Mexican Drug Certification Issues: U.S. Congressional Action, 1986-2002
Released: 2002-10-22T00:00:00

Introduction

This report summarizes U.S. congressional action relating to Mexican drug control and drug certification issuesfrom 1986 to 2002, with emphasis on recentactions. It explains the development and the procedures of the drug certification requirements in the mid-1980s andthe steps taken in the initial years followingenactment of the bill. It provides detailed information about congressional action in the more recent years, from1996 to 2002, including the temporarymodification of the requirements in 2001 and the permanent modification of the procedures in 2002.

Congressional Action in the 1980s: Drug Certification Requirements and Initial Action on Resolutions of Disapproval

Congress has had a longstanding interest in Mexico's counter-narcotics efforts, stimulated by the killing andtorture of U.S. Drug Enforcement Administration(DEA) agents, and focusing more recently on the presidential drug certifications. In the mid-1980s, Congress -through the Anti-Drug Abuse Acts of 1986 ( P.L.99-570 ) and 1988 ( P.L. 100-690 ) - created what has been modified and extended to become Sections 489- 490 ofthe Foreign Assistance Act of 1961 (P.L.87-195). This and related sections require the President to certify, subject to congressional review, thatdrug-producing or drug-transit countries have cooperatedfully with the United States in drug control efforts in the previous year in order to avoid a series of aid and tradesanctions. Under the legislation, Congress isgiven 30 days to pass a resolution to disapprove the President's certification, and set in motion the varioussanctions. (1) The original action took place in thecontext of the kidnaping, torture, and murder of DEA Special Agent Enrique Camarena and his Mexican pilot inGuadalajara, Mexico, in March 1985, and thetorture of DEA Agent Victor Cortez in Guadalajara in August 1986.

Mexico was fully certified by President Reagan under the initial certifications, but Congress carefully monitored the presidential determinations. In 1987, theSenate Foreign Relations Committee reported out a resolution to disapprove the presidential certification, and in1988 the full Senate voted 63-27 to disapprovethe President's certification. However, without complete action by both houses, these measures were never adopted.

In late 1989, Congress passed the International Narcotics Control Act of 1989 ( P.L. 101-231 ) with critical references to Mexico. Earlier in the year, the SenateForeign Relations Committee voted against reporting an introduced resolution of disapproval ( S.J.Res. 82 )to the Senate floor, and no action wastaken in the House to reverse the President's certification.

Congressional Action in 1996: Restrictions on Foreign Assistance

In the early 1990s, with improving bilateral trade and border relations with Mexico, symbolized by the entryinto force in 1994 of the North American Free TradeAgreement (NAFTA), few if any resolutions to disapprove presidential certifications were introduced and nocongressional action was taken until 1996.

In action in early 1996, the Foreign Operations Appropriations Act for FY1996 ( P.L. 104-99 and P.L. 104-107 ), dropped a House-passed restriction on aid toMexico unless Mexico controlled illegal drug trafficking, but the report urged U.S. efforts to encourage greaterMexican action in these areas. Later, SenatorsFeinstein and D'Amato and Representatives Miller and Shaw criticized Mexican drug control efforts and introducedmeasures calling for disapproval of thePresident's certification ( S.J.Res. 50 / H.J.Res. 162 ) and for action against the country unless drugtrafficking was controlled( S.Res. 218 / H.Res. 362 / H.R. 2947 ), but action was not completed on these measures.

In June and July 1996, the House and the Senate passed the Foreign Operations Appropriations Act for FY1997 ( H.R. 3540 ), with restrictions onMexico. The House version contained the Souder amendment which would have prohibited funding under the actunless Mexico was reducing the flow of drugsand controlling money-laundering. The Senate version contained the Domenici amendment which would haveprohibited military education and training funds forMexico unless the President certified that Mexico had extradited or prosecuted major drug lords wanted in theUnited States. The final version in Section 587 ofthe foreign operations appropriation -- incorporated into the Omnibus Consolidated Appropriations for FY1997( P.L. 104-208 ) -- provided that not less than $2.5million shall be withheld from Mexico until the President has reported that Mexico is taking actions to reduce theflow of illegal drugs to the United States and istaking action to prosecute those involved in drug trafficking and money-laundering.

Congressional Action in 1997: Weakened Resolution of Disapproval Despite Non-Enactment Elicits Additional Presidential Report

Following the mid-February 1997 arrest on corruption charges of the head of Mexico's drug fighting agency,some Members of Congress urged President Clintonto send Mexico a message for more forceful action by making a national interests certification. As a result, whenthe President fully certified Mexico in lateFebruary 1997, congressional resolutions of disapproval were introduced by Representative Shaw ( H.J.Res. 58 ) and Senator Coverdell( S.J.Res. 19 , S.J.Res. 20 , and S.J.Res. 21 ), while Senators Hutchison and Grassley alsodeveloped sense of Congressresolutions ( S.Con.Res. 9 and S.Con.Res. 10 ) in the Senate. (2)

The House International Relations Committee voted 27-5 on March 6, 1997, to report out H.J.Res. 58 , with the Gilman amendment permitting thePresident to waive sanctions for one year by submitting a national interests certification, and requiring consultationwith Congress on drug trafficking issues. Infloor debate on March 13, 1997, the House, by a vote of 251-175, passed H.J.Res. 58 , with the Hastertamendment, as modified, that would havedeferred disapproval of the presidential certification of Mexico if, within 90 days of enactment, the Presidentreported that he had obtained assurances of progresswith Mexico in specified areas of drug control cooperation. These included support for DEA agents, extradition,overflight and refueling rights, and maritimeagreements. Indicating some discomfort with the certification process, the resolution also would have establisheda High Level Commission of InternationalNarcotics Control to review the annual certification process and produce an interim report within six months.

Responding in part to Mexican and Administration criticism, the Senate, on March 20, 1997, voted 94-5, to pass the Coverdell-Feinstein amendment to H.J.Res. 58 , in the nature of a substitute, which, instead of disapproving the President's certification, requireda report by September 1, 1997, onMexican efforts to strengthen drug control in 10 areas and U.S. efforts in three areas. The Mexican areas forreporting included effective action against drugcartels; and cooperation on law enforcement, extradition, eradication and money laundering activities. The U.S.areas for reporting included implementation ofeffective domestic anti-drug educational campaigns and international interdiction and law enforcement programs,and deployment of additional INS agents at theborder. Congress did not complete action on this measure within the specified time, but President Clinton indicatedin May 1997 that he would abide by theSenate version of H.J.Res. 58 and the Administration reported, as promised, in September 1997. (3)

In further expressions of sentiment, each of the houses subsequently considered and failed to pass legislation to modify or suspend the existing drug certificationrequirements. In the House, on May 9, 1997, the House International Relations Committee reported out H.R. 1486 , the Foreign Policy Reform Act,with Section 403, proposed by Representative Hamilton, which would have eliminated the presidential certification,congressional review, and sanctions againstcountries under the certification process. Instead, it would have required the President to continue to report yearlyand to consult regularly with Congress on drugcontrol issues, and would have given the President the authority to withhold bilateral assistance and to opposemultilateral bank financing for countries that are notfully cooperative if he found those measures to be helpful. In early June 1997, H.R. 1486 was divided intothree bills, and the foreign aid and drugcertification provisions were placed in H.R. 1759 , which was not scheduled for debate in 1997. In the Senate,on July 16, 1997, the Senate defeated(60-38) Amendment 901, proposed by Senators Dodd and McCain, to the Foreign Operations Appropriations Bill( S. 955 ), which would havesuspended the drug certification requirements for two years, and called upon relevant country leaders to developa multilateral framework for improvinginternational cooperation in counter-narcotics efforts.

Congressional Action in 1998: Resolution of Disapproval Defeated in Senate; U.S. Counter-Narcotics Efforts Strengthened

President Clinton certified, on February 26, 1998, that Mexico was fully cooperative in drug control efforts,citing increased drug seizures, creation of a newanti-drug force with fully screened officers, progress in the return of fugitives, tough sentencing of major traffickers,and actions against organized crime andmoney laundering. The certification and related material also cited U.S.-Mexico cooperation through the High LevelContact Group (HLCG) on NarcoticsControl that led to the U.S.-Mexico Alliance Against Drugs in May 1997, and to the issuance of the U.S.-MexicoBinational Drug Strategy in February 1998. (4)

While Administration witnesses defended the certification decision in congressional hearings, several Members of Congress criticized the decision. Among otherthings, the critics argue that inadequate efforts have been made to arrest major drug traffickers, to extradite Mexicancitizens to the United States on drug-relatedcharges, and to permit DEA agents to carry firearms for their protection. While recognizing that Mexico had madeprogress in some areas, the critics argue thatMexico could not be said to be fully cooperative in drug control efforts, the standard set by the certificationprocedure.

In early March 1998, resolutions of disapproval were introduced in both houses of Congress. (5) In the Senate, Senator Coverdell, with Senators Feinstein, Helms,and Hutchison as cosponsors, introduced S.J.Res. 42 (which, if approved, would disapprove the President'scertification and require withdrawal ofassistance) and S.J.Res. 43 (which, if approved, would disapprove the President's certification but wouldpermit him to avoid the withholding ofassistance if he subsequently found that vital U.S. national interests required non-application of sanctions). Theresolutions were referred to the Senate Committeeon Foreign Relations. In the House, Representative Shaw, with Representative Mica as cosponsor, introduced H.J.Res. 114 (which, if approved,would disapprove the President's certification, but would permit him to waive the withholding of assistance if hesubsequently determined that vital U.S. nationalinterests require the provision of the assistance). The resolution was referred to the House International RelationsCommittee and the House Banking andFinancial Services Committee, where hearings were held but no further action was taken.

The Senate considered the Senate measures on March 26, 1998. When Majority Leader Lott requested unanimous consent to consider S.J.Res. 43 (the resolution with a national interest waiver and therefore more than the simple resolution of disapproval requiredunder the certification legislation), objectionwas raised by Senator Daschle. When S.J.Res. 42 was considered, proponents argued that Mexico had failedto meet the standards and had madeinadequate progress, while opponents argued that approval of the resolution would harm relations with Mexico andterminate recent cooperative efforts withMexico. S.J.Res. 42 was defeated by a vote of 45 to 54.

In other efforts to deal with the flow of drugs from Mexico, several measures were incorporated into the Omnibus Consolidated and Emergency SupplementalAppropriations Act of 1998 ( P.L. 105-277 ). Foreign Operations Appropriations, including counter-narcoticsfunding for Mexico, were incorporated as Section101(d) of Division A, of the omnibus measure, following passage by both houses of separate measures ( S. 2334 , H.R. 4569 ) inSeptember 1998. Supplemental FY1998 funding for counter-drug activities and interdiction, including $90 millionfor Southwest border enhancement, wasincorporated as Title V of Division B of the omnibus measure. The Western Hemisphere Drug Elimination Act,which authorized funds to strengthen interdictionand surveillance on the U.S.-Mexico border, was incorporated as Title VIII of Division C, of the omnibus measure,following passage by the House of H.R. 4300 on September 16, 1998. The conference report ( H.Rept. 105-825 ) on the omnibus measure wasapproved by the House and the Senate onOctober 20 and 21, respectively. It was signed into law ( P.L. 105-277 ) on October 21, 1998.

Congressional Action in 1999: Resolutions of Disapproval Introduced in the House But Not Passed; Narcotics Kingpin Designation Act Passed

President Clinton certified, on February 26, 1999, that Mexico was fully cooperative in drug control efforts,citing the broad array of cooperation between thecountries, the arrest and conviction of some major traffickers, and the continuing eradication and interdictionprograms. He mentioned the work of the bilateralHigh Level Contact Group (HLCG) on Narcotics Control that led to the Alliance Against Drugs in May 1997, theBinational Drug Strategy in February 1998, andthe agreement on performance measures of effectiveness, announced during President Clinton's trip to Mexico inmid-February 1999, to gauge the effectivenessof the joint anti-drug strategy. (6)

On March 2, 1999, Representative Bachus and 12 cosponsors introduced H.J.Res. 35 in the House that would disapprove the President's certificationof Mexico but permit the President to waive the withholding of assistance to Mexico and the voting againstmultilateral development bank loans for Mexico bydetermining that the vital national interests of the United States so require. The resolution was referred to the HouseInternational Relations Committee. OnMarch 24, 1999, Representatives Mica and Gilman introduced H.J.Res. 43 that would disapprove thePresident's certification of Mexico, permit thePresident to waive any sanctions, and extend the congressional period of consideration by providing a rule ofconstruction that any action would be considered tohave been enacted within the 30-day period following presidential certification. (7) The resolution was referred to the House International Relations Committee andto the House Banking and Financial Services Committee. Mr. Gilman, Chairman of the House InternationalRelations Committee, announced that the Committeewould carefully examine how to proceed next. No committee or floor action was taken on either resolution.

On July 1, 1999, Representatives Mica, Traficant, Gilman, and others introduced H.J.Res. 61 , calling upon the Mexican government to undertakegreater and more effective counterdrug measures, including a maritime agreement with the United States, and toreturn any unwanted Huey helicopters to theUnited States for distribution to other drug fighting countries. The measure was referred to the House InternationalRelations Committee, but no further actionwas taken.

On the Senate side, while no resolution of disapproval was ever introduced, on March 1, 1999, Senators Coverdell, Feinstein, and Grassley and four other Senatorssent a letter to President Clinton urging that specific benchmarks be used for judging Mexico's performance in futurecertification decisions. These includedextradition of major drug traffickers, arrest and prosecution of drug lords, enforcement of money-laundering laws,eradication and seizure efforts, cooperationbetween law enforcement agencies, and the conclusion and implementation of a U.S.-Mexico maritime agreement. On March 8, 1999, Senators Coverdell andFeinstein introduced S. 565 and S. 1171 to strengthen President Clinton's authority under theInternational Emergency Economic PowersAct (IEEPA) to freeze assets in the United States of drug traffickers and to prevent traffickers from doing businesswith the U.S. companies. On March 11,Senators Boxer, Dodd, and Gramm introduced S. 596 to provide that the annual drug certification procedureswould not apply to countries likeMexico that have bilateral counter-narcotics agreements with the United States. On March 18, 1999, SenatorGramm and eight cosponsors introduced S. 658 , the Drug Free Borders Act of 1999, to authorize funding for advanced sensing equipment for detectingillegal drugs at the border.

Legislation strengthening the President's IEEPA authority to freeze assets in the United States of drug traffickers and to prevent drug traffickers from doingbusiness with U.S. companies was eventually enacted by the end of the year. A variation of the measures introducedby Senators Coverdell and Feinstein wasapproved by the Senate on July 20, 1999, as an amendment to the Intelligence Authorization Act for FY2000( H.R. 1555 ). In related action, theHouse passed H.R. 3164 , the Foreign Narcotics Kingpin Designation Act, by a vote of 385-26 undersuspension of rules on November 2, 1999. Theconference report on H.R. 1555 ( H.Rept. 106-457 ) was filed on November 5, 1999, with Title VIII essentiallycontaining the text of H.R. 3164 , with the addition of a Judicial Review Commission to examine judicial review and due process issues raisedin the previous debate. The House passed theconference report on H.R. 1555 by voice vote on November 9, 1999, and the Senate passed it on November19, 1999. The President signed themeasure into law ( P.L. 106-120 ) on December 3, 1999.

Congressional Action in 2000: No Resolutions of Disapproval Introduced; Efforts Made to Waive the FY2001 Drug Certification Requirements for Mexico

President Clinton certified, on March 1, 2000, that Mexico was cooperating fully with the United States inefforts to control drug trafficking. He cited the broadarray of cooperation between the countries, the unprecedented agreement on performance measures of effectivenessto gauge the success of the binationalanti-drug strategy, enhanced maritime cooperation, significant increases in seizures and eradication of illicit drugs,and the extradition of two Mexican nationaldrug fugitives to the United States. (8)

In anticipation of the Administration's certification of Mexico, the Chairmen of the House International Relations Committee and the Senate Foreign RelationsCommittee wrote to Secretary of State Albright to urge non-certification of Mexico, citing, in particular, Mexico'sfailure to prosecute and extradite to the UnitedStates any major drug traffickers. Citing similar evidence, some Representatives were critical of Mexico'scounter-narcotics performance in a hearing on February29, 2000, by the Subcommittee on Criminal Justice, Drug Policy and Human Resources of the House Committeeon Governmental Reform. Some Senators alsocriticized the President's certification of Mexico in a hearing on March 21, 2000, by the Senate Caucus onInternational Narcotics Control. However, by the endof the 30-day congressional review period, no resolution of disapproval had been introduced in either house ofCongress to overturn the President's certification.

Following the election of Vicente Fox of the conservative Alliance for Change as President of Mexico in the July 2, 2000 election, ending 71 years of presidentialcontrol by the dominant party, bills were introduced to exempt Mexico from the drug certification requirement inFY2001 in order to avoid an early confrontationwith the new government. S. 3021 was introduced by Senator Hutchison on September 7 and was placed onthe Senate calendar on September 8,2000; H.R. 5155 was introduced by Representative Kolbe on September 12, 2000, and referred to the HouseInternational Relations Committee. Noadditional action was taken on these measures. On October 11, 2000, the Senate agreed to S.Res. 366 ,introduced by Senator Hutchison, thatwelcomed the constitutional transition in Mexico and expressed the sense of the Senate that a one-year waiver ofthe drug certification requirement is warranted inorder for incoming new governments in both countries to develop more effective and cooperative counter-narcoticsprograms.

Congressional Action in 2001: Efforts to Modify Drug Certification Requirements End with One-Year Waiver and Modified Procedure

In the period leading up to the deadline of March 1, 2001, when President Bush would be required to certify thatMexico and other drug producing or drug transitcountries had cooperated fully with the United States in drug control efforts, there were a number of congressionalefforts to modify or suspend the longstandingdrug certification requirements.

In early January 2001, Senator Gramm was quoted as saying, following a congressional delegation trip to Mexico and meetings with Mexican President Fox, thatmembers of the delegation would work to eliminate the drug certification requirement and that he believed PresidentBush wanted to eliminate the requirement aswell.

In late January 2001, Senators Dodd, McCain, Hollings, and Hagel introduced S. 219 , to suspend the existing drug certification process for allcountries for the two fiscal years following enactment, unless the President determined that the certification of oneor more countries would advance U.S. drugcontrol goals. The measure specifies that the certification requirements would be suspended for fiscal years 2001and 2002 if enacted on or before February 28,2001. Finding that the annual certification process does not foster effective bilateral or multilateral cooperation withthe United States, the bill urges the Presidentto take advantage of the period of suspension to convene a conference of drug producing, transit, and consumingcountries to develop an effective multilateralstrategy, and to transmit to Congress the necessary legislation to implement a new strategy.

In mid-February 2001, Senator Kay Bailey Hutchison with 6 cosponsors introduced S. 353 that would exempt Mexico from the drug certificationrequirement in FY2001, but would require development of a comprehensive plan of proposals, by June 30, 2001,for enhanced counter-narcotics cooperationbetween Mexico and the United States. About the same time, Senator Grassley and Senator DeWine introduced S. 376 that would modify thecertification process for FY2002-FY2004 to require the President to identify only those countries that are failingto cooperate fully with the United States in drugcontrol efforts.

On the eve of President Bush's February 16, 2001 visit with President Fox in Mexico, the Senate passed S.Con.Res. 13 expressing the sense ofCongress that the President should work with the President of Mexico to advance bilateral cooperation and shouldseek, among other things, "to review the currentillicit drug certification process, and should seek to be open to consideration of other evaluation mechanisms thatwould promote increased cooperation andeffectiveness in combating the illicit drug trade." In a joint press conference with President Fox after the meetingin Mexico, President Bush noted that there was amovement in Congress to review the certification process, and he indicated that he believed that President Foxwould do everything in his power to root out thedrug lords and to halt drug trafficking.

In late February and early March, additional measures were introduced to modify the existing drug certification procedures. On February 27, 2001, RepresentativeKolbe and 6 cosponsors introduced H.R. 753 to exempt Mexico from the drug certification requirements inFY2001. On March 1, 2001, SenatorsBoxer and Gramm introduced S. 435 to provide that the drug certification procedures would not apply tocountries with which the United States hasbilateral agreements and other plans; and Representative Reyes introduced H.R. 841 to suspend thecertification procedures for two years and toexpress the sense of Congress that the President should convene a conference of drug producing, transit, andconsuming countries to develop an effectivemultilateral strategy and should transmit to Congress the necessary legislation to implement a new strategy. (9)

President Bush certified, on March 1, 2001, that Mexico had cooperated fully with the United States in drug control efforts, citing the arrest of two key membersof the Tijuana-based Arellano Felix Organization, the aggressive eradication programs, and continuing cooperationwith the United States in a number of areas. While noting the daunting challenges Mexico faces to control corruption, the State Department report stated thatPresident Fox's commitments to fight crime,drug trafficking, and corruption offered "unprecedented opportunities for greater cooperation and mutual assistancewith the United States." (10)

At a March 1 hearing on the certification process conducted by the Senate Foreign Relations Committee, Senators Boxer, Dodd, Grassley, and Hutchison, andRepresentative Reyes spoke in favor of the modifications to the procedures that they are sponsoring. RepresentativeGilman argued that the certification processhad proven to be very useful and should be retained. Assistant Secretary of State for International Narcotics andLaw Enforcement Affairs, Rand Beers, testifiedthat the "certification process has proved to be an effective, if blunt, policy instrument for enhancingcounternarcotics cooperation," but he indicated that theAdministration was aware "that there is a growing sense among some in Congress that there may now be moreeffective approaches to strengthening internationalcounterdrug cooperation." Although noting that the Administration was still reviewing the various legislativeproposals, he indicated that any modification"should have an enforcement mechanism to ensure continued international counternarcotics cooperation" and thatthe President should retain the power tosanction countries even if the certification procedures were suspended. In addition, he indicated that theAdministration does not believe "that there should beexemptions for individual countries or regions at this time."

By the end of the 30-day period for congressional review of presidential drug certifications, no resolutions of disapproval had been introduced to disapprovePresident Bush's certification of Mexico.

On April 3, 2001, the Senate Foreign Relations Committee marked up S. 219 with an amendment in the nature of a substitute, with elements from thevarious proposals. As approved, S. 219 would modify the existing drug certification procedures for a 3-yeartrial period. In its place, it would requirethe President to identify by October 1 of each year major drug-transit or major illicit drug producing countries andto designate each such country that has faileddemonstrably, during the previous 12 months, to make substantial efforts to adhere to its obligations underinternational counter-narcotics agreements (multilateraland bilateral) and other standards. U.S. assistance would be withheld from any designated countries unless thePresident determined that the provision ofassistance was vital to the national interest of the United States or until the country made substantialcounter-narcotics efforts.

The approved measure also expresses the sense of Congress that the United States should at the earliest feasible date in 2001 convene a multilateral conference ofrelevant countries to develop multilateral drug reduction and prevention strategies, and it urges the President torequest legislative changes to implement thestrategies no later than one year after enactment. It continues the requirement for the yearly International NarcoticsControl Strategy Report (INCSR) detailing theperformance of individual countries, and it adds the requirement to report on major drug trafficking organizations. It also amends the Foreign Narcotics KingpinDesignation Act to allow judicial review of executive branch decisions to freeze the assets of suspected drugkingpins. (11) The measure was reported out withoutwritten report on April 5, 2001, and was placed on the Senate Legislative Calendar on April 5, 2001.

On July 17, 2001, the House Appropriations Committee reported out H.R. 2506 , Foreign Operations Appropriations for FY2002 ( H.Rept. 107-142 ),with no legislative changes relating to the drug certification procedures, but with the following report language: "TheCommittee is concerned that the UnitedStates' annual drug certification process fails to establish an effective and accountable drug policy, while creatingtensions with our neighbor, Mexico. TheCommittee strongly supports change to the present certification process. Priority should be given to installing asound accountability system where an obligationto deterring drug trafficking is the ultimate goal. The Committee asks the Secretary of State to work with theappropriate committees of Congress to modify thecertification process to mirror the concerns made by the Committee."

On August 1, 2001, the Senate Foreign Relations Committee approved S. 1401 , the Foreign Relations Authorizations Act for FY2002-FY2003, withthe provisions of previously reported S. 219 incorporated as Sections 741-745 in Title VII, Subtitle D, Reformof Certification Procedures Applicableto Certain Drug Producing or Trafficking Countries. (12) The Committeereported out S. 1401 ( S.Rept. 107-60 ) on September 4, 2001, and themeasure was placed on the Senate Legislative Calendar.

During President Fox's official state visit to the United States on September 5-7, 2001, the Mexican President, in addressing a joint session of Congress, calledupon Congress to pass legislation to suspend the drug certification requirements as a gesture of trust and faith in thenew government, arguing that "trust requiresthat one partner not be judged unilaterally by the other." Following the Bush-Fox talks, the joint communiquepraised the growing law enforcement cooperationbetween the countries, expressed support for the OAS' multilateral evaluation of counter-narcotics efforts, and notedPresident Bush's commitment "to work withthe U.S. Congress, on a priority basis, to replace the annual counter-narcotics certification regime with newmeasures designed to enhance internationalcooperation in this area."

On October 24, 2001, the Senate passed the Foreign Operations Appropriations for FY2002 ( H.R. 2506 ), with an amendment by Senators Dodd andHutchison (Senate Amendment 1959) that generally incorporated the provisions of S. 219 as reported, exceptthat the modifications in the drugcertification procedures would apply only to FY2002 and would apply only to countries in the Western Hemisphere. As passed by the Senate, the bill wouldrequire the President to identify by November 30, 2001, the major drug-transit or major illicit drug-producingcountries in the Western Hemisphere and todesignate each such country that has failed demonstrably, during the previous 12 months, to make substantial effortsto adhere to its obligations underinternational counter-narcotics agreements (multilateral and bilateral) and other standards. U.S. assistance wouldbe withheld from any designated countriesunless the President determined that the provision of assistance was vital to the national interest of the United Statesor until the country made substantialcounter-narcotics efforts.

Consistent with the provisions of previously reported S. 219 , the Senate-passed Foreign Operations Appropriations bill expressed the sense ofCongress that the United States should at the earliest feasible date convene a multilateral conference of relevantcountries to develop multilateral drug reductionand prevention strategies, and it urged the President to request legislative changes to implement the strategies nolater than one year after enactment. It wouldcontinue the requirement for the yearly International Narcotics Control Strategy Report (INCSR) detailing theperformance of individual countries, and it wouldadd the requirement to report on major drug trafficking organizations. It would also amend the Foreign NarcoticsKingpin Designation Act to allow judicialreview of executive branch decisions to freeze the assets of suspected drug kingpins.

The conference report on the Foreign Operations Appropriations for FY2002 ( H.Rept. 107-345 on H.R. 2506 ) was filed on December 19, 2001, andcontained, in Section 591, major elements of the Senate-passed provisions modifying the annual drug certificationprocedures. This section provides that the drugcertification procedures in Section 490 of the Foreign Assistance Act would not apply during FY2002, essentiallyproviding a one-year waiver of the procedureson a global basis for all major drug-transit and drug producing countries. However, the President is required tomake a report within 45 days of enactmentidentifying the major drug transit and drug producing countries. He is also required to designate each such countrythat has failed demonstrably, during theprevious 12 months, to make substantial efforts to adhere to its obligations under international counter-narcoticsagreements (multilateral and bilateral) and otherstandards. U.S. assistance would be withheld from any of the designated worst offending countries, unless thePresident determines that the provision ofassistance is vital to the national interest of the United States, or until the designated country makes substantialcounter-narcotics efforts. In addition, the sectionclarifies that the President's obligation to make the yearly International Narcotics Control Strategy Report (INCSR)detailing the performance of all drug-transitand drug producing countries by March 1 remains in force.

Although some Members in each house criticized this provision as a weakening of the drug certification procedures when it was approved by the House onDecember 19, 2001, and by the Senate on December 20, 2001, a letter from the State Department characterized theprovision as a "significant first step towardimproving the current narcotics certification process" that "would place a premium on cooperation rather thanconfrontation with other governments." Themeasure was signed into law ( P.L. 107-115 ) by President Bush on January 10, 2002.

Congressional Action in 2002: Permanent New Requirements Enacted, But Previous Procedures Still Available

In 2002, Congress continued to move toward adoption of new requirements relating to drug producing and drugtransit countries. With passage of the ForeignRelations Authorization Act for FY2003, it approved permanent new procedures, while permitting the Presidentto use the old procedures at his discretion.

Acting under the new temporary procedures in the Foreign Operations Appropriation Act for FY2002, President Bush found, on February 25, 2002, that threecountries - Afghanistan, Burma, and Haiti - had demonstrably failed to meet international counter-narcoticsobligations, but he determined that it was in thenational interest of the United States for Afghanistan (under the new government) and Haiti to continue to receiveU.S. assistance.

Although the State Department's early March 2002 International Narcotics Control Strategy Report mentioned that Mexico was a major supplier of heroin,methamphetamine, and marijuana and the transit point for more than one-half of the cocaine sold in the UnitedStates, it noted that Mexico's counter-narcoticsefforts had been impressive and had resulted in tangible successes against the three major drug cartels in thecountry. (13) During the Bush-Fox meeting inMonterrey, Mexico in March 2002, the Presidents acknowledged "major successes achieved by Mexico in the fightagainst narco-trafficking" and agreed on "theimportance of redoubling judicial cooperation" between the countries.

In congressional action on the Foreign Operations Appropriations for FY2003, the bill ( S. 2779 ) reported by the Senate Appropriations Committee onJuly 18, 2002, would have extended through FY2003 the modifications of the U.S. drug certification requirementsenacted in the previous year. However, the bill( H.R. 5410 ) reported by the House Appropriations Committee on September 19, 2002, did not contain asimilar provision. As a result, this issue wasan item to be resolved in conference at the end of the session.

In congressional action on the Foreign Relations Authorization for FY2003, the conference report on H.R. 1646 ( H.Rept. 107-671 ) was filed onSeptember 23, 2002, with Section 706 dealing with International Drug Control Certification Procedures. The HouseInternational Relations Committee hadreported out H.R. 1646 on May 4, 2001, without any provisions on drug certification, and the measure was passed by the House on May 16, 2001. The Senate approved H.R. 1646 on May 1, 2002, after incorporating the text of a Senate measure on securityassistance ( S. 1803 )approved in December 2001.

Drawing from S. 1401 , mentioned above, which was reported out by the Senate Foreign Relations Committee on September 4, 2001, the conferencereport on H.R. 1646 establishes new drug certification and designation procedures in Section 706. Thissection requires the President to make areport, not later than September 15 of each year, identifying the major drug transit or major illicit drug producingcountries. At the same time the President isrequired to designate any of the named countries that has "failed demonstrably," during the previous 12 months, tomake substantial efforts to adhere tointernational counter-narcotics agreements (defined in the legislation) and to take other identified counter-narcoticsmeasures. U.S. assistance would be withheldfrom any designated countries unless the President determines that the provision of assistance to that country is vitalto the national interest of the United States, orthat the designated country subsequently made substantial counter-narcotics efforts.

Another section clarifies that the requirement for the yearly International Narcotics Control Strategy Report (INCSR) detailing the performance of individualcountries by March 1 of each year is retained. Notwithstanding the general suspension of the previous drugcertification and sanctions procedures, subsection706(5)(B) provides that the President may apply those procedures at his discretion. A transition rule provides thatfor FY2003, the required report must besubmitted at least 15 days before foreign assistance funds are obligated or expended. The conference report on H.R. 1646 was approved by the Houseby voice vote on September 25, 2002, and was approved by the Senate by unanimous consent on September 26,2002. It was signed into law ( P.L. 107-228 ) onSeptember 30, 2002.

In short, Section 706 requires the President to designate and withhold assistance from the worst offending countries (those that have "failed demonstrably" tomake substantial counter-narcotics efforts). It also permits the President to use his discretion to maintain a higherstandard and to withhold assistance and applyother sanctions against countries that are failing to cooperate fully with the United States in counter-narcotics effortswhenever he determines that such actionswould be helpful. In keeping with this approach, the Joint Explanatory Statement of the Committee of Conferenceindicates that Managers believe that thePresident should direct U.S. Executive Directors in multilateral development banks to vote against loans forcountries failing to qualify for assistance under eitherthe old or the new procedures.