Border Wars

Turf battles between Justice and Homeland Security are undermining efforts to combat drug trafficking.

Any day now, the Obama administration will release its 2009 National Southwest Border Counternarcotics Strategy. Senior officials at the Justice Department and Homeland Security are leading the interagency effort, which aims to provide the framework for a coordinated government response to the growing violence spawned by Mexican drug cartels along the southwest border. But unless leaders at both departments simultaneously address long-standing conflicts between their colleagues at the Drug Enforcement Administration and the Immigration and Customs Enforcement bureau, the strategy will fall short.

At the heart of the matter is what Sen. Joseph Lieberman, I-Conn., chairman of the Senate Homeland Security and Governmental Affairs Committee, calls an "intolerable" lack of coordination. Investigative authority is fragmented between the agencies, creating an atmosphere of distrust and resentment. A recent report by the Government Accountability Office found that ICE has failed in some cases to provide DEA with relevant information concerning specific smuggling investigations, and DEA has limited the ability of ICE agents to conduct such investigations.

To a large extent, the problems date to the 1973 Justice Department Reorganization Plan No. 2, which created DEA as the federal agency to lead the war against illicit drug traffic. Drug enforcement functions formerly performed by other Justice agencies and the Treasury Department's Customs Service were transferred to DEA, although Customs retained authority to conduct drug searches, seizures and arrests at ports of entry or anywhere along the land or water borders of the United States, provided agents turn over any evidence seized and people arrested to the DEA. Although the Customs Service continued to be responsible for interdicting drugs and smuggling suspects at the border and ports of entry, it retained drug-related investigative, intelligence-gathering and law enforcement authority only to the extent that those functions related to seizures and arrests at the border and ports of entry. All other drug-related investigative and law enforcement functions were to fall under DEA.

It's no surprise that, officials at Customs and DEA didn't always agree on where investigative jurisdictions began and ended. Drug traffickers tend to operate in ways that blur bureaucratic lines of authority-the same traffickers who move cocaine across the border from Mexico also run major marijuana growing operations on public land in the United States. One way or another, drugs that originate overseas end up being sold on the streets of Atlanta or Milwaukee. Defining investigative cases by their link to cross-border trafficking is problematic, to say the least. Those conflicts were exacerbated when much of the Customs Service was subsumed by the Homeland Security Department, which was created in 2003 and included two new bureaus, Immigration and Customs Enforcement and Customs and Border Protection. ICE and CBP have far broader security missions than their predecessors, but their relationship with DEA remains calcified in memorandums of agreement that predate their existence, at least one back to 1975.

DEA's relationship with ICE is spelled out in a 1994 memo that established policies and procedures through which DEA "cross-designates" Customs agents (now ICE agents) to enforce drug laws embodied in Title 21 of the U.S. Code. About 1,500 agents, one-quarter of the ICE workforce, have Title 21 authority. The purpose of the memo was to improve drug enforcement strategy by spelling out roles and responsibilities. The memo limits cross-designated ICE agents to investigating individuals and organizations involved in smuggling drugs across U.S. borders or through ports of entry. It explicitly prohibits such cross-designated agents from using their Title 21 authority to perform domestic or nonsmuggling drug investigations. The memo does not spell out what constitutes a border-related smuggling investigation-something the agencies apparently have argued about for the past 15 years without resolution, GAO found.

There are other problems as well. The memo stipulates that cross-designated agents are to operate under DEA supervision, but says, "such supervision shall be general in nature." In January 2008, Homeland Security asked the Office of Management and Budget to support giving ICE concurrent authority to investigate drug crimes, arguing that one bureau cannot effectively supervise "what amounts to a significant part of another bureau's resources, policy, programs and activity." The request went nowhere, apparently because the White House could not get the agencies to reach consensus on an effective working arrangement.

The problems between the agencies are not academic. DEA's chief of operations told GAO investigators that its relationships with some foreign law enforcement authorities were hurt and agents' lives jeopardized when ICE failed to coordinate its investigations with DEA country offices overseas. The situations, which GAO did not detail for security reasons, were so significant the U.S. ambassadors in two countries became involved to mitigate the diplomatic fallout from colliding law enforcement operations.

GAO notes that DEA is worried that Homeland Security, through ICE, "is seeking to expand its authority to independently pursue counternarcotics investigations, which would fragment the nation's counternarcotics efforts. ICE officials, meanwhile, have reported that DEA desires to increase its supervision of ICE agents and operations, and that ICE is unable to effectively accomplish its mission because it is hampered by requirements to coordinate with and be supervised by DEA."

As violence escalates along the southwest border with Mexico, lawmakers and agency officials are becoming increasingly worried about the inability of ICE and DEA to reach some compromise. In March, Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder began meeting regularly to improve coordination between their departments, including DEA and ICE. In his confirmation hearing to lead ICE, John Morton, a career federal prosecutor, said resolving the disputes was a top priority.

"I don't believe that the issues are insurmountable. Indeed, I intend to focus on them immediately," Morton said. He also said he believed all ICE agents should have authority under Title 21 to enforce drug laws-a position supported by a number of key lawmakers, including Lieberman. If ICE and DEA cannot revise the memorandum of agreement between them "to make it more of a rational arrangement," Morton said he would seek a change in the law.

"One of the principal responsibilities of the agency is to secure the border," Morton said. "We are facing very sustained, organized threats to the United States, in terms of trafficking of drugs, money, people, guns. It doesn't make sense for ICE not to have clear authority to deal with all forms of illegal contraband, particularly in the context of border enforcement and the enforcement at ports of entry."

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