8 The Coming of the Body Invaders
WHEN TRACED to its logical extremes, the story of the relentless pursuit of drugs becomes a revolting tale. American law does not yet contain the general rule that failure to defecate on command of any police officer may be taken as reasonable suspicion of guilt and a basis for detention, but we are not far from the day when that obscene principle may be written into our legal structure. The reasons for this invasive trend are found in the nature of drugs and of how they are used and hidden. When the President stands in the Rose Garden and announces a new campaign in the war on drugs, the warpath from that garden in Washington ultimately must lead to the lands, the homes, the fields, the boats, the wallets, the pocketbooks, the bodies, the blood, and even the bodily wastes of millions of free citizens throughout our vast country. It is all such a logical progression and it is all done for the good of the nation.
MAKING TRAVELERS DEFECATE ON COMMAND
Rosa Montoya de Hernandez was a cocaine smuggler. She was caught by a perceptive Customs inspector, convicted, and sent to prison. Good riddance, we all might say. But wait. In this democracy, rights and powers are ultimately defined by the appeals of convicted criminals to the U.S. Supreme Court. In those situations, the guilt of the particular defendants becomes irrelevant because it is recognized that the principles established will apply to millions of people only suspected of crimes, almost all of whom will be innocent. Think not, then, of this cocaine smuggler but of you, innocent traveler, and your mother and your spouse and your children as you next approach the Customs desk at an American airport. And think also of the precedents established in this case that might well apply in other situations throughout future American history.
Ms. de Hernandez reached the Los Angeles International Airport shortly after midnight on March 5, 1983, looking to all the unwary world like any other tired traveler. However, she had flown on Avianca Flight 080, a direct 10-hour journey from Bogota, Colombia. Questioning by a Customs inspector named Talamantes revealed that she spoke no English, had no friends or family in the United States, possessed $5,000 in cash, which she claimed was to be used for the purchase of legitimate merchandise for her husband's store, but that she had no appointments with goods vendors. Clearly, Ms. de Hernandez fit the standard "profile" of an alimentary canal smuggler which the Customs Service has developed for the guidance of its agents. (The alimentary canal is the tubular passage extending from mouth to anus.) Moreover, Inspector Tal-amantes had his own personal profile based on long experience since he had apprehended dozens of such smugglers on Avianca Flight 080 over the years. He knew that these foolhardy, or desperate, people would swallow balloons or condoms filled with cocaine or heroin and later, once safely in this country, excrete the small fortune hidden in their bodies.
On the basis of this knowledge and suspicion—but certainly without probable cause, that is, without a minimal amount of concrete evidence—the border officers asked a female Customs inspector to take the traveler to a private area and conduct a pat-down and strip search. The female inspector felt Ms. de Hernandez's abdomen and observed a firm fullness. She also observed that the lady was wearing two pairs of elastic underpants with a paper towel lining the crotch area. No contraband was found. Yet the inspectors remained suspicious and asked if the suspect would agree to go to a hospital for an X-ray. She agreed but then withdrew her assent when she learned that she would have to go to the hospital in handcuffs, protesting, "You are not going to put those on me. That is an insult to my character."
The officers then offered their prisoner the option of returning to Colombia on the next available plane, agreeing to an X-ray, or, in the words of the U.S. Supreme Court, which eventually issued a decision in this case on July 1, 1985, "remaining in detention until she produced a monitored bowel movement that would confirm or rebut the inspectors' suspicions." She chose the first option but a flight could not readily be arranged. It was then decided by these federal police agents that this traveler, still vigorously protesting her innocence, would be kept in a barren room under constant guard until their suspicions were satisfied. They told her, a Supreme Court justice further explained, "that she could not leave until she had excreted by squatting over a waste basket pursuant to the watchful eyes of two attending matrons." Ms. de Hernandez responded, "I will not submit to your degradation ... I would rather die."
She was kept in that uncarpeted room, with no bed or couch, for almost 24 hours. The Colombian citizen sat on the chair, clutching her purse, sometimes napping with her head on the table, weeping, pleading "to go home," or to make a phone call to her husband and children, and showing two small pictures of her children to everyone who entered. She was refused access to a phone, and, on her part, she refused all offers of food and drink—and the opportunity to use the toilet facilities. Not surprisingly, the detainee soon showed symptoms of great discomfort and, as a lower federal judge noted, "heroic efforts to resist the usual calls to nature." Finally, the police went to a magistrate and obtained a court order for a body search. A rectal examination in the hospital revealed a cocaine-filled balloon. Then at approximately 3:15 A.M. on March 6, almost 27 hours after she was first made a prisoner, Ms. de Hernandez was formally arrested and advised of her Miranda rights. Over the next four days she excreted 88 balloons containing a total of 528 grams of cocaine. Subsequently, the defendant was convicted of various federal narcotics offenses.
A review of the constitutional doctrines involved in the case of this Colombian traveler would find that the most important protection from unfair arrests and searches in the United States is in the Fourth Amendment, within the Bill of Rights, which declares that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The grand task of interpretation over the years, of course, has been to determine what forms of searches were "unreasonable." The controlling definition of unreasonable conduct is that of the U.S. Supreme Court in the Katz case (1967), where it was declared that henceforth the magic words would be whether or not the aggrieved person had a "constitutionally protected reasonable expectation of privacy." The high court, it was further explained, would not read the amendment as protecting individually conceived or subjective notions of privacy but only "those expectations that society is prepared to recognize as `reasonable.' "
With very few exceptions, the high court in recent years has upheld that view of reasonable social expectations that overrode the individual citizen's right to privacy. In taking such repressive positions, the court is certainly reflecting the views of the dominant leaders of all elements of society, including the institutions of the law and police. Thus the pervasive factual distortions about the nature of the illicit-drug menace that dominate general public discussion are constantly being written into the laws and court decisions of our democracy.
One of the greatest judicial exceptions to that restrictive trend occurred relatively early in its development. The liberal decision was based on an incident that took place at about 9:00 A.M. on July 1, 1949, also, as it happened, in Los Angeles. Three deputy sheriffs, having "some information" that Antonio Richard Rochin, a heroin addict, was selling narcotics, walked in through the open door of his house and broke down the door to his second-floor bedroom. Rochin was sitting partially dressed on the bed, upon which his wife was lying. He immediately swallowed two capsules lying on the nightstand. The officers frankly testified that they jumped upon the man, in the presence of his wife and in his own bedroom, grabbed him by the throat, and squeezed his throat forcefully in an attempt to eject the capsules.
The men of the law failed in that endeavor. Deputy Jack Jones then took citizen Rochin in handcuffs to the Angelus Emergency Hospital and into an operating room. A doctor's assistant strapped the handcuffed suspect to an operating table. Thereupon, a person identified as Dr. Mier, presumably a physician, forced a tube down the victim's throat and released a white fluid into it and thus into Mr. Rochin's stomach. Through this method of search, which everyone involved admitted and did not question on ethical or legal grounds, victory was gained. The defendant vomited into a pail on the floor and two capsules of heroin were found floating in that pail. Mr. Rochin's conviction for illegal possession of narcotics was based solely on those capsules.
On January 2, 1952, the Supreme Court broke new ground in Rochin v. California when it declared that this search for drugs was "conduct that shocks the conscience" and thereupon overruled the conviction as a violation of due process of law. The justices also viewed this behavior as equivalent to the coercion of a confession through methods "bound to offend even hardened sensibilities." In effect, the police action violated Fourth Amendment restrictions on unreasonable searches and Fifth Amendment prohibitions against forcing suspects to incriminate themselves.
Since that decision, it appears that the sensibilities of the American people in general and of Supreme Court justices in particular have become more hardened and their consciences less shockable whenever there is a case involving a search for drugs. In several major cases since Rochin, the Supreme Court upheld the legality of the taking of blood without consent in drunk-driving prosecutions. In those cases, though, there was probable cause and little trauma to the individual from whom the bodily evidence was obtained. Those decisions, nevertheless, evoked ringing dissents from liberal justices who saw them as proof of the continual shrinkage of American rights, especially the right to personal privacy. There have also been stories over the years which strongly suggest that many of the practices condemned in the Rochin decision, or brutal behavior in the same repressive league, continue to be practiced in the byways and back rooms of American justice—in, for example, the little rooms where travelers who arouse the suspicions of Customs agents are detained.
Ms. de Hernandez continually fought her conviction up the appellate ladder until it reached the Supreme Court, where then associate justice William Rehnquist was assigned to write the majority opinion in the decision handed down on July 1, 1985, as drugwar fever was building in the nation. There can be no argument with his opening position that since the beginning of the nation, routine border searches have not been subject to "any requirement of reasonable suspicion, probable cause, or warrant." Border officials have never been controlled by the law to the extent that police within the country have been—and those border police may stop anyone and may inspect any package even on a hunch. However, the court had never delineated what was a reasonable level of suspicion that would justify the type of more drastic personal detention and searches that were visited on Ms. de Hernandez. The Supreme Court might have adopted the position of the U.S. Court of Appeals, which had thrown out the conviction because the custom agents lacked a "clear indication" of alimentary-canal smuggling.
Instead, the high court upheld the search and conviction and, for the first time in history, laid out a new test for such degrading searches which are now legal "if Customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal." Therefore, the police at the border do not need evidence providing a "clear indication" of a crime but only a good hunch to go beyond a routine search. What about the long detention? The court stated that the nature of the offense and of the human system made it constitutionally justified. "In this regard the detention of a suspected alimentary-canal smuggler at the border," the future Chief Justice of the United States actually declared, "is analogous to the detention of a suspected tuberculosis carrier at the border: both are detained until their bodily processes dispel the suspicion that they will introduce a harmful agent into this country."
On the basis of such specious logic, formal and specific approval was given at the highest judicial level of the American government for the principle that when the suspicions of border police are aroused, even though they lack any clear evidence of crime, they may detain any traveler for an appropriate, though as yet undefined, period of time until that person dispels their suspicions by defecating in their presence and into a container of their choice so that the vigilant police may inspect the traveler's human waste for contraband.
Justice William Brennan wrote an outraged dissent, in which he was joined by Justice Thurgood Marshall, about this "disgusting and saddening episode." Justice Brennan declared that the court's decision would produce threats to the personal privacy of the great majority of innocent travelers who now might be subjected to shocking indignities by police searching for drugs. He wrote, "The available evidence suggests that the number of highly intrusive border searches of suspicious-looking but ultimately innocent travelers may be very high. One physician who at the request of Customs officials conducted many `internal searches'—rectal and vaginal examinations and stomach-pumping—estimated that he had found contraband in only 15 to 20 percent of the persons he had examined. It has similarly been estimated that only 16 percent of women subjected to body-cavity searches at the border were in fact found to be carrying contraband.
"The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity," Justice Brennan continued. "As de Hernandez's counsel observed at argument, `What if an innocent traveler just because they have had a long flight was unable to excrete and found themselves in a position where a border agent said well, we wish you to excrete [on] command so that we will be sure that you're not carrying anything internally. An innocent person might be unable to do that on command ... but that wouldn't necessarily mean evidence of guilt.' "
Justice Brennan also observed that the reasonable expectations of privacy held by most international travelers do not include the possibility of being subjected to such indignities "all on nothing more than the `reasonable' suspicions of low-ranking enforcement agents." He added, "In fact, many people from around the world travel to our borders precisely to escape such unchecked executive investigatory discretion. What a curious first lesson in American liberty awaits them on their arrival."
As of this writing, the de Hernandez defecation doctrine represents one of the most extreme invasions of rights that have been accomplished by the war on drugs. The decisions in few cases should cause such revulsion as that one, but all of these decisions are part of a broad interconnected network. The cases creating those invasions reach into diverse segments of American life and build upon one another's logic of repression. In each case there seems, by some standards, to be a perfectly sound reason for the apparently small incursion into the body of American freedoms.
MAKING STUDENTS STRIP NAKED ON COMMAND
Such was the situation in the case of Diane "Doe." It arose in Highland, Indiana, a community of approximately 30,000 residents located in the northwest corner of the state in Lake County. Both the junior and senior high school buildings were located on the same campus, adjacent to each other, containing a total of approximately 2,780 students. From September 1978 to March 22, 1979, 21 instances were recorded of students found in possession of drugs, alcohol, or drug paraphernalia. This may seem, in retrospect, to have indicated a minor problem, but perhaps the nationwide growth of the parents' movement and of fears about student drug use had panicked this small county in the Midwest as they had so many other communities.
Meetings were held in the community to deal with this seemingly growing crisis. Having read of the use of dogs to sniff out marijuana in other Indiana schools, Superintendent Omer Renfrow decided to use the dogs to deal with the problem in his own school system. He contacted the local police for help and soon met with them and with Ms. Patricia L. Little, the owner and operator of the Edelheim Police Canine Academy in nearby Bunker Hill, Indiana. Ms. Little was engaged in the business of training dogs for purposes of attack, tracking, and detecting marijuana. She took the lead in providing 16 dog handlers, all local citizens with no particular expertise in drug matters, along with their dogs. But this was not all. Ms. Little also gave directions as to when strip searches were required.
This major quasi-military operation commenced at 8:45 A.M., March 23, 1979. Ms. Little, an unpaid deputy sheriff, was prominent during the entire operation, wearing a police-type poplin jacket displaying two badges on the arms. One read "Police Canine" and the other "Edelheim Canine." The uniform also displayed an American flag. The objective of the raid was to rid the schools of drugs and to discourage further drug use, but it was expressly agreed that no criminal prosecutions would result. All 2,780 students were kept sitting in their first-period classrooms. Through sealed orders left on the desk of each teacher, these young American students were—without warning, without advice as to their rights to object, and without a warrant—summarily ordered to sit with their books and purses and bags between their feet on the floor and their hands on their desks in plain view. Exit doors were sealed by teams of school employees. Any student wishing to go to the bathroom had to be accompanied and observed by an adult escort of the same sex so as to prevent drugs being flushed away.
Teams of searchers included at least one dog, one dog handler, one school official, and one uniformed, armed police officer. Because there was no evidence implicating any specific student, all were equally suspect. "Every single student was sniffed, inspected, and examined at least once," wrote a federal court of appeals judge. He continued, "The extraordinary atmosphere of the school was supplemented still further when representatives of the press and other news media, invited in by school authorities, entered the schoolhouses and classrooms during the raid and observed the searches while in progress. The raid lasted about three hours. After the sniffing and examining of 2,780 students, the searchers found fifteen high school students—and no junior high school students—in possession of illicit materials.... Four junior high school students—all girls—were removed from their classes, stripped nude, and interrogated. Not one of them was found to possess any illicit material."
One of those innocent girls was Diane, aged 13. Her teacher informed the class before the search began that the school had a "surprise" for the students. When the German shepherd dog reached her, it "alerted," sniffed at her body aggressively, and repeatedly pushed its nose and muzzle against her body and into her leg. The uniformed police officer then ordered Diane to stand and empty her pockets, which search produced no drugs. Yet the dog continued to sniff her body and to "alert." The shocked and embarrassed young girl, who did not use any drugs and who considered marijuana to be dangerous, was taken to the nurse's office where two adult women, one a uniformed police officer and the other a family friend, ordered her to take off all of her clothes. Diane did so although she was allowed to turn her back in the process. The women examined her body, inspected her clothing, and touched and examined the hair on her head. Again, no drugs were found, and the angry, embarrassed young citizen was allowed to dress and return to her classroom and to the curious comments and jokes of her fellow students. Subsequently, it was determined that the probable reason for the "alert" by the police dog was that Diane had been playing that morning with her own dog, who was in heat.
When I casually asked one mature woman of my acquaintance what her response would have been had this indecency been visited on her daughter, her reply was immediate: `Burn the damned school down that night!" However, Robert and Naomi Doe, the parents of Diane, opted for a more measured, legal response. They decided to sue, claiming that the young American's Fourth Amendment rights had been violated. Lower federal courts determined that the dragnet searches were constitutionally permissible as an exercise of the in loco parentis (in place of parents) power by the schools but that the nude searches were unconstitutional. Eventually, Diane collected damages in an out-of-court settlement for that strip search. Nevertheless, her parents pursued the case on appeal so as to obtain a ruling that the entire procedure, especially the dragnet search of children suspected of no crime, was repugnant to American constitutional traditions.
When the case reached the Supreme Court, it simply refused to hear the appeal. Technically speaking, no conclusions may be drawn from such an action, which means that the high court has not taken a position on the matter. It is fair to say, however, that had the justices been sufficiently disturbed by the searches of these young Americans, they would have found a legal basis to hear the appeal and to issue a resounding decision telling the world that such official behavior was unconstitutional. Only Justice Brennan was sufficiently disturbed, and he wrote a stinging dissent from the brief order denying the appeal on May 26, 1981, in the case known as Doe v. Renfrow. The justice agreed with the court of appeals in regard to its castigation of the strip search but he would have preferred that the high court summarily reverse that court's decision to the extent it upheld the dragnet search of all the students.
"We do not know what class [Diane] was attending when the police and dogs burst in, but the lesson the school authorities taught her that day will undoubtedly make a greater impression than the one her teacher had hoped to convey." The high court justice concluded that he would have granted the appeal to teach Diane and other students a different lesson, one that revealed something important about the grand traditions of American freedoms, that "before police and local officials are permitted to conduct dog-assisted dragnet inspections of public school students, they must obtain a warrant based on sufficient particularized evidence to establish probable cause to believe that a crime has been or is being committed. Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms."
Because the Supreme Court refused the opportunity to issue a full decision, it is not clear if the Constitution will be interpreted to protect American students from mass dragnet searches by police and dogs—or from commands by school officials and the police that they strip nude in front of strangers so they can be searched for drugs. In the only major case involving the search of a student since Diane's appeal, the high court approved the search, although it was much less intrusive than that of Diane.
The crucial incidents in the case took place one day in Piscataway High School, Middlesex County, New Jersey. A teacher discovered two freshmen girls smoking tobacco cigarettes in a restroom, and had promptly taken the two miscreants to the principal's office where they were confronted by the assistant vice principal, Theodore Choplick. One of the girls immediately admitted her guilt. The other, a 14-year-old with a stubborn streak, who is called T.L.O. in the court record, not only denied that she had been smoking in the lavatory but also that she smoked at all, ever. Mr. Choplick persisted in his investigation. He asked the defiant one to come into his private office and demanded to see what was in her purse. The public school official opened the student's purse, immediately found a pack of cigarettes, held it before T.L.O., and accused her of lying to him. Even though it was not against any law or school regulation for the young lady to possess the cigarettes, the school official believed that he had the power to inspect her purse for tobacco so as to determine if she was lying about smoking in the lavatory, which was against school rules.
As he had been reaching into the purse for the cigarettes, however, Vice Principal Choplick saw an item of even greater concern to him: a package of cigarette rolling papers. This was March 7, 1980, in one of the great urban areas of America, a time and place of public distress over the destructive use of drugs by young people, especially in schools. In his experience, Mr. Choplick had learned that the possession of rolling papers often meant that a student was using marijuana. He then searched the purse thoroughly and found a small cache of marijuana, a pipe, several empty plastic bags, a good deal of money in one-dollar bills, an index card listing the names of students who apparently owed T.L.O. money, and two letters—all of which evidence seemingly indicated that the freshman girl was not merely a pot user but also a pot dealer. The vice principal called the student's mother.
He also believed that his duty demanded that he do something else, which brings us over the threshhold of the major constitutional issue involved in this matter: he notified the police and turned all of the evidence over to them. At the request of the police, T.L.O.'s mother took her to the police station where the girl confessed that indeed she had been selling marijuana at the high school. The school authorities suspended her for several days because of violations of the school rules. After protracted court proceedings, T.L.O. was adjudged to be a delinquent by the local juvenile court and sentenced to a year's probation.
Most people would probably say, as they might about Rosa Elvira Montoya de Hernandez, so what? A mendacious, immoral little witch was dealing drugs in a school and got caught—thank heaven!—and anyhow she should have got some time behind bars. However, in enunciating the decision supporting the action of the principal and of the juvenile court, the U.S. Supreme Court in New Jersey v. T.L.O. for the first time sanctioned the use by a court of evidence which had been seized by a school official who did not have probable cause but only a good hunch that something was amiss. Up to the time of that decision, there was no doubt that school officials could make limited searches of students when there was a "reasonable suspicion" that they had violated school rules—and do so without a warrant or probable cause. Since the T.L.O. decision, however, school officials now have the power on the authority of the highest court in the land to make extensive searches of students—certainly their handbags and purses and also perhaps their lockers and desks—if there is a reasonable suspicion that they have violated even the most trivial school regulation; and if the officials discover evidence of a crime, they may turn the material over to the police for prosecution.
It is no surprise that in this tolerant judicial atmosphere school officials, urged on by parent and police groups, are acting today as if they have virtually unlimited power to search the possessions and bodies of all American students. Within the past few years, there has been a stream of reports from all over the country of school district after school district implementing a strip-search policy. As I read them, I wonder if I am in the right country or if my country has truly gone mad. I could not imagine any teacher suggesting such an idea when I was in public school during the Thirties and Forties—unless, of course, they were lechers or voyeurs or perverts of another sort. I am not joking about this. I suspect people who sit on pornography commissions looking at thousands of dirty pictures so as to protect the rest of us from them, and in the same way I suspect people who insist it is necessary to strip-search students to save them from drugs. I suspect them not only of fostering repressive invasions of American freedoms but also of pathological personal drives that make them want to feast their eyes on naked youngsters, who have been compelled to strip against their will, or to share the derivative thrill that they have made it possible for other people to do so.
URINE TESTS: THE FATAL FLAWS
I also suspect the personal pathology that drives leading American officials and drug-abuse experts to show so much interest in the bodily wastes of others, especially their urine, which has become the focal point of so much national attention today. Not long ago during dinner, moreover, I saw on national network news several congressional candidates walking sheepishly out of a small room holding bottles of their own warm urine, offered up for testing to show that they were clean. It was, in a word, revolting. To the list of suspected pathological traits of our leaders, then, must be added a desire to show off one's own bodily wastes to the world.
Urine testing is now flooding through every major institution, impelled by the same type of rationality that spawned the loyalty oaths during the McCarthy era and the religious oaths of belief during the prosecution of Puritan dissenters in the Star Chamber of seventeenth-century England (as well as the more recent attempts of the Reagan administration to commence random lie-detector testing of federal employees on grounds of national security). In the armed services, in law enforcement, in private industry, in the Olympics, and (is nothing truly sacred that deserves to be treated as sacred and exempt from such madness?) in major league baseball and football, leaders are lining up in patriotic phalanxes to be the first to say, Hand me a bottle, I'll take one right now, why shouldn't everyone else? To be opposed to such tests is seen, in some circles, as being opposed to a virtuous attempt to save the soul of America from chemicals. When I spoke in 1985 to a seminar of police chiefs at the FBI Academy, nothing I said evoked such emotional reactions as my observation that mass urine testing, even of police officers, raised serious issues of constitutional rights and invasions of privacy. One chief actually declared, I'll take one right now!
Like all procedures for detection of chemicals within bodies, there are positive functions for urinalysis. It is perfectly appropriate, for example, to say to a drug addict who has entered a treatment program under the care of a physician: a condition of staying in the program is periodic, unscheduled testing of your urine. Because prisoners have a special legal status, it is also appropriate in many cases to demand urine samples from them. Difficulties would arise, however, if an addict in treatment were automatically imprisoned on the basis only of a urine test—or if, as proposed by such experts as Drs. Nahas and Gleaton, suspected addicts were put into quarantine for forced treatment when they flunked a urine test. More legal difficulties would occur when people suspected of no offense were required to take urine tests on a mass basis, thus raising the specter of mass violations of the rights to be free from unreasonable searches and seizures and from being compelled to incriminate oneself. And that, of course, is what is happening today to millions of American employees.
In a nutshell, the fatal flaws in mass urine testing are that they take the fatal flaws of the anti-drug crusade of the last seventy years and drive them to further absurd extremes. The tests assume that there are rational distinctions between the legal drugs as a group and the illegal drugs as a group. The tests ignore the legal drugs—particularly tobacco and alcohol—and assume that traces of the illegal drugs—especially marijuana—in the urine should be taken as the sign of an impaired employee, or as a sign that the workplace is not drug-free, as all agree, including me, that it should be. At its most benevolent, the policy of the employer would then call for rehabilitation as a next step. But for what? The tests do not measure impairment. Yet a trace of any illegal drug is labeled "abuse." The absurdity is that it would follow that the employee would then be treated for the disease of drug abuse, which he or she might not have.
More often than not, however, the suspect would not be put into treatment but into limbo, into disgrace, and into unemployment. In today's hysterical climate, one bad urine test can and has ruined many careers—as did suspicion of communism during the McCarthy period. As happened then, the legality of the tests is highly suspect. While the Supreme Court has not issued definitive rulings on them, many lower courts have blocked mass urine tests of public employees as violations of constitutional rights. Because the constitution does not apply so directly to private employers, the rights of their employees are less protected and the legalites are still being debated. Yet the essential irrationalities of the tests—and their scientific unreliability—may produce new legal doctrines and negotiated labor contracts that will erect new protections in the private workplace.
MAKING CHILDREN URINATE ON COMMAND
The leaders of the parents' movement and their technical experts, as we have seen, believe that there should be mass urine testing of students so as to ensure the goal of a whole generation of drug-free youth. In almost every case, a urine test is based not on evidence but on suspicion—or less, on the belief that the test is not even a search at all and that only by testing everyone in a given group can everyone in it be protected from the evil of drugs. Under the latter logic, neither evidence nor suspicion is needed because the procedure is seen in the same light as a preventive prophylactic or an inoculation.
Whatever the underlying logic, the urine test is becoming an all-American institution, like Mom and apple pie. Recipes for its proper formulation and use are traded across the country. Advice on how to obtain and monitor an accurate test is now standard fare in material prepared for parents' groups. Dr. Richard H. Schwartz, a professor of child health and development at George Washington University Medical School in the nation's capital and medical director of Straight, Inc., for the greater Washington area, wrote recently in a national parents' association newsletter of the values of weekly urine monitoring of rebellious teenagers who promise to abstain from marijuana. "It is best to collect the first voided specimen on a weekend morning, preferably following a night of suspected `partying with friends,' " the medical school professor solemnly wrote, presumably to parents. "The urine should have a yellow or light orange appearance (this shows that the urine was not mixed with water), and the urine, if freshly voided, should impart a sensation of warmth to the container."
Such advice from a medical school professor raises an intriguing question. Are parents in danger of flunking a drug-war loyalty test when they declare that they would rather not know the color and temperature of their teenagers' bodily wastes, except in a clear case of a deadly organic illness?
This new era of parent-child love and trust was further epitomized in 1983 when Checkpoint Laboratories, Inc., of Manassas, Virginia, announced the mass marketing of the U-Care Kit, designed to enhance further the ability of parents to monitor the drug habits of their children. This kit, intended for sale over-the-counter without prescription in drug stores for $15, would have allowed parents to collect urine samples at home and send them by mail directly to Checkpoint, which would then send the results back to the parents, thus bypassing other commercial laboratories or medical doctors. At a press conference in November, the executives of the company seemed to suggest that they planned to cash in on parents' concerns about teenage drug abuse, and that they expected to sell 20 million to 30 million dollars' worth in the next year alone.
Such devices may help a few families but certainly they will tear many more apart. It is difficult to see how trust and love will survive continual tests administered in the home so that parents may be assured that their children are not lying to them. It makes sense that soon this company or another will market, and that some parents will eagerly purchase, a handy-dandy over-the-counter virginity testing kit. Then parents may be assured of having sex-free youth. The next family-trust invention will be an over-the-counter portable lie-detector kit. Next ... ?
Only one organization on the national scene had the inclination to make a frontal assault on the marketing of the home drug-testing kit. Indeed, Kevin Zeese, national director of NORML, was interested immediately in part because the constitutional and fairness issues raised by urine testing now demand more of his attention than any other single subject. At that time, as it happened, one of my undergraduate students, Paul Shelowitz, was serving an internship with NORML. In part on the basis of Paul's research, Mr. Zeese soon filed a petition with the Food and Drug Administration, which regulates the marketing in interstate commerce of new medical devices under the Federal Food, Drug, and Cosmetic Act. In the petition, NORML raised a number of objections about the accuracy and effectiveness of the U-Care test, including problems that would result when urine samples were delayed in the mails for days and allowed to sit at unregulated temperatures. After several months of negotiations with the FDA by NORML and Checkpoint, the test was withdrawn from the market. Soon, the company ceased all operations. However, I thought at the time, there appear to be no insurmountable legal or scientific obstacles to the development of such a kit by an enterprising business, eager to reap the profits just sitting out there in the worried-parent market, at some time in the near future. I was unfortunately right. New tests for checking on children at home have since been put on the market by business firms.
A hint of the shape and size of the future national drug-testing market was provided in early 1985 when school superintendent Alfred Marbaise of East Rutherford, New Jersey, announced that henceforth all students would be given blood and urine tests for drugs and alcohol every year. Not only students suspected of drug abuse. Not only urine tests. Not occasionally. All students, every year, and both blood and urine tests. The superintendent seemed stunned at the national attention the announcement of this program received. (Today, we tend to forget that such radical notions have been on the scene for only a few years. Now there have been so many student search and testing programs implemented that they are no longer news, but they should be.) He also was unable to answer many of the questions that were asked, especially as to how the results of these searches might be used by school authorities and the police. Within a few months, the school board answered that the results of the tests would be made known to school authorities and, in certain cases, to the police, who could take whatever action they deemed appropriate. Students who refused to take such tests would not be allowed to attend school.
The school board insisted that its motives were helpful, aimed at rehabilitating youth with problems and at maintaining "a healthy school population," one "which is drug- and alcohol-free." The educational leaders did not seem aware of the question raised by Justice Brennan as to what lessons we are teaching our youth by these repressive and intrusive procedures. We must also wonder, with bated breath, what types of tests and searches for drugs the most paranoid of these students will devise when they become school leaders themselves. Fortunately, some students and their parents, aided by the American Civil Liberties Union, successfully fought this invasion of freedom. A local court stopped the program as an invasion of privacy. This decision has not cooled the ardor of school leaders and parent groups in other districts.
MAKING EMPLOYEES URINATE ON COMMAND
In the American workplace, the most popular current test seems to be the EMIT system developed by the Syva Company of Palo Alto, California. It was the first relatively inexpensive, rapid, and seemingly accurate urine-screening test put on the market and intended for commercial use. A basic system cost approximately $3,500 and each test $6 in the early Eighties. Since it was first promoted nationally in 1981, the EMIT test for marijuana has been a huge commercial success, and was a large contributor to Syva's healthy gross sales of $100 million in fiscal 1983. The test measures delta-9 THC metabolites in the urine, that is, by-products of the process by which human beings break down and excrete marijuana in their systems. It also may be configured to test for a wide variety of other drugs, including heroin and cocaine. Syva literature states that the test measures only the presence of drugs, thus indicating "recent drug use," but warns customers that "no urine test method ... can determine intoxication."
Syva also claims that its tests have proven to be at least 95 percent accurate, whether indicating negative or positive recent drug use. Nevertheless, the company literature also warns users that "positive results should be confirmed by an alternative method." One more comprehensive and reliable method is known as the gas chromatograph/mass spectrometer test, which takes more time and costs from $60 to over $100 for each use. In many cases, the responsible officials do not order any second, alternative test but instead simply repeat the EMIT process, or they quietly take action on the basis of the first positive finding. The problems of both administering the tests and making decisions on them are aggravated by the fact that the number of people subjected to them keeps rising every year, with perhaps five million Americans taking them now in connection with their employment either in civilian or military life.
Until I forced myself to review some of the stories of these ordinary human beings caught in the bizarre workings of the new urine Gulag, I confess that I had dismissed the problem as a relatively unimportant irritation, even something of a joke. The notion of peeing in a bottle to obtain or keep a job which has nothing to do with that particular function is, after all, somewhat ludicrous. Now I see nothing funny at all. The manner in which the tests have actually operated under the Reagan administration—remember, mass testing only began in 1981, the first year that Mr. Reagan arrived in the White House—demonstrates that they may create more victims of the drug war than any other single irrational weapon in this fundamentally irrational crusade.
Ann Chase was one of the first examples. In August 1981, the 61-year-old widow applied for a job at the Facet Filter Company in Madison Heights, Michigan. She was referred to a clinic where a medical doctor performed a pre-employment physical examination. Unknown to her, but in accordance with widespread current practice, her urine taken during that physical examination was sent to a nearby commercial laboratory which performed an EMIT test for drugs. Ms. Chase tested positive for marijuana. Without making any confirmatory tests, the laboratory so reported to the clinic, which reported to the company, which then informed Ms. Chase that she was being denied employment. Upon learning the cause, the suburban grandmother protested that in the entire six decades of her life she had never smoked any substance whatsoever, not even tobacco and certainly not marijuana. Her protests were rebuffed. The new technology had spoken and told the world she was a drug abuser.
The new technology, spurred on by the drug warriors, smeared another woman, 41-year-old Julie Medina, with the same defamatory label. She, too, applied for a job with the Facet Filter Company and was also denied employment because she tested positive on the EMIT test. Ms. Medina admitted later that she had smoked marijuana as a much younger person "years ago—not for a long, long time." Yet she was denied the opportunity to be gainfully employed at a time when jobs were scarce in that area.
Both victims eventually found that the only possibility of redress lay in bringing suit, which they did along with a third person,
Case Triblo who has become one of the most prominent fighters against the injustices of the urine test. Indeed, some journalists have taken to calling him the Ralph Nader of urine tests. In June 1981 Mr. Triblo, then in his late twenties, received word that a long-awaited dream had been realized. The Detroit Fire Department notified him that he was about to be appointed an emergency medical technician. The idea of saving people's lives in emergency situations had always appealed to him, and he had worked and trained for many years to reach this goal. He went to the physical a few days later and gave a urine sample. He was never told that it was to be tested for drugs, nor did he give his permission. Had he been asked, he says he might have gone along with it because in general he supported the idea of testing employees for drugs—if the test could show intoxication. After all, he did not want to work with "dopers" driving ambulances under the influence of any drug or alcohol. He believes that use off the job is none of the employer's business, however. It certainly had no effect on his performance.
An EMIT test showed him positive on marijuana use, although he was not told about it. In fact, Casey Triblo freely admits he was an occasional smoker, like millions of other Americans, and that he had a joint four days before the test. A second EMIT test also was positive, not only for Casey but for 11 out of 14 cadets in his class as well. The fire department then told them about the test but decided to let them all commence work on condition that they take another test after a month with the idea that all of the trainees would then have the opportunity to clean out their systems. In his opinion, everyone took the warning to heart. "Needless to say, we didn't smoke pot," Mr. Triblo later recalled. Certainly, he happily abstained for he did not want to see his dream slip through his fingers. Indeed, he used no marijuana at all during the entire period of his employment by the city, July 7 to August 27, 1981. The results of a private EMIT test he secured during this period showed him negative for marijuana. Yet the third test taken through the city came up positive and thereupon Mr. Triblo was fired, along with one other recruit who also flunked the test.
The tests had been done by Quality Clinical Laboratories in Wayne County, which had performed the same procedure on Ms. Chase and Ms. Medina. As in their cases, the lab had attempted no alternative tests and fire department officials claimed ignorance of the need for independent confirmation. Casey Triblo found himself unable to get an emergency medical technician's job because his reputation had been harmed by word of his firing as a drug abuser. He insists that his use of pot has always been moderate and that he would never report for any job in an intoxicated condition from any drug. His entire work record, including the brief time with the city of Detroit, was always at a high level of performance. Mr. Triblo now works as an ambulance driver at less than four dollars an hour. He also has spent a good deal of his energy and time, though, in his campaign against urine tests, especially the EMIT method. He secured a lawyer and brought a multimillion-dollar suit against the city of Detroit and Quality Clinical Laboratories on the grounds of libel, slander, loss of employment, and violation of constitutional rights.
Settlements were made out of court with Ms. Chase and Ms. Medina, perhaps because those defendants did not want the jury to hear their stories along with that of Mr. Triblo, the admitted current marijuana user off the job. In June 1986 a Detroit jury voted against Casey Triblo and thus upheld the current irrational claim that any person who smokes marijuana even occasionally is banned from working in many jobs. A saddened Casey Triblo wrote me about the jury, "I don't think the average lay person is motivated enough or intelligent enough to understand the pitfalls of the EMIT test or any other test for that matter. When you add the `Reefer Madness' defense, as the city did, people tend to not take a chance of allowing a person who did drugs to take a public safety job." He added, "I've always maintained that if a test method was developed to determine marijuana intoxication, I would be willing to take a test before every shift."
One of the witnesses in the case for Casey Triblo was a prominent expert in the field, Dr. Arthur McBay, who was one of the originators of some of the techniques later used in the EMIT system and whose graduate students performed early assessments of the system. Dr. McBay in recent years has stated time and time again that he regrets now the role he played in its creation because of the "horror stories" and "dire consequences" that keep coming to his attention based on the irresponsible use of the test, as in the case of Ann Chase, Julie Medina, Casey Triblo, and tens of thousands of other Americans. Dr. McBay is the chief toxicologist in the Office of the Chief Medical Examiner, State of North Carolina, and professor of pathology and pharmacy at the University of North Carolina. He declared ruefully in November 1982, "The process was supposed to be for statistical research on use of marijuana and other drugs, not to crucify individuals.... I feel bad about it. People are being deprived of rights and privileges. People are being removed from jobs. Others are sent to jail. That's what I call some dire consequences."
The wide professional support for Dr. McBay's concern was shown a year later at a conference in Cincinnati. To 120 forensic scientists in the room, Dr. McBay asked a question: "Is there anybody in the audience who would submit urine for an immunoassay test if his career, reputation, freedom, or livelihood depended on it?" Not a single hand went up. That event was reported in Clinical Chemistry News, the official organ of the American Association for Clinical Chemistry, a publication that has consistently raised objections to the improper use of urine testing for marijuana in recent years. Despite Syva's claims, many clinical chemists argue that the EMIT test, like others, can produce many false positives, which may be caused by the nature of the urine, by medications, by the manner in which an individual metabolizes a drug, and by diet. "If you're doing a single EMIT, I don't know how you can tell whether you've got a wild one or not," Dr. McBay has stated. Simply repeating the EMIT test is a widespread practice, which was labeled "absolutely unacceptable" by Dr. Thomas Rejent, chief county toxicologist in Buffalo.
One example of the terrible dangers in the new chemical Gulag was brought to my attention by Dr. McBay in 1986. He sent me a notice he had received from the Syva Company advising users of EMIT that the company had discovered that three widely used medicines could come up positive for marijuana. One of those drugs was ibuprofen, taken for years by millions of people in Motrin, Nuprin, and Advil. "Cannaboid assay has been on the market for over five years.... This was discovered by accident this year. Who knows how many other substances might do the same?" Dr. McBay observed. Who knows, I ask, how many careers have been ruined by such small quirks of chemistry unleashed?
Dr. McBay also raised questions about the level of accuracy of the tests. He told me that 95 percent accuracy was the highest claimed by the Syva Company, and that was achieved when done by their own personnel. "It's like Babe Ruth saying, `Here's a bat that hit .300' ... and then handing it to me!" When Syva or any company hands its test kits out to less skillful technicians, the accuracy rate drops sharply to 90 percent, to 80 percent, and below.
If there were a false reading rate of 10 percent, with half false positives and half false negatives, this could mean that 5 percent of the approximately 5 million people tested this year in America were accused improperly of being drug users. Thus, there is a good chance that 250,000 employees were placed under suspicion or had their careers ruined for no reason.
Many clinical chemists are also greatly distressed over the most destructive myth attached to the new wave of chemical searches of American body wastes—that these tests measure impairment and thereby allow managers of major institutions to screen out potentially bad or dangerous employees. To those who will only take the time to hear their words of warning, the objective clinical chemists of the nation are saying, no, it simply is not true. The tests do not measure performance, past, present, or future. Of course, they know that Syva literature contains a caution in one paragraph about not measuring intoxication but they also know that much of the remainder of the promotional material on EMIT negates that warning. Even when an EMIT test is done properly, "You cannot gauge or judge impairment from a positive urine analysis of marijuana," stated Michael Peat, the co-director of the Chemical Toxicology Institute, Foster City, California. The high from marijuana may last a few hours, while traces could be in the urine for weeks or months.
However, the drug warriors are in the political saddle now and they are seeking to ride roughshod over all of the opposition, whether the objections are based on fairness, civil liberties, or science. Dr. DuPont, for example, has stated repeatedly in the national media that more urine tests are necessary to achieve zero tolerance for drugs and that current ones, such as EMIT, do not really need confirmation by alternative procedures because they are so accurate, a position which Clinical Chemistry News reported with apparent amazement. On the May 28, 1982, NBC-TV "Today Show" Dr. DuPont appeared with Casey Triblo and countered his criticisms of EMIT by declaring, "This particular test has not had a problem with false positives. And I would recommend people confirm it simply by doing the test again."
A brief summary of the ideological alignment on this issue was provided on national television by the "CBS News with Dan Rather" on July 16, 1985. Reporter Fred Graham said, "It's the American way. If blockades and drug busts have failed to stop drug abuse, try technology. Laboratory tests of urine samples, properly conducted, can now detect the smallest trace of narcotics and the Reagan administration is urging the nation's employees they must pass the test in order to hold a job.... Companies like IBM, General Motors, Greyhound, the Postal Service, and even The New York Times are using urine tests, mostly before people are hired." Chief White House drug policy adviser Dr. Carlton Turner then told the people of the country, "You have a choice: you give up your drugs, or you seek employment elsewhere. And one of the ways to do it [screen out drug users] is a urinalysis." J. Michael Walsh of NIDA added, "It will become, within the next year or two, very difficult for someone to get a job who is a current user of illicit substances." Fred Graham stated, "Some experts say 80 percent of all companies will be testing employees for drug abuse in five years. The question is: are the tests accurate and fair?" Casey Triblo appeared on the screen to answer in the negative, followed by Dr. McBay, who declared, "To me, it's ... Big Brotherism.... It doesn't seem to be an American way of doing things."
TESTING SPORTS STARS: WHY?
Some of the most emotional calls for the spread of such Big Brotherism have come in regard to sports participants. For some years, international Olympics officials have demanded urine testing of all athletes. Yet in the early Eighties, American Olympic Committee leaders were dismayed when 15 U.S. participants in the Pan-American Games in Venezuela were discovered to have banned substances in their urine. The bad substances then were stimulants and anabolic steroids, which allegedly increase muscle size and strength. As a result, the American committee soon announced that every American athlete must be tested before taking part in both winter and summer Olympics for approximately 100 substances, not simply mind-altering drugs but also seemingly innocent medicines such as over-the-counter cold pills, nose spray, and eye drops.
The executive director of the U.S. Olympic Committee, F. Don Miller, announced in 1983, "I want to emphasize that this is a war on drugs and not a war on our athletes." Yet he then showed, once again, how that mythical separation is indeed simply that, by adding, "Testing is not a choice. Any athlete who refuses is a positive." The tickets for admission to competition, he made clear to our athletes, were two bottles of drug-free urine.
When Peter Ueberroth left his triumphal accomplishments as president of the Los Angeles Olympic Organizing Committee and took over as the commissioner of baseball in 1984, he faced a problem not of legal nose drops but of illegal nose candy. The use of cocaine by major league players made headline after headline in 1984 and 1985, including a sensational criminal trial involving players on the Pittsburgh Pirates. Soon, Mr. Ueberroth was proposing various schemes of drug testing for virtually everyone in baseball, save, strangely enough, for major-league players themselves. His experience with advanced urine-testing techniques at the 1984 Summer Games convinced him, he confidently reported, that testing could be accurate and fair. "If you have the most sophisticated equipment like we had ... I've never heard of an argument that the tests weren't foolproof," declared the commissioner of baseball, who apparently had not listened to the arguments of Casey Triblo or of Dr. Arthur McBay and his colleagues. The commissioner also revealed, as both a comfort and a challenge, that he had taken the test himself.
Mr. Ueberroth believes, like so many national leaders, that major-league ball players have a special responsibility because they are role models to the youth of the nation. He said he also saw "another element in the darn thing," namely, "Baseball wants to be a leader in setting an example in solving our drug problems. ... I think [FBI] director Webster would tell you that cocaine is problem number 1, 2, and 3 in fighting crime in this country." While the baseball commissioner's criminological theories may be doubted, there is no doubt that, combined with the baseball cocaine scandals, they soon led him to screw his courage to the sticking point and actually propose mandatory periodic unscheduled testing for the gods of the American pantheon, major-league baseball players themselves.
Tom Wicker came out against the idea in an editorial in The New York Times titled "Say It Ain't So, Peter." Mr. Wicker proposed that individual players who reveal problems be dealt with but that all should not suffer from a presumption of guilt. As for the role-model notion, "Baloney. Do you want your son drooling tobacco juice, kicking dirt on umpires, throwing at batter's heads, spiking opponents?"
Another aspect of the role-model issue has been largely ignored. Virtually all of the players exposed as drug users had been doing well at their sports. They used drugs and won ball games, many times in championship style. There is nothing new about that juxtaposition. It has been very common in the history of American sports, except that the drug in the past has usually been alcohol. For example, Babe Ruth's exploits at bending an elbow off the field were as legendary as doing the same thing, with bat in hand, on the diamond.
On October 6, 1985, former star baseball pitcher Dock Ellis told Harry Reasoner and the country on the CBS television program "60 Minutes" that during each of the twelve years he played major-league ball, he was on drugs. The star had no problem getting drugs and no problem performing, sometimes under the influence of them. In fact, during the 1970 season he performed one of the most difficult feats in all of sports: he pitched a no-hitter. Before the game, he had taken LSD and was "tripping" during the entire nine innings. I wish that the leaders who want so much to make examples of our sports stars would wake up and look at the real content of those examples. Perceptive youngsters already see the hypocrisy in the current situation (one brought me the Ellis transcript from CBS at his own initiative) and are further turned off from believing anything said about drugs by authority figures, even so exalted a personage as the commissioner of baseball.
In July 1986 National Football League commissioner Pete Rozelle continued the dominant trend when he announced a plan for mandatory random urine testing for all players. This would have been the only major sport with such a comprehensive testing program. The players' union fought in court and a judge stopped implementation of the plan because it was in violation of the existing contract with the owners. There has been little opposition to the National Collegiate Athletic Association's new massive drug-testing program, which went into effect on August 1, 1986. I have severe doubts that it can be implemented without making college athletes second- or third-class citizens. As in Olympic competition, there are provisions for random urine tests before or after post-season and championship games. The detailed procedure for selecting athletes for tests, for supervision of the tests, and for control of "specimens" reads like a cruel parody of how to control political prisoners in a George Orwell novel. The list of "banned drugs" contains 81 names and all "related compounds." Most of the drugs are ordinary medicines, even some cold compounds and cough syrups.
Dr. Arthur McBay's reading of the program was equally critical but he also saw it to be technically impossible and useless in practical terms. In June 1986 he told me, "I am not aware of a single laboratory anywhere in the world that would be competent to do the testing as described in the NCAA rule. Certainly not within a reasonable time frame and not without great cost. Each test could cost at least one hundred dollars, perhaps two hundred dollars or more. That's five-to-ten thousand dollars a team for each game. Right after the test an athlete could go to his locker and sniff some cocaine. What good would these tests do?" That, of course, is the quiet question that no one in power is facing.
MILITARY TESTING: IS AMERICA SAFER?
However the issue of drug testing for athletes is resolved, the outcome is likely to have only marginal negative results for the country. This is not the case with the urine-testing program that has been imposed on the 2.4 million Americans now serving their country in the armed services. They have no union, no clearly established legal means of fighting back, and no true freedom of speech. Under current law, all 2.4 million of them can be and frequently are given direct orders to urinate in bottles at a given time and place. The irrational treatment of our service people provides a chilling vision of what civilian society could be in the future.
That is disturbing enough. More distressing are the repeated charges that the unbalanced search for drugs in the military has had the same chaotic influence on morale and group cohesion that Toughlove and Straight had on Fred Collins and the family he loved. It is, therefore, quite likely that the military effectiveness of some fighting units has been compromised. That is precisely what the tests were supposed to insure against, which again demonstrates that when unrealistic objectives are pursued in a hysterical fashion using flawed technology, human institutions will often produce perverse and destructive results. The story of urinalysis in the military under the Reagan administration is thus a major scandal.
During his administration, military commanders have often declared one major objective: zero drug and alcohol use. In fact, this sometimes is stated as, and always means in practice, zero illicit drug use. Both military law and administrative regulations surround that objective with protections for service people, including requirements that urinalysis results not be the sole foundation for punitive action, which is supposed to be based upon an impartial, wide-ranging review of all of the facts. In actual recent experience, one bad reading has destroyed tens of thousands of promising careers of competent and patriotic soldiers, sailors, marines, and flyers.
All of this did not start with Mr. Reagan, of course. In what appeared to be a commendable program in 1978, the Strategic Air Command declared that no marijuana use would be tolerated by any of its members at any time. We can all support the ultimate purpose of the SAC commanders and the Carter administration in making this sweeping declaration. No person in any country in the world can go to bed peacefully at night contemplating the nightmare that somewhere out there a drug-crazed B-52 pilot is aiming an armed H-bomb at a country that annoys him. There were reports at the time that the first urinalysis sweep turned up 2,300 marijuana users in SAC who were given the option of rehabilitation or discharge; 1,900 decided to leave the service rather than fight the irrationality.
If that harsh action had cleaned out even a few potentially drug-harmed pilots and crew, perhaps it was worth it. Yet the program did not deal with alcohol abuse nor did it distinguish between use and abuse of any drug. SAC leaders did not take into account the high probability of error in the testing process and thus took action on the basis of questionable laboratory reports on one of the least harmful drugs known to human beings. Critics at the time claimed that morale in some of these highly trained and vital units was greatly lowered.
When EMIT became available, the wide-eyed drug warriors in the Reagan White House found a serendipitous group of military warriors across the Potomac River in the Pentagon just as the war fever of the chemical crusade was heating up. The Pentagon chiefs were schooled in giving orders and receiving immediate obedience. It was in the American military, then, that the pressure for the use of undemocratic methods to achieve the drug-free society—the dream of using the Singapore model and to hell with this business about the rights of drug demons—has been given its fullest play.
Within a few years, millions of tests were given to American servicemen and women around the world, often on repeated occasions. Test tubes of urine by the tens of thousands, with accompanying paperwork, flooded into regional military laboratories. All of the bottles, though, looked alike. Harassed and overworked technicians complained that they could not keep up with the massive workload, that they were literally awash in urine, and that sometimes they got the damned bottles mixed up. Commanders kept up the pressure, took staff away from other duties and assigned them to the urine front, and demanded that the testing continue. Thus repeated human technical errors were added to the scientific unreliability of the tests and to the even more fundamental irrationality that this entire Byzantine effort was aimed at marijuana. When complaints were made and reached the press and Congress, the Army appointed a blue-ribbon commission which dutifully reported that there had been no evidence of false positives in Army and Air Force laboratories from April 1982 to November 1983.
Yet many cases of improper procedures and injustices floated up on the tide and came to public attention. Major Carter C. LeFon, head of the Brooks Air Force Base laboratory in Texas for most of 1982, testified in one court-martial of a pilot accused by test tube that the lab produced many false positives, to his personal knowledge, while he was in command. If his estimate of 3-5 percent false positives were accepted, as many as 1,185 innocent Army and Air Force service people were put through personal agony for no purpose by this one laboratory alone. Because of a backlog of 15,000 urine samples in early 1982, 25 inadequately trained technicians were assigned to the lab. The defenseless service people were forced to work 12-hour days through weekends in unpleasant working conditions.
"In one incident described by LeFon in court, lab technicians were found heating tacos in the glassware drying oven, which is supposed to be used to dry glassware after it has been washed. LeFon said the lab tests probably had mistaken residual taco grease for evidence of marijuana use, contributing to the disproportionate number of positive findings made at the time," the Army Times reported.
Poppy seeds were the culprits when two Navy medical interns suddenly found themselves suspected of being morphine or heroin addicts in 1983. Both doctors, at the Navy Hospital in Balboa Park, California, denied taking such drugs. A second test again came up positive for opiates. Both clean-cut, straight-arrow young officers then took lie-detector tests, and both failed. It appeared that their careers were ruined. They suffered 15 months of anxiety and legal costs.
To their credit, Navy technicians discovered that both doctors liked the bagels topped with poppy seeds often served in the hospital cafeteria and that poppy seeds tested positive for morphine. The case illustrates the technical limitations of any testing method because, as Dr. McBay and other experts have explained, any one of a thousand foods or medicines might show positive for drugs on a urinalysis test because any one of them might be cross-reactive with the testing chemicals or with the drug. Lieutenant Dale Mitchell, one of the doctors, recognized his continuing peril for he still eats bagels topped with poppy seeds. After he was cleared, he observed, shaking his head, "I might come up positive again."
The sense of injustice created by the urinalysis mania permeated the services. Soldiers reported that the arbitrariness of the program brought out the worst in the military command system. Officers who were prejudiced against minority groups or women, I was told by one former infantry soldier, would simply tell a platoon sergeant to get a urine test, immediately, and the victim would be forced to comply. There were always half-decent odds that the target of prejudice would flunk the test. Whether or not these claims of bias were true, they were widely believed—and continue to be to this day, with destructive results for the armed services.
Other service people wrote bitterly in the early Eighties to NORML about their disillusionment and their own desire to leave such an unfair institution. One said, "On November 29, 1983, my second four-year enlistment in the military will come to an end. My plans are now to get out ... even though I do not use marijuana, I will not subject myself to this kind of treatment ... for four more years." Another: "The people that are being treated unjustly are the ones that will be fighting a war, our war, if it comes about.
Do you really think that they will fight for a country that has treated them so?" Yet another: "This test ... is against the moral principles of every such person or any person having to humiliate himself by urinating in a cup."
The true humiliation should have been reserved for the honor and reputation of the commanders of the armed forces of the United States. Soon they were forced to admit the harm they had visited upon tens of thousands of citizens in uniform. The exact count of these victims is unknown, in part because their numbers have never been totaled and also because information about them has been revealed piecemeal in wave after wave. In June 1984 alone, the Army announced that it had begun mailing notices to 60,00070,000 victims, soldiers and ex-soldiers, telling them that they could appeal personnel actions taken against them because drug-testing procedures had been found to be faulty. An Army spokesman stated that "probably the majority" of 9,099 soldiers forcibly discharged in 1982 and 1983 were punished on the basis of dubious evidence. The Navy and the Air Force made similar admissions about their drug-testing programs. Admissions of wrongful treatment of service people have never been made in such dimensions by commanders in past American history.
Yet the services continue to support the programs. Commanders point with pride to the drop in recorded drug use. Of course, that was to be expected because the innocent were punished along with the guilty. Navy leaders, for example, claim that illicit drug usage dropped from 48 percent in 1980 to 10 percent in 1985, on the basis of confidential surveys. The claim is also made that all of the technical and administrative problems have now been solved. In May 1985, Jarrett Clinton, M.D., Deputy Assistant of Defense for Health Affairs, was ebullient in reporting that advance: "Fortunately, these days, I am smiling."
There is precious little, though, for the rest of the country to smile about. While it may appear that the harsh program has reduced dangerous drug use in the military, all that is certain is that marijuana use has declined. Service people, like millions of their civilian counterparts, have learned some very practical scientific facts. Hard drugs, like cocaine, barbiturates, and opiates, are water soluble and tend to be excreted in two to three days, unlike marijuana which is fat soluble with the result that traces of pot may be found in the system for weeks or months. Even though the services sometimes test for these other drugs, many soldiers know that the odds of getting caught for, say, cocaine or heroin are much less than for marijuana. The lessons of that fact should cause no one to smile.
Abuse of alcohol has always been the major drug problem in the armed services. Anyone who was in the service before the Sixties and has a realistic memory knows from firsthand experience that soldiers often drank huge quantities of weak beer or cheap whisky, but were counted on as good fighting troops if after a night of such revelry they could be present at reveille, stand up, and count off, without in the process vomiting on the lieutenant of the platoon. While in infantry training at Fort Dix during the Korean War, my unit was admired by the officers because we could be counted on to supply them with ample doses of hard whisky while in the field on maneuvers. For some reason, I have never forgotten my platoon lieutenant with his .45 pistol on his belt who, one cold night in late 1952, made the rounds of the enlisted men's pup tents, sampled the supplies of most of the platoon's soldiers, stumbled into the large officers' tent, did a perfect somersault, landed on his back on his own sleeping bag, and was immediately off into a deep, drunken sleep. The latter events took place in front of the other company officers and one enlisted man, all of whom applauded the man's verve and style. Nobody suggested that we turn him in or test his urine. I suspect the same attitude would prevail today. He was, after all, only doing what soldiers have always done: he was getting blasted on alcohol.
At that distant time, marijuana in the army was unheard of—even though objective science might have told us that many soldiers would have been better off with pot than the alcohol they were guzzling. Since then, of course, soldiers have brought their new drug habits, especially marijuana, with them from civilian life. The advent of marijuana with the new troops could not have made that situation worse; indeed, pot offered a less harmful option to many service people. Now the American military commanders have achieved significant victories in the war on marijuana and virtually destroyed that more gentle option.
A few years ago, an American infantry soldier wrote in despair from Germany, "Mostly everyone here has quit smoking and turned into a legal alcoholic. Even today, I went and bought a half-gallon of Bacardi rum, myself, and I don't normally drink. I really hope someone, somewhere will realize ... smoking marijuana does not make you a drug abuser. And no one ever O.D.'d on smoking the herb, you know." While we may prefer that this young trooper used no mind-altering drug, the American nation has never fielded a fighting force that did not partake of whatever drugs, including some wild varieties of alcohol, that the countryside afforded.
A particularly ironic example of the type of destructive injustice that is now being created commenced on November 13, 1982, when Chief Petty Officer Frederick A. Calkins was ordered to submit to a random urinalysis aboard the amphibious assault ship U.S.S. Thomaston. Calkins, an outstanding career sailor and deeply proud of his chiefs rank, then went on emergency leave because of the death of his father. Upon returning to his ship, he was told that the urine sample, taken 54 days before, tested positive for barbiturates. CPO Calkins vigorously protested his innocence, but in a captain's mast proceeding, Commander Willard G. Chrisman relied on the urine test, found him guilty, and demoted him to petty officer second-class, which has cost the sailor approximately $6,000 in pay. Because the ship was at sea, a full court-martial was not available to the accused man.
A year later, Commander Chrisman was directing the movements of the ship when the Thomaston scraped bottom in a Pacific cove. Several of the ship's crew accused him of a series of offenses, including being drunk on alcohol. The Navy court-martialed him. Within a few years, the commander left the service under a cloud. The highly publicized urinalysis program had not provided any warning of the ship commander's potential for failure to perform his duty based in part on alcohol abuse. Calkins, though demoted, continued to perform as a superb sailor. In January 1984, he was chosen Sailor of the Quarter in an eight-ship squadron.
During the terrible summer of 1986, the Department of Defense released a 1985 survey of drug and alcohol use for all of the services. In a very revealing press briefing on August 5, Dr. William Mayer, the assistant secretary of defense for health affairs, claimed that overall use of illicit drugs had dropped 67 percent since 1980. He also claimed that there had been a significant drop in alcohol use. Another claim by the leading defense official was that, following the problems of the early Eighties with errors in urinalysis, "We have established a testing program which has never given a false positive reading." Cautious readers will take all of these claims with a grain of salt.
When asked by reporters exactly how many service people had been discharged because of bad urine tests, the Defense Department's top expert and his assembled staff of supporting experts could not or would not give clear answers. At one point in the briefing he stated that over the previous three years 51,000 people had been discharged for flunking the chemical test, and at another, 135,000.
On a few points Dr. Mayer was absolutely clear. For all commissioned and noncommissioned officers, "a single scientifically validated positive test for drug abuse results in the separation from service." Thus the armed services of the United States, with the guidance of leading medical experts, are using the urine tests in an improper manner. They are improper according to the express written reservations of the manufacturers of the tests (the presence of traces of an illicit drug in the urine does not measure impairment or abuse), improper according to the leading clinical chemists of the country, and improper according to common sense.
Dr. Mayer was also clear that alcohol remained a bigger problem in the military than any other drug. At the same time, confirmed alcohol addicts were not discharged from the service on that account because they were not violating any law and were "more treatable" than illicit drug users. There is little scientific support for the latter observation. The real reason for the distinction is that the armed services continue to perpetuate the myth that there is a scientific justification for the line between the illegal drugs and the legal drugs. One use of the former equals drug abuse and is the basis for immediate discharge from the service of the most competent, patriotic fighting men or women, who then carry an indelible stain on their records into civilian life. Use of the latter either in explosive bouts of periodic drunkenness on duty, like my lieutenant, or in a persistent addictive fashion may be treated with compassion and understanding. Thus it is probable that many thousands of occasional, nonaddicted marijuana users have been disgraced and thrown out of the service while many thousands of alcohol spree-drinkers and addicts have been kept on active duty at the bridges of fighting ships and at the buttons controlling nuclear weapons. On balance, I suspect that the security of the nation has been damaged more than it has been helped by the chemical assault of the drug warriors on the men and women of our armed services.
The truly important test of human worth throughout the history of our successful democratic enterprise has always been the quality of a person's performance in action rather than the nature of the chemicals that person ingested. Many of our armed services personnel who used, or even abused, alcohol have been splendid fighters. When congressmen urged President Lincoln to fire General Grant in 1862 because he drank too much whisky, the President brushed them off, declaring, "I can't spare this man—he fights!" Lincoln also said that he wanted to find out what kind of liquor Grant drank so that he could feed it to his other generals.
The matter is infinitely more complicated, therefore, than our military commanders, including the Commander-in-Chief himself, would have us believe. We cannot simply toss the process of selecting honest employees or brave fighting soldiers over to some lab technicians who inquire only into the condition of their urine. Science does not hold out the slightest hope that we can devise accurate tests that will allow supervisors and commanders to escape the responsibility of judging on an individual basis the worth and work performance of each individual. Even if the nation's leaders continue down the current path and use other clinical tests of urine, blood, saliva, or brain waves—all now being promoted by commercial businesses to the drug-war trade—this will mean even more invasions of the bodies, bodily wastes, and privacy of our free citizenry, but it will not predict which of the testees will fail in their civilian work or military assignments, or even identify accurately those who use prohibited substances.
JAR WARS: HAVE THE WARRIORS GONE TOO FAR?
The one good result from the epidemic spread of mass, random urine tests has been that they have helped create a spark of opposition to drug-war extremism in the solid center of American society. The first sign of that opposition was found in the general disapproval that greeted many of the recommendations of the report of the President's Commission on Organized Crime in March 1986. The commission took the most extreme ideas that have been floated during the Reagan era and gave them the imprimatur of a recommendation by a major presidential commission: greater use of the military; increased electronic surveillance; drug testing for virtually all employees, starting with government workers and those on the payroll of federal contractors; a prohibition on any government funds to programs that advocate the idea of "responsible" drug use; the repeal of all state laws which decriminalized marijuana; and large-scale prosecutions not only of sellers but also of users of drugs.
The commission made it explicit that this really was a "war on drugs—a phrase worn by use but nevertheless the only accurate description of what must be done." The presidential report continued, "We must identify the enemy." Included in that group were "friends, relatives, colleagues, and other `respectable' people" who were small users of drugs and thus "the driving force behind the traffickers' assault on the country."
To me those words had a nightmarish quality. It was as if the presidential commission had read this book in advance and was trying to make its most frightening predictions come true. Deliberately, leading American judges and legal officials were calling for a war on our neighbors and children, just as I had been arguing. On us.
Even though some experts have argued that the war on drugs is not really a war in the American historical tradition of armed conflicts, it is clear that many leaders want to make it so—and are prepared to commit seemingly unthinkable acts, such as imprisoning hundreds of thousands of decent Americans, young and old alike, simply because they use disapproved chemicals. At least for a while, it looks as if the drug warriors have gone too far.
For the first time in recent history, a government report urging tougher drug-control measures was met with almost universal opposition, even from public figures who rarely speak out on such controversial issues. For example, on the NBC-TV "Today Show," host Bryant Gumbel asked a leading commission official, Rodney Smith, why the group adopted "this police-state mentality." Newspapers across the political spectrum from left to right castigated the commission for its extremism and callous disregard for constitutional rights. When I appeared on one of those Sunday television talk shows (CNN's "Newsmaker Sunday") with Mr. Smith, I pointed out to him that the commission report had produced more energetic unity in the sane center of American society for drug reform than all of my efforts in the past 14 years. (The clean-cut young lawyer took that as a compliment.)
It was the call for mass urine testing that produced the strongest reaction to the report of the high-level commission. On March 18, 1986, for example, Mr. Smith appeared before a congressional committee which was looking into the commission's recommendation of random drug testing for virtually all federal workers. Rep. Gary L. Ackerman (D-N.Y.), chairman of a House subcommittee dealing with human resources, shocked Mr. Smith by suggesting that he take a test before testifying. The congressman held up a small plastic jar, stated "I think a specimen is worth 1,000 oaths," and invited the federal official to go into the men's room right then and produce a sample "under the direct supervision" of a staff member, in line with the currently accepted degrading procedure for such searches. Rep. Ackerman informed the leading drug warrior that arrangements had been made with a laboratory to test the sample immediately. The crime commission official refused, later angrily calling the request a "cheap shot." After Mr. Smith's refusal, the congressman stated, "I thank you for very eloquently proving the point that we have set out to prove."
Heated opposition to mass random urine tests, without reasonable suspicion, continues across the country. Generally conservative unions are bringing suit after suit to stop them. Taking a lead role in this widespread opposition has been the National Treasury Employee's Union which, in an ironic twist of history, represents customs agents, the most intrusive group of body invaders in the country. It remains to be seen, however, if these sparks of centrist opposition to the interminable drug war can be fanned into a major reform movement in the years ahead.