William Barr, Donald Trump's nominee for attorney general, believes the president has vast, unilateral authority to protect national security, which he says is threatened by the distribution of psychoactive substances the government has decreed Americans should not want.
Those positions are a dangerous combination that is apt to encourage the worst instincts of a president who portrays himself as tough on crime, promises to stop the flow of illegal drugs and revels in pointless military displays. With Barr as attorney general and Trump as president, we may see an increasingly literal war on drugs in which aggression masquerades as self-defense.
The template for that war is the 1989 invasion of Panama, in which U.S. troops deposed dictator Manuel Noriega, who had been indicted by federal grand juries on money laundering and drug trafficking charges, and installed a new government. Barr, who at the time was in charge of the Justice Department's Office of Legal Counsel, describes himself as "a big supporter" of the operation, saying his advice to President George H.W. Bush was to "just go out there and do what you have to do."
The legal rationale for the invasion was widely criticized. As Columbia law professor Louis Henkin observed in 1991, "some of the alleged motives and purposes are suspect," while "the arguments justifying the invasion under international law are not persuasive and, in some respects, border on the frivolous."
In Barr's view, however, sending American soldiers to "arrest" Noriega -- notwithstanding the Posse Comitatus Act, which prohibits using the military for law enforcement without congressional approval -- was "a justifiable defensive act by the United States." Barr, who served as attorney general for about a year at the end of the first Bush administration, likens drug trafficking to terrorism, saying it is "really a national security issue."
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That comparison is alarming, because Barr has criticized relying on a law-enforcement model, with its cumbersome protections for privacy and due process, to fight terrorism, which he sees as an act of war. Furthermore, he argues that "the Constitution vests the broadest possible defense powers in the president," such that "no foreign threat can arise that the Constitution does not empower the President to meet and defeat."
The implication is that the president has a free hand to treat drug traffickers as combatants, possibly meaning they can be assassinated at will rather than arrested and tried. "Using the military in drugs was always under discussion," Barr said in a 2001 interview about his experiences in the Bush administration. "The best thing to do is not to extradite Pablo Escobar and bring him to the United States and try him. That's not the most effective way of destroying that organization."
Leaving aside the possibility of military operations in which the U.S. government imposes its policies on other countries, Barr is an old-fashioned drug warrior who defends "tough, mandatory minimum sentences" and opposes criminal justice reform, a cause that has attracted broad bipartisan support. Although even Trump has endorsed legislation that would reduce sentences for some nonviolent drug offenders, Barr is satisfied that current federal law "strikes the right balance."
Nor does Barr seem to have any serious misgivings about civil asset forfeiture, a system of legalized theft in which the government seizes property that is allegedly connected to criminal activity, typically involving drugs, without having to prove the owner broke the law. During his confirmation hearings in 1991, Barr described civil forfeiture as "such an important program," while allowing that it might be appropriate to keep an eye on how law enforcement agencies spend the loot "to maintain the integrity of the program."
Back then, Barr described the war on drugs as "a long-term struggle" like the Cold War. But the government has been trying to forcibly impose its pharmacological prejudices on us for more than twice as long as the Cold War lasted, and thanks to true believers like Barr, there is still no end in sight.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.
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