Mission Creep: The Patriot Act and the War on Drugs

Friday, October 28, 2011
Graph of Sneak and Peak Searches from Patriot Act

Passed by Congress in the wake of 9/11 with virtually no debate, the Patriot Act this week marked its tenth anniversary. One disturbing consequence of the Act is how it has been used for law enforcement actions not related to terrorism -- which was the rationale for its passage. A glaring example can be seen in the use of "sneak and peak” searches for drug crimes.

A sneak and peak search is when law enforcement enters a home or office when no one is present and conducts a search of the premises, without giving notice to the occupant beforehand. Although a search warrant is required, such clandestine seraches clearly violate a person's privacy. Thousands of these searches have taken place under the Patriot Act. What may surprise you is that the vast majority of these searches are not for terrorism-related activities, but for drug enforcement cases instead. This graph, produced by New York Magazine, illustrates this worrisome fact:

Delayed-notice search warrants issued under the expanded powers of the Patriot Act, 2006–2009

It's a classic case of the "mission creep" that the ACLU oftens warns of -- powers granted for one purpose being used for another.

In one sense, it is not surprising that the Patriot Act is being taken advantage of in order to further the war on drugs. Unlike with most crimes, there is not a traditional victim involved with a drug crime. In a robbery case, someone will have had their property taken and will be willing to work with law enforcement to solve the crime. In most drug crimes, there are two happy participants: The seller is happy to take a person’s money and a user is happy to pay for the drugs. As a result of this phenomenon, law enforcement does not have a victim to help them solve the crime, so it must rely on sly tactics to catch people. Indeed, a great deal of Fourth Amendment controversies have revolved around law enforcement's use of other surreptitious  tactics in drug cases, such as wiretaps, confidential informants, and warrantless searches.

If the U.S. wants to tackle drug abuse problems, it should get serious about curbing the appetite for drugs in this country and invest in prevention and treatment programs. Secretly searching peoples’ homes will do nothing to stop the flow of drugs into this country.

The Patriot Act itself has been highly controversial and is much in need of re-examination. Patriot Act powers intended to combat terrorism should not be used to wage the nation's misguided war on drugs.