson administration’s attorney general prosecuted Socialist presidential candidate Eugene Debs under the Sedition Act. Debs, whose crime was making an anti-war speech, was convicted and incarcerated for 10 years, until being pardoned by Warren Harding. Thousands of Japanese Americans were unlawfully uprooted and shipped to internment camps because of the acts of war committed by their relatives abroad.

In the drug war, which may soon be thought of as America’s Hundred Years War, lawlessness by law enforcers is routine. Joe McNamara, former police chief in San Jose and Kansas City, has explained that police officers across the country are committing felony perjury hundreds of thousands of times a year in drug cases. The only way they can make the large numbers of drug arrests the politicians are telling them to make is to conduct illegal searches, and then to lie about it so the evidence won’t be thrown out.

Rarely is such police perjury prosecuted, but that’s almost besides the point. Why aren’t the illegal searches prosecuted? I’m not talking about errors in judgment or legitimately complex situations where the police officer has made an honest mistake. I’m talking about the cases where it is so obvious that a search was illegal that the rights violation committed by the officer had to have been deliberate. Does anyone doubt that a private citizen caught forcibly opening another person’s car trunk without permission would be prosecuted? Why is there no penalty for police officers — in whom the public has placed a special trust — who have done exactly the same thing and who understood the illegality of their actions when they did it?

A year ago tomorrow, the unarmed, drug-free Patrick Dorismond was shot and killed by undercover New York City police officers who accosted him without reason and asked him to sell them marijuana. No indictment has been made against any of the officers involved in Dorismond’s killing. Was there some reason, some information prosecutors had to believe they were somehow innocent despite the incredible nature of the event? Perhaps, I don’t know. But does anyone doubt that if a private citizen were to attempt to buy drugs and in the process shoot and kill an unarmed man, that individual would be prosecuted and a jury would decide? What about the police chief and mayor who unlawfully released Dorismond’s court-sealed juvenile record to the media?

At the San Francisco “Women and the Drug War” conference, a drug war victim came forward to tell her story: She is a medical marijuana user, legally by doctor’s recommendation under California law. Yet, despite her doctor’s note, the state took away her two-year-old child after finding a small quantity of (legally-possessed) marijuana in her car, and is trying to put the child up for adoption. Does anyone doubt that a private individual who forcibly took a child from its competent, law-abiding parent would be prosecuted for kidnapping?

Recently, a high-level U.S. State Department official said our government should spray Andean peasants with pesticides to stop coca cultivation. It is a sick and outrageous comment, a detestable assault against the most basic principles of human rights. Yet, this very thing is happening now, as a direct result of U.S. diplomatic pressure on nations in that region. Does anyone doubt that a private helicopter pilot using his equipment to spray poisons on American citizens would be imprisoned for assault or worse?

The purpose of law is supposed to be the protection of individuals from assaults on their safety and property. But in the drug-war, laws are subverted, twisted and disregarded at the whims of the law enforcers. And often these drug war zealots believe that they are doing the right thing. To ignore these supreme laws, the Constitution and the Bill of Rights, is never truly right, and breeds disrespect for law. Yet for all the harm they cause, the zealots ultimately are not at the root of the problem — the drug war is the root of the problem. As our predecessors who opposed alcohol prohibition proclaimed early last century: Save Our Constitution, Protect Our Youth, Repeal Prohibition.

David Borden is the executive director of DRCnet.

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