The author portrays ICE seizing all of the narcotics mentioned. This is far from the truth. Most of the narcotics are turned over by CBP, including some from the Border Patrol, and the Coast Guard. ICE simply reports all of the statistics, not just the ones that they actually investigate and make a seizure. So they are double-tapping and riding on the coat tails of the agencies that actual make the apprehensions. They should only count the narcotics that actually result from an investigation as opposed to the entire amount. If a CBP Officer seized 1000 pounds of cocaine and ICE investigates and seizes 500 pounds, they should only report the additional 500.
It's all about control, getting a bigger budget, etc.

Did the author ever work for a federal agency?

Mr. Giermanski is correct. Drug enforcement authority granted through Memoranda of Understanding is producing the opposite effect of all agencies being on the same page. That is why they should be eliminated. However, the answer is not to grant Title 21 authority to more federal agencies. In fact, the answer is to eliminate or reduce the number of agencies with that authority. While authority granted across the board sounds grand and looks terrific on paper, in practice it only means that all of those agencies 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 a global problem, albeit an important one. The author misinterprets large portions of the information he has. Specifically, he has confused the terms, definitions, and roles in regards to Border Patrol agents, ICE agents, and CBP inspectors. He also misinterpreted the meaning behind section 878 of Title 21 referring to authorities granted to state and local officers. Third, he misinterpreted the MOU he quotes between DEA and the Border Patrol and fails to mention the MOU that exists between DEA and ICE, both of which are outdated. Both of these MOU’s are in need of updating if for no other reason than the reorganization at the department level that occurred after 9/11. The Border Patrol is now in the Department of Homeland Security, Customs inspectors are in Customs and Border Protection (CBP), and Customs agents are part of Immigration and Customs Enforcement (ICE), both part of Homeland Security.

The DEA – Border Patrol MOU, actually titled the DEA – INS MOU, was created when the Border Patrol existed as an entity under the former INS, which was a component of the Justice Department. That MOU extends what is called “limited Title 21 authority” which grants Border Patrol agents the authority to make arrests in connection with the seizure of drugs while operating along the U.S. border (and their checkpoints). The MOU requires the Border Patrol to report and “hand off” those cases to DEA (the primary drug enforcement arm of the U.S. Government). This makes sense in that Border Patrol is not an investigative agency and when they seize drugs those cases need to be carried to the next level by investigative agents for development and exploitation. The Border Patrol agents are then freed up to continue their patrol and interdiction activities as they are designed to do. This is similar to a local police officer detective relationship. The DEA – Border Patrol MOU was created because DEA, as an investigative agency, is not designed or staffed to perform interdiction activities and at the time the MOU was written, the Border Patrol was a component of the Justice Department.

The DEA – “ICE” MOU, actually titled the DEA – Customs MOU, was created when U.S. Customs existed as a complete agency under the Treasury Department. At that time both Customs inspectors and Customs agents operated in a single agency and were responsible for handling all cases at ports-of-entry, whether it was drugs, contraband fruit and vegetables, or duties violations. In these cases it was discovered that it was much more efficient for Customs inspectors to simply call in-house investigators (Customs agents) to work the case. Prior to this, for a short period in the 1970’s after DEA’s creation in 1973, Customs inspectors had to call DEA agents when they encountered drugs at the ports. To facilitate a more “efficient” system, the DEA administrator granted Title 21 authority to a limited number of Customs agents in order to handle these specific cases. When DEA was created language was also included in the legislation that allowed for inspectors to make arrests while in the performance of their duties just like the Border Patrol to as to not interfere with their normal Customs functions. The other reasoning behind this arrangement is that many port-of-entry cases do not go beyond the initial arrest that occurs at the port. Many times, the only arrest in a port case is the driver and maybe some of the passengers. In fact, sometimes the driver cannot even be prosecuted because they can claim, or actually are, unaware that there are drugs hidden in the vehicle. This is also true with many Border Patrol cases. In an interdiction type arrest the violator is almost always not the head of a drug trafficking organization and is usually the lowest ranking member, the courier. As such, that person usually, but not always, does not possess a large or significant amount of information that can be exploited. By allowing the Customs agents to respond to port-of-entry cases, DEA agents were freed up and Customs inspectors could call someone in-house who was closer and more familiar with Customs policies, reporting, and port-of-entry particularities. One could argue that now that since ICE agents are no longer within the same organization as the inspectors that this issue should be re-visited. If you have call someone outside your agency then why not just call DEA?

Why DEA? When the DEA was created in 1973 it was reasoned that the multitude of agencies conducting drug enforcement (Customs, Bureau of Narcotics, etc), were disjointed and did not work together. To fix the problem, the primary federal drug enforcement agencies were combined into the DEA to include the agents within U.S. Customs who were conducting drug investigations! The FBI was the only other agency granted Title 21 authority at this time for two reasons. One, the FBI superiority complex, in which they feel they should have equal or more power in investigative matters within the federal Government and two, the powers at be felt the fledgling DEA could leverage the organized crime fighting techniques of the FBI in order to strengthen their capabilities. The DEA was organized to conduct operations from within the smallest community 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. This brings us also to the author’s misinterpretation of section 878 of Title 21, where he quotes that employees of the DEA or any state or local law enforcement officer may carry out drug enforcement duties. State and local law enforcement officers do not draw their drug law enforcement powers from this statute. They operate under state law which in every state closely resembles the limitations on drug use and trafficking as outlined in Title 21. The quoted portion of Section 878 in the article, as well as other sections of Title 21, exists to enable the DEA to deputize state and local officers under their task force officer program which is designed to enable the DEA to better utilize and partner with state and local agencies. The task force officer program exists to strengthen the drug enforcement efforts across the country. No one possesses better criminal information than state and local officers. Other federal agents, when working on a DEA task force are similarly deputized but do not require the same stipulations as they are already commissioned federal officers.

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. For example, the author quotes the limited number of ICE agents who are designated with Title 21 authority by the DEA administrator. This is true on paper but not in practice. In reality all 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. The FBI operates the same way and has only recently backed off much of its drug enforcement efforts because 9/11 necessitated a new direction, terrorism prevention. 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. These examples are exactly the type of disunity of effort the author fails to describe and it occurs now as often as ever. 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 must apply. As a general rule, 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 always looked at as a nationwide problem. So why is there so much resistance to granting immigration enforcement powers to all federal law enforcement agencies? Should we not grant those powers to everyone in order to create the so called uniform “force multiplier” effect? The answer is no. It needs to be a single concerted effort carried out by a designated agency, just like drug enforcement.

The statement "The answer appears to be through a Memorandum of Understanding (MOU) between the Drug Enforcement Agency (DEA) and INS (the agency from which ICE was created)." is incorrect. ICE was not created from INS. It was created from the U.S. Customs Service and the INS. Customs Special Agents were the ones who conducted the majority of Title 21 investigations not INS. Customs/Contraband, INS/People. Get your facts strait.

The solution sounds simple. If two agencies have Title 21 Authority then the efforts to fight drug trafficking would be twice as effective. In reality it is just the opposite. If two independent and seperate agencies have the same authority each agency will be half as effective. This is because the agencies do not share intelligence and therefore each agency will be seeing only half the picture. Each agency will gain intelligence on trafficking routes and organizations but the informaton will be fragmented, which will hurt the United States drug fighting effort.