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Law Enforcement: Illegal Search Kills Prosecution in Largest Heroin Bust in California History

Two Mexican brothers arrested in the largest heroin seizure in California history walked free this week after federal prosecutors in San Diego dropped the charges against them. Prosecutors had little choice because a federal judge ruled last month that police had violated the Fourth Amendment's ban on warrantless searches and threw out the evidence against them. Two others arrested in the case have already pleaded guilty and are awaiting sentencing.

At the time of the Valentine's Day bust, Immigration and Customs Enforcement (ICE) nearly dislocated their shoulders patting themselves on the back for uncovering what they described as a major heroin, methamphetamine, and marijuana trafficking operation. But their eagerness to search and make arrests eventually cost them the case.

It all started when ICE agents at the San Ysidro border crossing found a car with nearly 12 kilos of Mexican heroin hidden inside. The driver was allowed to continue to his destination in Anaheim under ICE surveillance. The driver met with another man, then drove to an Anaheim house and pulled into the garage. Without waiting for a search warrant, ICE agents entered and searched the house, arresting six people and seizing 121 pounds of heroin, 34 pounds of marijuana, and 3 pounds of methamphetamine, along with about $3,500 in cash.

Attorneys for the two Mexicans argued in court papers the men had been staying at the Anaheim home and had a "reasonable expectation to privacy" guaranteed by the Fourth Amendment. They also argued that there was no threat to officer safety or that the evidence would be destroyed if ICE waited to get a search warrant.

Federal prosecutors argued that agents had no time to obtain a search warrant and that the drugs and the driver who led agents to the house were at risk, but US District Court Judge James Selna wasn't buying it. He instead ruled for the defense, holding that the search was unconstitutional and that the evidence derived from that search -- the seized drugs -- could not be admitted in court.

"To me, the issue is a rule of law and it won," said attorney Joel Levine, who represented one of the brothers.

Feature: Is Addiction a Brain Disease? Biden Bill to Define It as Such is Moving on Capitol Hill

A bill introduced by Sen. Joe Biden (D-DE) that would define addiction as a brain disease is moving in the Senate. Treatment professionals, mainstream scientists, and recovery advocates see it as a good thing. There are some skeptics, though.

http://stopthedrugwar.org/files/NIDAcover.gif
NIDA book cover, with brain scan image
The bill, the Recognizing Addiction as a Disease Act of 2007 (S. 1011), would also change the name of the National Institute on Drug Abuse (NIDA) to the National Institute on Diseases of Addiction, and change the name of the National Institute on Alcohol Abuse and Alcoholism to the National Institute on Alcohol Disorders and Health.

"Addiction is a neurobiological disease -- not a lifestyle choice -- and it's about time we start treating it as such," said Sen. Biden in a statement when he introduced this bill this spring. "We must lead by example and change the names of our federal research institutes to accurately reflect this reality. By changing the way we talk about addiction, we change the way people think about addiction, both of which are critical steps in getting past the social stigma too often associated with the disease. This bill is a small but important step towards stripping away the social stigma surrounding the treatment of diseases of addiction," said Sen. Biden.

The measure is garnering bipartisan support. It passed out of the Senate Health, Education, Labor and Pensions (HELP) committee in June with the backing of Sen. Mike Enzi (R-WY), the ranking minority committee member. "Science shows us the addiction to alcohol or any other drug is a disease," Enzi said in a statement marking the vote. "While the initial decision to use drugs is a choice, there comes a time when continued use turns on the addiction switch in the brain. That time can vary depending on factors ranging from genetics to environment to type of drug and frequency of use. Because of that and the continued stereotypes and challenges that are often barriers to people with addiction issues seeking treatment I am proud to support this legislation. Although the names of the Institutes will change, their mission -- preventing and treating drug and alcohol addiction -- will remain the same."

The politicians are taking their cue from neurological researchers led by NIDA scientists who have been working for years to find the magic link between the brain and compulsive drug use. Dr. Nora Volkow, current head of NIDA, has been leading the charge, and Biden and Enzi could have been reading from her briefing book.

"Drug addiction is a brain disease," said Volkow in a typical NIDA news release. "Although initial drug use might be voluntary, once addiction develops this control is markedly disrupted. Imaging studies have shown specific abnormalities in the brains of some, but not all, addicted individuals. While scientific advancements in the understanding of addiction have occurred at unprecedented speed in recent years, unanswered questions remain that highlight the need for further research to better define the neurobiological processes involved in addiction."

Not surprisingly, the treatment and recovery communities, anxious to see the social climate shift to one of more support and less punishment for the addicted, support the legislation. "Recognizing addiction is the next step forward," said Daniel Guarnera, government relations liaison for the NAADAC -- The Association for Addiction Professionals. "NIDA and its scientists have demonstrated overwhelmingly that addiction is not a behavioral trait, but rather is caused by physiological changes to the body that make people want to use addictive substances. This bill allows the terminology to catch up with the science."

Although the bill does little more than make a congressional pronouncement and rename a couple of institutes, it is still an important step, said Guarnera. "Yes, it's symbolic, but that symbolism is hugely important, because language should reflect medical knowledge, and medical knowledge has demonstrated that drug abuse is a physical phenomenon."

"We utterly endorse this bill," said Pat Taylor, executive director of Faces and Voices of Recovery, a treatment and recovery advocacy umbrella organization. "I think it's a great idea to rename the agencies. People with drug and alcohol problems can and do recover from addiction. Calling them 'abusers' just stigmatizes them."

Taylor and her organization are actively supporting the bill, she said. "We've sent letters of endorsement for the bill," she said. "People blame people for their drug and alcohol problems, so this is an important issue for the recovery community. We need to rethink how we talk about this."

Is addiction in fact a brain disease? Some researchers think that's too simple. Scott Lilienfeld, a professor of psychology at Emory University told ABC News last week: "What I find troubling with the brain disease rhetoric is that it's grossly oversimplified, it boils down an incredibly complex problem to not necessarily the most important explanation. You can view a psychological problem on many levels. Low level explanation refers to molecules in the brain. There are other levels including people's personality traits and moods, people's parents, environment. Higher level than this is community."

"Every level tells you something useful," Lilienfeld continued. "Brain disease is only one level among many and not even the most helpful. Implying it's the only level of explanation, that's counterproductive."

Some mavericks go even further. "No, addiction is not a brain disease," said Dr. Jeffrey Schaler, a psychologist and professor in the Department of Justice, Law and Society at American University in Washington, DC, and author of "The Myth of Addiction." "Diseases are physical wounds, cellular abnormalities. Addiction is a behavior, something that a person does. Diseases are things a person has," he argued.

"You can't will away a real disease," Schaler continued. "But people will away behaviors they don't like all the time."

Others feel that the concept of addiction itself is too imprecise. "There is no clear conception of what people mean by the word 'addiction,' and there are numerous papers on this unsatisfactory concept," said Professor John Davies, head of the Center for Applied Social Psychology at the University of Strathclyde in Scotland, another prominent critic of the "addiction is a brain disease" model. Using drugs and 'addiction' are not synonymous," Davies continued, noting that many "fun drug users" become "addicts" as soon as they end up in court.

"Of course, people can and do get into an awful mess when they fail to manage their habit effectively," Davies concedes. "But look at the data. Harmful damaging drug use is heavily social-class related whereas drug use per se is less so. People give up the so-called 'disease' when their lives change, they get a new partner, a new job, a move of house."

"Sen. Biden's crusade is part of a decades-long, political struggle to isolate drug habits in users and to obscure the social and historical factors that ultimately underline so-called drug problems," said Richard De Grandpre, author of "The Cult of Pharmacology: How America Became The World's Most Troubled Drug Culture" (see review here next week), citing the case of the Vietnam war veterans who picked up opiate habits, but who, for the most part, rapidly shed them upon returning home.

"These vets used chronically and were said to be addicted. What happened to their addictions?" De Grandpre asked. "The feared epidemic did not materialize because the social factors that sustained heroin use in Vietnam had all but disappeared upon returning."

Davies sees the addiction label as having pernicious consequences for problem users as well. "It makes things far worse," he said. It makes people believe that the roots of their behavior are beyond their capacity to control, which is the last thing you need when you're trying to get someone to change their behavior."

How should drug policy reformers (e.g., those concerned first and foremost with loosening prohibitionist drug policies) respond to the Biden bill? Rhetorically, both the "disease" and "choice" models have been used repeatedly to justify draconian policies -- the former at drug sellers, who mostly are not kingpins or monsters seeking to addict children to their goods, but get charged as such in the court of public opinion -- the latter at problem users, or even users in general, because they should just stop, because it's a choice.

"I tend to think that language changes that reduce the fuel in the drug discussion will help rather than hurt our cause," said David Borden, executive director of Stop the Drug War (DRCNet, publisher of this newsletter). "Terms like 'Diseases of Addiction' pack less verbal or rhetorical punch than shorter ones like 'Drug Abuse,' and are less useful for purposes of political propaganda. If the names of the agencies shift, the language coming out of the agencies will also have to shift, at least somewhat, and that will help -- it will be harder for politicians to focus their rhetoric on nonsense statements like 'all use is abuse,' if 'abuse' is no longer the government-endorsed term of choice in the discussion."

"Those are political concerns, however," Borden pointed out. "If 'disease' is a scientifically imprecise term for describing the set of conditions that are commonly known as 'addiction' -- and it seems to me that it probably is -- then Congress and NIDA probably shouldn't be using the term for that purpose. I'd be more comfortable with the bill if it used slightly different language." Still, he thinks it's probably a net positive. "I think the obvious message of the terminology shift would be to say that people with drug problems are not really criminals, and that's a good thing."

"Plus if addiction isn't a disease, there's still obviously some condition that some people have, physical for at least some of them, that makes it harder for them to make favorable choices," Borden added. "Otherwise I don't think there would be thousands of people risking arrest or overdose to inject themselves daily with heroin, or millions knowingly doing what they're doing to themselves with cigarette smoking. So I'm not sure that the imprecision in the term chosen for the discussion is such a big problem."

Schaler disagrees. "Drug policy reformers play into the hands of the therapeutic state when they support the idea that drug addiction is a treatable disease," he said. "It means doctors have more power over people instead of just drug agents."

In principle, neither Congressional fiat, nor therapists' concerns over what the right message is to send to patients, nor advocates' concerns over what will ultimately lead to better policies, should take a second seat in this debate -- the question is fundamentally a scientific one, and a philosophical one. With Congress holding the purse strings for the bulk of addictions research in this country, however, Congress' choices now may indeed affect the language being used in the future for some time to come. And language can indeed have an impact in ways going beyond its initial purposes.

American Express Coughs Up $55-$65 Million For Drug-Related Forfeiture

[Courtesy of DEA] News Release FOR IMMEDIATE RELEASE August 6, 2007 American Express Bank International Enters Into Deferred Prosecution Agreement And Forfeits $55 Million To Resolve Bank Secrecy Act Violations AUG 6 -- WASHINGTON ­ Miami-based American Express Bank International has entered into a deferred prosecution agreement on charges of failing to maintain an effective anti-money laundering program and will forfeit $55 million to the U.S. government, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Drug Enforcement Administration Administrator Karen Tandy announced today. A criminal information filed today at the U.S. District Court for the Southern District of Florida in Miami charges American Express Bank International with one count of failing to maintain an effective anti-money laundering program. American Express Bank International waived indictment, agreed to the filing of the information, and accepted and acknowledged responsibility for its behavior in a factual statement accompanying the information. The company will pay $55 million to the United States to settle forfeiture claims held by the government. In light of the bank¹s remedial actions to date and its willingness to acknowledge responsibility for its actions, the government will recommend the dismissal of the charge in 12 months, provided the bank fully implements significant anti-money laundering measures required by the agreement. ³Banks and other financial institutions must uphold their responsibility to safeguard financial markets from the illegal activities of international drug cartels and professional money launderers,² said Assistant Attorney General Alice S. Fisher of the Criminal Division. ³An effective anti-money laundering program is critical to law enforcement efforts to detect and cut off the flow of drug money. The Department of Justice will continue to work to stop financial institutions from knowingly disregarding their obligations to have these vital programs in place.² ³Today an established and respected financial institution learned a valuable lesson about its legal responsibilities. American Express and all legitimate banking organizations must take every step possible to avoid becoming entangled in the web of international drug money laundering,² said DEA Administrator Karen P. Tandy. ³Today the message is loud and clear: due diligence-don't take money without it.² The Financial Crimes Enforcement Network (FinCEN) has also assessed a $25 million civil money penalty against the company for violations of the Bank Secrecy Act, and the Board of Governors of the Federal Reserve has assessed a $20 million civil money penalty. The $20 million Federal Reserve penalty and $15 million of FinCEN¹s $25 million penalty will be deemed satisfied by the payment of the $55 million forfeiture, resulting in total payments of $65 million by American Express Bank International under these settlements. Under the Bank Secrecy Act, banks are required to establish and maintain an anti-money laundering compliance program that, at a minimum, provides for: (a) internal policies, procedures and controls designed to guard against money laundering; (b) the coordination and monitoring of day-to-day compliance with the Bank Secrecy Act; (c) an ongoing employee training program; and (d) independent testing for compliance conducted by bank personnel or an outside party. Banks are also required to have comprehensive anti-money laundering programs that enable them to identify and report suspicious financial transactions to the U.S. Treasury Department¹s Financial Crimes Enforcement Network. The case was prosecuted by Trial Attorneys John W. Sellers and Thomas Pinder of the Criminal Division¹s Asset Forfeiture and Money Laundering Section, which is headed by Chief Richard Weber. This case was investigated by the Drug Enforcement Administration¹s Miami Field Division, Fort Lauderdale District Office.
Location: 
Washington, DC
United States

Feds Bust Former Portland Police Detective for Medical Marijuana

Location: 
Portland, OR
United States
Publication/Source: 
Salem-News.com (OR)
URL: 
http://www.salem-news.com/articles/august072007/federal_rogues_8707.php

Who Should Be the Next Drug Czar?

We will have a new president in January 2009, and that means we will have a new cabinet as well, including a new head of the Office of National Drug Control Policy (ONDCP--the drug czar's office). Who should the next drug czar be? Do we want another general? Another drug war true believer? (Would that be a job requirement?) A doctor? A public health person? A lawyer? An activist? A politician? The progressive web site The Backbone Campaign is seeking "shadow cabinet" nominations. Anyone can nominate anyone. Here's the list so far for the drug czar position:
Nominee(s): Ethan Nadelmann Dean Becker Tom Hayden Gary Johnson Rep. Maxine Waters Russell Simmons Bill Maher Al Sharpton Keith Stroup
I'd be happy with any of these folks, including our buddy Dean Becker from the Drug Truth Network. I'll also suggest a couple more: Professor Peter Reuter of the University of Maryland, co-author of "Drug War Heresies," knows drug policy issues inside and out and is a pretty progressive fellow on these issues. And, of course, in a perfect world, the next drug czar would be Tommy Chong. But I don't know if he could make it through the committee hearings... Who's your nominee?
Location: 
United States

A Peek Inside a Marijuana Dispensary

Location: 
CA
United States
Publication/Source: 
BusinessWeek
URL: 
http://images.businessweek.com/ss/07/08/0803_marijuana/index_01.htm

Drug Central: Northeast Georgia now a hub for trafficking

Location: 
GA
United States
Publication/Source: 
Gainesville Times (GA)
URL: 
http://www.gainesvilletimes.com/news/stories/20070805/localnews/188836.shtml

Illegal Crops Creep Into the Suburbs

Location: 
Washington, DC
United States
Publication/Source: 
The Washington Post
URL: 
http://www.washingtonpost.com/wp-dyn/content/article/2007/08/04/AR2007080401388.html

Feds strike medical pot growers

Location: 
Portland, OR
United States
Publication/Source: 
The Portland Tribune (OR)
URL: 
http://www.localdailynews.com/news/story.php?story_id=118609925649231700#comment_section_container

Feature: Colombia Annouces Shift to Manual Eradication of Coca Crops

Six years and $5 billion in US assistance after the Colombian and US governments embarked on a program of mass aerial fumigation of Colombian coca fields in a bid to dry up the supply of cocaine, the Colombian government announced late last month that it will now accentuate manual eradication of the country's biggest cash crop.

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coca seedlings
While aerial fumigation was touted by drug warriors as a "silver bullet" that could put an end to the Colombian cocaine business, it hasn't worked out that way. According to official US figures, the amount of land devoted to coca production in Colombia has decreased only slightly since 2001, when major spraying began. That year, some 420,000 acres were planted with coca; in 2006, the number was 375,000 acres.

In addition to not reducing coca cultivation, aerial eradication has led to friction with neighbors, particularly Ecuador, which is concerned about drift-over. It has also excited intense opposition from Colombian peasants and their supporters, who charge that glyphosate, the pesticide used in the spraying, has harmed the environment, livestock, and people.

Now, with the Republican grip on power in Washington slipping and Democrats in control of the House and Senate, the Congress is showing signs it wants to back away from aerial eradication. Colombian President Alvaro Uribe is not waiting.

''Instead of uniting Colombians around the idea of eradicating drugs, [aerial spraying] causes complaints and provokes reactions against eradication,'' Uribe said in a July 20 speech in which he announced the shift. Spraying would remain only a ''marginal'' part of the counter-drug strategy, he said.

''It's an evolution of the policy... We are going to give more importance to the manual eradication than to aerial fumigation,'' Defense Minister Juan Manuel Santos confirmed last week to reporters in Washington, where he was discussing the new plans with US policymakers and lobbying Congress to allow more flexibility in the use of US counter-drug aid. ''Manual eradication can be more effective and, at times, cheaper,'' Santos added.

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aerial eradication operation
The policy shift was cheered by Colombia's most important newspaper, El Tiempo, in an editorial last week. "Announcing a reduction in aerial spraying and reinforcing manual eradication is the first step for Colombia to formulate an anti-narcotics strategy that answers to more than just 'recommendations' from Washington,'' the editorial said.

The announced shift is the result of both Colombian unhappiness with the results of spraying and the new balance of power in Washington, where congressional Democrats are much more reluctant to provide a blank check to the Bush administration on Colombia, American analysts told Drug War Chronicle.

In Congress, Democrats are proposing deep cuts in military assistance to Colombia and attempting to shift priorities from security to economic development. One House bill would do just that. Meanwhile, the Senate version of the Foreign Appropriations bill earmarks $10 million of the military aid for providing security for manual eradication and it would restrict aerial fumigation to specific areas where the State Department has certified that manual eradication cannot be done.

"One reason for drawing it down is there will be less money for it coming out of Congress, but even the hard-line Colombians were never that thrilled with fumigation," said Adam Isaacson of the Center for International Policy, which monitors Plan Colombia spending. "The Colombian military doesn't like it because it doesn't help them win hearts and minds. Uribe is saying that they are trying to increase the government presence in those areas, and fumigation makes that harder to do, so they will try doing more manual eradication," he said.

While Colombian disappointment with the results of spraying is a factor, it is the new era in Washington that is making the difference, Isaacson suggested. "The change in Congress has been the deciding factor," he said. "Year after year, we've seen these disastrously disappointing numbers for eradication, and the Colombians had to swallow it because every voice in power in Washington said they had to do it. Now, the Colombians have a chance to say what they really think about that policy."

"The Colombians are doing this in part because aerial fumigation simply has not worked," said Annalise Romoser of the US Office on Colombia, a Washington, DC, nonprofit that consults for the State Department on Colombia issues. "Since 2000, when we first started the massive aerial fumigation campaign, there has been a massive increase in production," she said.

"The Colombians are also responding to the message they are hearing from the US Congress," Romoser noted. "It is clear that both the House and the Senate are prepared to drastically slash funding, and the Colombian government is neither interested in nor capable of assuming the cost of aerial eradication without the US support they've been receiving."

But simply shifting from aerial eradication to manual eradication is not enough, said Romoser. "Manual eradication will only be successful when carried out in consultation with affected communities. We need consultation, not forced eradication. The communities I work with in the south are opposed to forced eradication. If they do that without social and economic development programs in place before it begins, it can end up being very divisive."

Eradication without development is a recipe for instability, agreed Isaacson. He pointed the experience of Bolivia a decade ago, when the government of Hugo Banzer unveiled Plan Dignidad and embarked on a campaign of forced eradication without consultation. The resulting chaos in the coca fields led to years of political instability.

"When Plan Dignidad hit, the coca growers went crazy," he recalled. "Road blockades, demonstrations, and the next thing you know, the head of the Chapare coca growers union is the president of Bolivia."

That's an unlikely outcome in Colombia, where coca growers have neither the relative numbers nor the institutional strength of their counterparts in Bolivia. But with the Colombian government ready to switch from aerial spraying to the "kinder, gentler" manual eradication of crops, the potential for more social conflict remains high, especially if eradication is not part of an integrated, holistic economic and social development program. So far, neither the US nor the Colombian governments have shown much appetite for that.

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