Prepared Statement of Senator Chuck Grassley
Senate Committee on the Judiciary
Department of Homeland Security Oversight Hearing
Wednesday, May 6, 2009
Chairman Leahy, thank you for calling this important hearing on oversight of the Department of Homeland Security. It’s been a little over a year since the Judiciary Committee last held an oversight hearing with the Department of Homeland Security and it’s the first time we’ve had Secretary Napolitano before us. I believe that these oversight hearings are an essential part of our duty to oversee the executive branch. I welcome the opportunity to ask Secretary Napolitano some tough questions about immigration, law enforcement cooperation, and some other outstanding issues I have with the department.
During our last hearing I stated that oversight of the Department of Homeland Security is of the utmost importance. I’m concerned that nearly seven years after the creation of the department, difficult issues still remain in coordinating the various agencies merged into one. This coordination is more complicated given the challenging issues the department faces, be it the tough task of enforcing our nation’s immigration laws, securing our borders and ports, and ensuring that our nation’s infrastructure is protected to name a few.
First off, I’d like to talk to the secretary about immigration. As a senator from an interior state, I take enforcement of our immigration laws very serious. That includes apprehending, detaining, and deporting aliens who are living and working illegally in the United States. Interior enforcement of our immigration laws is just as important as border security. We cannot ignore those who successfully evaded our border agents, bypassed the inspection process, or overstayed a visa. We must deal with these individuals, and I’d like to see the Department of Homeland Security use the tools at their disposal to get the job done.
I’m very interested in hearing from Secretary Napolitano about the worksite enforcement guidelines, particularly a commitment to deal with illegal aliens as well as employers. I’d like to hear from the secretary about the department’s plans for E-Verify, including a commitment to enforce a rule requiring contractors of the federal government to use the program. I hope Secretary Napolitano will consider the needs of state and local law enforcement and continue to use the 287g program. Lastly, on immigration, I’d like to see efforts from the administration to reduce fraud and abuse in our visa programs, particularly the H-1b and L visa programs.
Another issue I’d like to discuss relates to my long standing interest in ensuring that federal law enforcement agencies are working in a cooperative manner. It’s hard to believe that nearly 8 years after the tragic events of 9/11 we even need to talk about law enforcement cooperation and information sharing. In fact, the creation of the department was viewed by many of us as a step toward solving the problem of compartmentalization and turf wars by law enforcement agencies. However, a recently released Government Accountability Office (GAO) report that I requested in my capacity as the co-chairman of the Caucus on International Narcotics Control paints a different picture of federal law enforcement coordination—that of the pre-9/11 mentality of turf wars and information hoarding. I find this wholly unacceptable and will ask some tough questions about what Secretary Napolitano is doing to fix this problem.
I want to point out this GAO report to my colleagues and to Secretary Napolitano because I find the results of the GAO report to be shocking. Specifically, GAO noted that since 9/11 the Drug Enforcement Administration has improved its coordination with component Department of Justice law enforcement agencies. However, the Drug Enforcement Agency has less defined partnerships with Homeland Security Department entities—specifically Immigration and Customs Enforcement and Customs and Border Protection. GAO noted that long-standing jurisdictional disputes involving Immigration and Customs Enforcement’s drug enforcement role and the Drug Enforcement Administration’s oversight of Immigration and Custom Enforcement’s drug related investigations. This authority to investigate drug cases, commonly referred to by its section of the US Code “Title 21”, has become a serious problem.
Currently, the Drug Enforcement Administration has the statutory authority to investigate all narcotics investigations. Immigration and Customs Enforcement has been delegated some authority to investigate drug related crimes provided they work under the Drug Enforcement Administration. For this purpose, the Drug Enforcement Administration cross-designates Immigration and Customs Enforcement agents with “Title 21” authority. The number of cross-designated Immigration and Customs Enforcement agents is capped by agreement around 1,400 agents. However, the controlling Memorandum of Understanding on this matter was signed in 1994 and this outdated process has led to significant problems in coordinating Title 21 investigations. One specific example of this problem relates to the law enforcement “Fusion Center” operated by the Department of Justice. The Justice Department has the participation of virtually every federal law enforcement agency with the exception of Immigration and Customs Enforcement. Immigration and Customs Enforcement believes that the Justice Department has asked for information above and beyond what it asks of other agencies. Because of that, Immigration and Customs Enforcement has refused to participate. This is just one example of the many little turf battles that have been continuing for nearly 30 years. Unfortunately, these disputes could lead to dire consequences.
The most shocking result of the GAO report is that absent an updated Memorandum of Understanding between the agencies, there is “potential for duplicative investigative efforts and concern that officer safety could be compromised”. This is simply unbelievable. Essentially, the GAO has found that the relationship between Immigration and Customs Enforcement and the Drug Enforcement Administration is so bad that agents could be unnecessarily hurt or killed. This needs to be addressed right away.
To that end, I wrote to Secretary Napolitano and Attorney General Holder on April 21, asking for them to immediately implement the recommendations GAO made to help resolve this long standing jurisdictional dispute. These recommendations are simple, rework the Memorandums of Understanding, have Immigration and Customs Enforcement begin participating in the Fusion Center, and set up a process to periodically review the Memorandums of Understanding. This isn’t rocket science, it’s simple leadership and agency management. Sadly, I need to report to the committee that to date I have not received a response to my letter from either office. I want to see common sense leadership from both Secretary Napolitano and Attorney General Holder on this issue immediately.
I asked similar questions to representatives from Immigration and Customs Enforcement and the Drug Enforcement Administration at a hearing before the Crime and Drug Subcommittee a few months back and I’ve yet to hear a good answer to how to solve this. I’m not going to stop fighting to get this fixed and I really want some answers. I expect Secretary Napolitano to provide some answers on how to fix this in short order. I expect the same of Attorney General Holder and will bring it up whenever I see him next. The American taxpayers deserve law enforcement agencies that work cooperatively and efficiently, not those that continue unproductive turf battles that could threaten the safety of law enforcement officers and impact the security of our country.
I hope that Secretary Napolitano will provide answers to these important questions and commit to getting me the answers I’m seeking.
-30-
Here is a copy of the text of the letter referenced in the statement that Grassley sent to Napolitano and Holder.
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 power—currently 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
Attachments