Defining War Down 2

Domestic "wars" tend to make things worse.

The Washington Post described a SWAT anti-drug raid that ended with a 12-year-old boy shot in the knee.

It was 5 a.m. and the 12-year-old boy, who had been sound asleep just moments before, was staring at a police officer standing in his bedroom about two feet away from him. The officer had allegedly barged in without warning and was now pointing an automatic rifle at Amir.

Minutes later, the young boy would be in agonizing pain, his kneecap shattered by a bullet his family alleges came from the officer’s gun, according to a lawsuit filed Thursday in the Circuit Court of Cook County, Ill.

... Hofeld [who brought the lawsuit] said he has filed a total of seven lawsuits alleging that Chicago-area police used excessive force on more than a dozen children of color during raids, a majority of which occurred at the wrong residences[emphasis added]

Civilian casualties are expected in war, but not usually in policing.  In the first article in this series we examined how our aptly-named War on Drugs has led to outcomes typical of, well, a war, complete with collateral damage.

The problem is that there are essentially no limits to what people or nations will do in fighting a war.  The By Any Means (BAM) mentality brought about by warlike thinking leads, among other travesties of justice, to heavily-armed no-knock Special Weapons and Tactics (SWAT) team raids on suspected drug dealers.

SWAT teams who operate by BAM rules can't always even be bothered to make sure they're raiding the proper addresses!  We find it fascinating that while bemoaning "children of color" who've been hurt and introducing a whiff of racism by saying "This just doesn’t happen very often to Caucasian families or Caucasian kids," the Post did not trace the root cause of such tragedies back to the War on Drugs.  Even only 1 or 2 out of many comments mentioned this connection.

Civil Forfeiture

In our opinion, civil forfeiture is one of the least acceptable side effects of our War on Drugs.

As with most gross miscarriages of justice, the idea originally was a pretty sensible one: that a criminal who made money running drugs ought not to be able to keep the profits from the crime.  The law started out saying that once someone was convicted, the profits could be confiscated.  That is why the government seized billions of dollars belonging to "El Chapo" Guzman after convicting him of dealing in illegal drugs.

Under the BAM methodology of suspending our Constitutional protections against seizure of property without due process, however, prosecutors started deciding that large sums of cash found on anyone were most likely the results of drug crime.  They grab the cash and keep it, sometimes without even charging the owner with any crime.  This transparently unconstitutional violation of due process is somehow justified by the term "war."

The term "civil forfeiture" means that taking your money is not a criminal matter.  To convict you of a crime, the government must show beyond a reasonable doubt that you are guilty; you do not have to prove that you didn't do it.

In a civil forfeiture case like this one, the government is actually bringing suit against the money.  Money itself, not being a citizen, has no Constitutional rights whatsoever, including due process or the presumption of innocence.  The way Court decisions have fallen out over the years, you have to prove that your money is innocent in order to get it back!  We've written about this outrage repeatedly; details and examples are in these other articles.

The worst aspect of civil forfeiture is that police departments get to keep a lot of the money they seize in this way.  Another principle of American law that's not as widely known as "due process" is the concept that those who enforce the law should not directly benefit from decisions they make.  We expect judges to recuse themselves from cases involving companies they have invested in; it's obviously unjust for judges to make rulings that lead directly to their own personal profit.  We don't even like officials to be rated by the amounts they bring in, as public repugnance at the idea of ticket-quotas for traffic police illustrates; the more the police chiefs deny setting quotas, the more ordinary people believe that they do.

Why, then, do we tolerate this system which flies in the face of so many foundational principles of American justice, law, tradition, common sense, and basic fairness?  It's not like there is no other way to punish the truly guilty, or even to have the same result of confiscating their corrupt profits.  All we ask for is, as the Constitution says, "due process of law," complete with a proper criminal trial and conviction before grabbing the goods.

It's time to put the modern tax farms out of business.  Where local police departments have become addicted to this source of revenue, they need to quit cold turkey - just as we'd ask of addicts to any other drug.  Withdrawal may be painful, but we'll all be the healthier for it.

Because it's a "war," however, this sort of behavior is tolerated, because that's the sort of thing that goes on in wars and always has.

War on Terror

The "War" on Terror had led to By Any Means thinking, which is similar to the thinking behind stopping drivers without probable cause and to militarized SWAT teams making no-knock smash-and-grab anti-drug raids - and with just as deadly effects.

We pointed this out when President Obama ordered the US military to carry out the targeted killing of US-born Yemeni cleric Anwar al-Awlaki, who was suspected of cooperating with what the US considers terrorist groups.  Rep. Kucinich, to his credit, presented a bill in the US House of Representatives prohibiting killings or assassinations of Americans suspected of working with terrorist groups.

What Rep. Kucinich was trying to do ought to be completely non-controversial.  His bill does not ban the American government from killing enemies in general, or assassinating foreign leaders, or using Predator drones, or killing bystanders by accident.  It simply would ban the targeted murder of American citizens without due process.  What American could possibly be opposed to that?

As we reported, Rep. Kucinich's initiative is totally unnecessary, or should be.  The US Constitution provides that criminal charges can be brought against persons who've fled.  If the charge is treason, the US Congress can declare the accused guilty, at which point, the military is free to go after him By Any Means.

But no: Mr. Obama skipped due process entirely and ordered a targeted murder without judicial review or presenting the matter to Congress.  He simply let his legendary "phone and a pen" do the work, and place six feet under.

Mr. al-Awlaki may very well have deserved to be removed from this world.  Regardless of his own personal merits or lack thereof, though, do you trust any human being, all by himself and with no arguments nor appeal, to make that decision about anyone else?  By definition, and with the best will in the world, that is tyranny.

This travesty, too, was justified by the "War" on Terror.  The American Bar Association reported that we're on murky ground:

The question of the proper scope of judicial review still remains open, however. Shortly after September 11, Congress authorized the president to use all necessary and appropriate force against "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks [or] harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).  [emphasis added]

If anyone other than Rep Kucinich had questioned his actions, Mr. Obama could argue that the phrase "all necessary and appropriate force" authorized him to target a US citizen who, in Mr. Obama's opinion as Commander In Chief, deserved to be targeted and killed by the US military.  As US citizens in good standing, we are totally opposed to any single individual having the power to order one of us to be killed without judicial review regardless of what anyone thought we'd done.

As the bar association says, however, "The question of the proper scope of judicial review still remains open" due to all the mischief that's been enabled by relaxing our constitutional guarantees.  This shouldn't even be a close call - but "war" makes it available at least to the Commander in Chief and perhaps to others.

The War on Whores We Didn't Fight

John Raines, a member of the New York State Legislature, was a strict prohibitionist who unintentionally established hundreds of brothels in New York.

In 1896, Mr. Raines managed to pass a bill prohibiting the sale of intoxicating liquors on Sunday throughout the state, except in hotels.  What happened?  Every saloon became a "hotel."  The saloon-keepers knocked up a few walls upstairs and advertised rooms for rent.

What decent family would occupy rooms above a saloon?  None, of course, but that didn't matter - the rooms were rented out to prostitutes who found the venue convenient to follow up successful marketing efforts conducted in the saloon, and the money rolled in.

This gave the saloon keeper a "brand extension" which increased traffic in the saloon proper, and not just on Sundays.  Prostitution was illegal.  Saloon keepers were selling liquor legally, but they had to use the traditional means of persuading police to ignore the prostitutes.

As well-intended as his efforts were, Mr. Raines' meddling with the law of supply and demand resulted in the exact opposite of anything he or his religious supporters would have wished.  Yet his law continued in force for many years.  Either Mr. Raines was too stupid to realize the counter-productiveness of his efforts, or it was all a show to gull his supporters.

We're inclined to believe that Rep. Raines was simply unwilling to see the ill effects of his battle against Demon Rum, because he did notice the sudden increase in the availability of prostitution in hundreds of "Raines Hotels" and tried to do something about it.  When he complained to the mayor about the police ignoring all this illegal activity, however, Mayor William Gaynor showed a deeper understanding of what was going on than Mr. Raines could muster.

He explained that if the police stopped prostitutes from working in one area, they'd just move somewhere else.  "If you want me to drown them in the Hudson," he told Mr. Raines, "that might have an effect, but nothing else will."

Drowning prostitutes would have been a BAM-like measure which would be as open to abuse as any other violation of the Constitution.  Mr. Raines' proposed "War on Prostitution" is a war the mayor chose not to fight - and rightly so.  Even the most anti-prostitute bluestocking doesn't think the girls should be killed for it.

What would have happened if Mr. Raines had realized his mistake and urged the repeal of the "except in hotels" law?  Would saloon keepers have shut down their profitable "Raines Hotels" and stopped bribing cops to ignore prostitution?  Such mistakes are difficult to undo.

War on Alcohol a.k.a. Prohibition

Most countries that have experimented with banning alcohol changed their laws soon afterward.  Finland adopted prohibition in 1919 and repealed it in 1931; the United States adopted it in 1919 and repealed it in 1933.  In 1838, Massachusetts passed a law which prohibited sales of spirits in less than 15-gallon quantities - no six-pack for you!  The law was repealed two years later.

Abolitionists learned nothing from the unanticipated effects of Mr. Raines' attempts to ban liquor consumption on Sundays or from the earlier Massachusetts law.  Like all true believers who disregard generations of human history, they were convinced that this time, they'd do prohibition right!

The Volstead Act, formally known as the National Prohibition Act, took effect effect in 1920.  It provided enforcement of the Eighteenth Amendment which had prohibited the manufacture and sale of alcoholic beverages throughout the United States.  It was named for Minnesota Rep. Andrew Volstead, chairman of the House Judiciary Committee, an ardent prohibitionist who had championed the bill.  The act was vetoed by Pres. Woodrow Wilson, but it became law after Congress voted to override the veto.

Neither the Volstead Act nor the Eighteenth Amendment could be enforced successfully.  Entire illegal economies based on bootlegging, speakeasies, and illicit distilling operations flourished.  Millions of bottles of "medicinal" whiskey were sold using real or forged prescriptions.  Abuse of the prescription system should sound familiar.

Prohibition gave the Mafia its path to rapid growth.  Liquor distribution, like drug distribution, is more complex than local criminal activities such as burglary, extortion, or protection.  Organized gangs grew to control the bootlegging supply chain from concealed distilleries and breweries through storage and transport channels to speakeasies, restaurants, nightclubs, and other retail outlets.

Al Capone took over an earlier mobster's Chicago racket in 1925.  It's estimated that he was worth close to $100 million by 1927 or 2.5 billion in 2019 dollars; his enterprise enjoyed a growth rate faster than Amazon's.

In 1929 - the year the stock market crash increased liquor consumption - Eliot Ness was hired to head the Prohibition Bureau in Chicago.  His infiltration of the underworld secured evidence that helped send Al Capone to prison for income-tax evasion in 1932.

People gradually saw that the war on alcohol was being lost.  On December 5, 1933, Prohibition was repealed at the federal level with the ratification of the Twenty-first Amendment.  Contrary to popular understanding, though, this didn't end Prohibition entirely; the Amendment allowed Prohibition to be maintained at the state and local levels, where it should have been all along.  To this day, there are "dry" counties and towns where selling liquor is illegal.  That doesn't lead to major bootlegging because anyone who's thirsty can drive a couple towns over to the nearest bar.

In addition to giving the Mafia a large and lucrative market which was immune to competition from legitimate businesses, prohibition increased the demand for law enforcement.  J. Edgar Hoover was appointed director of the Bureau of Investigation, the FBI's predecessor, in 1924 and helped found the FBI in 1935, two years after the repeal of prohibition reduced the need for it.

He remained director for 37 years until his death in 1972 at the age of 77.  Legend has it that he collected so much evidence of malfeasance on the part of politicians that he was unfireable - he could, in effect, blackmail anyone he pleased to do anything he wanted, having used Your Tax Dollars to gather the evidence.  We're just lucky he didn't feel like becoming President, or something worse.

Although Prohibition wasn't called the "war on alcohol," a fair amount of violence was involved.  Government employees stormed into locations where liquor was being consumed, chopped barrels up, and poured liquor down the sewers.  Like drug dealers battling for access to prime selling locations, bootleggers threw lead at each other instead of lawyers because they didn't have access to the courts.

1929 was not only the year the Great Depression started.  The St. Valentine's Day Massacre happened on Feb. 14 when 7 men associated with a rival to Al Capone were machine-gunned by rival gangsters dressed as policemen.

What's worse, as the War on Drugs has led to the militarization of local police forces and ultimately to dangerous "no knock" raids on suspected drug dealers, Mr. Hoover used the power of the FBI to harass political dissenters and activists, to amass secret files on political leaders, and to collect evidence using illegal methods.  When questioned about ordering his agents to wiretap Sen. Goldwater's campaign plane and headquarters in 1964, Mr. Hoover replied, "You do what the president tells you."  The FBI had been used against a Republican, so the MSM was OK with it.

We wonder how much worse these effects would have been if Prohibition had been called a war.

There is one major difference between prohibition and the War on Drugs.  The Volstead Act required a Constitutional amendment because at the time, it was widely recognized that our federal system prohibited the federal government from regulating the consumption of alcohol because matters not specifically assigned to the federal government were reserved to the states.  Amending the Constitution made Prohibition constitutional, of course.

By the time Mr. Nixon decreed the War on Drugs, people were so desensitized to the dangers of a growing federal government that nobody demanded a change to the Constitution to permit it.  After all, fighting a war can't wait for Constitutional niceties.  As a Supreme Court justice said, "The Constitution is not a suicide pact."

Now What?

As far as we know, and we are totally open to suggestion, there are only two ways to deal with addictive substances:

  1. Legalize and regulate them, as we do with tobacco and eventually did with alcohol.  The conventional method of legalization leads to increased use - Anheuser-Busch sells far more beer than Al Capone ever dreamed of.  What's worse, our politicians who've legalized marijuana set the taxes so high that the illegal market was barely dented.  There are ways to mitigate problems with legalization; whether we'll try them remains to be seen.  Nevertheless, it's a simple fact that gangsters with tommy-guns no longer act as liquor distributors and nobody dies from drinking bathtub gin.  We can all agree that's a Good Thing.
  2. Make use a capital offense.  That's the Singapore approach, and it's been proposed here.  It certainly works - when the Chinese did it, they had no drug problem whatsoever for many decades - but nothing short of the ax can eliminate addiction no matter where or what else has been tried.

The middle way which our drug war has become is both ineffective and damaging.  Drugs are effectively semi-legal in that any kid can find drugs readily in any community in the country; but, because of their illegality, people are dying due to poor quality control in the illegal pipeline.

Even worse, drug gangs continue to enjoy hugely positive cash flow which makes it possible for them to bribe essentially anyone and murder anyone whom they can't bribe.  They've learned not to use Tommy guns in settling business disputes but they freely use handguns and heavier weapons are used as needed.

We've pointed out that if guns are outlawed nation-wide, the drug gangs will start bringing in guns as a brand extension, just as saloon keepers extended their product line to include short-term hotel room rentals due to the Raines law, and we'll be no better off.

These and many other ongoing national stupidities remind us of a song that was popular a few decades back, "Oh when will they ever learn, oh when will they ever learn?"

Will Offensicht is a staff writer for and an internationally published author by a different name.  Read other articles by Will Offensicht or other articles on Law.
Reader Comments

Surely, there must be software available which forecasts the unintended consequences of new laws and and other brilliant ideas.

August 28, 2019 6:07 PM
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