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March 13, 2009

Counternarcotics Turf Wars — The Need for Title 21 Authority Reform

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 Instead, the DHS operates under outdated Memorandums of Understanding with the DOJ that impede DHS’ ability to independently investigate cross-border drug cases.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.

Julie Myers Wood blogs about a variety of immigration, national security and transnational crime issues. Read More
  • SD

    Ms. Myers is correct. The escalating violence along the southern border and in Mexico is a viable threat to our homeland security. However, to use this threat as a pretext for making an argument for a change in drug enforcement policy is a bit disingenuous if we are to take her examples as evidence for that change. Ms. Myers also claims that at the core of the problem is a turf battle between governmental departments but her very article is in fact in support of her former agency and part of that turf battle.

    Title 21 legislation and the two agency re-organizations at the federal level in the late 60’s and early 70’s were a result of the need to consolidate and focus federal efforts against the illegal drug trade. The article states that “hundreds of federal agents” stationed across our borders have to operate with their hands tied behind their backs in the wake of the drug cartels escalation of violence. It then outlines how ICE (the author’s former agency) is at the receiving end of this untenable position because of the actions (or in-action) by the Justice Department and DEA. The author then quotes numbers – 1500 agents can enforce drug laws while another 5000 are forced to sit on the sideline. This is a pure numbers game and formulated to advance the author’s position. While it is true in the old DEA – ICE (actually U.S. Customs) MOU there is a provision that states that the DEA Administrator will designate only a certain number of ICE agents to conduct and take to prosecution drug cases, in actuality this limitation has never stopped ICE from conducting drug enforcement. In reality, many, if not most, ICE agents conduct drug investigations without regard to this supposed limitation if they are located at an office at a port-of-entry or near the border. They operate independently and do not forward information or coordinate with any other agency unless their investigation “runs into” another investigation in such a way that it must be resolved in order to continue. Normally ICE agents are limited by their own agency from conducting drug enforcement due to the multitude of other traditional customs cases they are responsible for such as counterfeit merchandise, contraband agricultural imports, international child pornography, and customs duties violations. This does not even include the very important post 9/11 immigration enforcement, inherited from INS, which requires a tremendous amount of manpower and resources. Many ICE agents lament having to work any of these other cases and go to great lengths to ensure they are working drug cases. The limitation of 1500 agents is on paper only and to infer that if only the Justice Department would give the green light that ICE would unleash 5000 agents to fight the drug war is patently false. The rest of the ICE mission not having to do with drugs would still have to be executed.

    The prime example used by the author to illustrate the point is that if ICE agents respond to a call of illegal aliens occupying a stash house but instead discover drugs, they are somehow mandated to inform and hand off the case to DEA. This does not happen in the real world. ICE routinely handles their own drug investigations regardless and without ever informing DEA or anyone else. Using the 1500 agent limit as an example, again is misleading because if the ICE agents who investigate the stash house come across drugs when they thought it was aliens the actual reason they might have to call another ICE agent is not because that other agent is certified by DEA with Title 21 authority but because that agent is probably assigned by ICE themselves to a drug enforcement group instead of an immigration enforcement group which is an internal matter. If ICE wants more of their agents to work drug cases then they should re-organize internally to address it. I doubt they would have a hard time finding anyone to work the case because most of their agents are working drug cases anyway if they are stationed near a port or the border. The only exception to this is the recent immigration responsibility, as was stated before, which requires a tremendous amount of manpower.

    The author then chastises the Justice Department for its perceived inflexibility concerning drug law enforcement and its unwillingness to grant blanket Title 21 authority across the board. I find it interesting now that Homeland Security wants the old Title 21 MOU’s addressed it takes the position that it is necessary in furtherance of good government policy. However, when the former DEA Administrator Karen Tandy brought up this issue about five years ago, then Border and Transportation Security Directorate head (and former DEA Administrator) Asa Hutchinson was not interested in revising them or addressing the issue. I also find it interesting that the author believes that the current policies concerning Title 21 run “contrary to the way DOJ views all other investigative authorities.” Then why is the FBI the unquestioned lead in counter terrorism, the ATF the sole authority on alcohol, tobacco, firearms, explosives and arson, and the Marshals the sole provider of witness and judicial security? While authority granted across the board sounds grand and looks terrific on paper, in practice it only means that all of the agencies empowered with that authority will continue to operate on their own, like they are doing now. In fact, the reason the Government created the DEA was to eliminate stovepipe enforcement and get everyone on the same page. The drug problem extends well beyond the U.S. border and smuggling across the U.S. border is only one facet of the drug problem, albeit an important one. The DEA was organized to conduct operations from within the smallest communities in the U.S., where the end users and distributors operate; across state lines, where the transportation of drugs occur; across U.S. borders and ports-of-entry, where the smugglers operate; and finally in foreign countries, where drugs are manufactured. To this day, DEA maintains the largest U.S. law enforcement presence overseas and out numbers, by far, any other federal law enforcement agency in this regard.

    If the federal Government was serious about tackling the drug problem what is needed is a re-focus on those efforts and strengthening the agencies designed to tackle it. The drug enforcement efforts of ICE, DEA, and the FBI are largely independent of one another. Those who do not agree with this reality will quote numbers and statistics that mask the truth. High level government investigative initiatives designed to coordinate efforts work reasonably well but the numbers can be manipulated in any way to show their strengths, hide their weaknesses, and can be used to demonstrate supposed inter-agency coordination. In addition, the Office of National Drug Control Policy administers various drug enforcement grant programs, which extent drug enforcement funding to federal, state, and local agencies for conducting drug enforcement activities. These grant programs are administered under the guise of promoting and fostering unity and cooperation but actually enable, strengthen, and promote the recipient agencies to conduct independent operations and enforcement. This is completely contrary to what should occur but again illustrates the difference between what is on paper and what actually happens. What is needed is one agency with the power to organize, report, and direct drug law enforcement efforts. Conducting those efforts may be delegated or spread across the various agencies as needed; however, those agencies must be accountable to the single agency and submit to its orders and directives. They must utilize the same information system, develop cases and intelligence uniformly, and report all investigative activity accordingly. The structure for this system already exists within the DEA which is why it was created in the first place. If DEA is not the agency to conduct this effort then the President or Congress should eliminate it and decide on another but the same organizational and enforcement principles should apply. As a general rule and in reality, agencies do not work together to the depth that everyone would like and organizational relationships established by MOU’s do not fix this issue. Designating one agency to address a specific issue is the only way to guarantee an efficient, uniform response. No one questions why the FBI is the leader in counter-terrorism; the Secret Service the leader in counterfeiting investigations; the Marshals the leaders in witness and judiciary protection; or the ATF the leaders in alcohol, tobacco, and firearms enforcement. Along those same lines, the issue of immigration enforcement is currently viewed as a nationwide problem. So why is there so much resistance to granting immigration enforcement powers to all federal (and state) law enforcement agencies? Should we not grant those powers to everyone in order to create the so called “tremendous force multiplier” effect? The answer is always no. If that’s the case then It needs to be a single concerted effort carried out by a designated agency, just like drug enforcement.

  • Anonymous

    Either Ms. Myers is lying to support her position or a complete idiot, totally unaware how the ICE agents work in the field.

  • CRT

    Obviously SD is someone in the know as the comments are spot on. Ms Myers clearly has a political agenda or no real knowledge of what happens in the investigative world. Ms. Myers is using the current media frenzy on cross border violence to push her agenda. Here’s a news flash. The violence has always been there. Those who have been working the border areas for years know this. There hasn’t been a substantial increase in levels that weren’t already there.

    As SD stated, practically every ICE agent I’ve met is working drugs or wants to work drugs. In fact, it is all some ICE groups do. When you ask them about immigration enforcement they will roll their eyes or say “I’m legacy customs, I don’t do that”. They believe they are purely drug agents and that leads to problems. Some will even tell you drugs are all they’ve ever worked their whole careers. Hey guys, who’s working on those 20 million illegal immigrants? And yes, the real number is closer to 20 million than 12 million.

    Doing what Ms Myers suggests would be a catastrophe. Why? Simple. You would have two agencies fighting to outdo the other and there would be zero sharing of intelligence. Unlike capitalism where competition breeds price benefits and better products for the consumer, that is not the case in the world of intelligence and global enforcement. Take 9/11 for instance. There was a lot of intelligence already out there, but it wasn’t shared and disseminated properly. DEA and ICE don’t share information now. Each agency maintains its own database that isn’t available to the other in normal situations. Whoever thinks ICE will deconflict with DEA after they receive Title 21 authority is a fool. In most situations of blue on blue or where DEA and ICE wound up in the same place, it was because ICE chose not to do any sort of deconfliction.

    DEA since its inception has maintained a massive intelligence database of drug offenders and has some of the best coordination and de-confliction of cases of any law enforcement agency in the world. It is how DEA can make arrests on a single case all the way from Bogota to New York. ICE rarely taps into those databases. Why? Because they know if they do, they’ll find out they are working a target DEA is already working. They simply don’t want to know. Also, to get around the Title 21 issue, they’ll code the case as a money laundering case, since drugs and drug money goes hand in hand. But they know they are working a drug case. DEA spends an awful lot of time and money to work high level targets. ICE has spoiled more than one of those cases by being in the middle of something and not letting DEA know they were there. I know for a fact that ICE has purposely kept information from DEA. Information is everything. Information that is shared leads to more arrests, more seizures, and saves the taxpayers millions of dollars. Also Ms Meyers, it leads to quicker arrest and prosecution of the very people who perpetrating the violence.

    The solution is simple. Divide and conquer. As SD stated, no one questions the FBI’s role in counter-terrorism, nor is the Secret Service, IRS or ATF’s role challenged. ICE should be mandated to focus entirely on immigration and customs issues. Anything regarding drugs or drug money laundering should be immediately turned over to DEA. There is not, nor has there ever been a lasting spirit of cooperation between DEA and ICE (or Customs) in regards to drug law enforcement. Having two federal agencies tasked with the same thing is a waste of money and resources and a total disservice to the American taxpayer. Am I bias? Sure. But I speak from experience.

  • James Van Orton

    After reading the above comments made by the two DEA employees and/or advocates I just have a few things I would like to correct.

    CRT:

    In some parts of your letter you state that ICE and DEA have a standing MOU that requires ICE to notify and DEA of their active drug cases and that this prevents blue on blue. In other other areas of the authors letter he suggests that ICE disregards the stanging MOU and that ICE agents do as they plaese, which is it? And remember, this type of deconfliction is a two way street, I have yet to see the DEA deconflict anything with ICE, I guess ICE is somehow at fault for that.
    The FBI has full Title 21 and they work good narcotics cases without “blue on blue” as well as every state and local agency in the U.S. we don’t need an MOU to be safe.

    U.S. Customs has been handeling drugs before the DEA even existed, and it makes sense. There are no poppy crops in the U.S., drugs are a border problem and as so fall directly under Customs jurisdiction, like it or not. Customs inspetors (now CBP) have seized more drugs than the DEA, Border Patrol and the FBI combined and that is a fact, Customs has been more instrumental in the war on drugs than any other agency in the U.S. It would make more sense to merge the DEA into ICE and have those agents dedicated to narcotics investigations than anything else.

    It is true that the merger between Customs and Immigration has generated more responsibilities with the creation of ICE. However, maybe CRT is unaware of ICE DRO (Detention and Removal) which is a totally different component than ICE OI (Office of Investigation) who conducts criminal investigations. DRO is the branch primarily in charge of removing illegal aliens not OI, and thay do a fine job.

    The databases you speak of that ICE supposedly doesn’t tap into is usually choc full of erroneous information dumped into a computer by DEA after an arrest. For obvious reasons I won’t go into detail but CRT is aware that if his bad guy lives at 101 Sesame street apt 1a, surely not all residents of said address are subjects of his investigation. But some how by virtue of building number, the girls in 10b magically becomes theirs too, upon ICE inquery and this is nothing more than greed. None the less, ICE does deconflict with DEA and any conflictions are usually worked out in my experience although relationships vary in different offices. And for your info, ICE too has a large data base of information on drug related activities as does all other agecies who work title 21 cases.

    Part of this greedy attitude demonstrated by some DEA agents are because of the journeyman 12 “syndrome” in the DEA. Most 1811s automatically rise to the GS13 level without promotion. An agent in the DEA must rise to a certain level in a case to get a GS13 salary, hence the cut throat attitude by some DEA agents. I have personally witnessed DEA agents trying to “out do” each other in order to get their GS13 pay instead of paying attention to what matters, the case! A majority of the DEA agents I met are good hard working people who deserve a journeyman 13 salary, this would make good agents work even harder in my opinion.

    It is common knowledge that some drug cases do start as money laundering investigations and are not mislabeled by ICE as such. Money and drugs go hand in hand, it is also common knowledge the DEA has been working money laundering cases (Title 31) which they have no authority to do. ICE is not complaining about that, as a matter of fact, it is common for DEA to reach out to ICE in requesting certain records pertaining to money laundering that DEA doesn’t have access to.

    ICE holds information back from the DEA? And DEA never holds pertinent info back from ICE, yeah and I have a bridge to sell you.

    Lets not leave out the true raeson the DEA wants this MOU and that is statistics. Every seizure and arrest made by CBP/ICE is reported to DEA where the stats are regenerated and added to their own. This obviously makes the DEA look a hell of a lot better than they are! Without our stats I think the DEAs budget would shrink dramatically.

    CRT, you really need to do some research on Customs authority, the funny part of history you have forgotten is that the DEA was created to combat the DOMESTIC drug trade. ICE is supposed to be the lead in international investigations and yet ICE needs to go through DEA to operate over seas, this shouldn’t be.

    Let face the facts, DEA is no where near to controlling the drug problem. If you doubled in size you couldn’t do it alone and any DEA agent in touch with reality would agree. If this wasn’t the case no other agency would dedicate resources to it like they do such as ICE, FBI, USPS, ATF and BP which is under DHS and still gives it’s cases to the DEA.

    In short, less moaning and more cooperation is the key. According to you, ICE disregards the standing MOU and works drug cases without any contact with the DEA, correct? If this is so than giving ICE full title 21 authority won’t change anything anyway, why are you so worried?

  • CRT

    Mr. Orton,

    I don’t want this to become a mean spirited debate because neither one of us gets our point across then. I also realize that my original post was very critical of ICE agents, who are hard working, dedicated agents. They are only doing what they are being told and allowed to do. I don’t fault them for that.

    The fact remains that ICE continues to pursue drug investigations as if they were the lead agency on drug trafficking. Because of this there is duplication of effort and a hoarding of intelligence and sources that would be beneficial to ongoing DEA investigations.

    The FBI plays such a minor role in drug investigations these days that they are hardly a problem. We all know the FBI’s primary focus is on counter-terrorism these days. Does the FBI notify ICE of its terrorism related investigations? Why not? Many of the people they are targeting are in this country illegally. Does the Secret Service notify ICE of its counterfeiting investigations? Why not? Much of the counterfeit bills in this the US are smuggled into this country. The point is DEA is the lead agency on both domestic and international drug trafficking, not just domestic as you erroneously pointed out. Blue on blue situations exist and happen regularly, although I suspect you don’t actually work narcotic investigations.

    I’ve heard the argument before about drugs not being grown in the United States; therefore it is automatically a Customs issue. That would be true if the President of the United States had not created a formal federal agency in 1973 charged with dealing with the drug problem as its only mission. Again, that’s like telling the FBI that ICE has the right to conduct counter-terrorism investigations because the targets are in the country illegally. While ICE might render substantial assistance, it makes sense that FBI led that fight. True, CBP seizes a substantial amount of drugs by virtue of their mission. However, CBP isn’t an investigative agency. They don’t have 1811s who conduct the follow up investigations on customs violations. That’s what ICE and DEA do. And my point is that DEA should lead the case if its drug related.

    Your comment about the databases tells me you don’t work Title 21 cases because you’re a bit off the mark there.

    Regarding the GS13 issue, that is a DEA policy that requires its agents demonstrate full measure of competency before being promoted. It ensures an agent isn’t promoted simply for showing up to work for five years. I don’t see the problem there. It has nothing at all to do with the topic at hand.

    Most drug money laundering cases that DEA works falls under Title 18, not Title 31. I suspect you are CBP officer who is familiar with the Title 31 statutes and not Title 18, which DEA has full authority to investigate. Most good money laundering investigations are conducted in partnership with the IRS, as it should be. And IRS has full authority to conduct Title 18 and Title 31 investigations, as does ICE. And you made my point that drugs and money go hand in hand, therefore it should be a drug investigation, not a money laundering investigation.

    Mr. Orton, you are correct. DEA is nowhere near solving the drug problem and as long as the US maintains its insatiable demand DEA never will be. But the issue isn’t entirely from lack of manpower. DEA could have 20,000 agents tomorrow and the situation wouldn’t get better. Part of the problem is the bottleneck at the US Attorney’s Office. DEA (and ICE) already bring more drug cases to the US Attorney’s than they are willing to prosecute. Many of the US Attorney’s who used to work drug cases are now working immigration and terrorism related cases. It does little good to arrest violators if they won’t get prosecuted. That’s why DEA targets only the most significant of drug traffickers. These investigations are costly, time consuming and often international in scope. How would you feel if you spent two years on an investigation only to have another agency show up unannounced and arrest your target just as you were about to get to the next level? It has happened to both agencies.

    Sometimes I wonder if it be would be more beneficial to have only one federal agency like in Australia. Maybe then there would be more coordination and less infighting. I don’t know. But a single agency is subject to the whims of politicians who will direct the focus and manpower on their pet projects du jour and neglect other crimes. Look at the FBI. They are almost out of bank robbery and kidnapping cases right now. Having different agencies charged with the enforcement of different crimes is beneficial to the American people who are victims of those crimes. It also means you have a focused agency that becomes an expert in investigating the crimes it’s charged with. The lines should be clear on who will enforce which crimes. If ICE is to be a partner in the drug war, it should be as part of a DEA lead task force and not as another federal agency doing the same thing DEA is already doing.

  • powerhungry

    PErhaps the same stroke of the pen could give DEA agents title 19 powers

  • Guest

    There is no need to have an agency (DEA) that only has Title 21 authority.  99% of the drugs in the U.S. come from foreign sources, making them fall into the smuggling category.  Transnational drug, or smuggling, is within the ICE purview.  DEA is an agency that simply wastes tax dollars.  DEA needs to be absorbed by ICE.  There is NO reason to give them Title 19 authority.