The George W. Bush administration quickly made it clear that the drug war would once again be fought as a culture war. Bush appointed only one drug czar in his two terms. John Walters was a longtime aide to William Bennett who, like Bennett, took a hard-line, zero-tolerance approach to drugs. But when the 9/11 attacks happened eight months after Bush was inaugurated, they presented a new opportunity. Instead of exploiting the fear of crime or tapping into what remained of anti-counterculture sentiment, they could now exploit the fear of terrorist attacks. They would use the 9/11 attacks for drug war propaganda.
And so, starting in the February following the attacks, the Office of National Drug Control Policy (ONDCP) started the “I helped . . . ” campaign, which consisted of commercial and print ads claiming that casual drug users in the United States were supporting the very sorts of terrorists that had attacked America. The television commercials featured a series of young people portrayed as casual drug users. One by one, the young actors rattled off the varieties of atrocity allegedly funded by recreational drug use. “I helped kill a policeman,” one said. “I helped murder families,” said another. “I helped kidnap people’s dads,” said still another. The ads aired during the 2002 Super Bowl, just after a September 11–themed halftime show that featured a running scroll of the names of the 9/11 victims, accompanied by a performance by the band U2.
The campaign was not only shamefully exploitative, it was simply false. The claim that casual drug users supported terrorism was dubious at best. To the extent that black market drug purchases in the United States did support terror groups, it was the “black market” part that made it possible. Nearly all of the terror attacks listed on the DEA’s website at the time had been attacks by drug-smuggling groups related to the drug trade, and nearly all had taken place in Latin America and Mexico. The only widely used drug in the United States with any tangible connection to terrorism of the 9/11 variety was heroin, and even that link was tenuous. By the federal government’s own estimates, 82 percent of U.S. heroin came from Mexico and South America. A small percentage was domestically grown, and much of the rest came from a slew of countries in Asia, only a few of which were host to active anti-American terrorist groups. There was just no evidence that Al Qaeda operatives were selling pot to Americans to fund their schemes to slam airplanes into buildings. But that was the line the government was pushing. The DEA would later put on a touring museum exhibit with the same themes. It included pieces of rubble from the World Trade Center.
If anything, there was a stronger argument that the country’s antidrug efforts were sponsoring terrorism. In May 2001—just four months before September 11—the U.S. State Department announced a $43 million aid gift to Afghanistan, which at the time was ruled by the Taliban. The grant was intended to be used to compensate Afghan farmers who had been hurt by a Taliban edict (encouraged by the United States) banning the cultivation of opium poppies. Of course, the edict didn’t really stop the heroin from flowing out of Afghanistan. It simply enabled the Taliban to consolidate heroin production so that more of the revenue went directly to the regime. The United States had also given aid to support a drug war in Thailand that included government “death squads” that human rights groups accused of carrying out as many as four thousand extrajudicial executions of suspected drug offenders. U.S. aid had also gone to right-wing paramilitary groups in Colombia that were accused of mass human rights abuses.
From a broader view, the ads weren’t all that different from prior attempts to associate drugs and intoxicants with whatever bogeyman the country happened to be facing at the time. But by tying even casual drug users to terrorism so soon after one of the most horrific attacks on U.S. soil in the country’s history—particularly an attack that took the lives of so many police officers—the federal government afforded drug cops yet more moral license to treat suspected drug offenders as enemy combatants not as citizens with rights.
Bush also continued Clinton’s assault on medical marijuana. In the 2000 campaign, Bush had promised a federalist approach to the issue—he had said he would leave it to the states to decide. That promise didn’t last long. It quickly became clear that, like Clinton before him, Bush would give no quarter to sick people using pot in states that had legalized it for treatment. The aggressive raids that began during the Clinton administration increased, in both number and intensity.
The result was the perverse spectacle of armed federal cops taking down medical facilities and their patients. On September 5, 2002, for example, federal agents raided the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz, California. Suzanne Pfeil, a post-polio patient who couldn’t walk without leg braces and crutches, told columnist Mitch Albom that she awoke to find federal agents pointing assault rifles at her head. They yelled at her to get up. She said she couldn’t. They yelled at her some more. She explained, again, that she was crippled. They finally handcuffed Pfeil to her bed, then moved on to other patients. Because she was allergic to many classes of drugs, Pfeil smoked marijuana to alleviate muscle and nerve pain brought on by her condition.
On the same day, federal agents also raided the home of the facility’s owners, Valerie and Michael Coral. A DEA SWAT team decked out in flak jackets and M-16s stormed the house, shoved Valerie Coral to the ground, and put a gun to her head. She was cuffed, arrested, and taken to a federal detention center, still wearing her pajamas. When asked if such heavy-handed tactics were necessary given that Valerie Coral was hardly a dangerous drug kingpin, DEA spokesman Will Glaspy replied, “We target drug traffickers. There is no such term as ‘medical marijuana,’ except as created by the marijuana lobby.” A week later, agents raided the Genesis 1:29 medical cannabis dispensary and the grower that supplied it. California attorney general Bill Lockyer was angry, protesting, “A medical marijuana provider such as the Santa Cruz collective represents little danger to the public and is certainly not a concern which would warrant diverting scarce federal resources.”
The heavy-handed federal enforcement on medical providers wasn’t limited to marijuana. As fears about prescription opioid painkillers started to take root in the media in the early 2000s, the DEA began targeting doctors, and it has been doing so ever since. These are professionals with medical degrees, practices, offices, and patients, singled out for allegedly overprescribing a certain class of drugs. There’s still a debate over whether overprescribing these drugs—as defined by drug cops, not other doctors—should even be a crime, and whether some of the doctors were even overprescribing in the first place. Those questions aside, it’s hard to fathom why it would be necessary to send SWAT teams to storm their homes and offices, subjecting their families and patients to the violence and volatility of a typical raid.
The federal government wasn’t even pretending anymore. Alleged “states’ rights” supporters like Asa Hutchison, the head of DEA appointed by Bush in 2001, and Attorney General John Ashcroft were making an example of these doctors, these dispensaries, and the people who owned, supplied, and patronized them. The guns and commando tactics were completely unnecessary. No reasonable person believed that Suzanne Pfeil or Valerie Coral was going to take out a couple of DEA agents in a suicidal blaze of glory. Most of the dispensaries were operating openly, within state law. Bush, Walters, Hutchison, Ashcroft, and the rest of the administration’s drug policy team were using state-sanctioned violence to make a political point.
“We're going to have our own tank," Keene, N.H., Mayor Kendall Lane whispered to Councilman Mitch Greenwald during a December 2011 city council meeting.
It wasn’t quite a tank. But the quaint town of 23,000—home to just two murders since 1999—had just accepted a $285,933 grant from the Department of Homeland Security to purchase a Bearcat, an eight-ton armored personnel vehicle made by Lenco Industries, Inc. Since the September 11 attacks, Homeland Security has been handing out anti-terrorism grants like parade candy, giving cities and towns across the country funds to buy military-grade armored vehicles, guns, armor, aircraft, and other equipment. Companies like Lenco have thrived, creating yet another class of government hardware contractors, and a new interest group to lobby Washington to ensure the process of police militarization continues.
These DHS grants have dwarfed the 1033 program. At the end of 2011, the Center for Investigative Reporting (CIR) found that Homeland Security had given out at least $34 billion in anti-terror grants since its inception, many of which went to such unlikely terrorism targets as Fargo, N.D.; Fon du Lac, Wisc.; and Canyon County, Idaho. Defense contractors that had previously served the Pentagon exclusively, CIR reported, have since shifted their focus to police departments, hoping to tap a new homeland security market bounty expected to be worth $19 billion annually by 2014. Police agencies have a whole new source of funding for their war gear. Just as they’d done with the 1033 program, they’d initially argue that the equipment was necessary “just in case” of the rare school shooting or Al Qaeda attack in Fon du Lac. But once they get the gear, they use it for drug raids.
But in Keene, there was some resistance to the Bearcat. It began with Mike Clark, a 27-year-old handyman. Clark, who’d had a couple encounters with Keene police that he described as “negative,” read about the Homeland Security grant in the newspaper. “The police are already pretty brutal,” Clark told me in February 2012. “The last thing they need is this big piece of military equipment to make them think they’re soldiers.”
On Feb. 9, 2012, more than 100 people packed a meeting of a city council committee, nearly all to oppose equipping the Keene Police Department and its 45 sworn officers with a Bearcat. One speaker quoted in the Keene Sentinel was Roberta Mastrogiovanni, owner of a newsstand downtown. “It promotes violence,” Mastrogiovanni said. “We should promote more human interaction rather than militarize. I refuse to use money for something this unnecessary when so many people in our community are in need.”
Lenco spokesman Jim Massery dismissed critics who asked why a town with almost no crime would need a $300,000 armored truck. “I don’t think there’s any place in the country where you can say, ‘That isn’t a likely terrorist target,’” Massery told me. “How would you know? We don’ t know what the terrorists are thinking . . . Our trucks save lives. They save police lives. And I can’t help but think that the people who are trying to stop this just don’t think police officers’ lives are worth saving.”
It’s a line of argument defenders of militarization use often. Oppose the arming of cops as if they were soldiers, and you must secretly want cops to be killed on the job. But the video Lenco was using to market the vehicle to police departments didn’t exactly emphasize negotiation. The camera viewpoint in the video was similar to that of a shooter video game. The soundtrack was AC/DC’s “Thunderstruck.” Cops dressed in camouflage toted assault weapons, piled in and out of the Bearcat, and took aim at targets from around and behind the vehicle. They then attached a battering ram to the front of the vehicle, which they then used to punch a hole in the front door of a house, into which they injected canisters of tear gas.
Lenco wasn’t stupid. The company had chosen the images and music used in the video because they felt it would appeal to those police departments in the market for a Bearcat.
Dorrie O’Meara, a 13-year resident of the town, told me, “Keene is a beautiful place. It’s gorgeous, and it’s safe, and we love it here. We just don’t want to live in the kind of place where there’s an armored personnel carrier parked outside of City Hall . . . It’s just not who we are.”
According to CIR’s research, DHS gave out $2 billion in grants in 2011, about four times the value of equipment given out through the 1033 program. As with the Byrne and COPS grants, the DHS grant program also got a big boost in President Obama’s 2009 economic recovery package. The CIR investigation also found that DHS makes little effort to track how the grants are spent once they’re sent, nor does it track how the equipment is used once it has been purchased. The agency also doesn’t seem to care if the recipients of the grants are places that face any tangible threat of terrorism. Hence, a city like Fargo, North Dakota has been able to get its hands on $8 million in grants, which the police department has used to buy assault rifles, kevlar helmets, and an armored truck with a rotating turret.
Fargo Police Lt. Ross Renner attempted to defend the city’s armament. “It’s foolish to not be cognizant of the threats out there,” he said, “whether it’s New York, Los Angeles, or Fargo.” But until the day when the next Muhammad Atta casts rage-filled eyes on North Dakota, the department hasn’t made much use of its gun-fitted armored truck. CIR reported that it’s mostly used for show, including at the annual city picnic, where police parked it near the children’s bouncy castle.
Elsewhere, CIR found that “In Augusta, Maine, with fewer than 20,000 people and where an officer hasn’t died from gunfire in the line of duty in more than 125 years, police bought eight $1,500 tactical vests. Police in Des Moines, Iowa, bought two $180,000 bomb-disarming robots, while an Arizona sheriff is now the proud owner of a surplus Army tank.” And in Montgomery County, Texas, “the sheriff’s department owns a $300,000 pilotless surveillance drone, like those used to hunt down al Qaeda terrorists in the remote tribal regions of Pakistan and Afghanistan.” A couple months before the CIR report, the sheriff in Montgomery County had broached the possibility of arming his drone with rubber bullets, or possibly teargas. “No matter what we do in law enforcement, somebody’s going to question it, but we’re going to do the right thing, and I can assure you of that,” he said. Five months later, the department made headlines when its DHS-funded drone accidentally crashed into its DHS-funded Bearcat.
Lenco’s Massery told me he was certain that the Keene protesters’ efforts would ultimately be in vain. “We have Bearcats in 90 percent of the 100 or so largest cities in America,” Massery said. “This is going to happen. It has already happened. To resist now would be like saying police officers should scrap the Glock and go back to the revolver. It’s a fantasy.”
Massery was right. In November 2012, Lenco accepted its check from DHS, and delivered a shiny new Bearcat to the town of Keene.
On November 2, 2002, a large group of police officers in tactical gear descended on a rave party in Racine, Wisconsin. The cops kicked in doors, dragged young people from bathroom stalls, threw others to the floor, and held dozens more at gunpoint. The police issued more than 450 citations of $968 each to partygoers merely for attending an event where some attendees were breaking the state’s drug laws. Only three people were arrested on actual drug charges. With help from the ACLU, the city of Racine eventually dismissed the charges against all attendees who hadn’t yet pleaded guilty.
The trendy new drug throwing the media and politicians into hysterics was Ecstasy. Raves were the new, weird, and different dance parties where teenagers were allegedly taking this crazy sex drug. Cue the moral panic, political grandstanding, and ensuing aggressive crackdown. Prior to the raid in Racine, Sen. Joe Biden of Delaware seemed particularly obsessed with rave parties. Politicians seemed to think that any party with techno music, pulsing lights, and neon inevitably degenerated into underage kids getting high on Ecstasy and engaging in mass orgies. In the summer of 2002, Biden was pushing his RAVE Act, an absurdly broad law that would have made venue and club owners liable for running a drug operation if they merely sold the “paraphernalia” common to parties where people took Ecstasy— accessories like bottled water and glow sticks. After attempting to sneak the bill through Congress with various parliamentary maneuvers, Biden was finally able to get a slightly modified version folded into the bill that created the Amber Alert for missing children. Once again a politician had demagogued worries over a mostly harmless drug into a climate of fear. And once again that fear led to aggressive, wholly disproportionate crackdowns across the country.
A few years later one of the rave raids was captured on video. In August 2005, more than 90 police officers from several state and local SWAT teams raided 1,500 people at a peaceful, outdoor dance party in Spanish Fork Canyon, Utah. The police were armed with assault weapons, full SWAT attire, police dogs, and tear gas. Many in attendance say that police beat, abused, and swore at partygoers. Police denied the allegations, though amateur video/audio clearly showed the police barking out orders punctuated with profanity. In truth, the party appeared to have been pretty well run. Private security guards had been stationed outside the event, and confiscated any illegal drugs they found on attendees. The raiding SWAT cops then arrested the private security guards for the drugs they had confiscated, and charged them with possession.
The other new concept at work in Racine and Spanish Fork was the willingness to subject large groups of people to commando tactics in hopes of catching even a few offenders. By the late 2000s, SWAT teams were increasingly called out to raid entire bars and nightclubs for drug activity. A search warrant for a bar’s owner or a description of the place as a drug market could allow police to go in and give the SWAT treatment to everyone inside. And it wasn’t just bars and nightclubs that were treated this way. In November 2003, police in Goose Creek, South Carolina, raided an entire high school, conducting a blanket commando-style raid on Stratford High School. Students were ordered at gunpoint to lie face-down on the floor while police searched their lockers and persons for drugs. Some were handcuffed, while K-9 units deployed dogs to search their lockers, backpacks, and bodies. Oddly, media reports indicated that the school had a stellar academic reputation.
Le’Quan Simpson, a fourteen-year-old, was forced to kneel at gunpoint. His father had once served on a SWAT team. “They hit that school like it was a crack house,” he said. “Like they knew that there were crack dealers in there armed with guns.” The raid was based on a tip from the school’s principal that a single student might have been selling pot. The raid turned up no illicit drugs, and the police made no arrests.
Still, though these raids of schools and parties were somewhat new, drug cops had been conducting massive drug sweeps of entire neighborhoods for years, subjecting innocent people to violent tactics simply because of where they happened to live. There were more of those police actions too. In February 2002, for example, one hundred Durham police officers, two National Guard helicopters, and ten North Carolina Bureau of Investigation agents seized an entire neighborhood on Cheek Road, then engaged in a series of forced-entry drug raids. They called the whole episode Operation TAPS, short for The Aggressive Police Strategy. The police arrested thirty-five people and confiscated an “undisclosed” amount of drugs, plus two pistols. Superior Court judge Orlando Hudson later threw out all the arrests and evidence, ruling that the entire operation was unconstitutional and “partially illegal” and that some of the officers’ behavior amounted to “criminal conduct.”
One particularly aggressive action peppered with war rhetoric occurred in April 2006, when police in Buffalo, New York, staged a series of drug raids throughout the city under the moniker Operation Shock and Awe. They borrowed the phrase from the U.S. military, which had used it to describe its strategy in the early days of the Iraq War. Shock and Awe in Buffalo meant thirty-eight SWAT raids over three days. The cops even invited along a couple of reporters from the Buffalo News to cover the invasion.
A month later, the Buffalo News ran a follow-up report. The original six pounds of marijuana police claimed to have found was actually four pounds, thirteen ounces. Three and a half pounds of that came by way of an unrelated traffic stop on the same day that had nothing to do with the raids. They found all of five guns. Not surprisingly, the revised haul wasn’t enough contraband to keep the seventy-eight people in jail. Sixteen were immediately released with no criminal charges. Another thirty-two were out of jail within twenty-four hours due to insufficient evidence.
City leaders were furious, not because city police had just terrorized innocent people with fruitless SWAT raids, but because so many petty offenders were let off. City officials demanded tougher drug laws, and discussed the possibility of sending drug cops and SWAT teams out with housing code inspectors to clean up suspected crack houses without those pesky Fourth Amendment warrant requirements.
Buffalo’s chief of detectives, Dennis Richards, told the newspaper that Operation Shock and Awe was “just the beginning.” “There will certainly be more raids in the future,” he said. “You can count on that. . . . We’re looking at small-scale, large-scale, street-level. . . . We’re looking at top to bottom.”
In the 2000s, the U.S. Supreme Court somehow managed to inflict more damage on the already crippled Castle Doctrine. It began with United States v. Banks. In 1998 a raid team in North Las Vegas knocked and announced themselves while serving a drug warrant. The suspect was in the shower at the time, and claimed he didn’t hear them. They waited an estimated fifteen to twenty seconds, then forced their way inside. The search turned up illicit drugs and illegal weapons.
In 2003 the Supreme Court unanimously ruled that fifteen to twenty seconds is sufficient time for police to wait after knocking before forcing entry, though they conceded that it was a “close call.” The search warrant for Banks was served on a Wednesday afternoon, a time of day when fifteen to twenty seconds might seem like enough time. But a warrant served at night, while everyone is asleep—most likely in a bedroom removed from the front door (where bedrooms usually are)—would be quite a bit different. The opinion, written by Justice David Souter, made no such distinction. Souter also indicated that even shorter wait times might be justified in narcotics cases because of the disposableness of the evidence. Here again, a U.S. Supreme Court opinion had taken a position that makes it easier to use violent dynamic-entry tactics on low-level drug offenders than major ones (because smaller quantities are easier to destroy than larger ones) and for nonviolent offenses like drugs or gambling (where the incriminating evidence is generally disposable) than for crimes like weapons violations or murder (guns and bodies being tougher to destroy quickly).
By Souter’s analysis, “what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. . . . It is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.”
As discussed earlier, the knock-and-announce rule arose out of the common-law tradition and the Castle Doctrine valued so highly by the American Founders. To protect the sanctity of the home, the police were obligated to give a homeowner the opportunity to grant them entrance in order to prevent a violent confrontation, the destruction of his door and property, and the infliction of terror upon him and his family. Souter’s direction to police to consider disposal time instead of the time it would take an occupant to come to the door not only does away with the notion that the purpose of the knock-and-announce rule is to give citizens the opportunity to avoid a violent confrontation, it also presupposes that all drug suspects are guilty. Souter’s only concern was with making sure the knock-and-announce requirement doesn’t give drug offenders the opportunity to destroy evidence. And every other justice agreed with him.
In Banks, a unanimous Court decided that preserving the evidence needed to convict people suspected of nonviolent, consensual drug crimes was more important than protecting innocent people from the violence of a paramilitary-style police raid. Thirty years after it began, the modern drug war had finally killed the Castle Doctrine.
Next up was the 2006 case Hudson v. Michigan, in which the Supreme Court effectively erased its own recognition of the knock-and-announce requirement ten years earlier. By a 6–3 vote, the Court decided that even when police conduct a clearly illegal no-knock raid, any illegal evidence they seize can still be used against the defendant at trial. Writing for the majority, Justice Antonin Scalia took aim at that old conservative nemesis, the Exclusionary Rule. Scalia wrote that the rule is excessive and inappropriate in such cases. He added that there are other ways of holding police officers accountable when they violate the knock-and-announce requirement. Scalia explained that police management and internal affairs departments could, for instance, bring disciplinary action against offending officers, or innocent victims of illegal raids could sue the offending officers in court. He also cited the existence of civilian review boards. If you’ve read this far into this book, it should be clear that those solutions haven’t been particularly effective at preventing these abuses.
In pointing to these other possible remedies for knock-and-announce violations, Scalia cited the work of criminologist Sam Walker, who has done extensive research on the development of police professionalism. In the study Scalia cited, Walker concluded that there has been enormous progress “in the education, training and supervision of police officers.” Scalia argued that this progress was gradually making the Exclusionary Rule obsolete. But Walker’s thesis was that this progress has come about in part because of Supreme Court decisions applying the Exclusionary Rule, particularly during the Warren years.
Walker was horrified. Shortly after the Hudson decision came down, in an op-ed in the Los Angeles Times headlined “Thanks for Nothing, Nino” (Nino is Scalia’s nickname), Walker wrote:
Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
The Court wasn’t finished. In 2011, another 8–1 vote found that police officers may forcibly enter a home without a warrant if exigent circumstances exist even if police create the exigent circumstance themselves. In the case before the Court, an informant had conducted a cocaine buy while working for police in Lexington, Kentucky. The police then followed their suspect into an apartment complex, at which point they lost him. They claimed, however, that
while they were there they smelled marijuana coming from an unrelated apartment. They knocked, and when they heard “rustling” inside, kicked down the door. Inside, they found marijuana and cocaine. The Kentucky Supreme Court threw out the conviction, writing that in this case “police have created their own exigency, and cannot rely on the fear of evidence being destroyed as a justification for a warrantless entry.”
The U.S. Supreme Court disagreed. Writing for the majority, Justice Samuel Alito found that so long as the police conduct itself is lawful before the exigent circumstances manifest, the subsequent search is legal. The Court has a history of assuming good intent on the part of police officers (see the “good-faith exception” to the Exclusionary Rule). But as the lone dissenter, Justice Ruth Bader Ginsburg, explained, decisions like these can become a how-to guide for cops to undermine the Fourth Amendment. “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”
Excerpted from “Rise of the Warrior Cop: The Militarization of America’s Police Forces” by Radley Balko. Reprinted with permission from PublicAffairs Books.