Since September 11, 2001, much attention has been paid to the threats to liberty and equality occasioned by the "war on terror." But precisely because they are unexceptional, the threats created by the "war on drugs" may well be more significant and long-lasting.
The cost of the drug war can be measured in many ways: lives lost, futures ruined, crimes produced, or state and federal resources wasted in a near-futile effort to stanch the flow of drugs into and through the United States.
But these traditional measurements do not tell the whole story. One cost that is more difficult to quantify but no less significant is the effect on our civil liberties. Since the 1970s the Supreme Court has consistently eased the tension between constitutional rights protections and the mandate to enforce the drug laws by diminishing the protections—often in ways that have a disproportionate impact on members of minority groups. In short, the drug war has been waged not only on drug traffickers and users but on liberty and equality.
In cases involving searches for drugs, the Court has created exception after exception to the general rule that searches and seizures must be preceded by probable cause and a warrant. It has upheld the right of the police to ask for "consent" to a search without any articulable basis for suspicion, and without informing the individual that he has a right to say no. It has approved the use of "bus sweeps," in which police approach people in remote areas on long-distance bus rides to increase the likelihood that they will obtain such consent, again without any objective basis for suspicion. And it has permitted the police to stop motorists on the pretext of a traffic violation to search for drugs, again without any individualized basis for suspicion. Together, these rulings cleared the way for the phenomenon known as "driving while black," in which officers freed of any requirement to provide grounds for suspicion use traffic stops disproportionately against black drivers on the unspoken assumption that because they are black, they are more likely to be carrying drugs.
In other drug cases, the Court has watered down the constitutional requirements for "probable cause" that govern the issuance of search warrants in the first place. It has held that the exclusionary rule, which ordinarily bars the use of illegally obtained evidence at trial, does not apply where magistrates issue warrants without probable cause, or where police violate the constitutional requirement that they knock and announce themselves before executing a search warrant on a home. The Court has also approved suspicionless drug testing of student athletes and debaters, and permitted the police to engage in illegal conduct in order to "encourage" a suspect to commit a drug crime in their presence.