Document Type

Article

Disciplines

International Law

Abstract

One of the most noteworthy and troubling aspects of this nation's latest "war on drugs" 1 is how far it has gone in erasing the distinction between what is considered domestic and what is considered international, and also the distinction between law enforcement, on the one hand, and military or national security affairs on the other. In simpler times, we had domestic law enforcement agents who, among other things, sought to prosecute those who violated criminal laws-local, state and federal-related to the use, transportation and manufacturing of controlled substances.' Not only were the officials responsible for ferreting out drug violations serving in a domestic capacity, but the intended targets of these laws were likewise within the domestic realm.

The security of the nation, in contrast, was entrusted to the United States military. This was thought to be an entirely separate sphere, and intended to be kept as such by the Posse Comitatus Act.3 Substantially unchanged from its original form in 1878, this Act imposes a criminal penalty on the use of armed forces in civilian law enforcement. In fact, the Posse Comitatus Act codifies a long standing Anglo-American tradition of maintaining a sharp demarcation between the military and civilian law enforcement.

Much has changed over the past decade. Amendments to the Posse Comitatus Act now allow for military involvement in drug enforcement,5 and there already has been such action in Bolivia and arguably in Panama as well.' Moreover, what originally had been a reluctance on the part of the military to involve itself in domestic drug enforcement now has been replaced by a general enthusiasm for such a mission.

At the same time that the domestic/international distinction began to break down in the enforcement of our laws, the laws themselves underwent a similar transformation. Justice Brennan took note of the growing international reach of much of our domestic law in his dissenting opinion in U.S. v. Verdugo-Urquidez:

Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects in this country. Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal sanctions. The enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law."

If the domestic has begun to look like the international and the international like the domestic, a vital question to consider is which ground rules are going to prevail: those from the domestic sphere which are based on, and protected by, the Constitution, or whether, instead, drug enforcement will take on the extraconstitutional qualities that, at present, mark international affairs? This is our inquiry. Part I briefly traces the increased militarization of domestic drug enforcement, both abroad and at home. Part II examines the growing internationalization of U.S. law enforcement, but also the scant protection the Constitution apparently offers in this area. This section will focus on the Supreme Court's decision this past term in Verdugo-Urquidez which held that the Fourth Amendment does not apply to foreign searches by U.S. federal officials if a non-resident alien is the subject of the search. Finally, Part III sets forth the argument that rather than having the domestic take on the extralegal qualities of the international, the opposite should be our aim.

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