Letter To The Honorable Eric H. Holder Jr., Attorney General, Department Of Justice Security, and The Honorable Janet Napolitano, Secretary Of Homeland Security, Department Of Homeland Security
Letter
Senator Chuck Grassley today pressed the Departments of Justice and Homeland Security to immediately begin implementing recommendations from the Government Accountability Office (GAO) after a report said that infighting among federal agencies tasked with protecting the U.S. borders is compromising the safety of agents.
Grassley sent a letter to Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano after the GAO released a report named "Better Coordination with the Department of Homeland Security and an Updated Accountability Framework Can Further Enhance DEA's Efforts to Meet Post-9/11 Responsibilities." The report was requested by Grassley as co-chairman of the Senate Caucus on International Narcotics Control.
Specifically, the report said, "Without an updated interagency agreement between DEA and ICE, there is potential for duplicative investigative efforts and concern that officer safety could be compromised."
Grassley has questioned both the Attorney General and the Secretary about interagency turf battles during meetings with them during their nomination hearings and meetings with individual senators.
"This is bureaucracy at its worst. Eight years after 9/11, law enforcement turf battles should be over. Instead, we're seeing that the failure of these agencies to work together is compromising the safety of our federal agents. This is unacceptable," Grassley said. "At a time when we are increasing law enforcement efforts at the Southwest border, we have an opportunity to rework decades old MOUs and put these long-standing disputes to rest. These agencies need to realize that they work for the American people who expect them to work together to keep America safe."
In his letter, Grassley also referenced a section of the report that points out that both the Special Operations Division and the Fusion Center, which are meant to coordinate information and investigations, have limited effectiveness because Immigration and Customs Enforcement won't provide all of its drug-related information to the Special Operations Division and does not participate in the Fusion Center. Without full participation by ICE, the Drug Enforcement Agency is unable to effectively identify links to and target major drug-trafficking organizations.
"I would hate to see our federal law enforcement community miss important opportunities to catch criminals or prevent terrorist attacks because they are disputing jurisdiction. As a Senator, I've seen turf battles between law enforcement agencies before and the ultimate loser is the American public," Grassley wrote.
Here is a copy of the text of Grassley's letter. Click here for a copy of the GAO report.
April 21, 2009
Via Electronic Transmission
The Honorable Eric H. Holder Jr. The Honorable Janet Napolitano
Attorney General Secretary of Homeland Security
Department of Justice Department of Homeland Security
950 Pennsylvania Ave, NW 3801 Nebraska Avenue, N.W.
Washington, D.C. 20535 Washington, D.C. 20528
Dear Attorney General Holder and Secretary Napolitano:
I write today to follow-up upon conversations I had with both of you during the confirmation process regarding cooperation and coordination of law enforcement intelligence and investigations between your departments. Given the heightened attention to law enforcement activity on the Southwest Border in recent weeks, I feel this matter is of the utmost urgency. Specifically, I want to highlight my concerns regarding the use of interagency Memorandums of Understanding (also known as Memorandums of Agreement but herein referred to as MOUs) that are signed between your Departments and subordinate agencies. I also want to address concerns that have been raised regarding cooperation in sharing of criminal intelligence via the Department of Justice's Organized Crime Drug Enforcement Task Force Fusion Center (herein Fusion Center). Finally, I want to raise concerns and recommendations issued by the Government Accountability Office (GAO) in a report released today entitled, "Drug Control: Better Coordination with the Department of Homeland Security and an Updated Accountability Framework Can Further Enhance DEA's efforts to Meet Post-9/11 Responsibilities".
Federal law enforcement agencies often share concurrent or competing authority when conducting investigations into violations of federal law. The competing interests are usually ironed out by interagency agreements set forth in detailed MOUs signed by either the agency head or the Cabinet level official of the Department. It has come to my attention that law enforcement agencies under your Departments are bound by MOUs that are significantly outdated. These MOUs involve the de-confliction of serious matters such as money laundering investigations, investigative guidelines for firearms offenses, and narcotics enforcement.
The first MOU involves money laundering investigations which was signed in 1990 by the Department of the Treasury (Treasury), U. S. Postal Service, and the Department of Justice (DOJ). Needless to say, law enforcement agencies, federal criminal laws and money laundering tactics have changed quite a bit since this MOU was negotiated and signed. The globalization of criminal enterprises, emerging electronic technologies, and the complexity of money laundering methods employed by criminal organizations have outpaced this MOU. For instance, while applied to agencies in the Department of Homeland Security (DHS) by the Savings Clause of the Homeland Security Act of 2002, this MOU does not include DHS and its law enforcement agencies Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). Further, I understand that another separate MOU signed in 2003 exists between agencies at DOJ and DHS concerning terrorist financing investigations and also addresses money laundering investigations. The impact of this separate MOU calls into question the authority of the 1990 MOU and its applicability.
The second MOU concerns narcotics enforcement and coordination between the Drug Enforcement Administration (DEA) and the agency formerly known as the U.S. Customs Service (now ICE) and was signed in 1994. This MOU covers a number of authorities related to narcotics investigations and provides the Administrator of the DEA the authority to cross-designate a certain number of ICE agents with DEA's investigative powercurrently 1,475 agents. However, I've been informed that the actual number of cross-designated agents is around 1,200 and that more agents are not in the pipeline for cross-designation despite numerous narcotics cases to investigate. This MOU also outlines money laundering investigations and refers back to the 1990 MOU, but does not include any reference to the 2003 MOU on terrorist financing. I've also heard that there is currently disagreement as to whether the MOU is actually being adhered to by both parties, leading me to believe the MOU may have been violated and question whether it is, in effect, inactive.
The third MOU of interest that I've reviewed is between the U.S. Customs Service (now ICE) and the Bureau of Alcohol, Tobacco, and Firearms (BATF, now under DOJ) regarding investigative guidelines for weapons trafficking. This MOU was signed in 1978, 30 years ago. This MOU is different from the previous one because it is an intra-Departmental MOU between two agencies within Treasury. Given the heightened interest in cutting down gun smuggling, and that the focus of this MOU is between two agencies originally housed in one department, it would be prudent to update this MOU because both agencies are now in separate Departments outside the Treasury (currently DHS and DOJ).
Aside from the technical problems with using outdated MOUs between agencies that no longer exist, there are real practical problems with coordination of federal law enforcement efforts and investigative authorities. For instance, concerns have been raised regarding DHS law enforcement agencies not participating in the Fusion Center. I have been told that efforts have been made to negotiate a separate MOU regarding participation in the Fusion Center, but to date, no agreement has been reached.
Taken together, these outdated MOUs paint an administrative picture of a pre-9/11 law enforcement community that does not take into account the Homeland Security Act of 2002. While I understand that MOUs are merely inter-agency agreements, they often create more refined boundaries for law enforcement agencies with overlapping or concurrent jurisdiction. I would hate to see our federal law enforcement community miss important opportunities to catch criminals or prevent terrorist attacks because they are disputing jurisdiction. As a Senator, I've seen turf battles between law enforcement agencies before and the ultimate loser is the American public.
To that end, I requested that GAO examine the relationship between the DOJ and DHS as part of a post 9/11 review of the operations of the DEA. The GAO report highlighted a number of problems that are currently ongoing between component agencies of the DOJ and DHS. For example, the GAO found that "outdated interagency agreements have led to conflicts" between DOJ and DHS entities; outdated agreements do not reflect current organization and responsibilities and have not solved long standing jurisdictional disputes that have led to conflicts between DEA and ICE that remain unresolved; and, most notably, that "without an updated interagency agreement between DEA and ICE, there is potential for duplicative investigative efforts and concerns that officer safety could be compromised". These findings are unacceptable. I find it outrageous that bureaucratic squabbling has led to a situation where officer safety could be compromised. Eight years after the tragic events of 9/11 we should not still be dealing with law enforcement turf battles.
This matter requires immediate attention from the highest levels of each Department to resolve these outstanding disputes. The GAO recommends that you both work together to develop a new interagency agreement or other mechanism to clarify the roles of DOJ and DHS entities for counternarcotics investigations, including developing more efficient cross-designation procedures for granting ICE agents authority to pursue narcotics cases. Further, the GAO also recommends that the Secretary of Homeland Security direct ICE to immediately begin participating in the Fusion Center.
Accordingly, I request that you both begin immediate negotiations to implement the GAO recommendations. Specifically, I request that you both undertake the following actions:
· Rework the interagency MOUs for money laundering (including bulk cash smuggling), narcotics investigations, and firearms investigations;
· Implement the immediate participation by ICE in the DOJ run Fusion Center;
· Review at both the DOJ and DHS, the DEA-imposed cap on cross-designated agents and determine whether or not that number should be increased and whether or not Congress should consider expanding Title 21 investigative authority to DHS entities to help combat the flow of drugs into our country;
· Establish written guidelines for the periodic update and review of all interagency MOUs;
· Provide an update within 14 days regarding the status of negotiations and any barriers to enacting the GAO recommendations within 30 days.
In closing, I urge you to immediately implement the GAO recommendations. The American people have entrusted our federal law enforcement agencies with their safety and security. Any failure to properly coordinate, cooperate, and resolve jurisdictional conflicts jeopardizes this trust and the safety of our Nation. I look forward to your prompt reply to this important matter. Should you have any questions regarding this matter please contact my staff.
Sincerely,
Charles E. Grassley
United States Senator
Cc: The Honorable Peter Orszag
Director
The Office of Management
and Budget
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