### Application of the Mansfield Amendment

to the Use of United States Military Personnel and Equipment to Assist Foreign Governments in Drug Enforcement Activities

The M ansfield Amendment to the Foreign Assistance Act provides that “no officer or employee of the United States may engage in or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.” 22 U.S.C. § 2291(c). Although thequestion o f what constitutes a “direct police arrest action” within the meaning of the Amendment is not unambiguously answered by the language of the statute, the legislative historydemonstrates that Congress was anim ated by concern that United States officers and employees not participate directly in jo in t drug raids with foreign authorities. The Amendment should therefore be understood to prohibit participation in narcotics control activity that would under normal circumstances be likely to lead to the arrest of foreign nationals. It does not prohibit involvement of United States officers in activities that would not ordinarily involve arrests.

September 18, 1986

M e m o r a n d u m f o r t h e A t t o r n e y G e n e r a l

This memorandum responds to your request for the views of this Office regarding the applicability of the Mansfield Amendment, 22 U.S.C. § 2291(c), to the use of United States military officers and equipment to assist foreign governments in their drug enforcement activities. You have also asked this Office to consider the possible statutory bases for using United States military personnel and equipment to assist in such operations. The Mansfield Amendment provides that “no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.” The critical legal question raised by the Amendment is what constitutes a “direct police arrest action.” The legislative history of the Amendment makes clear that Congress’ central concern was that United States narcotics agents not participate in foreign drug raids and other law enforcement operations in which force was likely to be used. The standard employed by Congress for demarcating the scope of “direct police arrest action” under the Mansfield Amendment was whether the activity would, under normal circumstances, involve the arrest of individuals. We believe the Amendment prohibits participation by United States officers in foreign anti-drug operations which typically involve arrests, such as drug

122raids. Conversely, it does not in our judgment prohibit involvement of United

States officers in activities that do not typically involve arrests, such as planning and preparing for a drug raid. Nor does it limit training of foreign agents, the provision of intelligence or equipment for drug operations, or participation in operations aimed solely at destroying drug crops or drug facilities where arrests are not expected. The application of these general observations may raise difficult questions in the circumstances of any particular case. The Mansfield Amendment to the Foreign Assistance Act provides as follows:
(1) Notwithstanding any other provision of law, no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts. No such officer or employee may interrogate or be present during the interrogation of any United States person arrested in any foreign country with respect to narcotics control efforts without the written consent of such person. The provisions of this paragraph shall not apply to the activities of the United States Armed Forces in carrying out their responsibilities under applicable Status of Forces arrangements.
(2) Paragraph (1) of this subsection shall not prohibit officers and employees of the United States from being present during direct police arrest actions with respect to narcotics control efforts in a foreign country to the extent that the Secretary of State and the government of that country agree to such anexemption. The Secretary of State shall report any such agreement to the Congress before the agreement takes effect.
22 U.S.C. § 2291(c). Before turning specifically to the questions you have raised about the applicability of the Mansfield Amendment, we address the congressional authorization for committing military personnel and equipment to assist in foreign anti-drug operations.

I. Statutory Basis in the Foreign Assistance Act for Providing United States Military Personnel and Equipment to Assist in Foreign Anti-Drug Activities

The Foreign Assistance Act authorizes the President to furnish United Statespersonnel and material resources to assist foreign governments in the enforcement of their drug laws. Section 2291(a) of Title 22 (§ 481 of the Foreign Assistance Act)1 stresses the necessity of international cooperation “to control the illicit cultivation, production, and smuggling of, trafficking in, and abuse of narcotic and psychotropic drugs,” and declares that “international narcotics

1 This authority and the related appropriations authority are often referred to by the section designation in the Foreign Assistance Act.

123control programs” should include elimination of narcotics-producing crops as

well as “suppression of the illicit manufacture of and traffic in narcotic andpsychotropic drugs.” Accordingly, § 2291(a) expressly authorizes the President “to conclude agreements with other countries to facilitate control of the production, processing, transportation, and distribution of narcotics.” More importantly, this section provides:
Notwithstanding any other provision of law, the President is authorized to furnish assistance to any country or internationalorganization, on such terms and conditions as he may determine, for the control of narcotic and psychotropic drugs and other controlled substances.
Although the language of this section does not expressly refer to military assistance, we believe that the section clearly authorizes the President to provide such assistance. Unlike other provisions of the Foreign Assistance Act,which explicitly distinguish among “economic,” “military,” and “nonmilitary,” assistance,2 the language of § 2291(a) of the Act is not qualified, broadly allowing for all types of assistance “[n]otwithstanding any other provision of law” and “on such terms and conditions as [the President] may determine.”3 Indeed, § 2291 (i) of Title 22 defines the term “United States assistance” explicitly to include military assistance.4 Finally, the language of the Mansfield Amendment itself makes clear that Congress contemplated the provision of military assistance to foreign narcotics control efforts. The Mansfield Amendment’s prohibition on participation in any “direct police arrest action” applies to any “officer or employee” of the United States, which is defined under the Foreign Assistance Act to include “civilian personnel and members of the Armed Forces of the United States Government.” Id. § 2403(j). Moreover, the Mansfield Amendment expressly

2 For exam ple, 22 U.S.C. § 2382(b) instructs the C hief o f the United States Diplomatic Mission in each country to make sure that the recommendations of other United States representatives “pertaining to military assistance (including civic action) and m ilitary education and training programs are coordinated with political and econom ic considerations." See also id § 2403(k). 3 Prior to 1983, § 2291(a) of Title 22 allow ed the President to “suspend . . . military assistance furnished under this chapter or any other Act” to any country if the President “determines that the government of such country has failed to take steps to prevent” drugs “produced or processed” in that country or “transported through such country" from entering the U nited States. (Em phasis added). Because the term “this chapter" includes a host o f provisions authorizing foreign military assistance wholly unrelated to foreign anti-drug activities, the pre-1983 reference in § 2291(a) to “military assistance" cannot be read as a dispositive indication that Congress intended § 2291(a) to authorize the provision o f American military assistance to foreign anti-drug efforts. C ongress’ reference in the pre-1983 version of § 2291(a) to “economic or military assistance," how ever, provides a strong indication that Congress knew how to distinguish among different types o f assistance. It is thus difficult to escape the conclusion that C ongress’ unqualified use of the term “assistance” was intended to coverall forms o f assistance, including m ilitary assistance. In 1983, § 2291(a) was am ended to separate the provisions dealing with the President’s power to suspend assistance to countries that do not take adequate steps to stem the illegal flow of narcotics to the United States. Pub L. No. 98-164, T itle X, § 1003, 97 Stat. 1053 (1983); 22 U.S.C. § 2291(h). 4 Section 2291 (i)(4) of Title 22 defines the term “United States assistance” to cover all forms o f military assistance provided under the Foreign A ssistance Act (with certain exceptions not relevant to this point, including an exception for “international narcotics control assistance”).

124excludes from its coverage “activities of the United States Armed Forces in

carrying out their responsibilities under the applicable Status of Forces arrangements.” 22 U.S.C. § 2291(c)(1). By implication, the use of United States armed forces personnel for activities other than Status of Forces arrangements5 are thus covered by the Mansfield Amendment, and hence also within the positive authority granted to the President under § 2291(a). Because the language of § 2291(a) contains no limitation on the type of assistance which the President can furnish to foreign governments to assist in their anti-drug activities, and because a broad reading of this authority is supported by the Mansfield Amendment and by other provisions of the Foreign Assistance Act, we conclude that the President has authority under the Act to furnish military assistance to foreign governments for such purposes.7 The primary limitation on this authority is the Mansfield Amendment, to which we

now turn.

5 Status of Forces Agreements (SOFAs) are treaties that prescribe the conditions and term s that control the status o f forces sent by one State into the territory of another State. In particular, SOFAs avoid jurisdictional clashes whenever the military personnel of one country, assigned to peacetime duty within another country,
commit criminal acts. See, e.g.. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951.4U .S.T . 1792, T.I.A.S. No. 2846. Thus, it makes sense that Congress would preclude such agreements from the scope of the M ansfield Amendment to allow the United States military to enforce United States (and perhaps foreign) drug laws, including arrests, against its own personnel serving a tour of duty in a foreign country. 6 There may be difficult appropriations questions tied to the use of any particular authority. Assistance provided under § 2291(a) appears to be limited to funds authorized by Congress specifically for that foreign narcotics assistance program. Congress authorized appropriations o f $57,529,000 for each o f 1986 and 1987 “[t]o carry out the purposes of § 481.” See Pub. L. No. 99-83, Title VI, § 602, 99 Stat. 228 (Aug. 8, 1985) (codified at 22 U.S.C § 2291a). Some limited funds from the Military Assistance Program (MAP) can be used to equip aircraft used for anti-drug operations under § 2291(a), but additional lim itations in the form of notification o f Congressional committees are attached to the use o f these funds. Pub. L No. 9 9 -8 3 ,9 9 Stat. at 611 (codified at 22 U.S.C §2311). Congress has placed other limitations on the use of the narcotics assistance funds provided under § 2291(a). Congress provided that appropriations made to carry out the purposes of § 2291(a) “shall not be made available for the procurement o f weapons o r am m unition.” 22 U.S.C. § 2291b. The foreign narcotics assistance program developed under the authority of § 2291(a) is administered by the Secretary of State. Exec. Order. No. 12163, 44 Fed. Reg. 56678 (1979). 7 Authority to use United States military resources to assist in foreign anti-drug activities may be found in other federal statutes as well. For example, 10 U.S.C. § 374(c) provides in part that “[i]n an em ergency circumstance” United States military equipment, and personnel to operate and maintain it, “may be used outside the . . United S ta te s. . . as a base o f operations by Federal law enforcement officials to facilitate the enforcement o f [United States narcotics laws] and to transport such law enforcement officials in connection with such operations.” This statute on its face contains a number of limitations on the provision o f United States military assistance that do not apply to aid provided under § 2291(a). For example, under § 2291(a) United States m ilitary assistance may be provided in the absence o f an “emergency circumstance” to facilitate the enforcement o f foreign anti-drug laws, and it need not be to limited to use as a base o f operations for federal law enforcem ent officials. In addition. United States military personnel furnished under 10 U.S.C. § 374(c) are prohibited from direct participation “in an interdiction of a vessel or aircraft, a search and seizure, arrest, or other similar activity unless participation in such activity by such [personnel] is otherw ise authorized by law .” Id. § 375. Under 21 U.S.C. § 873(b), the Attorney General is authorized to call on other federal agencies to furnish assistance in carrying out his responsibility to enforce United States narcotics laws. This provision allows the Attorney General to request assistance if that assistance is within the otherwise authorized capacity o f the assisting agency. This provision, accordingly, does not authorize the A ttorney General to request, nor a responding agency to provide, assistance in the enforcement of foreign anti-drug laws. This O ffice has
Continued

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### M. The Mansfield Amendment

The Mansfield Amendment forbids United States officers and employees from “engaging] or participating] in any direct police arrest action in any foreign country with respect to narcotics control efforts.” 22 U.S.C. § 2291(c)(1). This statute was amended in 1985 to make clear that United States officers and employees may be present during such direct police arrest actions, so long as the Secretary of State and the government of the foreign country agree to such
presence. Id. § 2291(c)(2).8 Determining the nature and scope of the MansfieldAmendment’s limitation on United States assistance to foreign anti-drug activities thus hinges on the meaning of the term “direct police arrest action.”9 The use of the term “arrest a c t i o n rather than simply “arrest,” suggests that Congress intended to bar more than just participation in an actual arrest by foreign law enforcement officers. Congress’ use of the modifier “direct,” however, suggests that it intended to prohibit only conduct closely related, in time and place, to an actual arrest. The language of the Mansfield Amendment thus suggests that Congress intended to include within the Amendment’s prohibition more than just the arrest of suspects, but did not intend to includeconduct, such as the planning and preparation for the law enforcement operation, that is not closely related to arrests. The Amendment’s peculiar linguistic formulation — “direct police arrest action” — does not on its face clearly identify the line between prohibited and permissible conduct.

7 (... continued) previously suggested that law enforcement operations conducted with assistance provided under § 873(b) m ust foreseeably lead to prosecutions under United States narcotics laws. See M emorandum to Jam es I. Knapp, Deputy A ssistant Attorney General, Criminal D ivision from Larry L. Simms, Deputy Assistant Attorney G eneral, O ffice o f Legal Counsel (Dec. 18, 1984). An additional positive source of authority to provide U nited States m ilitary resources to assist foreign governm ents in their anti-drug activities is § 22 U.S.C. § 2311 (§ 503 o f the Foreign Assistance Act). That section authorizes the President “to furnish military assistance, on such terms and conditions as he may determ ine, to any friendly country . . . the assisting o f which the President finds will strengthen the security o f the United States and prom ote world peace . . . by . . . assigning or detailing members o f the Armed Forces o f the U nited States and other personnel of th e Department of Defense to perform duties of a non-combatant nature.” This provision is administered by the State Department, and it is our understanding that the State D epartm ent does not read § 2311 to authorize the provision o f military assistance for purposes of foreign drug enforcem ent activities unless, perhaps, those activities are conducted by foreign military forces. 8 This O ffice has been asked whether an “agreem ent to agree” to specific future operations satisfies the
term s o f the 1985 am endm ent to the M ansfield Amendment. This amendment allows United States officers to
be present during arrest actions when the foreign government agrees, but it remains true that no officer may engage or participate in any direct police arrest action. The legislative history does not provide any explanation o f the type o f agreem ent required by the 1985 amendment. In the absence o f further guidance, we assum e from the language o f the amendment that Congress meant to vest substantial discretion in the Secretary o f State to develop such agreements. Thus it appears that oral agreements, for example, would satisfy the requirem ents o f the amendment. Similarly, we assume that reports to Congress under the am endm ent may include notifying key com m ittees that such agreements have been reached. 9 The requirem ent that the direct arrest action relate to “narcotics control efforts” raises the question w hether the M ansfield A mendment would apply to individual arrests since a single arrest m ight not be seen as part o f a “narcotics control effort.” It appears however, that an individual arrest, even though it m ight notnecessarily relate to broader drug control efforts, is plainly w ithin the Amendment’s prohibition on participation in any “direct police arrest action.” The M ansfield Amendment does not apply to arrest actions — or any
other law enforcem ent action — not related to narcotics control efforts.

126The legislative history of the Amendment provides useful insights. The Mansfield Amendment was proposed by Senator Mansfield after he had visited Southeast Asia in 1975 and had learned of the direct involvement of Drug Enforcement Administration (DEA) agents in Burmese and Thai anti-drug operations. Senator Mansfield was particularly critical of a “joint raid of an opium refinery” carried out by United States and Thai narcotics agents. See Report by Senator Mansfield, “Winds of Change: Evolving Relations and Interests in Southeast Asia,” S. Rep. No. 382-38,94th Cong., 1st Sess. 9 (Oct. 1975).10 The origin of Senator Mansfield’s particular concern in proposing the Mansfield Amendment — joint drug raids — suggests the framework for construing the meaning of “direct police arrest actions.” The Amendment as originally introduced provided that no United States officer or employee “may engage in any police action in any foreign country with respect to narcotics control efforts.” 122 Cong. Rec. 2592 (1976). This language is both narrower and broader than the language eventually adopted. It is narrower in that it covers only officers who “engage” in certain actions, rather than those who “engage or participate.” It is broader because it covers all “police actions” and not just “direct police arrest actions.”11 In discussing the proposed Amendment on the Senate floor, Senator Mansfield emphasized his concern with “U.S. involvement in local drug raids.” 122Cong. Rec. 2592 (1976). He observed that United States agents “now participate in raids and other such activities alongside local police officials,” and explained that his proposal would “put a limit on the extent to which U.S. personnel can participate” in such actions. Id. Senator Percy, during debate on the initial version of the Amendment, notedthat it “is designed solely to prevent American involvement where it is unnecessary to our own domestic drug law enforcement programs and where friction with foreign governments is likely to result.” 122 Cong. Rec. 2591 (1976). In particular, according to Senator Percy, the Amendment “would prohibit United States narcotics agents operating abroad, whether by themselves or as members of teams involving the agents . . . of foreign governments, from engaging in actions where it is reasonably foreseeable that force will be used or an arrest of foreign nationals made.” Id. The legislative comments on the final version of the Amendment mirrored the concerns expressed by Senators Percy and Mansfield.12 The Report by the House International Relations Committee on the final version noted that the provision was intended “to insure U.S. narcotics control efforts abroad are conducted in such a manner as to avoid involvement by U.S. personnel in

10 Senator M ansfield considered local drug enforcement a “function o f indigenous government.'' See Report by Senator Mansfield, “Winds of Change* Evolving Relations and Interests in Southeast Asia," S. Rep. No. 382-38, 94th Cong., 1st Sess. (1975). 11 The Amendment as originally introduced w as passed as part o f the International Security Assistance and Arms Export Control Act of 1976, but this bill was vetoed by the President for reasons unrelated to the
M ansfield Amendment. 12 There is no indication in the legislative history that the shift in language between the initial and final versions o f the Amendment reflected a change in the intentions of the measure’s drafters and sponsors.

127foreign police operations where violence or the use of force could reasonably

be anticipated.” H.R. Rep. No. 1144, 94th Cong., 2d Sess. 59 (1976).13 Joint drug raids provide the archetypical violation of Congress’ desire that United States agents not participate in foreign law enforcement operations in which violence or the use of force is likely to occur.14 Identifying participation in joint drug raids as the paradigm forbidden behavior, however, does not complete the necessary inquiry. It is still necessary to identify the point at which such raids, or “direct police arrest actions,” begin and end. Here, too, the legislative history provides valuable assistance.15The House International Relations Committee and the Senate Foreign Relations Committee both defined “arrest actions” to mean “any police action which, under normal circumstances, would involve the arrest of individuals whether or not arrests, in fact, are actually made.” H.R. Rep. No. 1144, supra, at 55; S. Rep. No. 876,94th Cong., 2d Sess. 61 (1976). See also 122 Cong. Rec. 2591 (1976) (remarks of Sen. Percy). This definition of “arrest action” makesclear Congress’ intent to include more than the actual arrest of foreign nationals, but not to include activities which under normal circumstances would not involve such arrests. In the context of a drug raid, for example, the Mansfield Amendment would preclude the participation (though not presence)16 of United States officers only in the raid itself, for only the actual raid would, under normal circumstances, involve arrests or the probable use of force. The Mansfield Amendment would not prohibit United States participation in any activity occurring before or after the raid, such as planning and preparing for the raid, or pre-positioning (including transportation) of foreign officers in the general vicinity of the raid target, because arrests do not normally occur during these

13 Sim ilar lines were drawn by the Senate Foreign R elations Committee on the initial version of the
Amendment. See S. Rep. No. 605, 94th C ong., 2d Sess 55 (1976), reprinted in part in 122 Cong. Rec. 2592 (1976). 14 Congress evidently believed that operations in which, under normal circumstances, arrests would be likely w ere also operations where violence or the use of force was likely. 15 Sim ilar boundaries on the participation of military personnel have been drawn for enforcement of dom estic law under the Posse Comitatus A ct. The Posse Com itatus Act, 18 U.S.C. § 1385, a Reconstruction era provision that was intended to prevent the participation o f United States armed forces in the enforcement o f dom estic law, has been construed to perm it civilian law enforcement agencies to use military equipment or receive training, and to perm it military observers, but not to perm it the use o f military manpower in an active
law enforcement role. In United States v. Red Feather , 392 F. Supp. 916,925 (D.S.D. 1974), the court explained: Activities which constitute an active role in direct law enforcement are: arrest; seizure of evidence; search o f a person, search of a building; investigation of a crime, interviewing w itnesses; pursuit o f an escaped civilian prisoner; search o f an area for a suspect and other like activities. A ctivities which constitute a passive role w hich might indirectly aid law enforcement are: mere presence o f military personnel under orders to report on the necessity for military intervention; preparation of contingency plans to be used if military intervention is ordered; advice or recom m endations given to civilian law enforcem ent officers by military personnel on tactics or logistics; presence of m ilitary personnel to deliver m ilitary material, equipment or supplies, to train local law enforcement officials on the proper use and care of such material or equipm ent, and to maintain such m aterial or equipment; aerial photographic reconnaissance flights and other like activities. 16 As noted above, a 1985 amendment to the M ansfield Amendment specifically states that its prohibition should not be construed to forbid United States officers from being “present during direct police arrest action” in a foreign country if the Secretary o f State and government o f the foreign country reach an agreem ent to this effect. See Pub. L. No. 99 -8 3 , § 605,99 Stat. 190,229 (codified at 22 U.S.C. § 2291(c)(2)).

128activities. Nor would supplying equipment, training, and intelligence for the raid violate the intent of Congress.17 Similarly, participation of United States officers in foreign operations aimed at eradicating drug producing crops or drug processing facilities would not come within the Mansfield Amendment’s prohibition if arrests are not likely to occur.

Conclusion

In enacting the Mansfield Amendment, Congress was animated by concern that United States officers not participate directly in joint drug raids with foreign authorities. Congress addressed this concern by prohibiting UnitedStates officers from personally participating, except as observers, in any activity which, under normal circumstances, would be likely to lead to the arrest of foreign nationals.18 The Amendment was not intended to prohibit participation of United States officers in activities occurring before or after any such “arrest action.” The application of these principles to specific cases may raise difficult questions.

C h a r l e s J. C o o p e r Assistant Attorney General Office of Legal Counsel

17 Congress made clear that the role of the foreign government in requesting United States assistance does not alter the boundaries on the behavior of United States officers in drug raids. Senator Percy explained the A m endm ent's “basic meaning” as preventing involvement in actions in which force would result “whether or not the host government in question has requested the participation of American agents.” 122 Cong. Rec. 2S92 (1976). The Senate Foreign Relations Committee Report on the original version noted that it was intended to prohibit involvement in actions involving the arrest o f foreign nationals “whether unilaterally (acting on their own) or as members o f teams involving agents or officials o f other foreign governm ents." Id.',
see also S. Rep. No. 605, 94th Cong., 2d Sess. (1976). 18 The Department has previously considered efforts to repeal or amend the Mansfield Amendment to remove its restnction on United States anti-drug activities abroad. The President's Commission on OrganizedCrime has recommended that the M ansfield Amendment “be repealed in its entirety.” Presidential Commission on Organized Crime, America's Habits, Drug Abuse, Drug Trafficking, and Organized Crime 468 (March 1986).

129