Every day we hear about the escalating violence at our southern border as drug cartels fight for dominance and supremacy over the illegal drug flow into the U.S. and related transnational smuggling. Border state governors have expressed their concerns and local leaders have warned of violence spilling across our borders. Congress, Government leaders, and citizens alike have called for more resources and a more strategic plan to address the threat.
But hundreds of federal agents stationed across the southern (and northern) border are forced – by the Federal government – to operate with their hands tied behind their backs, as the drug cartels and their associated violence move deeper into the United States.
This intolerable situation has resulted from a needless turf battle between the Department of Justice (DOJ) and the Department of Homeland Security (DHS) over authority to enforce America’s drug laws. This authority is often called “Title 21 authority,” after the part of the federal criminal code containing the illegal substance laws.
As a result of this turf battle, all agencies that are charged with combating cross-border crime do not have full Title 21 authorities. Instead, the DHS operates under outdated Memorandums of Understanding with the DOJ that impede DHS’ ability to independently investigate cross-border drug cases.
Not only do DHS agencies have to seek DEA’s advance permission to investigate transnational drug cases, DEA arbitrarily limits the total numbers of DHS agents that can work drug cases. DEA permits less than 1500 special agents from Immigration and Customs Enforcement (ICE) to have Title 21 authority. That means more than 5000 other special agents — fully trained in all aspects of cross-border crime — are prevented from participating in these investigations.
This leads to some bizarre and counterproductive scenarios. Take for example, ICE agents who have responded to information from a police department about a stash house containing illegal aliens. When the ICE agents arrive, they discover that it is actually a drug operation. If the responding ICE agents do not have Title 21 authority, they cannot
make drug-related arrests or take any action on the drug investigation without calling DEA and finding another ICE agent who does have Title 21 authority. In many areas along the southern and northern border, ICE agents outnumber DEA agents. Not allowing all ICE agents to pursue the drug leads and work these cases only benefits one group of people: the criminals.
Continuing this outdated approach is not good government policy and, significantly, runs contrary to the way DOJ views all other investigative authorities. More specifically, during the last decade, many efforts were made to ensure that all kinds of law enforcement entities had all the tools that they needed to effectively perform their jobs. Of course, all law enforcement agencies must work together, coordinate, and de-conflict, but the prevailing wisdom has been that the more investigative authorities were shared among agencies, the worse it was for transnational criminals. Indeed, immigration, export enforcement and child protection authorities were all extended to DOJ agencies under this rationale.
When former Secretary Chertoff and I raised the Title 21 issue with DOJ, we proposed a simple order from the Attorney General or legislative fix to allow all agencies to enforce the law and to reduce and prevent transnational smuggling. However, DOJ was simply not interested.
To be successful in combating transnational crime, DHS and ICE must cooperate and work well with all of its DOJ partners, including the DEA. And, the DEA has made some pretty terrific cases over the last few years (and even in the last couple of weeks).
But, in recent days, the Obama Administration has rightfully focused energy on how to more effectively partner with Mexico, to stop the violence created by the warring drug cartels, and with Canada, to ensure the northern border is secure.
These efforts can be enhanced with a simple stroke of a pen by President Obama or Attorney General Holder giving DHS and ICE the authority to fully enforce America’s drug laws. By granting DHS this authority, the Obama team can add a tremendous force multiplier to the fight against the drug cartels, and ensure federal agents are using all appropriate legal authorities to get the job done.