Drug war thievery

Civil asset forfeiture (CAF) goes back to our Revolutionary period. Government licensed privateers who raided British merchant ships. Privateers were not pirates. Privateers were licensed by the state to attack and seize enemy assets. Pirates are non-state outlaws who band together to seize any assets they want. There is a lot to like in pirate culture, as any fan of Starz’ series Black Sails will attest. But there is even more to like about privateers. Privateers had to follow strict rules that limited collateral damage. They had to report their booty to federal courts under maritime law. Anyone who believed his assets were unlawfully seized had a realistic opportunity to contest the seizure in the courts. Privateers who inflicted unnecessary collateral damage could even be sued by the victims!

Privateers seized hundreds of British merchant ships, with minimum loss of life. These assets usually belonged to crony corporations like the British West Indies Company who were exploiting the Caribbean colonies. The object of privateers was to get the money, not to run up kill counts like government armies do. In fact, privateers were so effective in crippling enemy economies that a few decades after the American Revolution the practice was banned by European nations who would rather lose armies than so much property.

But there is no ban on using privateers against non-state actors. The power is still in the U.S. Constitution authorizing letters of marque and reprisal. After September 11, then-U.S. Rep. Ron Paul spoke out against invading Afghanistan and proposed the modern use of privateers to capture Osama Bin Laden with minimum expense and collateral damage. As usual, no one listened to the libertarians, and the result has been the last 14 years of expensive, fruitless wars that have inflamed the entire region. Perhaps the real object was never to get Bin Laden but is part of a senseless Game of Thrones the U.S. is playing with Russia, China and Iran for control of Central Asia.

CAF is no longer a private war against a declared enemy. Now it is run by state and federal police agencies against the U.S. public, primarily under the pretense of the drug war. They can seize your assets by merely alleging they came from criminal profits. The burden of proof then falls on you to prove your innocence in order to get your property back. In many instances legal maneuvers make a mockery of due process. Litigation costs are often more than the value of the seized property. If you do get to court, you see strange looking cases like U.S. vs $100,000. That is a maritime law case, but without the reasonable due process of the old privateer era.

The most significant due process reforms are to require a conviction in court before property can be seized, and to require that CAF proceeds are deposited in the general fund, not to the budget of the seizing agency. New Mexico has passed the best reforms so far and other states like Nevada passed watered-down but still significant new reforms. A third major reform is to forbid state policing agencies from partnering with the U.S. Justice Department, a practice often used to evade state regulations. Former U.S. Attorney General Holder eliminated one such program to great fanfare but left several others intact. The new Attorney General, Loretta Lynch, racked up hundreds of millions of CAF as a U.S. Attorney in New York. She will likely talk about reform but enact very little.

I hope the constitutional conservatives in the 2017 Nevada legislature will take up the issue again.