DHS/HSI Seeks Title 21 Authority (Federal Drug Laws) – New English Review

By Gary Fouse

I recently posted an article in New English Review about how then-California Attorney General Kamala Harris and then-Governor Jerry Brown presided over the dissolution of the California Bureau of Narcotics Enforcement (BNE) in 2012. It reminds me of how my former agency, the U.S. Drug Enforcement Administration (DEA), survived attempts by previous administrations to merge the DEA with the FBI. It took intense lobbying by DEA leadership and their allies in state and local law enforcement to convince the Justice Department that it was a bad idea.

But the DEA is far from out of the woods. Under Homeland Security Director Alejandro Mayorkas, who has casually presided over an open border and the deadly fentanyl epidemic that has accompanied it, DHS and its chief investigative agency, Homeland Security Investigations (HSI), are engaged in a brazen bid to gain full authority to enforce U.S. Code Title 21 statutes. (Title 21 is the section of the federal criminal code that deals with drug trafficking and distribution. Currently, the DEA/DOJ has the authority to grant Title 21 powers to agents of other agencies, such as HSI, when they are working with the DEA on cases.)

According to my sources, Mayorkas, as part of his campaign to expand his empire, is trying to argue that the DEA is failing in its efforts to fight the war on drugs. He conveniently ignores the fact that our open border with Mexico, which he is tasked with securing, is a major source of the problem of drug trafficking from Mexico, including fentanyl.

This has predictably led to friction and anger among DEA personnel, both at the management level and among rank-and-file agents. They complain that HSI is not only attempting a hostile takeover of Title 21 authority, but is also frequently attempting to steal credit from cases brought primarily by the DEA, something the FBI has long been notorious for, as have other law enforcement agencies. It goes without saying that Mayorkas is not held in high regard by DEA employees.

At the risk of digressing, a little background is necessary on the FBI’s history with the DEA. During the early Reagan administration, there was consideration of merging the DEA with the FBI. Although ultimately defeated by then-Attorney General William French Smith, the FBI was granted joint jurisdiction over Title 21 in 1982. The result? Interagency turf wars of the type that had previously prompted President Nixon to create the DEA in 1973, primarily to eliminate duplication of effort and turf wars between the predecessor Bureau of Narcotics and Dangerous Drugs (BNDD) under DOJ and U.S. Customs, then under the Treasury Department. In that reorganization, 500 Customs agents (including myself) were transferred to the newly created DEA to join former BNDD personnel. During the Clinton administration in the 1990s, there was further consideration of merging the DEA with the FBI. (Both agencies were, and still are, part of the Justice Department.) Ultimately, Attorney General Janet Reno decided not to do this.

Previously, the DEA Office of Training was located at the Federal Law Enforcement Training Center in Glynco, Georgia, along with most other federal law enforcement training offices. As part of the second merger under consideration, the DEA Office of Training was moved to the FBI Academy at Quantico, Virginia Marine Corps Base in 1985, where it remained until 1999. I personally spent the last 5.5 years of my DEA career as a trainer at Quantico (1990-1995). After Reno ultimately decided not to merge, the FBI informed the DEA that they would need to find a training facility elsewhere. At that time, DEA Administrator Jack Lawn obtained a commitment from then-Commandant of the Marine Corps, General Alfred M. Gray, to provide the DEA with space at Quantico for its own academy. When other government agencies tried to get involved and exert some degree of control over the planned facility, General Gray bluntly informed all concerned that the country would either go to the DEA or to no one. As a result, the DEA now has its own facility just down the road from the FBI Academy. The facility opened on April 28, 1999.

A note on Jack Lawn: In the 1980s, Lawn, a former Marine and FBI official, was transferred to the position of DEA administrator, many believe, to oversee the transition of the DEA into the FBI. However, Lawn became an opponent of the merger and successfully defended and saved the DEA. To this day, he is almost universally regarded by retired agents as the DEA’s greatest administrator. On the other hand, former FBI official Oliver “Buck” Revell wrote in his memoirs that while he was a senior FBI official at headquarters, the FBI nearly absorbed the DEA until “Jack Lawn went native.”

Which brings us to the present. Alejandro Mayorkas, who has shamelessly turned our Border Patrol into little more than Walmart greeters and destroyed the morale of that agency in the process, not only openly lies (even under oath) about the security of the border, but (according to my sources) blames the DEA for the drugs flowing across the border, including deadly fentanyl, which claims hundreds of thousands of American lives each year. The precursors to fentanyl are primarily produced in China and smuggled to Mexican traffickers who finish the product and smuggle it across the border into the U.S. The DEA has no jurisdiction over border enforcement. That falls under DHS. Along with the millions of illegal aliens, the crimes, the murders, the rapes, the terrorists, gangs, and other drugs, the fentanyl epidemic is directly attributable to Mayorkas and his White House bosses. The DEA, through an office in Beijing, is doing its best to gain cooperation from Chinese authorities. The cooperation of those authorities, to be honest, is mixed.

As an aside, DHS isn’t the only federal law enforcement agency suffering from poor morale. Not surprisingly, the Secret Service also suffers from poor morale, exacerbated by the recent assassination attempts on former President Trump. Many agents are seeking employment elsewhere in law enforcement, including the DEA.

Of course, if Kamala Harris is elected in November, one can only speculate on how she would handle the Mayorkas-DEA issue. Given her track record at California BNE, I fear she would be very receptive to what Mayorkas has to say. In my opinion, it is a bad idea to lump federal drug enforcement into multi-mission agencies like the FBI or DHS/HSI. The FBI has rightly cut back on its drug investigations since 9/11 in favor of counterterrorism. The DEA is a single-mission agency and has built strong relationships and respect not only with other U.S. law enforcement agencies, but with foreign law enforcement agencies as well. Turning drug enforcement over to DHS under a corrupt, incompetent, and dishonest figure like Alejandro Mayorkas is a recipe for disaster.

In yet another example of Mayorkas’ misconduct, Aaron Heitke, a retired Border Patrol supervisor who was in charge of the San Diego sector, testified before the House Committee on Homeland Security this week that he had been ordered by the Biden administration not to speak publicly about the illegal migrant problem. Specifically, he testified that most of their manpower had been redeployed from their regular border posts to other sectors to process all of the illegal migrants. As we know, many of them turned themselves into Border Patrol agents, applied for asylum, were processed, and were sent on their way to who knows where. I bring that up because DHS claims that 90% of its fentanyl seizures occur at border crossings as opposed to isolated areas with no authorized crossings. Even if that figure were accurate, Heitke’s testimony would suggest that border crossings are not adequately staffed to conduct more effective border inspections.

This is not to say that DEA and DHS agencies should not work together. Customs and Border Protection certainly has a role to play at the border and regularly encounters drug smugglers. If they arrest or seize someone at the border, the case is turned over to the local DEA office for further investigation and prosecution, which was the case between Customs and DEA after the 1973 merger. Furthermore, I have no objection to DHS agencies participating in federal drug task forces with DEA, but DEA is the lead agency when it comes to federal drug enforcement, and it should remain that way rather than creating more interagency turf battles—which happens all too often. DHS and HSI present this as a smart move to add more manpower and resources to the drug fight, but since they tout their successes and capabilities and barely mention what DEA is already doing nationally and internationally, this smacks of a brazen power grab by Mayorkas, a political bungler who already has no credibility. If DHS/HSI can make such a big contribution, you have to wonder why they have failed so miserably at the southern border. Under Mayorkas and the Biden-Harris administration, they have taken a serious situation and made it worse. They are hardly the solution.