146. Memorandum From the Assistant to the President (Ash) to President Nixon 1 2

SUBJECT

  • Drug Enforcement Reorganization

I. BACKGROUND

At your instruction, I have completed a review of the organization of Federal drug law enforcement.

The present structure is deficient. The missions assigned to Customs (Treasury) and BNDD (Justice) are overlapping and duplicative. There are five semi-independent organizations in Justice, operating without central direction below the level of the Attorney General, which have important roles in drug trafficking enforcement.

While an overlap of responsibilities and a multiplicity of involved organizations need not in general present overwhelming obstacles, the drug enforcement problem has two basic characteristics which make these factors particularly debilitating. First, there is the cumulative nature of the usefulness of individual bits of intelligence information.

Second, there is the case-by-case nature of the drug trafficking enforcement process. In my judgment, the current structure is not suited to either of these functional characteristics.

II. OPTIONS

After study and discussion with interested parties, it was agreed to present the following three major options to you for decision (details at TAB A).

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Option 1 - No realignment of responsibility between Justice and Customs, but a consolidation within Justice. Everyone agrees this at least should occur. This is Ken Cole’s preferred current option and the second choice of George Shultz and myself.

Option 2 - Assignment of the overseas, border, and port of entry drug enforcement responsibility to Customs, with Justice assuming jurisdiction inside the country. Favored by Secretary Shultz.

Option 3 - Assignment of the overseas, border, and port of entry rug enforcement responsibility to Justice, with Customs maintaining their baggage inspection and revenue-collecting roles. Favored by the Attorney General and by me.

Each of these options provides for the choice of either a new consolidated drug enforcement agency within Justice or the transfer of drug enforcement to the FBI, which currently, has no involvement in drug trafficking enforcement. The latter course is gaining momentum; Senators with broad differences on many issues are joining Senator Ribicoff as sponsors of a bill he has introduced to this end. There is also the option of a two-step procedure, in which a new consolidated drug enforcement agency is established in Justice and after a transition period merged with the FBI.

III. RECOMMENDATION

I recommend Option 3. I would move to consolidate drug enforcement in a new agency in Justice, rather than immediately transfer drug enforcement to the FBI. In three to six months, I would examine the advantages and disadvantages of merging the new agency into the FBI.

IV. DECISION

A. Option 1 (Cole recommends; Shultz & Ash’s 2nd choice)

Option 2 (Shultz’ recommendation)

Option 3 [RN initialed] (Attorney General, Ash, Dean recommend)

See Me

B. FBI now

Consider FBI for later

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Tab A

DRUG ENFORCEMENT REORGANIZATION

You have assigned the highest priority to attacking the drug traffic. Federal spending on drug enforcement has increased from $36 million in FY ′69 to $228 million in FY ′73. During this period, seizures and arrests have increased impressively but still account for only five to twenty percent (estimated) of incoming heroin and cocaine.

For the past twenty years Federal drug enforcement jurisdiction has been split between the Bureau of Narcotics and Dangerous Drugs (and its predecessors) and Customs. BNDD’s mission is to stop drug trafficking. Customs’ task is to interdict smuggled goods, including drugs. Yet the trafficker/smuggler and his United States connections are part of one criminal operation having both domestic and foreign operations.

Overlapping and duplicative jurisdiction in such a “high risk” enforcement activity is both wasteful and hazardous. The potential for conflict between the two agencies is obvious. Drug enforcement is done case by case with the result that both agencies are after the same major traffickers, and almost all major cases cross jurisdictional lines. The nature of the enforcement problem, together with competition and distrust between the two agencies, precludes meaningful cooperation, exchange of intelligence, or devising meaningful guidelines to rationalize dual investigation responsibility.

Major cases involve intricate conspiracies requiring extensive investigation—which can easily be thwarted by unexchanged intelligence or a desire to get public or Congressional credit by making the first arrest or seizure. Moreover, the retention by each agency of its own information makes it impossible to obtain a clear picture of the total intelligence available on a given case—or to perceive what significant gaps in our information may exist.

The fact of such conflict, which continues despite real effort and good will on both sides, has reduced the effectiveness of our overall drug enforcement effort.

There are also the following organizations mostly within Justice which have narcotics responsibility whose roles should be addressed.

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The Office of Drug Abuse Law Enforcement (DALE) which utilizes strike force techniques to harass street and mid-level pushers; the Office of National Narcotics Intelligence (ONNI) which is responsible for coordinating the collection, analysis, and dissemination of drug intelligence from all sources; the Immigration and Naturalization Service (INS) which deters illegal immigration by individuals, some of whom carry drugs, and the enforcement research and development work funded by LEAA.

All parties agree that organizational changes would improve drug abuse enforcement. As one might expect, there is disagreement on what the best solution would be.

Now is an ideal time to correct past and present deficiencies in enforcement jurisdiction. Rumors of pending drug reorganization have impeded our enforcement initiatives. Your State of the Union Message on Crime and Drugs, presently scheduled for March 14, is a most appropriate time to announce a change or to permanently lay the rumors to rest. Moreover, the Senate Government Operations Committee will begin hearings in the near future on the Customs/BNDD dispute and on Senator Ribicoff’s Bill to transfer all drug enforcement jurisdiction to the FBI. Finally, key personnel appointments in the drug area have been held up pending resolution of the organization question.

Several options are available for resolving these organizational problems. Regardless of which is chosen, it has been agreed that a narcotics division should be created in Justice to oversee prosecution of Federal drug cases.

Options two and three also include a common proposal—consolidation in Customs of the inspection and border control functions which are now divided between that bureau and the Immigration and Naturalization Service. This will make possible the application to a broader scope of activities the extremely useful search and seizure powers of Customs, take advantage of the long tradition and expertise of the Customs inspection and provide a single passport and baggage clearance responsibility at ports of entry instead of the divided inspection through which people must now pass. This change should strengthen the drug enforcement effort by providing increased flexibility and resources to an agency with clear responsibility for interdicting all contraband, people as well as narcotics, whether at ports of entry or moving across the border. Such a proposal should also facilitate Congressional approval of the entire restructuring of responsibility, since it provides an increased role for Customs, which otherwise loses functions as a result of options two and three.

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The options for resolving these organizational problems are the following:

Option 1 - No change in responsibility between Justice and Treasury. Consolidate major Justice drug enforcement functions into one new agency reporting to a single Administrator. Included would be BNDD, ONNI, and DALE.

PROS

1.
Permits needed restructuring of BNDD, DALE, and ONNI within Justice with minimum of disruption of on-going enforcement operations.
2.
Would have immediate favorable impact on morale of existing enforcement agencies whose personnel have been disturbed by persistent rumors of an impending reorganization, particularly an FBI takeover.

CONS

1.
Fails to come to grips with fundamental problem of overlapping Customs/BNDD jurisdiction with accompanying divisive competitive and agency parochialism.
2.
All solutions short of realigning organizational responsibility have failed in the past despite the firmest of Presidential directives, promulgation of formal guidelines, informal personal understandings, and good will on both sides.
3.
Ducking the Justice/Treasury jurisdictional problem will be hardest to defend politically in the press and at the upcoming Ribicoff hearings.
4.
The practical effect within Justice might simply be to move DALE and ONNI back into BNDD. Yet both were created as separate entities and given broad interagency responsibilities in an unsuccessful attempt to transcend the basic Customs/BNDD dispute.

Option 2 - Transfer to Customs the INS inspection function at ports of entry, the Border Patrol (from Justice) and all overseas drug control responsibilities now handled by BNDD. Consolidate the domestic drug enforcement functions of BNDD, ONNI, and DALE within Justice.

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PROS

1.
Consolidates all overseas operational and intelligence responsibility into one agency and all domestic enforcement in Justice.
2.
Provides for unified border responsibility and enforcement.
3.
Treasury has traditionally been better managed than Justice and may be more capable of effectively carrying out increased responsibilities.

CONS

1.
Might only transform the present Customs/BNDD dispute into a geographically defined conflict of international and domestic.
2.
Since heroin and cocaine trafficking is accomplished by organizations having both domestic and foreign connections, drug smugglers would have an advantage in that neither Federal enforcement agency would have jurisdiction over their entire range of activities.
3.
Conflict for “credit” might end the “convoying” of drugs into the United States because Customs would be parochially motivated to make its cases at the border.
4.
Justice pressure for better overseas drug intelligence might later generate conflict between Customs agents overseas who would have narcotics jurisdiction and the FBI legal attachés who would not. (It was precisely this type of dissatisfaction with the quality of BNDD supplied intelligence which led Customs to resist the old guidelines and to press for its own overseas agents last year.)
5.
Continuing conflict could be expected which would be demanding of top-level attention in Treasury. Experience indicates such attention would be difficult to achieve in light of major competing fiscal and economic priorities of the department.

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Option 3 - Assign overseas, border, and port of entry drug enforcement responsibility to a single agency within Justice. Customs inspection and revenue collection functions at ports of entry would continue.

PROS

1.
Solves the basic Justice/Treasury jurisdictional dispute by giving sole responsibility for drugs to one agency.
2.
Allows for geographical continuity on case development and accumulates intelligence information in a single agency.
3.
Provides a highly visible means to reemphasize our commitment to drug trafficking enforcement.
4.
Avoids the major complication of the FBI Director’s confirmation and transition problems of an immediate FBI option, yet allows flexibility for a future merging into the FBI.

CONS

1.
Causes potential disruption in both Treasury and Justice as a result of a major organizational change.
2.
Places key responsibility in a department so far undistinguished in its management capability.
3.
The mounting pressure for the Ribicoff Bill placing responsibility in the FBI may make it difficult to justify publicly why we do not treat the problem with what is perceived as our strongest weapon.

For each of these three options, there is the further option of assigning the Justice drug enforcement functions to the FBI.

PROS

1.
Puts Nation’s number one law enforcement agency against country’s most serious law enforcement problem. Would [Page 8] throw into the drug battle the FBI’s 8,400 agents and 350 million dollar budget, its years of experience, its high esprit de corps, its established relationship with United States Attorneys and state and local officials, and its unexcelled knowledge of law enforcement intelligence (the key to better drug enforcement).
2.
This option is “good politics”, given the high public respect for the FBI.
3.
Would eventually upgrade the quality of drug law enforcement personnel since the FBI (a) could “weed out” low performing personnel during the transition, (b) has higher standards and educational requirements than do Customs and BNDD, and (c) is not burdened by Civil Service restrictions in its personnel actions.

CONS

1.
There is potentially serious disruption and a loss of momentum in drug enforcement because of the lack of FBI experience with drugs and the magnitude of necessary organizational transfers. Especially difficult until there is a permanent Director of the FBI.
2.
The FBI is reluctant to assume the regulatory functions now handled by BNDD or to absorb more than a small percentage of the drug agents now working for Customs and BNDD.
3.
Although Pat Gray is actively concerned about drugs, the bulk of the old line FBI “establishment” is opposed (including fifty-four of fifty-nine Special Agents in Charge polled last year). As did J. Edgar Hoover, they view drugs as a nontraditional, “dirty” business with a corruption potential which would likely taint, the FBI’s reputation.
4.
Other lesser problems may develop, such as the “National Police Force” complaint; possible dilution of intense focus on drugs because of other FBI responsibilities; and possible overseas conflict between FBI and CIA.

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RECOMMENDATION.

I recommend Option 3 without an immediate move to the FBI. The resolution of the Customs/BNDD overlap is impeding the progress of drug trafficking enforcement and should be ended. By consolidation of drug enforcement functions in Justice, we focus responsibility in one agency. We do not risk adverse impact on the Gray confirmation hearings, yet leave open the option to combine the new agency with the FBI at a later date. We also have flexibility as to the timing of any FBI announcement, if you choose this option now or later.

  1. Source: National Archives, Nixon Presidential Materials, President’s Office Files, President’s Handwriting Files, Box 21, March 1–10, 1973. No classification marking. A stamped notation on the memorandum indicates that the President saw it. Nixon initialed his approval of option 3.
  2. Ash recommended the creation of a new agency within the Department of Justice to consolidate drug control efforts.