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Even as President Donald Trump brags about his support for sentencing reform, he pushes enhanced fentanyl penalties that threaten to repeat the mistakes he claims to be correcting. As a new report from the Drug Policy Alliance (DPA) shows, that sort of inconsistency is hardly unique to the president.

“Many legislators who support scaling back mass incarceration and the drug war are now supporting extremely harsh measures for fentanyl, undercutting the effectiveness of criminal justice reforms,” write Michael Collins, former director of national affairs at DPA, and Sheila Vakharia, the organization’s deputy director for research and academic engagement. One striking example: The Sentencing Reform and Corrections Act of 2017—a bill that would have gone further in reducing drug penalties than the FIRST STEP Act, which Trump signed in 2018—nevertheless included a “mandatory sentencing enhancement” for heroin containing fentanyl.

At the state level, politicians who favor reducing drug sentences, such as Maryland Gov. Larry Hogan (R), likewise want to increase them when the drug is fentanyl. Since 2011, Collins and Vakharia found, 39 states and the District of Columbia have responded to the upward trend in opioid-related deaths by enacting harsher penalties for fentanyl offenses, a strategy that is both ineffective and unjust.

These politicians are responding to the increasing prevalence of fentanyl as a heroin booster and substitute. That development, driven by the economics of prohibition, has made illegal opioids more deadly.

Since fentanyl is roughly 50 times as potent as heroin, its use has made the potency of illicit opioids more variable and unpredictable, magnifying the risk of accidental overdose. “The lack of knowledge whether an illegal drug may contain fentanyl (or how much) could mean that people may not be taking necessary precautions to reduce their risk of overdose, such as using a smaller amount, not mixing with other classes of drugs or consuming their drugs more slowly,” Collins and Vakharia note. Furthermore, fentanyl is faster-acting than heroin: “Whereas there may be 2-3 hours to respond to a heroin or prescription opioid pill overdose, the effects of a fentanyl-related overdose are virtually immediate (death can occur in a matter of minutes) and someone must reverse the overdose with naloxone [an opioid antagonist used to treat overdoses] immediately to prevent a fatality.”

Fentanyl has become very common in many parts of the country. “Fentanyl is now present in most heroin in the Midwest and Northeast, while rapidly spreading west of the Mississippi,” Collins and Vakharia write. Between 2010 and 2017, according to data collected by the U.S. Centers for Disease Control and Prevention, opioid-related deaths more than doubled, while the share of those deaths involving “synthetic opioids other than methadone”—the category that includes fentanyl and its analogs—more than quadrupled, from 14 percent to 60 percent. In 2017, that category was implicated in more than 28,000 deaths.

Given those trends, it is not surprising that legislators have reacted to fentanyl the way they usually react to the latest drug menace: by ramping up penalties for distribution in the vain hope of shrinking the supply, raising retail prices, and ultimately reducing consumption. But it is striking that this punitive response has coincided with bipartisan recognition that past attempts to reduce drug-related harm by sending more people to prison for longer periods of time—in particular, draconian mandatory minimums for crack cocaine offenses—resulted in excessive punishment for low-level dealers that disproportionately affected racial minorities.

The fentanyl crackdown promises more of the same. Looking at federal fentanyl convictions in 2016, Collins and Vakharia find that half the defendants were black, while a quarter were Hispanic. Although the average sentence was five and a half years, 26 percent of the fentanyl defendants were classified as “couriers/mules,” while 24 percent were described as “street-level” dealers. Even more striking, 53 percent of the defendants “did not seem to know they had fentanyl,” according to the U.S. Sentencing Commission.

Since fentanyl is commonly added to heroin high up in the distribution chain, people convicted of selling it, like their customers, “are often unaware of the composition and potency of their drugs and have little control over the quality of product available,” Collins and Vakharia write. “How can a tough sentence be a deterrent for behavior that people cannot prevent and may not even know they are engaging in?”

Politicians may imagine they are punishing callous kingpins who are “agents of death,” as former Sen. Kelly Ayotte (R–N.H.) put it while promoting a bill that would have increased federal fentanyl penalties. Under her proposal, the weight threshold triggering a 10-year mandatory minimum would have been reduced from 400 to 20 grams for fentanyl and from 100 to five grams for fentanyl analogs; the cutoffs for a five-year mandatory minimum would have dropped from 40 to two grams and from 10 grams to half a gram, respectively. Yet the low-level players who would often be subject to those mandatory minimums not only might not realize they were selling fentanyl; they might be users who sell drugs to finance their own habits or who qualify for distribution charges when they pool their resources with other users to buy drugs.

While Ayotte cited Prince’s fentanyl-related death as an example of the problem she was trying to tackle, Collins pointed out that Prince himself could have qualified for a mandatory minimum sentence under her bill. Collins and Vakharia warn that “differentiating between people who use and sell drugs is not possible,” especially since sentences are based on weight and prosecutors generally assume “intent to distribute.”

Is there any reason to think that enhanced penalties will actually reduce fentanyl-related deaths? “There is no evidence that punishing the use and sale of a drug more harshly due to its potency will reduce its availability,” Collins and Vakharia say. They quote an observation that Marc Mauer, executive director of the Sentencing Project, made in 2018: “Increasing already high penalties for drug offenses is not effective because 1) most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems, and 2) those who are apprehended and sentenced are often in the lower levels of the drug trade and are readily replaced by other sellers willing to fill their roles.”

The fentanyl crackdown could actually increase drug-related deaths, since it includes a surge in prosecutions for “drug-induced homicide,” a trend documented in a 2017 DPA report. By threatening to imprison people who share drugs that are implicated in fatal overdoses, such prosecutions may deter them from seeking lifesaving help, undermining the goal of “Good Samaritan” laws that are supposed to protect bystanders in such situations.

Instead of more punishment, Collins and Vakharia recommend several harm-reduction measures that are more likely to be effective, such as stronger Good Samaritan laws, increased access to naloxone, distribution of test strips that indicate the presence of fentanyl in black-market drugs, legalization of supervised drug consumption sites, and expansion of treatment using substitute opioids, including research on injectable alternatives. “We cannot have a public health response to some drugs and a criminal justice response to others,” they write. “We cannot talk about ‘treatment, not incarceration’ and then revert to interdiction and enforcement when a new substance that frightens us appears on the scene.”

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A bipartisan group in Congress is attempting (again) to pass legislation that would restrict the National Security Agency from abusing the PATRIOT Act and the Foreign Intelligence Surveillance Amendment (FISA) Court in order to collect and access private records of Americans.

The Safeguarding Americans’ Private Records Act would formally prohibit the bulk collection of Americans’ phone records, which Edward Snowden exposed and the NSA has since quietly ended. Despite years of government officials defending the practice, the mass collection of all our phone and internet records has not been shown to assist the government in fighting terrorism.

The bill would also prohibit warrantless collection of geolocation information and it would forbid the NSA and other intelligence agencies from creating “secret” interpretations of surveillance laws, which is how the NSA used Section 215 of the PATRIOT Act to justify mass domestic data collection in a way that the Act’s primary sponsor, Rep. Jim Sensenbrenner (R–Wis.), says he never intended.

The bill also seeks to address some of the institutional problems with the FISA Court, recently revealed by the Justice Department Office of the Inspector General’s (OIG) review of the warrant applications FBI agents submitted in order to wiretap former Donald Trump aide Carter Page. The OIG determined that the FBI made a number of errors and omitted important details in its warrant applications. (More news on this dropped today: A December letter from the FISA Court was just declassified showing that the Justice Department now believes that two of the warrant applications targeting Page are not valid due to the omissions.)

In the wake of that review, the FISA Court has demanded that the FBI make changes to its warrant application process so that the court receives all of the information it needs to approve or deny a warrant that would allow the government to secretly surveil Americans.

The FISA Court operates in secret, and potential surveillance targets do not have the ability to contest warrant applications. However, in the wake of the OIG’s report on Page, the Court has appointed former DOJ attorney David Kris to advise it on potential reforms. Kris reviewed the FBI’s proposed reforms and recommended an even more aggressive review process.

The Safeguarding Americans’ Private Records Act would allow independent advisers like Kris (“amici curiae,” in the bill’s language) to access all the reports, transcripts, and pleadings submitted to the FISA Court. These advisors would theoretically thus be in a position to offer an adversarial perspective to the Court. While working at the Justice Department in the 2000s, for example, Kris dissented from President George W. Bush’s use of the PATRIOT Act to collect domestic records. Under this bill, Kris and people like him could make their case directly to the FISA Court.

Finally, the bill would increase reporting requirements so that the public would have a better idea of how federal law enforcement agencies use the PATRIOT Act to conduct domestic surveillance. The bill would also empower the Office of the Inspector general to investigate whether this surveillance has been used against people who are engaged in First Amendment-protected activities, and the extent to which agencies are collecting information about people who have not been specifically targeted (known as “backdoor collection”).

The bill has Democratic and Republican sponsors in both the House and Senate. In the Senate, it’s sponsored by Sen. Ron Wyden (D–Ore.) and Steve Daines (R–Mont.). In the House, it’s sponsored by Reps. Zoe Lofgren (D–Calif.), Warren Davidson (R–Ohio), and Pramila Jayapal (D–Wash.). It has support on the left from digital activist group Demand Progress and on the right from conservative/libertarian Tea Party activists at FreedomWorks.

“Liberty and security aren’t mutually exclusive, and they aren’t partisan either,” Wyden said in a prepared statement. “I’m proud our bipartisan coalition is standing up for Americans’ rights and commonsense reforms to protect our people against unnecessary government surveillance. This bill preserves authorities the government uses against criminals and terrorists, while putting Americans’ constitutional rights front and center.”

Read the bill for yourself here.

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The past few weeks of tension in the Middle East have made Iranian Americans a target in their adopted home. U.S. authorities have subjected ethnic Iranians—some of them American citizens—to terrifying, confusing ordeals at the border. And a group of Republican senators is now calling on Washington to investigate the largest Iranian-American civic organization in the country for its political views.

The threat of war between the United States and Iran is not as strong as it was immediately after the January 3 assassination of Maj. Gen. Qassem Soleimani, the infamous Iranian spymaster and guerrilla commander. But the damage to domestic civil liberties could linger for months or even years to come.

‘Extreme Vetting’

As of 2018, there were 467,466 self-identified Iranian Americans, according to the U.S. Census. Many of these families fled to America after 1979, when revolutionaries overthrew a U.S.-backed monarch and installed the present-day Islamic government. Needless to say, they do not tend to be fans of the current Iranian regime.

That hasn’t stopped the Trump administration from treating people of Iranian origin as a potential fifth column.

Mohammadshahab Dehghani, an economics student at Northeastern University, had a valid visa to study in the United States. U.S. Customs and Border Protection (CBP) agents detained Dehghani when he arrived at Logan Airport in Boston at around 5:30 pm on January 19.

The agency held him “incommunicado” for over 24 hours, according to Iman Boukadoum, a senior staff attorney at the American-Arab Anti-Discrimination Committee who assisted with the case. Dehghani was not allowed to contact either a lawyer or his family, and Northeastern University discovered Dehghani’s fate only after CBP called his roommate to say that he would likely be deported.

A federal judge issued a writ of habeas corpus on January 20 ordering CBP to delay the deportation for two days, but Dehghani’s deportation flight took off a few minutes later anyways. The judge threw out the case soon after that, as Dehghani was no longer in his jurisdiction.

“They knew that a federal lawsuit had been filed,” Boukadoum says, but CBP agents refused even to let lawyers serve a legal notice that they were representing Dehghani. “It was effectively just obstruction and obfuscation.”

A CBP spokesperson refused to explain why the agency deported Dehghani, referring Reason to a statement claiming the Iranian student “was deemed inadmissible” to the United States for unspecified reasons. The agency’s decision is especially puzzling in light of the “extreme vetting” Dehghani went through to get his visa in the first place. According to Boukadoum, the process took nine months.

Trump instituted a “temporary” travel ban on people from seven Muslim-majority nations shortly after taking office in 2017. Citizens of five of those countries—including Iran—can now enter the United States only through a waiver program with a 6 percent acceptance rate. 

“The issuance of a visa or participation in the visa waiver program does not guarantee entry to the United States,” CBP said in a statement that misspelled Dehghani’s name.

An investigation by The Guardian found that U.S. authorities have deported at least 10 Iranians students with valid visas since August.

The Trump administration now appears to be imposing extreme vetting on U.S. citizens of Iranian origin too.

The weekend after Soleimani died, CBP agents reportedly detained dozens of Iranians and Iranian Americans for up to 10 hours at border stations across the country. The bulk of the detainees were detained at the Peace Arch border station in Washington State while returning from a Persian-language pop duo’s concert in Vancouver, according to a statement by four Iranian-American organizations.

“All of them were subjected to the same kind of questioning that we’ve seen on an extreme vetting questionnaire,” including questions about their family history and social media accounts, says Ryan Costello, policy director of the National Iranian American Council (NIAC).

“Mikhail,” an American citizen whose name has been changed here to protect his job, was returning to the United States from a ski trip on January 3 when CBP agents stopped him at Calgary Airport in Canada. (U.S. border authorities have a presence in several foreign airports.) Mikhail says that one of their questions shocked him: “Did you serve?”

“I feel so American, for the life of me, I thought he meant did I sign up for Selective Service?” says Mikhail, in unaccented English. It turns out that CBP wanted to know if he had served in the Iranian military.

Iran currently institutes the draft for adult males, and last year the Trump administration declared the Revolutionary Guards, a branch of the Iranian military, a terrorist organization. But Mikhail left Iran at age 12 in 1978. And even if he somehow served in the Iranian military as a preteen, he would have been fighting for what was then a pro-U.S. regime.

“You can choose your nationality. You can’t choose your place of birth,” Mikhail says. “You take the [U.S. citizenship] oath. You take the passport. This is the only country that is home to you.”

NIAC policy director Ryan Costello claims the question about military service was a “uniting question” that interrogators asked Iranian-American travelers across the country that weekend.

Border agents also asked some detainees about their political views, including their views on Soleimani, according to Boukadoum.

Boukadoum notes that the border is where authorities often test out their “most radical” policies, which they might not be able to enact on Americans inside America.

“This is just a continuation of post-9/11 border security policy,” she says. “CBP has so much unfettered power.”

CBP initially denied that it was “detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin,” claiming instead that the holdups at Peace Arch were because of “increased volume and reduced staff during the holiday season.”

But a CBP spokesperson later told Reason: “CBP has understood Iran and its proxies to be a very capable adversary for some time. Consistent with our statutory authorities, CBP leverages all available tools and information to ensure that individuals who seek entry into the United States are appropriately screened.”

The Department of Homeland Security’s Office for Civil Rights and Civil Liberties has opened an investigation into the incidents, according to Rep. Pramila Jayapal (D–Wash.).

‘Dual Loyalty’

The treatment of the Iranian-American community as a potential enemy within the country hasn’t stopped at the border.

Mana Mostatabi of NIAC says her group has seen an increase of reports from concerned Iranian Americans: “Their kids are being bullied in school. They’re being called ‘sand n-word,’ and [people are] threatening to push the families across the border and shoot them, or rape their mothers.”

Meanwhile, a group of Republican senators—Ted Cruz of Texas, Tom Cotton of Arkansas, and Mike Braun of Indiana—wrote a letter to the Department of Justice asking them to investigate NIAC as unregistered agents of the Iranian government.

“The Senators’ accusations of dual loyalty targeting our organization, particularly amid heightened risks of war, are disgusting and dangerous,” NIAC shot back in a statement, pointing out that the group is funded by American citizens and foundations.

Several organizations from other immigrant communities, including the Japanese American Citizens League and the American-Arab Anti-Discrimination Committee, signed a petition defending NIAC. 

The Republican senators’ letter cited meetings between members of Congress and Iran’s then–U.N. Ambassador Mohammad-Javad Zarif that former NIAC president Trita Parsi helped facilitate over a decade ago.

“This was at a time when there was a risk of war between the United States and Iran during the end of the Bush administration,” Parsi says. “Members of Congress had asked me if I could help make connections to Zarif, because they wanted to prevent war, and I had gotten to know Zarif because I interviewed him for my dissertation.

“I would commend anyone else who right now is helping facilitate dialogue between the United States and Iran so that we don’t have this ridiculous war,” adds Parsi, who is now executive vice president of the Quincy Institute for Responsible Statecraft.

The three Republican senators also accused NIAC’s staffers of “amplifying [Iranian] regime propaganda in the United States” and “deflecting blame from the Iranian regime” based on their emails and tweets criticizing U.S. foreign policy.

Ironically, Iran’s regime has attacked NIAC on opposite grounds. Javad Karimi-Ghodousi, a Conservative member of Iran’s parliament, accused Zarif in September 2018 of working with George Soros and NIAC on a U.S.-backed “soft regime change” campaign.

Iranian authorities arrested Parsi’s close friend Siamak Namazi in 2015 and sentenced him to 10 years in prison for collaborating with a foreign government. Iranian state TV even ran a documentary last year attacking both Namazi and NIAC. The film highlighted Parsi’s links to nefarious forces pushing “liberal democracy” and “capitalism” on the world.

Mostatabi calls the attacks on NIAC from both American and Iranian hardliners an example of “horseshoe theory”—the idea that extremists on opposite sides of the political spectrum are closer to each other than to moderates.

“I’m not surprised, but this is still shocking,” Mostatabi says. “This sets a dangerous precedent for any immigrant community and any community that challenges the policies of the Trump administration.”

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