Combatting Illicit Drugs: DEA and ICE Interagency Agreement Has Helped to Ensure Better Coordination of Drug Investigations
Published: 2011-07-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The 2010 National Drug Threat Assessment stated that the availability of illicit drugs is increasing. The Drug Enforcement Administration (DEA), in the Department of Justice (DOJ), works with Immigration and Customs Enforcement (ICE), within the Department of Homeland Security (DHS), to carry out drug enforcement efforts. DEA and ICE signed a 2009 Interagency Agreement (Agreement) that outlined the mechanisms to provide ICE with authority to investigate violations of controlled substances laws (i.e., cross-designation). The Agreement also required DEA and ICE to deconflict (e.g., coordinate to ensure officer safety and prevent duplicative work) counternarcotics investigations, among other things. GAO was asked to assess the Agreement's implementation. This report addresses the extent to which DEA and ICE have taken actions (1) to implement the Agreement's cross-designation, deconfliction, and information-sharing provisions and (2) to monitor implementation of the Agreement and make needed adjustments. GAO analyzed documents such as the 2009 Agreement, related interagency agreements, and directives to field offices. GAO also interviewed DEA and ICE Headquarters officials as well as management officials and first line supervisors in 8 of the 21 DEA and 8 of 26 ICE field offices, based on geographic dispersion. Though not generalizable to all DEA and ICE offices, the interviews provided insights.
section_title: What GAO Found
paragraphs: DEA and ICE have taken actions to fully implement the cross-designation and deconfliction provisions of the Agreement, and are finalizing efforts to complete the information-sharing provisions. The Agreement allows ICE to select an unlimited number of agents for cross-designation consideration by DEA. The agencies have implemented these cross-designation provisions through a revised process that (1) elevated the levels at which requests are exchanged between the agencies and (2) consolidated multiple requests into one list of ICE agents. This new process is more streamlined and has resulted in enhanced flexibility in maximizing investigative resources, according to ICE officials. Also, DEA and ICE implemented local deconfliction protocols and used a variety of mechanisms (e.g., local deconfliction centers) to deconflict investigations. Further, in May 2011 DEA and ICE convened the Headquarters Review Team (HRT), comprised of senior managers from both agencies, who are, among other things, to resolve deconfliction and coordination issues that cannot be resolved at lower levels because they require management decisions. DEA and ICE headquarters and field office management officials GAO interviewed generally reported that the implementation of the Agreement and local deconfliction protocols had generally improved deconfliction by (1) ensuring officer safety and (2) preventing one agency's law enforcement activity from compromising the other agency's ongoing investigation. ICE has also partially implemented the Agreement's information-sharing provisions by sharing required data with two DOJ organizations that target drug trafficking organizations, and taking steps to share its drug-related data with a DEA organization focused on disrupting drug trafficking by fall 2011. DEA and ICE have conducted ongoing monitoring of the Agreement's implementation through established processes (e.g., supervisory chains of command) and according to officials from these agencies, the HRT did not identify any systemic issues. Specifically, DEA and ICE headquarters officials routinely coordinated with each other and their respective field offices to monitor the Agreement's implementation. DEA and ICE headquarters officials also said that the May 2011 meeting of the HRT, which is to periodically review the Agreement's implementation, constituted a review of the Agreement and affirmed that there were no overarching or systemic issues of coordination or deconfliction requiring headquarters-level intervention. DEA and ICE provided technical comments, which GAO incorporated as appropriate.

section_title: Letter
paragraphs: According to the 2010 National Drug Threat Assessment, overall, the  availability of illicit drugs in the United States is increasing, as drug  trafficking organizations successfully move several thousand tons of  cocaine, methamphetamine, marijuana, heroin, and ecstasy into the  country annually. The report further states that trafficking and abuse of  drugs affect nearly all aspects of life in the United States, with an  estimated economic cost of nearly $215 billion, an overburdened justice  system, a strained healthcare system, lost productivity, and  environmental destruction. The Drug Enforcement Administration (DEA),  a component of the U.S. Department of Justice (DOJ), works with U.S.  Immigration and Customs Enforcement (ICE), a component of the  Department of Homeland Security (DHS), to carry out drug enforcement  efforts.
DOJ Reorganization Plan No. 2 and Executive Order 11727 created DEA  in 1973, as a single, comprehensive federal agency to lead U.S. efforts  against illicit drug trafficking, domestically and internationally. These  directives also authorized the Attorney General, through DEA, to  coordinate the enforcement of U.S. drug laws among all executive branch  departments and agencies, requiring those agencies to assist DEA on  drug enforcement efforts when requested. While Reorganization Plan  No. 2 was intended to clarify counternarcotics roles and reduce conflicts  between DEA and Customs (ICE’s predecessor agency), disputes  continued related to, among other things, Customs’ drug enforcement  jurisdiction. To address these disputes, DOJ’s Office of Legal Counsel  stated in a 1986 memorandum that Customs did not have independent  authority to carry out drug investigations. However, according to the  Office, Customs agents may participate in drug investigations, per DOJ’s  authorization of DEA to “cross-designate” federal law enforcement  officers to undertake drug investigations under DEA’s supervision. A  1994 interagency agreement between DEA and Customs set forth  policies and procedures by which DEA would cross-designate Customs  agents to enforce the controlled substances laws contained in Title 21 of  the United States Code (Title 21 authority). Upon the creation of DHS,  ICE became a party to the DEA and Customs interagency agreement.  The 1994 Agreement specifically restricted cross-designated Customs  agents, and subsequently ICE agents, to investigating individuals and  organizations involved in the smuggling of controlled substances across  U.S. international borders or through ports of entry. It also prohibited  Customs from using Title 21 authority to perform domestic or  nonsmuggling counternarcotics investigations.
In March 2009, we reported on, among other things, DEA’s partnerships  with ICE and the process used to cross designate ICE agents to conduct  counternarcotics investigations. Specifically, we reported that the 1994  interagency agreement, which predated the formation of DHS, coupled  with long-standing jurisdictional disputes involving ICE’s drug  enforcement role and DEA’s oversight of ICE’s drug-related  investigations, had led to conflicts between the two agencies and these  conflicts remained unresolved. Moreover, we reported that the cross- designation process was inefficient and had resulted in fewer agents  being available to conduct counternarcotics investigations. We also  reported that ICE was not sharing all of its sensitive drug-related data with  the Special Operations Division within DEA and not fully participating in  the Organized Crime Drug Enforcement Task Force (OCDETF) Fusion  Center. As a result, these entities were not as effective as they might  have been.
To further enhance interagency collaboration in combatting narcotics  trafficking, we recommended, among other things, that the Attorney  General and the Secretary of Homeland Security jointly and expeditiously  (1) develop a new interagency agreement to clarify their respective  departments’ counternarcotics roles and responsibilities, particularly  those of DEA and ICE, and provide efficient procedures for cross- designating ICE agents to conduct counternarcotics investigations; and  (2) develop processes for periodically monitoring the implementation of  the new interagency agreement, and make any needed adjustments. We  also recommended that the Secretary of Homeland Security direct ICE to  participate in the Fusion Center and ensure that ICE fully responded. In  June 2009, DEA and ICE signed a new interagency agreement that  included provisions for how DEA and ICE intend to interact to coordinate  and deconflict counternarcotics investigations and requirements related  to cross-designation, information sharing, and deconfliction.  DOJ and  DHS actions to develop processes to monitor the implementation of the  new agreement and DHS actions related to ICE’s participation in the  Fusion Center are discussed later in this report.
You asked us to assess the status of the implementation of the 2009  Interagency Cooperation Agreement (2009 Agreement) between DEA  and ICE on counternarcotics investigations. Specifically, this report  addresses the following questions:  1.  To what extent have DEA and ICE taken actions in their respective  domestic offices to implement the provisions of the 2009 Agreement  addressing the cross-designation of ICE agents to pursue  counternarcotics investigations, information sharing, and deconfliction  of counternarcotics investigations?  2.  To what extent have DEA and ICE taken actions to monitor the  implementation of the 2009 Agreement in their respective domestic  offices, and make needed adjustments?
To assess the extent to which DEA and ICE have taken actions to  implement the cross-designation, information-sharing, and deconfliction  provisions of the 2009 Agreement, we analyzed pertinent documents  such as the 2009 Agreement, related interagency agreements, directives  to field offices on implementing the Agreement, policies and procedures  for cross-designating ICE agents, and local deconfliction protocols.  Specifically, we analyzed the 2009 Agreement provisions affecting DEA  and ICE domestic offices and compared DEA and ICE actions to  implement these provisions with the requirements in the provisions. As  agreed with your offices, we did not analyze the international provisions of  the 2009 Agreement because these provisions pose unique sensitivity  and law enforcement issues depending on the country or region involved.  In addition, we interviewed DEA and ICE headquarters officials who were  responsible for negotiating and implementing the 2009 Agreement about  the development of the provisions of the Agreement and actions taken by  DEA and ICE headquarters officials to implement the 2009 Agreement.  We also assessed how the provisions of the 2009 Agreement addressed  pertinent recommendations from our March 2009 report.
Further, to obtain a field perspective on the 2009 Agreement and  implementation of the provisions on cross-designation, information  sharing, and deconfliction of counternarcotics investigations, we  conducted interviews in 8 DEA division and 8 ICE field offices with 2  separate groups––(1) field management and (2) first-line supervisors in  these offices. To make our selection of DEA and ICE offices, we  analyzed the 28 total local deconfliction protocols, developed per the  2009 Agreement, to identify the corresponding DEA (21) and ICE (26)  domestic field offices responsible for implementing each protocol. We  selected 8 DEA and 8 ICE offices, responsible for implementing the same  protocol, using criteria such as geographic dispersion (i.e., northern  border, southern border, and interior), the number of cross-designated  ICE agents, and drug trafficking trends. The 8 DEA and 8 ICE offices  that we selected were located in San Diego, California; Houston/San  Antonio, Texas; Miami, Florida; Seattle, Washington; New York  City/Buffalo, New York; Detroit, Michigan; Atlanta, Georgia; and St. Louis,  Missouri/St. Paul, Minnesota. (See table 4 in app. I for areas covered by  each of the 8 protocols and associated DEA and ICE offices.) Among  other topics, we asked field management and supervisors in these offices  about their perceptions regarding any changes that had occurred due to  implementation of the 2009 Agreement. We were not able to assess  whether changes have actually occurred because there were no defined  measures to demonstrate change and no quantitative data from the  period prior to the 2009 Agreement against which to assess any changes  even if measures had been identified. Because we conducted group  interviews and did not select the field offices randomly, our results are not  generalizable to all DEA and ICE field offices nationwide. However, this  information allowed us to provide perspectives about the implementation  of the 2009 Agreement and examples of the benefits and challenges of  the Agreement.
To assess the extent to which DEA and ICE have taken actions to  monitor the implementation of the 2009 Agreement, we analyzed relevant  documentation. This included guidance or communications to the field  from DEA and ICE headquarters describing how the implementation of  the 2009 Agreement has been monitored. This also included  documentation of feedback mechanisms to obtain input on how the 2009  Agreement is working. We compared actions taken to monitor the 2009  Agreement with standards of internal controls in the federal government  and the monitoring process described in the 2009 Agreement. In  addition, we interviewed DEA and ICE headquarters and field officials to  ascertain actions taken to monitor and obtain feedback from the field on  the implementation of the 2009 Agreement and identify any adjustments  made based on the results of the monitoring process. Additional details  on our scope and methodology are contained in appendix I.
We conducted this performance audit from September 2010 through July  2011 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: DEA and ICE Missions
paragraphs: DEA is the nation’s federal agency dedicated to drug law enforcement  and accordingly, works to disrupt and dismantle the leadership,  command, control, and financial infrastructure of major drug-trafficking  organizations. DEA’s Office of Operations Management is charged with  supporting the domestic drug enforcement activities of DEA’s 21 field  divisions, which each have a corresponding field office with a DEA  Special Agent in Charge (SAC) assigned. (See fig. 1.) Each field division  has Assistant Special Agents in Charge (ASAC) and Group Supervisors  who assist the SAC with managing the entire division, including its  smaller field offices headed by a Resident Agent in Charge (RAC).
Formed in 2003 as a part of the U.S. government’s response to the  terrorist attacks on September 11, 2001, ICE’s primary mission is to  promote homeland security and public safety through the enforcement of  federal laws governing border control, customs, trade, and immigration.  ICE’s office of Homeland Security Investigations (HSI) investigates  immigration crime; human rights violations and human smuggling;  smuggling of narcotics, weapons, and other types of contraband; financial  crimes; cybercrime; and export enforcement issues. An important part of  ICE’s overall mission, drug-smuggling investigations, made up  approximately 22-24 percent— one of the largest investigative  categories—of ICE’s total reported investigative hours for fiscal years  2006-2009. Within HSI, the Narcotics and Contraband Smuggling Unit is  responsible for overseeing matters related to counternarcotics  investigations with a connection to the border, including the  implementation of the 2009 Agreement. ICE’s Office of Intelligence and  Analysis also has an important role in ensuring that counternarcotics  information is shared with the appropriate organizations. ICE has 26 field  offices in the United States headed by SACs who are responsible for the  administration and management of all investigative and enforcement  activities, including counternarcotics, within the geographic boundaries of  each office. (See fig.1.) Similar to DEA’s field office leadership, ICE also  has ASACs and Group Supervisors to assist with managing the SAC field  office and its smaller offices headed by a RAC.
Both the 1994 and 2009 Agreements contain key provisions defining  ICE’s authority to conduct counternarcotics investigations. ICE is  authorized to investigate all immigration and customs violations except  those involving narcotics; therefore, ICE has to request Title 21 authority  from DEA to investigate counternarcotics cases that have a connection to  a border or port of entry. In March 2009, we reported that DEA’s and  ICE’s cross-designation procedures under the 1994 Agreement were  problematic, due in part to misplaced cross-designation requests and the  cap set in conjunction with the 1994 Agreement limiting the number of  cross-designated agents to 1,475 agents. According to ICE  headquarters officials, this cap limited ICE’s ability to accomplish its  mission because agents who were not cross-designated could not pursue  border-related drug-smuggling investigations into the United States. We  recommended that the Attorney General and the Secretary of Homeland  Security develop a new agreement or other mechanism to, among other  things, provide efficient procedures for cross-designating ICE agents to  conduct counternarcotics investigations.
Aligned with our March 2009 report recommendation, the 2009  Agreement changed the process for cross-designating ICE agents with  Title 21 authority to investigate counternarcotics cases in that ICE can  now select an unlimited number of agents for cross-designation. In  addition, a consolidated list of prospective and approved ICE agents is  exchanged at the ICE Assistant Secretary and DEA Administrator levels  instead of by the field office SACs. The 2009 Agreement retained the  1994 Agreement’s provision requiring the DEA and ICE field office SACs  to designate an ASAC as the Title 21 Coordinator to manage Title 21  matters. According to ICE Narcotics and Contraband Smuggling Unit and  DEA Operations Management officials, the Title 21 Coordinators are to  process and review cross-designation requests at the field office level.
The 2009 Agreement also addressed our March 2009 recommendations  by specifying that ICE participate fully in and staff the Fusion Center and  the Special Operations Division. The Fusion Center is a Justice-led  interagency organization that collects and analyzes drug-trafficking and  related financial information and disseminates investigative leads. The  Special Operations Division is a DEA-led interagency organization  established to target the command and control capabilities of major drug- trafficking organizations.
The Agreement also requires ICE to:  commit fully to sharing all investigative reports and records from open  and closed investigations, including those related to drugs, money  laundering, bulk cash smuggling and financial crimes, gangs, and  weapons; and    provide and, in turn, have access to data related to all seizures of  money, drugs, and firearms, including date of seizure, type of  contraband, amount, place of seizure, and geographically based data,  when known, to the El Paso Intelligence Center (EPIC). This center  is a DEA-led tactical intelligence center that provides federal, state,  and local law enforcement agencies information they can use in  investigations and operations that target drug smuggling and other  criminal activities.
Additionally, the 2009 Agreement states that “ICE intends to participate  and share information to the same extent as other major federal partners  in the Fusion Center and Special Operations Division, to include sharing  information not yet entered into the shared databases.”
The 1994 and 2009 Agreements also address ICE’s (legacy Customs)  authority to pursue counternarcotics investigations. According to the 1994  Agreement, ICE’s (legacy Customs) drug-related investigations are  “restricted to individuals and organizations involved in the smuggling of  controlled substances across U.S. international borders or through Ports  of Entry.” In contrast, the 2009 Agreement provides that cross-designated  ICE agents will be authorized to investigate narcotics smuggling with a  clearly articulable nexus to the United States border or port of entry––only  illegal drug importation/exportation schemes, including the activities to  transport and stage the drugs within the United States or between the  source or destination country and the United States. The Agreement  states that an investigation does not have a nexus simply because at one  time the narcotics crossed the border or came through a port of entry.
The justification for a nexus also cannot be based solely on a buyer who  purchased drugs from a cross-border smuggler. In addition, unless  authorized as part of a task force or at the request of DEA, ICE agents  are not to investigate cases of solely domestic production, sale,  transportation, or shipment of narcotics.
As we reported in our 2009 report, collaboration and coordination  between the two agencies are important because of their overlapping  responsibilities and the need to operate across agencies while avoiding  duplicative investigations and more importantly, ensuring officer safety.  We found in the 2009 report that while senior DEA and ICE officials in  certain field offices had established positive working relationships, there  was a need to institutionalize consistent practices at all locations. Our  report also underscored that positive working relationships between DEA  and ICE counterparts did not exist at all locations, resulting in the  likelihood of duplication between agencies and incidents that could  threaten law enforcement officer safety. The 2009 Agreement addresses  how DEA and ICE are to work together to stop the flow of narcotics into  the United States by outlining both agencies’ cross-designation,  information-sharing, and deconfliction responsibilities.
section_title: DEA and ICE Have Taken Actions to Implement Cross- Designation, Information-Sharing, and Deconfliction Provisions of the 2009 Agreement
paragraphs: DEA and ICE have taken actions to implement the 2009 Agreement’s  provisions. The agencies have implemented the Agreement’s cross- designation provisions through a revised process that is more streamlined  and has resulted in enhanced flexibility in maximizing investigative  resources, according to ICE Narcotics and Contraband Smuggling Unit  officials. ICE has also implemented the Agreement’s Fusion Center and  Special Operations Division information-sharing provisions by sharing  required data with these organizations. Further, ICE is working to  complete the transfer of data to the El Paso Intelligence Center.  Additionally, DEA and ICE developed and implemented local deconfliction  protocols and used a variety of mechanisms to deconflict  counternarcotics investigations in accordance with the Agreement. DEA  and ICE headquarters and field office management officials interviewed  generally reported that the implementation of the Agreement and local  deconfliction protocols had generally improved deconfliction.
subsections: section_title: DEA and ICE Actions to Implement Cross- Designation Provisions Have Helped Maximize Investigative Resources
subsections: section_title: The Revised Cross-Designation Process
paragraphs: ICE took actions that fully implemented the cross-designation provisions  of the 2009 Agreement, which revised the cross-designation provisions  found in the 1994 Agreement, as illustrated in table 1.
Specifically, the 2009 Agreement changed the levels at which the  requests are processed and approved, from the field office SAC level to  the Assistant Secretary (ICE) and Administrator (DEA) level, which has  eliminated a step in ICE’s internal review of the requests. Additionally, to  comply with the provisions of the 2009 Agreement, ICE and DEA modified  the process for making and reviewing requests for cross-designating  agents by consolidating the requests into one updated list for approval  that ICE submits to DEA twice a year. Accordingly, DEA now provides  ICE with one memorandum approving the ICE agents listed for cross- designation authority. Previously, under the 1994 Agreement, ICE and  DEA exchanged individual requests and approvals.
The cross-designation process was also streamlined in other ways under  the 2009 Agreement, as depicted in figure 2. The ICE field offices submit  their cross-designation lists to ICE’s Narcotics and Contraband  Smuggling Unit and Assistant Secretary in headquarters for review. The  ICE Assistant Secretary provides this list to the DEA Administrator for  review. DEA Operations Management officials request that the DEA field  office SACs then review the list to ensure that the ICE agents listed have  counternarcotics duties, such as serving on task forces or other  interagency groups that investigate counternarcotics cases. Next, the  DEA field offices are to pass the reviewed list back to headquarters for  review and approval from DEA’s Administrator. DEA Operations  Management officials then provide the final list to ICE’s Narcotics and  Contraband Smuggling Unit. DEA approved approximately 3,100 ICE  agents for cross-designation authority following the implementation of the  2009 Agreement. According to DEA Operations Management officials,  this authority remained in effect until the next update in January 2011.  This number was more than double the number before the 2009  Agreement, and thus substantially increased investigative resources  available, as discussed further below.
Both senior ICE Narcotics and Contraband Smuggling Unit officials and  field management officials from two of the eight ICE offices we contacted  specifically cited the development of the new component for tracking  cross-designation requests as a benefit of the implementation of the 2009  Agreement because the lists can be updated in real time and kept  current. A senior official from the ICE Unit reported that the new system  is efficient and effective; however, ICE over the long term would like to  develop a system to keep records for cross-designation requests that is  searchable by agent name, among other items, and can accommodate  the entry of comments on the agents requesting this authority. More  importantly, according to these same officials, the type of system  envisioned would also allow ICE headquarters to develop an archive that  captures a record of the agents cross-designated during a specific time  frame, which will assist with internal audits. ICE Unit officials reported that  they have not yet developed this system due to resource constraints.
Both senior DEA and ICE headquarters’ officials stated that the 2009  Agreement’s cross-designation provisions are much less bureaucratic  and ICE officials report that the process has enhanced their flexibility in  using investigative resources. DEA Operations and Management officials  reported that the cross-designation process is more efficient since DEA  now reviews one consolidated list of agents instead of numerous  individual requests. ICE’s Deputy Director reported that implementing the  2009 Agreement’s cross-designation provision has been a major  improvement to the process conducted under the 1994 Agreement. An  official from the Unit explained that the previous cross-designation  process was cumbersome for ICE agents because the paperwork for  requesting Title 21 authority was complicated and time consuming.  Moreover, these same officials reported that the list of cross-designated  agents in each field office was continually out of date because the  approval process took a long time and there was no mechanism in place  to update the lists in real time.
Similarly, management officials from seven of the eight ICE field offices  we contacted also reported that the 2009 Agreement had somewhat to  greatly improved the cross-designation process. ICE officials from these  seven offices reported that in addition to the streamlined process, the lack  of a limit on the number of cross-designated agents permitted field offices  to increase the number of cross-designated agents available to  investigate counternarcotics cases. One office reported that it even  doubled its number of cross-designated agents. Moreover, the lack of a  cap on the number of cross-designated agents and the subsequent  increase has enhanced ICE’s allocation of investigative resources for  counternarcotics cases. In our prior work, ICE officials reported that the  cap limited ICE’s ability to accomplish its mission because agents who  were not cross-designated could not pursue border-related drug- smuggling investigations into the United States. For instance, one ICE  field office management official in a smaller interior office reported that  the former cap was difficult because this office had a limited number of  cross-designated agents and if one or two of these agents were out of the  office, he did not have cross-designated agents for investigating  counternarcotics cases. Similarly, another ICE field office management  official reported that the 2009 Agreement allowed his office to have a pool  of agents authorized to work counternarcotics investigations. Views from  DEA management officials from the offices we contacted were mixed  regarding the impact of the 2009 Agreement on the cross-designation  process. In four of the eight DEA field offices that we contacted,  management officials reported that the Agreement had neither improved  nor worsened the cross-designation process. Additionally, in two of the  eight DEA field offices, the management officials reported that the  Agreement had somewhat to greatly improved the process.
DEA and ICE also made revisions to the cross-designation process after  the 2009 Agreement was implemented to respond to concerns from both  agencies. Specifically, DEA and ICE were concerned with how to  accommodate cross-designation needs that occur between the reviews of  the master lists that occur every 2 years. ICE officials stated that they  would prefer that DEA review the cross-designation list every 90 days  instead of every 2 years to capture these out-of-cycle requests. According  to an official from ICE’s Narcotics and Contraband Smuggling Unit, the  ability of ICE to request cross-designation authority for agents more often  than every 2 years is important. An agent working a nonnarcotics  investigation, such as a bulk cash smuggling case, may over the course  of the investigation require Title 21 authority to continue to pursue the  narcotics component. Further, this official stated that the ability to more  frequently request cross-designation authority, or in emergency  situations, is particularly important for ICE’s smaller field offices, which  may only have one or two agents cross-designated but may need more  agents with this authority for a particular investigation.
Senior DEA Operations Management officials recognized that the  frequent movement of ICE agents among the field offices over the course  of 2 years justifies reviewing the master list more frequently. These  officials explained that the most recent master list from ICE, which DEA  reviewed, had more than 3,000 names. Reviewing updates to the list  twice a year, instead of a master list every 2 years will, according to these  officials, ease the review process for DEA because they will review a  smaller update and only make changes in their database for those agents  needing updates.
Negotiations regarding more frequent reviews concluded in 2010 and  resulted in specific guidance that:  ICE is to submit a master list of ICE agents requesting cross- designation authority to DEA every 2 years, but,  ICE is to also transmit updates to the master list to DEA by January 5  and June 5 of each year.    DEA is to notify ICE by January 20 and June 20 of the status of these  requests.
According to senior DEA officials, they notified ICE that several of the  agents listed on the first list ICE submitted in January 2011 as a result of  the negotiations were no longer with the corresponding office or agency.  ICE reevaluated the list and provided a revised master list to DEA, which  DEA reviewed for approval of cross-designation authority, and sent back  to ICE for revisions. As of June 30, 2011, ICE had finalized the list and  was preparing to send it to DEA. The negotiations also specified that the  cross-designation authority of the ICE agent is effective from the date  DEA notifies ICE’s Narcotics and Contraband Smuggling Unit of approval,  which addresses a concern raised by an ICE official from this unit  regarding ambiguity over the official date of effectiveness.
In addition, DEA and ICE also addressed the process for handling  emergency cross-designation requests that occur between the twice  yearly updates during these negotiations. If the need arises to  immediately cross-designate an ICE agent, due to developments in an  investigation or the reassignment of the agent, the ICE field office Title 21  Coordinator is to send an e-mail, including a justification and an  anticipated time limit for the request, to ICE’s Narcotics and Contraband  Smuggling Unit. DEA headquarters reviews the request, if possible, within  a few hours or days and, if justified, approves cross-designation authority  for a maximum of 60 days.
section_title: ICE Has Implemented the Majority of the Information-Sharing Provisions and Is in the Process of Completing the Last Provision by Transferring Data to the El Paso Intelligence Center
paragraphs: As we recommended in March 2009 and as required by the subsequent  2009 Agreement, ICE has implemented the information-sharing  provisions and is fully participating in DOJ’s Fusion Center and Special  Operations Division. ICE is also taking action to address the information- sharing provision regarding the sharing of drug seizure, currency, and  firearms data with the El Paso Intelligence Center. Table 2 shows the  specific information-sharing provisions of the 2009 Agreement and the  actions ICE has taken to become a full partner in these organizations.
Both senior DOJ Fusion Center and DEA Special Operations Division  officials reported that ICE is now a full partner in each of their respective  organizations. Senior Fusion Center officials reported that ICE completed  its data transfer ahead of schedule and is now sharing all required data  with DOJ’s Fusion Center. Senior DEA and Special Operations Division  officials reported that ICE’s information sharing with DOJ’s Division has  improved since the 2009 Agreement. These same officials reported that  ICE increased the number of records it provided to the Division by  approximately 51 percent from fiscal years 2009 through 2010.
Additionally, according to senior DEA and Division officials, ICE has filled  all of its fiscal year 2010 position vacancies and received six additional  positions for fiscal year 2011: three special agents and three intelligence  research analysts. ICE has filled three of these six positions and is in the  process of filling the remaining three vacancies.
ICE is taking steps to complete the implementation of the information- sharing provision in the 2009 Agreement regarding the sharing of  information, particularly drug seizure, currency, and firearms data, with  the El Paso Intelligence Center. However, ICE has not yet transferred all  of the data required by the provision to the Center. The Center depends  on data from its law enforcement partners for informing, coordinating, and  deconflicting counternarcotics investigations. A senior Homeland Security  Investigations official reported that ICE shares information with the Center  and has taken steps as described in table 2 to complete its  implementation of this provision.
According to El Paso Intelligence Center and ICE Homeland Security  Investigations officials, ICE is working with the Center to complete the  data transfer by fall 2011. ICE Homeland Security Investigations and  Center officials reported that ICE has provided over 5 million records to  the Center. Center officials requested that ICE provide additional follow- up data regarding Federal Drug Identification Numbers, which are unique  identification numbers that EPIC assigns to each drug seizure that meets  a certain threshold. According to Center officials, these data, which ICE  failed to provide in the past, will assist them with determining duplicative  records in the data set. ICE Homeland Security Investigations officials  reported that ICE has provided the Center with Federal Drug Identification  Number data from October 2000 to December 2010 and will include these  data with all future transfers.
Although the staffing of ICE personnel at the El Paso Intelligence Center  is not required by the 2009 Agreement, Center officials reported that ICE  has a total of 11 available positions at the Center. ICE filled 7 of these  positions but has 4 vacancies, 2 of which recently occurred under  emergency situations. Officials from ICE’s Office of Intelligence and  Analysis reported that these vacancies will be filled by the end of fiscal  year 2011.
section_title: DEA and ICE Have Implemented Deconfliction Provisions and Report That Overall Deconfliction Has Improved
subsections: section_title: DEA and ICE Have Developed Local Deconfliction Protocols
paragraphs: The 2009 Agreement established that ICE’s cross-designated agents  have the authority to investigate narcotics smuggling with a clearly  articulable nexus to the border, and states that deconfliction is paramount  and mandatory in investigations. Agencies deconflict to (1) ensure officer  safety and (2) prevent one agency’s law enforcement activity from  compromising the other agency’s ongoing investigation because agencies  invest extensive time and resources in sophisticated law enforcement  operations. Specifically, the 2009 Agreement set up a two-part  deconfliction process that required (1) ICE to notify DEA of all  counternarcotics investigations and DEA to notify ICE when DEA  uncovers nondrug violations that fall under ICE’s mission (e.g., alien  smuggling or human trafficking), and (2) DEA and ICE to use various  mechanisms to deconflict counternarcotics enforcement operations  locally, as appropriate. As part of deconfliction, the Agreement  encouraged DEA and ICE field offices to participate in joint investigations  and also set the expectation that operational deconfliction issues were to  be resolved at the lowest level of authority (i.e., Group Supervisor).  Additionally, the Agreement established a headquarters entity to resolve  those issues that could not be resolved in the field. Table 3 presents the  deconfliction provisions of the 2009 Agreement and summarizes the  actions ICE and DEA took to implement them.
After the Acting DEA Administrator and Assistant Secretary for ICE  signed the Interagency Agreement in June 2009, DEA and ICE  headquarters directed their respective field offices to develop local  deconfliction protocols to implement the Agreement. DEA and ICE  headquarters provided a template to be used by corresponding DEA and  ICE offices to develop their respective local protocol. The template sets  out general requirements for the Title 21 Coordinator position and  deconfliction of operational activities. As a result, SACs covering the 21  DEA and 26 ICE field offices signed 28 protocols in 2010. (See app. II.)
The local deconfliction protocols established specific policies applicable to  the geographic area (e.g., states) covered by the protocol. Each local  protocol described the process and mechanisms to be used for  notification and deconfliction, detailing the types of information to be  provided. The protocols also addressed particular issues or needs of the  local DEA and ICE offices. These topics included the identification of the  respective Title 21 coordinators; designation of points of contact in  addition to the ASAC/Title 21 Coordinator when the protocol covered a  large geographic area or multiple offices (e.g., protocols that included  more than one state); invitation to DEA to participate in ICE  counternarcotics investigations; participation in each others’ groups and  task forces within the geographic area; and the process for coordinating  investigative activities with other federal agencies, such as U.S. Customs  and Border Protection.
To implement the two-part deconfliction process established by the 2009  Agreement, DEA and ICE field offices we contacted reported using a  variety of mechanisms. First, to implement the notification provisions, the  eight DEA and eight ICE field offices reported using different  mechanisms, such as through a worksheet or e-mail. In addition to the  usual practice of deconflicting at the lowest levels, notification is to occur  through the Title 21 Coordinators, who are responsible for ensuring that  coordination and deconfliction take place. For example, ICE management  in one of the offices stated that its office completes a deconfliction  worksheet when it initiates a counternarcotics investigation or activity  (e.g., warrants, undercover operations, or a controlled delivery of drugs)  and sends the worksheet to the DEA Group Supervisor and DEA and ICE  Title 21 Coordinators. The worksheet provides information on the  investigation (e.g., the violation, suspect, and ICE office carrying out the  investigation, among other things). Using this information, DEA is to  determine (1) any overlap between this investigation and any of DEA’s  investigations and (2) whether or not DEA will provide assistance and, if  so, the type of assistance. DEA sends its response to the ICE Group  Supervisor and Title 21 Coordinator.
Second, DEA and ICE field offices also reported using a variety of  deconfliction mechanisms, including processing information through local  deconfliction center databases, sharing plans for conducting law  enforcement actions, and processing information through the Special  Operations Division database to deconflict operations and targets of  investigations. Because of differences in the availability of mechanisms,  DEA and ICE offices may use different mechanisms to deconflict law  enforcement actions. For example, DEA and ICE offices without access  to a local deconfliction center may share plans or communicate by  telephone to deconflict operations. Additionally, according to DEA and  ICE headquarters officials, because different databases contain different  information, DEA and ICE use different databases to deconflict (1) law  enforcement operations and (2) targets of investigations. For example,  to deconflict an operation (e.g., an arrest) to prevent potential “blue on  blue” situations, DEA and ICE offices may use the local High Intensity  Drug Trafficking Area (HIDTA) database to determine whether another  law enforcement agency is conducting an action at the same location or  vicinity. To deconflict the targets of an investigation, information may be  processed through the Special Operations Division to identify any  connections to another agency’s investigation (e.g., the same phone  number, name, or address).
Specifically, the protocols for the eight corresponding DEA and ICE field  offices that we contacted identified the local deconfliction center that was  to be used to deconflict counternarcotics investigations in the respective  area of operation. DEA and ICE field offices generally reported entering  information (e.g., names, phone numbers, addresses, or location of the  operation) into the local center’s database to identify other agencies’  operations that might conflict and lead to a “blue on blue” situation. In  instances of a potential conflict, the systems usually generate contact  information, notifying both agencies, so that the operations may be  deconflicted. However, within the geographic area encompassed under a  protocol, not all suboffices had access to a HIDTA database;  consequently, these offices relied on other mechanisms to deconflict. For  example, in a rural area or large state with a small population, an ICE  agent might contact the local DEA office by phone, and vice versa. Field  management or first-line supervisors in other ICE offices reported that  they deconflicted by providing DEA with plans for a law enforcement  activity. First-line supervisors in the eight DEA and eight ICE field offices  reported that deconfliction usually took place at the lowest level—agent to  agent, Group Supervisor to Group Supervisor, but no higher than the  ASAC/Title 21 Coordinator. Any problems in deconfliction were elevated  up the chain of command from the agent to the Group Supervisor, but  generally not beyond the ASAC, and rarely to the SAC.
In addition to the 2009 Agreement, DEA and ICE field office management  and first-line supervisors identified other factors, such as colocation and  task forces, that enhanced coordination and deconfliction between DEA  and ICE in the field offices. Appendix II provides information on other  factors that support deconfliction and incentives to pursue joint  investigations identified by the eight DEA and eight ICE field offices we  contacted.
Field management in the DEA and ICE offices we contacted generally  said that DEA and ICE had been taking actions to deconflict law  enforcement actions locally prior to the implementation of the 2009  Agreement and local protocols. However, management officials in 12 of  the 16 DEA and ICE offices also reported that the 2009 Agreement and  local deconfliction protocols had generally improved local deconfliction by  mandating deconfliction and as a result better ensuring officer safety and  maximizing resources.
Specifically, in all of the DEA offices, field management said that the 2009  Agreement and local protocols had somewhat improved or greatly  improved the deconfliction process, finding the mandatory deconfliction  provision to be helpful. They said that the process had improved  because the Agreement and local protocols (1) reminded ICE to notify  DEA of ICE counternarcotics investigations, (2) brought more attention to  the tools available for deconflicting DEA and ICE investigations, and (3)  mandated deconfliction, which resulted in agents following the  established policy. Moreover, among the eight DEA offices we contacted,  first-line supervisors in five offices generally reported that the  deconfliction process had somewhat improved and those in the remaining  three offices generally reported that it had neither improved nor  worsened. Specifically, supervisors from these three offices explained  that prior to the Agreement, relationships between DEA and ICE had  been good and such positive relationships continued.
Field management officials in four of eight ICE offices responded that the  2009 Agreement and local protocols had somewhat or greatly improved  the deconfliction process and officials from the remaining four offices  responded that it had neither improved nor worsened. Among the offices  reporting that the process had somewhat improved, officials from these  offices explained that the Agreement and local protocol had created a  common understanding between DEA and ICE as to what was expected  by way of deconfliction, rather than leaving deconfliction to agents’ good  will. Moreover, officials said that the Agreement and protocol had gone a  long way toward protecting officer safety by leaving little room for  interpretation about when and how DEA and ICE were to deconflict.  Among the ICE offices reporting that deconfliction had neither improved  nor worsened, they said that prior to the implementation of the Agreement  local DEA and ICE relationships had been good, local deconfliction  centers had been working well, or there were no local challenges. First- line supervisors in seven of eight ICE offices generally reported that the  deconfliction process had neither improved nor worsened.
section_title: DEA Notification to ICE and ICE Understanding of the Nexus to the Border
subsections: section_title: DEA Notification to ICE
paragraphs: Even with generally reported improvement in deconfliction between DEA  and ICE as a result of the two-part deconfliction process provided for in  the 2009 Agreement, ICE Narcotics and Contraband Unit officials saw the  need to expand notification by DEA into two areas not covered by the  Agreement. First, these officials said that DEA’s providing notification to  ICE of DEA counternarcotics investigations on the border would be  helpful. Similarly, ICE management officials and first-line supervisors in  three of the eight ICE field offices and supervisors in a fourth office  generally believed that DEA should notify ICE of counternarcotics  investigations that might overlap with an ICE investigation, such as those  along the border, to avoid possible “blue on blue” situations as well as  duplication of effort. For example, according to ICE management in one  office, ICE may be investigating an organization that is moving people  north or guns south across the southern border, while DEA is  investigating the drug-trafficking activities of the same organization.  Second, ICE Narcotics and Contraband Unit officials said that DEA  notification of ICE of DEA financial investigations of bulk cash also would  be helpful.
However, DEA headquarters officials believed that notification issues had  been resolved during the negotiation of the 2009 Agreement and  underscored that ICE officials had not raised these issues at the May 31,  2011, meeting of the HRT. Specifically, with regard to DEA notifying ICE  of DEA bulk cash investigations, DEA headquarters officials said that the  issue had been resolved during the negotiation of the 2009 Agreement.  They explained that, at that time, DEA and ICE officials had agreed not to  require DEA to notify ICE of DEA counternarcotics investigations  involving quantities of currency or currency equivalents (e.g., gold, natural  resources, real estate, precious gems), because it would be too  burdensome to DEA as most DEA counternarcotics investigations involve  drug proceeds., DEA headquarters officials said that it was not feasible  for DEA to notify ICE of every investigation involving drug proceeds, but  observed that the expansion of ICE’s bulk cash section at the El Paso  Intelligence Center and the information available through the section  might help to mitigate this situation.
ICE’s Office of Intelligence and Analysis officials told us that ICE’s Bulk  Cash Smuggling Center, located in Vermont, was working with the El  Paso Intelligence Center to establish a Bulk Cash Smuggling Center  Intake and Analysis Section at the El Paso Intelligence Center. These  officials and El Paso Intelligence Center officials said that as of June  2011, they were finalizing the protocols that will be used. Additionally,  ICE’s Assistant Director for Operations stated that the bulk cash section  at the El Paso Intelligence Center will help deconflict and share  information with state and local law enforcement and eventually provide a  useful repository of bulk cash information.
Furthermore, ICE’s Assistant Director for Operations stated that during  the HRT meeting, ICE did not raise the issue of DEA notifying ICE of DEA  counternarcotics investigations, specifically those involving currency or  currency equivalents. According to this official, ICE management has  evaluated this issue and concluded that such notification was not  necessary so long as DEA agents use the local deconfliction centers and  ICE agents continue to communicate with DEA locally. She said that the  existing and newly established deconfliction mechanisms are sufficient to  provide notification. ICE’s Assistant Director for Operations also said that  all SACs are aware that ICE is proceeding with the implementation of the  2009 Agreement and at the next leadership conference, ICE  headquarters will reaffirm this message. DEA and ICE agreed that no  modifications to the Agreement will be pursued at this time and issues  raised by either agency will be resolved as their relationship develops.  She further stated that if deconfliction mechanisms are found to be  insufficient in the future, ICE would pursue discussions with DEA  regarding notification.
According to our March 2009 report, lack of parameters for what  constitutes a border or port-of-entry smuggling operation hindered  collaboration between DEA and ICE. The 2009 Agreement sought to  clarify the parameters of ICE’s Title 21 authority and what constitutes a  clearly articulable nexus to the border by specifying that an investigation  does not have a nexus simply because at one time the narcotics crossed  the border or came through a port of entry or solely because a buyer  purchased drugs from a cross-border smuggler.
Regarding the extent to which the Agreement affected the understanding  of the nexus to the border among DEA and ICE agents, the DEA and ICE  offices we contacted varied in their responses. Specifically, field  management from five of eight DEA offices reported that the  understanding had somewhat or greatly improved, and in the remaining  offices, officials from two reported that the understanding neither  improved nor worsened and one reported it somewhat worsened. For  example, officials in one of the five DEA offices explained that the  determination of the nexus begins with ICE providing DEA with a plan for  an operation, which prompts discussions between DEA and ICE agents  and first-line supervisors regarding ICE’s role in the investigations. These  officials reported that in their respective areas of operation, they had no  issues in determining nexus. In the one DEA office, officials—both  management and first-line supervisors—reported that the understanding  of the nexus had somewhat worsened because of the way in which their  ICE counterparts were interpreting the nexus, despite its being defined in  the Agreement. (See below.) In contrast, ICE management in all eight of  the offices contacted responded that the understanding of the nexus had  neither improved nor worsened. However, the explanation for the  responses varied, including (1) the 2009 Agreement had not changed the  meaning of the nexus; (2) the nexus is determined on a case-by-case  basis; (3) the local DEA office had never raised questions about ICE’s  determination of a nexus or, if it did, the DEA and ICE Group Supervisors  or Title 21 Coordinators resolved the issue quickly. In terms of first-line  supervisors, all ICE and five of eight DEA offices generally reported that  the Agreement and local protocols had neither improved nor worsened  the understanding of the nexus to the border. The supervisors in the  remaining three DEA offices generally reported that the understanding of  nexus had improved.
Although DEA and ICE officials said there was a general understanding of  the nexus, officials from DEA and ICE field offices identified two issues  that still posed issues to agents determining nexus to the border in some  offices. First, field management in three of the eight DEA offices, as well  as first-line supervisors in two of eight offices, for a total of four DEA  offices, said they were confused about the corresponding ICE office’s  interpretation of the nexus in some cases. They raised the concern that  ICE agents were not following the Agreement by stating that a particular  investigation has a nexus to the border because “all drugs come across  the border,” thereby allowing ICE to pursue the investigation. The  continued misunderstanding of the nexus was underscored when an ICE  Group Supervisor from one of the corresponding ICE offices explained to  us that it was easy to articulate a nexus to the border and justify ICE’s  pursuing a counternarcotics investigation, because cocaine, marijuana,  and heroin are not grown in the United States but come from across the  border. However, other ICE supervisors participating in the interview said  that solely the fact that drugs come over the border was not adequate  justification to show a nexus, but other factors, such as the individual’s  involvement in an international trafficking organization, had to be  considered. Similarly, an ICE headquarters Narcotics and Contraband  Smuggling Unit official said that ICE’s counternarcotics investigations are  to involve the staging, transporting, importing, or exporting of drugs and  the argument that all drugs cross the border was not sufficient to show  the nexus for such an investigation.
Second, first-line supervisors in two of eight ICE offices said that the  involvement of foreign nationals in drug trafficking should be justification  for ICE to pursue a counternarcotics investigation in light of ICE’s  immigration responsibilities. However, field management in the  corresponding DEA offices raised the concern that this interpretation of  the nexus led to ICE’s investigation of domestic drug cases (e.g., alien  criminal gangs selling drugs retail within the United States), which is not  in compliance with the Agreement. ICE headquarters Narcotics and  Contraband Smuggling Unit officials told us that for ICE to be able to  pursue a Title 21 counternarcotics investigation, it was not sufficient that  criminal aliens were selling drugs; the criminal aliens had to be involved in  staging or smuggling drugs. If the drug activity is domestic, then ICE is to  turn the investigation over to DEA.
Both DEA and ICE headquarters officials said that issues related to nexus  were generally being handled by field office managers at the local level.  ICE’s Assistant Director for Operations said that the nexus issue (1) had  not been elevated to her level within ICE and (2) DEA had not raised it at  the HRT. This official said that she spoke with the SACs regularly and  they had raised the nexus issue in very few circumstances. She explained  that nexus issues associated with a specific case are resolved at the local  level. Similarly, ICE headquarters HSI officials said that resolving nexus  issues between DEA and ICE is a local leadership issue, not a matter for  ICE headquarters. Furthermore, they said it was not possible to craft  guidance that specifically defines what a nexus is and lays out what DEA  and ICE investigates. At headquarters, DEA senior officials said that they  believed that ICE headquarters officials understood the meaning of a  “clearly articulable nexus to the border” and corresponding DEA and ICE  field offices were generally not experiencing issues, although individual  ICE agents may misinterpret the nexus to pursue a particular  investigation. These officials said that if ICE follows the language in the  2009 Agreement, there is no problem.
section_title: DEA and ICE Have Primarily Used Established Processes to Monitor the Agreement, and the Headquarters Review Team Did Not Identify Any Systemic Issues
paragraphs: According to DEA and ICE officials, the agencies have each primarily  used established processes to monitor the implementation of the 2009  Agreement. DEA and ICE conducted ongoing monitoring of  implementation and did not identify any systemic implementation issues.  According to DEA and ICE headquarters officials, the May 2011 meeting  of the HRT constituted a review of the 2009 Agreement and affirmed that  there were no overarching or systemic issues of coordination or  deconfliction requiring headquarters-level intervention.
DEA and ICE headquarters officials told us that during the first year of the  2009 Agreement they conducted ongoing monitoring through agency  management and supervisory activities, as well as through other  oversight mechanisms (e.g., e-mails and phone calls) to identify any  systemic implementation issues. Such ongoing monitoring is consistent  with internal control standards, which call for ongoing monitoring to occur  in the course of normal operations (i.e., regular management and  supervisory activities).
Specifically, DEA headquarters officials told us that they had continuously  monitored the implementation of the 2009 Agreement during the first year  of implementation because they found this approach to be advantageous.  To ensure that the 2009 Agreement was being properly implemented,  monitoring was conducted at various levels of DEA. According to DEA  headquarters officials, the DEA Administrator and ICE’s Assistant  Secretary met regularly, as did the DEA and ICE Deputy Chiefs of  Operations. DEA headquarters routinely coordinated with field offices,  as well as ICE headquarters, to ascertain how the Agreement was  working in the field. DEA’s Deputy Operations Chief spoke with the SACs  on a regular basis to help monitor implementation of the Agreement.  Similarly, ICE’s Deputy Director said that monitoring activities occurred  both internal to ICE and in conjunction with DEA. For instance, both ICE  headquarters and field management said that they discussed the  implementation of the 2009 Agreement with their DEA counterparts and  the DEA and ICE Title 21 ASACs held regular meetings. Additionally, ICE  headquarters’ Narcotics and Contraband Smuggling Unit established a  Title 21 e-mail box to solicit feedback from the field offices on the  implementation of the 2009 Agreement, but as of June 2011, the Unit  Chief said that he had not received any systemic complaints through this  mechanism.
DEA and ICE field office management and first-line supervisors in the 16  offices said that the usual mechanism for providing feedback on field  issues is through the supervisory chain of command––agent to Group  Supervisor to ASAC to SAC. DEA and ICE first-line supervisors said that  they usually resolved issues at the case agent, Group Supervisor, and  ASAC levels, but infrequently elevated them to the SAC level because  they were usually able to resolve them at the lower levels. In the 16  offices, supervisors said that they would use the chain of command to  raise issues or provide feedback. For example, if their agents raised  issues regarding the 2009 Agreement, they would provide this feedback  to their appointed Title 21 Coordinator. Similarly, DEA and ICE ASACs  reported using their chain of command to report any issues with the 2009  Agreement and Title 21 matters. Field management officials in the 8 ICE  offices reported being asked by ICE headquarters whether they had any  problems or issues regarding the implementation of the Agreement. In the  8 DEA offices, field management officials said that issues with the  Agreement would be passed to DEA headquarters through the chain of  command.
DEA and ICE headquarters officials said that, as of June 2011, the  agencies had not identified any problems affecting the implementation of  the 2009 Agreement which could not be addressed through the chain of  command. With the exception of the issues leading to the modification of  the procedures for updating the cross-designation list, previously  discussed, DEA and ICE headquarters and field office officials  interviewed reported that no issues affecting the implementation of the  2009 Agreement had been raised through its monitoring mechanisms.  Additionally, they said that no issues had been raised that required the  intervention of the HRT to resolve. DEA and ICE field management and  first-line supervisors in all 16 of the offices we contacted reported that  they had provided no substantial feedback on concerns regarding the  2009 Agreement to their respective headquarters. Moreover, field  management in 7 of the 8 DEA field offices and 5 of the 8 ICE field offices  specifically stated that they had not forwarded any issues up the chain of  command.
Our review substantiated two issues that were raised through the chain of  command and were resolved without convening the HRT. The first, as  previously discussed, was that DEA and ICE negotiated and agreed to  modifications to the process for cross-designating ICE agents established  under the 2009 Agreement. The second issue involved DEA field office  concerns regarding what they believed to be an expansion of ICE’s role in  investigating drug-related bulk cash cases at international airports (e.g.,  following the cash on flights within the United States and beyond the  border), which had been raised through the DEA chain of command. The  DEA Deputy Operations Chief confirmed that he had received phone calls  from DEA field offices regarding this matter, discussed the issue with his  ICE counterpart, and identified the source of the confusion to be an ICE  draft policy that several ICE field offices had implemented. After resolving  the issue with ICE headquarters, he said that he contacted the DEA  offices involved and provided the correct information. He said that DEA  field management in the offices that had raised the issue then worked  with their ICE counterparts to resolve the issue locally.
However, as previously discussed, DEA and ICE field management and  first-line supervisors identified two issues that continued after the  implementation of the Agreement and had not been resolved through  existing mechanisms. First, management and first-line supervisors in  three of the eight ICE field offices and first-line supervisors in a fourth  office generally believed that DEA should notify ICE of DEA  counternarcotics investigations that might overlap with an ICE  investigation, such as those along the border, and investigations involving  bulk cash. As previously discussed, DEA believed that the notification  issue had been resolved during the negotiation of the Agreement and  noted that ICE had not raised the issue at the HRT. ICE’s Assistant  Director for Operations confirmed that ICE did not raise the notification  issue having concluded that such notification was not necessary so long  as DEA agents use the local deconfliction centers and ICE agents  continue to communicate with DEA locally. She said that the existing and  newly established deconfliction mechanisms are sufficient to provide  notification.
Second, management or first-line supervisors in four of eight DEA field  offices said that ICE agents in their area continued to experience  challenges regarding the determination of a nexus to the border. DEA  and ICE headquarters officials believed that the Agreement clearly  defined what constituted a nexus to the border. Specifically, these DEA  officials said that if ICE follows the language in the 2009 Agreement,  there is no problem that could not be resolved in the field. ICE’s Assistant  Director for Operations said that the nexus issue (1) had not been  elevated to her level within ICE and (2) DEA had not raised it at the HRT.  This official explained that nexus issues associated with specific cases  are resolved in the field.
In May 2011, subsequent to our interviews, ICE headquarters sent out an  11-question survey seeking input from ICE field office SACs as well as  ICE Attachés, assigned to international offices, in an effort to measure the  effectiveness of the Agreement. The survey questions addressed the four  core areas of the Agreement: information sharing between ICE and DEA;  ICE Title 21 authority; Title 21 deconfliction and operational coordination;  and foreign investigations. Respondents were asked to answer the  questions using a 5-point scale from strongly agree to strongly disagree  and provide a brief statement and specific examples, if possible, if they  responded disagreed or strongly disagreed. ICE’s Deputy Director told  us that such a survey could be helpful in determining how well the  Agreement was working in field offices, especially before a meeting of the  HRT.
According to ICE, the SACs surveyed generally reported that the 2009  Agreement had helped to define and streamline the cross-designation  process, but the effect of the Agreement on deconfliction between DEA  and ICE was negligible because local protocols existed prior to the  implementation of the Agreement. Additionally, while all SACs reported  that the Agreement had formalized the information-sharing process, some  SACs expressed frustration over DEA not having to share information  with ICE to the same extent as ICE was required to share information with  DEA. That is, according to ICE’s Assistant Director for Operations, the  survey identified the same issue raised during our ICE field office  interviews, as previously discussed––DEA providing notification to ICE of  DEA counternarcotics investigations that might overlap with an ICE  investigation, such as those along the border, and investigations involving  bulk cash. However, according to ICE, the purpose of the Agreement was  to delegate DEA’s Title 21 enforcement authorities to ICE, which requires  information sharing on ICE’s behalf, not to address overall information  sharing between DEA and ICE. Furthermore ICE’s Assistant Director for  Operations told us that ICE leadership did not believe that the issue was  pervasive enough to change the provisions of the 2009 Agreement and  ICE headquarters will communicate this position at its next leadership  conference. Additionally, this official said that respondents did not raise  any issues regarding the interpretation of the nexus to the border.  Similarly, ICE managers we interviewed did not identify issues regarding  the interpretation of the nexus, although our review identified DEA field  office concerns about ICE’s interpretation of the nexus in some cases.
In our March 2009 report, we recommended that the Attorney General  and the Secretary of Homeland Security develop processes for  periodically monitoring the implementation of the new MOU or other  mechanism to be established between DEA and ICE, and make any  needed adjustments. The 2009 Agreement provides for monitoring  through the HRT, which is to periodically review the performance of the  Agreement. The Agreement called for the HRT to review the performance  of the Agreement after 1 year and then every 2 years, or at any time,  upon a written request by either DEA or ICE. The reviews are to be the  joint responsibility of the DEA Chief of Operations and ICE Director of  Investigations, or their designees, and both DEA and ICE are to  cooperate in resolving any issues and executing any necessary or  appropriate modifications to the 2009 Agreement. Monitoring through the  HRT is consistent with internal control standards, which state that  separate evaluations of control, in addition to ongoing monitoring, can  also be useful, but their scope and frequency should depend primarily on  the assessment of risks and the effectiveness of ongoing monitoring  procedures.
According to DEA and ICE headquarters officials, the HRT convened on  May 31, 2011. ICE officials said that DEA and ICE met at that time  because it was one of the first available dates the senior level officials  from both agencies had sufficient time in their schedules to convene an  HRT. Up to that time no deconfliction or coordination issues requiring the  HRT to intervene had been raised. The HRT meeting affirmed that there  were no overarching or systemic issues of coordination or deconfliction  which would require headquarters-level resolution. DEA and ICE agreed  to keep the lines of communication open between them to promptly  resolve any systemic issues which could not be reconciled at the lowest  possible level. Additionally, the HRT meeting also constituted a review of  the 2009 Agreement. The participants agreed that future reviews would  be conducted in accordance with the time line outlined in the Agreement.  Accordingly, the next review is to occur in 2013, provided there are no  requests from either agency to conduct a review in the interim.
section_title: Agency Comments and Our Evaluation
paragraphs: We requested comments on a draft of this report from DOJ and DHS.  DOJ did not provide official written comments to include in our report.  However, in an e-mail received on July 19, 2011, the DEA liaison stated  that DEA appreciated the opportunity for review and comment on the draft  report and DEA had no further comments. DEA provided written technical  comments, which we incorporated as appropriate. We received written  comments from DHS on the draft report, which are reproduced in full in  appendix IV. DHS thanked GAO for the opportunity to review and  comment on the draft report and stated its appreciation for GAO’s work in  planning and conducting its review and issuing the report. DHS further  noted the report’s positive acknowledgment that ICE and DEA have taken  actions to enhance interagency collaboration in combating narcotics  trafficking, and that these actions have, in part, helped maximize  resources available to conduct counternarcotics investigations.  Additionally, ICE provided written technical comments, which we  incorporated as appropriate.
We are sending copies of this report to the Attorney General and  Secretary of Homeland Security. The report is also available at no charge  on GAO’s Web site at http://www.gao.gov. If you or your staff have any  questions concerning this report, please contact Eileen Larence at (202)  512-6510 or by e-mail at larencee@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made major contributions to  this report are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our overall objective was to assess the status of the implementation of  the 2009 Interagency Cooperation Agreement (2009 Agreement) between  the Drug Enforcement Administration (DEA) and Immigration and  Customs Enforcement (ICE) on counternarcotics investigations. This  report addresses the following questions:  1.  To what extent have DEA and ICE taken actions in their respective  domestic offices to implement the provisions of the 2009 Agreement  addressing the cross-designation of ICE agents to pursue  counternarcotics investigations, information sharing, and deconfliction  of counternarcotics investigations?  2.  To what extent have DEA and ICE taken actions to monitor the  implementation of the 2009 Agreement in their respective domestic  offices, and make needed adjustments?
To assess the extent to which DEA and ICE have taken actions to  implement the cross-designation, information-sharing, and deconfliction  provisions of the 2009 Agreement, we analyzed documentary and  testimonial evidence from DEA and ICE officials responsible for  negotiating and implementing the Agreement. Specifically, we analyzed  the 2009 Agreement to determine how it establishes policies and  procedures for cross-designating ICE agents to conduct counternarcotics  investigations, provides for the sharing of information pertinent to  counternarcotics investigations, and addresses deconfliction and  coordination between DEA and ICE on counternarcotics investigations.  As agreed with your offices, we did not analyze the international  provisions of the 2009 Agreement because these provisions pose unique  sensitivity and law enforcement issues depending on the country or  region involved. We also compared and contrasted the provisions of the  2009 Agreement with the prior 1994 DEA and U.S. Customs Service  interagency agreement to determine similarities and differences in their  provisions and assess how the 2009 Agreement addresses the pertinent  recommendations in our March 2009 report. Additionally, we analyzed  related interagency agreements (e.g., the August 2009 Agreement  between the Organized Crime Drug Enforcement Task Force (OCDETF)  and ICE) augmenting the provisions of the 2009 Agreement to determine  the extent to which DEA and ICE are to coordinate and share  information. Additionally, we interviewed DEA and ICE headquarters  officials responsible for negotiating the 2009 Agreement to determine the  priorities of each agency, issues on which the agencies differed, how  officials negotiated and resolved these differences, and any remaining  challenges.
Furthermore, we analyzed relevant DEA and ICE headquarters  documentation used to disseminate information on the provisions in the  2009 Agreement to DEA and ICE field offices, including directives to field  offices describing actions to be taken to implement the Agreement,  guidance for developing and establishing local deconfliction protocols,  and policies and procedures to implement the provisions for cross- designating ICE agents to conduct counternarcotics investigations.  Additionally, we compared and contrasted the cross-designation,  information-sharing, and deconfliction provisions of the Agreement with  the actions taken by DEA and ICE to implement these provisions to  determine the extent the agencies had implemented the Agreement in  these three areas. Two GAO analysts independently reviewed the  information on actions DEA and ICE took related to each provision to  determine the extent to which they were addressed and compared their  results. No differences occurred between these analysts’ assessments.  Specifically, we determined whether these actions were (1) fully  implemented––met all provision requirements; (2) partially implemented– –met some but not all provision requirements (i.e., actions were taken,  but further actions were necessary to complete the implementation of the  provisions); or (3) not implemented—had not implemented any of the  provisions of the Agreement.
In addition, to obtain a field perspective on the provisions of the 2009  Agreement and its implementation, we conducted telephone interviews in  DEA and ICE field offices with two separate groups––(1) field  management and (2) first-line supervisors in selected offices. Specifically,  we interviewed    Management-level officials, including the Special Agent in Charge  (SAC) and Assistant Special Agents in Charge (ASAC), particularly  those ASACs assigned by their respective DEA or ICE offices to serve  as Title 21 coordinators, who are to ensure cooperation,  communication, coordination, and deconfliction in Title 21 matters  affecting their respective offices; and    First-line supervisors, including Resident Agents in Charge (RAC) and  Group Supervisors, who are responsible for supervising agents, have  experience coordinating with their DEA or ICE counterparts on drug  investigations, and are located in the areas covered by the protocol.
To make our selection of DEA and ICE offices, we analyzed the total 28  local deconfliction protocols, developed per the 2009 Agreement, to  identify the corresponding DEA (21) and ICE (26) domestic field offices  responsible for implementing each protocol. We selected 8 DEA and 8  ICE offices, responsible for implementing the same protocol. To make our  selection we used the following criteria: geographic dispersion (e.g.,  northern border, southern border, and interior); the number and  proportion of ICE agents cross-designated to conduct counternarcotics  investigations; unique provisions in the local deconfliction protocols,  which vary from the template DEA and ICE headquarters distributed to  the field offices; metropolitan areas most often identified as originating  and receiving drug shipments by the Department of Justice’s 2010  National Drug Threat Assessment; and sites recommended by DEA or  ICE headquarters officials to illustrate different enforcement situations  that could affect implementation of the Agreement. The 8 corresponding  offices we selected were: San Diego, California; Houston/San Antonio,  Texas; Miami, Florida; Seattle, Washington; New York City/Buffalo, New  York; Detroit, Michigan; Atlanta, Georgia; and St. Louis, Missouri/St. Paul,  Minnesota. Table 4 shows the area covered by the eight protocols and  the corresponding DEA and ICE offices responsible for implementing  each of these protocols.
During these interviews, we discussed the actions taken by the field  offices to implement the 2009 Agreement; field perspectives on how the  Agreement was working (e.g., the extent to which the Agreement  addressed problems; if it did, how was this done; and, if not, any possible  solutions); implementation of local deconfliction protocols (e.g., the extent  to which they addressed problems; if they did, how was this done; and, if  not, any possible solutions); benefits and challenges of the 2009  Agreement; and any remaining challenges and possible solutions. We  analyzed the information obtained through the interviews and  summarized the views of each group. For each field site, we compared  and contrasted the perspectives of DEA and ICE interviewees to identify  similarities and differences in their views. We compared and contrasted  headquarters officials’ views as they relate to field officials’ views. We  analyzed the actions taken using the 2009 Agreement. Additionally, we  analyzed whether each agency’s measures for assessing performance  support participation in interagency investigations. (See app. II.)
Furthermore, we asked officials in DEA and ICE field offices about their  perceptions of any changes that had occurred due to implementation of  the 2009 Agreement. However, we were not able to assess whether  changes have actually occurred because there were no defined  measures to demonstrate change and no quantitative data from the  period prior to the Agreement against which to assess any changes even  if measures had been identified.
Because we conducted group interviews and did not select the field  offices randomly, our results are not generalizable to all DEA and ICE  field offices nationwide. However, this information allowed us to provide  perspectives about the implementation of the 2009 Agreement and  illustrative examples of what is and is not working well.
To assess the extent to which DEA and ICE have taken actions to  monitor the implementation of the 2009 Agreement in domestic offices  and make any needed adjustments, we analyzed the 2009 Agreement to  identify actions to be taken to monitor its implementation and any  documentation, such as guidance or communications to the field from  DEA and ICE headquarters describing how the implementation of the  Agreement has been monitored and any mechanisms in place to obtain  information on how the Agreement is working in the field. We compared  and contrasted any actions taken to implement the monitoring of the  Agreement with internal control standards in the federal government and  the monitoring process described in the 2009 Agreement.
In addition, we interviewed DEA and ICE headquarters officials to  ascertain actions taken to monitor and obtain feedback from the field on  the implementation of the 2009 Agreement and identify any adjustments  made based on the results of the monitoring process. Also, in our  interviews of DEA and ICE management officials and first-line supervisors  in selected offices, we asked about any actions taken to monitor the  implementation of the Agreement in their offices, as well as mechanisms  available to the field to provide feedback to headquarters on how the  2009 Agreement is working. Information from the interviews is not  generalizable to all DEA and ICE field offices nationwide, but provided  illustrative examples of these efforts.
We conducted this performance audit from September 2010 through July  2011 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: Local Deconfliction Protocols, Deconfliction Mechanisms, Additional Factors Affecting Deconfliction, and Incentives for Joint Investigations
paragraphs: After the Acting DEA Administrator and Assistant Secretary for ICE  signed the Interagency Agreement in June 2009, DEA and ICE  headquarters directed their respective field offices to develop local  deconfliction protocols to implement the Agreement. As a result, SACs  covering the 21 DEA and 26 ICE field offices signed 28 protocols in 2010.  Table 5 presents the area covered by each of the 28 protocols and the  respective DEA and ICE office of the SAC who signed the protocol.
DEA and ICE field office management and first-line supervisors also  identified factors in addition to the mechanisms enumerated in the 2009  Agreement, which enhanced deconfliction between DEA and ICE in the  field, under the 2009 Agreement. DEA and ICE field management and  first-line supervisors interviewed generally believed that colocation of  DEA and ICE agents in each others’ offices or on strike forces and task  forces enhanced coordination, deconfliction, and information sharing  because colocation facilitated interaction between DEA and ICE agents  and enabled them to obtain information from the other agency’s data  systems. For example, a colocated ICE agent could ask a DEA  counterpart to check information through DEA’s Analysis and Response  Tracking System (DARTS) or a DEA agent could ask the ICE agent to  check information in ICE’s TECS system. Agents on task forces may  have direct access to other agencies’ data systems. For example, an ICE  agent on a DEA task force may have access to DARTS. DEA and ICE  agents also continue to use personal contacts and relationships to  deconflict in addition to or as an alternative when, for example, no HIDTA  is located in the area.
According to ICE headquarters officials, ICE is also providing its agents  access to additional tools to enable them to deconflict investigations with  DEA. For example, the ICE headquarters Law Enforcement Support and  Information Management unit deployed a Web-based deconfliction tool  that allows ICE agents to deconflict ICE subject information with DEA  subject information. Additionally, ICE is in the process of providing its  agents with access to DEA’s Internet Connectivity Endeavor (DICE).  DICE is hosted on the internet for state, local, and other federal law  enforcement personnel who do not have access to the DARTS  application. ICE headquarters officials told us that ICE is taking actions to  have DICE on line and operating well in all SAC offices by November  2011, including providing proper training to enable agents to use the  system properly. Through DICE, ICE agents will have the same access to  nationwide information on all crimes, as state, local, and other federal law  enforcement personnel who do not have access to the DEA’s DARTS  application.
subsections: section_title: Incentives for Joint Investigations
paragraphs: The 2009 Agreement also encourages joint investigations. ICE  headquarters officials said that the primary incentive for conducting joint  investigations is the ability to harness and merge the capabilities of both  agencies and maximize all information. DEA headquarters officials cited  the necessity of working joint investigations as the primary incentive for  encouraging agents to participate in these types of investigations.
DEA and ICE personnel at all levels reported that the following incentives  are used to encourage joint investigations:  Jointly working drug investigations, particularly for smaller offices,  maximizes limited resources.    Working joint investigations is essential to their job duties, as a matter  of course, particularly for larger, busier offices.    Similarly, some offices reported that they have a strike force  environment, which requires agents to work joint investigations or are  involved in task forces that provide opportunities for joint  investigations. For example, agents from both DEA and ICE are  encouraged to work Organized Crime Drug Enforcement Task Force  (OCDETF) cases, which are major joint investigations that involve  multiple agencies. DEA and ICE field officials cited the success of  OCDETF investigations, as an incentive for agents to work joint  OCDETF cases.    We reviewed DEA and ICE performance standards and identified  measures for encouraging joint investigations and ensuring the  success of drug investigations. Specifically, DEA’s performance  elements included working relationships, which was defined as  assisting others and building partnerships, including resolving past  issues that may interfere with current or future partnerships, and  working cooperatively with appropriate DEA groups and offices, other  DEA divisions, federal, state, local, and international agencies. One of  ICE’s core competencies is team work and cooperation, which  encompassed (1) building effective partnerships that facilitate working  across boundaries, groups, or organizations and (2) working  constructively with others to reach mutually acceptable agreements to  resolve conflicts.    Drug seizure statistics as well as the overall complexity and success  of the investigation undertaken are used to evaluate field offices and  agents.
section_title: Appendix III: Training on the 2009 Agreement and Local Deconfliction Protocols
paragraphs: According to DEA and ICE officials, the agencies have each primarily  used established processes to disseminate information about the 2009  Agreement. Additionally, the agencies incorporated information on the  Agreement into existing agent training and manuals.
subsections: section_title: DEA and ICE Disseminated Information on the 2009 Agreement
paragraphs: After the signing of the 2009 Agreement, DEA and ICE headquarters  disseminated information about the Agreement through their respective  chains of command, communicated with field management about its  provisions, and directed the SACs in corresponding DEA and ICE field  offices to develop local deconfliction protocols to implement the  Agreement, as previously discussed. DEA and ICE ASACs, RACs, and  first-line supervisors in the 16 field offices we contacted confirmed that  their respective SACs had conveyed the information about the 2009  Agreement and the local deconfliction protocols through the field chain of  command. Specifically, DEA and ICE SACs reported discussing the  Agreement with ASACs, RACS, and Group Supervisors through  teleconferences, staff meetings, and management conferences. Field  office management also reported disseminating guidance to first-line  supervisors––RACs and Group Supervisors. DEA and ICE first-line  supervisors we interviewed generally reported that after receiving  information on the Agreement and local deconfliction protocols, they  discussed the implementation of the Agreement and protocol with their  respective groups of agents.
section_title: DEA and ICE Incorporated Information on the 2009 Agreement into Existing Agent Training and Manuals
paragraphs: We also reviewed the extent to which the agencies provided training on  the Agreement and protocols. DEA and ICE headquarters officials said  that the agencies did not provide specific training on the 2009 Agreement  to the respective field management and agents, because the agencies  determined that such training was not needed as the Agreement did not  change agents’ counternarcotics investigative duties or practices.  However, according to these DEA officials, DEA agent basic training  covered the topics addressed by the 2009 Agreement, such as defining  the difference between a domestic and international conspiracy, which  addresses the determination of a nexus to the border. Additionally, DEA  updated its agent manual in September 2009. The manual stated that the  DEA liaison with ICE was to be governed by the June 18, 2009,  Agreement and incorporated a copy of the entire Agreement. As a result,  a DEA headquarters Operations official believed that extra or special  training for implementing the 2009 Agreement was not necessary  because within DEA there was a clear understanding of the  implementation of the 2009 Agreement. In particular, the Title 21  Coordinators, who were charged with managing the implementation of the  2009 Agreement at the field level, understood the Agreement and were  expected to disseminate the information to their agents.
Similarly, ICE headquarters officials said that ICE agents needed no  special training about the 2009 Agreement because it, along with the local  deconfliction protocols, set out in writing what agents were already doing  in the field (e.g., deconflicting investigations with DEA). An ICE  headquarters Narcotics and Contraband Smuggling Unit official reported  that the 2009 Agreement was introduced in basic training to the agents  who receive training on drug investigations. He said that ICE  headquarters had not provided any additional guidance or training to ICE  field offices regarding the implementation of the 2009 Agreement or the  local deconfliction protocols because counternarcotics is part of ICE’s  core mission and the 2009 Agreement did not change what ICE  headquarters or field offices did to fulfill that mission. Furthermore,  according to this official, ICE plans to update its Drug Smuggling  Handbook once the protocols for internationally controlled deliveries and  adjustments to the cross-designation process are finalized, making all  revisions at one time rather than multiple minor updates.
Additionally, DEA and ICE field management said that DEA and ICE  agents did not need additional training because Group Supervisors were  already deconflicting, had good relationships with their counterparts, were  colocated, and served on joint task forces. Both DEA and ICE first-line  supervisors also told us that senior agents explained the local  deconfliction protocols to new agents in the office.
section_title: Appendix IV: Department of Homeland Security Agency Comments
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Acknowledgments
paragraphs: In addition to the contact name above, Leyla Kazaz and Mary Catherine  Hult managed this assignment. Robin D. Nye and Barbara A. Stolz made  significant contributions to the work. Willie Commons provided significant  legal support and analysis. David P. Alexander assisted with design and  methodology. Lara R. Miklozek and Debra B. Sebastian provided  assistance in report preparation. Tina Cheng developed the report  graphics.