Could drug trafficking bill lead to prosecutions of Americans who get high in Amsterdam?

Mike Riggs Contributor
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A bill headed to the House floor today has drug law reformers in a tizzy. Critics of the ominously named Drug Trafficking Safe Harbor Elimination Act of 2010 argue that passage of the bill could require American citizens to cancel their drug-fueled visits to Amsterdam, and perhaps prevent them from sampling the rich oily hashish of Northern Morocco.

“[This bill] seeks to authorize U.S. criminal prosecution of anyone in the U.S. suspected of conspiring with one or more persons, or aiding or abetting one or more persons, to commit at any place outside the United States an act that would constitute a violation of the U.S. Controlled Substances Act if committed within the United States,” the Drug Policy Alliance wrote on its Facebook page. “These penalties apply even if the controlled substance is legal under some circumstances in the other country.”

The bill’s architects beg to differ.

“If you go to Amsterdam on vacation and smoke a doob, you’re fine,” a senior House Judiciary committee staffer told The Daily Caller. “So long as it’s legal in the country where you’ll be.”

Sponsored by hard-line drug warrior Texas Republican Rep. Lamar Smith, and cosponsored by California Democratic Rep. Adam Schiff, the Drug Trafficking Safe Harbor Elimination Act of 2010 will likely pass tomorrow despite the DPA’s argument that broad language in the bill could one day serve as an excuse to prosecute Americans for possessing drugs outside the U.S. The bill also has a counterpart in the Senate.

“An American treatment provider working with doctors in England, Denmark, Germany, or Switzerland to provide heroin-assisted treatment and sterile syringes to heroin users in those countries could face arrest. As could an otherwise law-abiding American planning with some friends to use marijuana legally in the Netherlands. Even though this bill references drug trafficking in the title, it also criminalizes conspiring to possess and use marijuana or other drugs in other countries if more than one person is involved — even if drug use is decriminalized in that country,” the DPA’s Facebook note warns.

The Judiciary Committee staffer says the DPA’s fears are overblown.

“So what? I say to someone, ‘I’m going to [possess] a dime bag of marijuana when I get to Amsterdam’?” the staffer said. “I can’t technically say that’s not within the four corners of the Controlled Substances Act. But how is a law enforcement officer supposed to know that?”

NEXT: How a Saudi prince, a Colombian drug lord, and a loophole led to the creation of the Drug Trafficking Safe Harbor Elimination Act of 2010

The genesis of H.R. 5231 suggests that American pot smokers in Amsterdam are the least of the DOJ’s worries.

In 2007, Doris Mangeri Salazar and Ivan Lopez-Vanegas were arrested in Miami and tried for “conspiracy to possess with intent to distribute” after the two brokered a deal between Colombian drug lord Juan Gabriel Usuga and Saudi Prince Nayef Al-Shaalan. Under the agreement, Usuga would use Al-Shaalan’s private plane to transport cocaine from Caracas to Paris.

The DOJ won the case, even though language in the Controlled Substance Act didn’t exactly fit the crime. But according to a memo the Justice Department sent to Judicial Committee Chairman John Conyers, Michigan Democrat, United States v. Lopez-Vanegas revealed a rather large loophole in the DOJ’s strategy for combating international drug trafficking.

“In this particular case, the federal prosecution was based on meetings the defendants held in Miami (among other locations), during which they conspired to transport cocaine from Venezuela to France,” the memo reads. The DOJ trotted out the conspiracy provision of the CSA, even though it was not intended for cases in which drugs never touched U.S. shores. The conviction didn’t stick.

“The U.S. Court of Appeals for the Eleventh Circuit reversed the conviction, ruling that where the object of a conspiracy was to possess controlled substances outside the United States with the intent to distribute outside the United States, there is no violation of U.S. law, even though the conspiracy (meetings, negotiations, etc.) occurred on U.S. soil,” the memo reads.

The 11th Circuit did, however, create an opportunity for Congress to change how such cases are handled in the future. The court concluded “that the conspiracy provision of the CSA relied upon by federal prosecutors could not be extended to conspiracies to act outside of the United States because Congress had not expressed its intention for the statute to be applied in such a manner.”

Ipso facto, said the House staffer, Congress is now expressing its intention for the statute to be applied in such a manner. And it has a hearty endorsement from the Office of Management and Budget and the DOJ to move forward with the bill. “Amendments to the CSA contained in this legislation will clarify that conspiracies conducted within the United States may be criminally prosecuted in the United States — even if the acts of distribution take place outside the United States,” read the Justice Department memo. “The Office of Management and Budget has advised us that from the perspective of the Administration’s program, there is no objection to the submission of this letter.”

While the bill won’t ban fun in Amsterdam, it will certainly complicate the lives of drug traffickers. “We’re taking away a safe haven,” the Judiciary Committee staffer said. “It’s a weird result of federal law that cartels can escape their home countries, come to the U.S., and plan to ship drugs from their home country to another country outside the U.S.”