146. Memorandum From the Assistant to the President (Ash) to President Nixon1
2
Washington, March 8, 1973
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
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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.
