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JGR/Testimony Approval (05/01/1983-05/15/1983)
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Ronald Reagan Presidential Library
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Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(05/01/1983-05/15/1983)
Box: 53
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MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 4, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
226
SUBJECT:
Department of Justice Report on S. 645,
the Courts Improvement Act of 1983
Jim Murr from OMB's Legislative Reference shop has provided a
copy of the Department of Justice's proposed letter to Chairman
Thurmond on the above-referenced bill. Of particular interest
is Title VI of the bill, which would establish the temporary
Intercircuit Tribunal. Justice's letter simply notes that
"[d]ue to the complex policy issues that are presented in
title VI, the Department requests permission to submit its
comments on this title at a later date." I see no objection
to this.
Justice supports titles I, II, III, and V. Title I abolishes
the mandatory appellate jurisdiction of the Supreme Court,
making the appellate docket entirely discretionary. The
Administration has supported this provision in the past. It
would eliminate the requirement that the Court decide certain
cases on the merits regardless of their general significance,
easing the Court's workload.
Title II, also supported by the Administration in the past,
eliminates the 50-odd provisions according priority on court
dockets to certain types of cases. This is a "good government"
reform, since there is generally no rhyme or reason to the
priorities, which simply reflect each legislative committee's
view that cases under the statutes it drafted are the most
important cases in the courts. Indeed, there are about a
dozen types of cases which must be given priority on the
docket over all other cases. This raises an interesting
conundrum when a judge has four different cases, each one of
which is to be given priority over all others -- including the
other three.
Title III upgrades judicial survivors benefits, to alleviate
at least partially the state of affairs captured by former
Judge Mulligan's statement that he "could live on his judicial
salary, but couldn't die on it."
Title IV would create a State Justice Institute, to fund
improvements in state court systems. We have opposed this in
the past, primarily on budgetary grounds, and Justice's letter
does so again. The letter also appropriately objects to the
scheme for appointing members to the contemplated State
-2-
Justice Institute Board. Under the bill the President would
appoint 7 members from a list of only 14 submitted by the
Conference of Chief Justices.
Title V would create a commission to render advice on the
jurisdiction of state and federal courts. The commission
would have sixteen members, four appointed by the President,
President pro tempore of the Senate, the Speaker and the Chief
Justice, respectively. Since the commission is only advisory,
this raises no appointment clause concerns.
I have drafted a no objection memorandum to Murr for your
signature.
Attachment
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 4, 1983
FOR:
JAMES MURR
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDINGOrig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Department of Justice Report on S. 645,
the Courts Improvement Act of 1983
Counsel's Office has reviewed the proposed report of the
Department of Justice on S. 645, and finds no objection to it
from a legal perspective.
FFF:JGR:ph 5/4/83
CC: FFFielding
JGRobertsv
Subject
Chron.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Mike Uhlmann
Take necessary action
TO
Approval or signature
Sherrie Cooksey
Comment
Prepare reply
Discuss with me
For your Information
See remarks below
FROM Jim Murr IIVTM X4870 DATE 5/2/83
REMARKS
Justice Report -- S. 645, the "Courts
Improvement Act of 1983'
There are no substantive agency objections
to clearance of the subject report (attached).
S. 645 has six titles:
I - Eliminates mandatory jurisdiction
of Supreme Court.
II - Eliminates priorities for court
review of certain civil cases.
III - Upgrades judicial benefits program.
IV - Establishes State Justice Institute.
V - Establishes a Federal Jurisdiction
Revision Commission.
VI - Establishes a temporary Intercircuit
Tribunal.
OMB FORM 4
Rev Jul 82
-2-
The DOJ report favors titles I, II, III,
and V, and opposes title IV. Justice
requests additional time to comment on
title VI.
If you have no objections, we are pre-
pared to clear the DOJ report. Please
let me have your comments by c.o.b.
WEDNESDAY, MAY 4.
Thanks.
CC: H. Schreiber
K. Wilson
A. Curtis
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington. D.C. 20530
Honorable Strom Thurmond
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for the views of the
Department of Justice on S. 645, the Courts Improvement Act of
1983. The Department supports the enactment of title I, title
II, title III and title V. The Department opposes the enactment
of title IV. Due to the complex policy issues that are presented
in title VI, the Department requests permission to submit its
comments on this title at a later date.
Title I of S. 645 eliminates the mandatory jurisdiction of
the Supreme Court. The general effect of this legislation would
be to convert the mandatory appellate jurisdiction of the Supreme
Court to jurisdiction for review by certiorari, except in connec-
tion with review of decisions by three-judge district courts.
We believe that the changes effected by this title are long
overdue, and will bring about a substantial improvement in the
administration of justice in the federal courts. The essential
defect of the current system is that the Supreme Court is required
to devote a large portion of its time to deciding, on the merits,
cases of no special importance because they happen to fall within
the categories which qualify for review by appeal under the
current statutes. There is no necessary correlation between the
difficulty of the legal questions in a case and its public impor-
tance. When the Justices are uncertain concerning the appropriate
disposition of a case presented on appeal, they are obliged to
devote time and energy to reaching a decision on the merits --
including, in many cases, full briefing and oral argument --
though all may agree that it raises no question of general interest
and does not warrant the granting of a writ of certiorari. 1/
1/ See Letter of the Justices, supra, note 3; S. Rep. No. 985,
95th Cong., 2d Sess. 17 (1978) (prefatory remark of Justice
Stevens in relation to First Federal Savings and Loan Ass'n of
Boston V. Tax Comm'n of Massachusetts, 437 U.S. 255 (1978), and
Moorman Manufacturing Co. V. Bair, 437 U.S. 267 (1978)) S. Rep.
No. 35, 96th Cong., 1st Sess., 17 (1979) (same).
- 2 -
The present system also interferes with the ability of the
Court to select appropriate cases to decide recurrent legal ques-
tions of public importance. A particular case may raise an imp-
ortant issue, but the record on it may be unclear. The Court's
ability to reach a sound decision with respect to a complex and
significant issue may be facilitated by first letting several
lower courts explore the ramifications of the problem. 2/ By
forcing the Court to decide the merits of dispositive issues
whenever they may arise, in a case presented for review by appeal,
the current system interferes with the Court's ability to pass on
issues at a time and in a context most conducive to the sound
development of federal law.
Commentators and commissions that have studied the jurisdic-
tion of the Supreme Court have generally agreed that the catego-
ries defined by the existing appeal provisions are essentially
arbitrary. Innumerable cases of the greatest significance have
been brought under the certiorari jurisdiction of the Supreme
Court. 3/ Conversely, the statutory categories qualifying for
appeal encompass broad classes of cases of no special importance.
This point may be appreciated more fully in the context of a
detailed consideration of the principal jurisdictional provisions
that would be affected by Title I -- 28 U.S.C. § 1257(1)-(2), 28
U.S.C. § 1254 (2), and 28 U.S.C. § 1252:
28 U.S.C. § 1257 (1) (2). 28 U.S.C. § 1257 (1) authorizes
review by appeal of a decision of the highest state court in
which a decision could be had where the validity of a federal law
is drawn in question and the decision is against its validity.
28 U.S.C. § 1257 (2) provides similarly for review of state court
decisions where the validity of "a statute of any state" is drawn
in question on federal grounds and the decision is in favor of
its validity.
The purpose of authorizing appeal in such cases is apparent-
ly to assure that the supremacy and uniformity of federal law will
be upheld by requiring Supreme Court review where federal laws
are invalidated or federal challenges to state laws are rejected.
However, there is no reason at all to believe that the Supreme
Court would be derelict in carrying out this responsibility if
given discretion to decide which cases warrant review to vindicate
federal interests.
2/ See Colorado Springs Amusements, Ltd. V. Rizzo, 428 U.S.
913, 918 (Brennan, J., dissenting from denial of certiorari);
Maryland V. Baltimore Radio Show, Inc., 338 U.S. 912, 918 (1950)
(opinion of Frankfurter, J., respecting denial of certiorari).
3/ See, e.g., United States V. Nixon, 418 U.S. 683 (1974)
Regents of the University of California V. Bakke, 438 U.S. 265
(1978) New York Times Co. V. Sullivan, 376 U.S. 254 (1964);
Shelley V. Kraemer, 334 U.S. 1 (1948).
- 3 -
As a practical matter, the categories defined by § 1257 do
not restrict appeal to cases of general import or unusual signif-
icance. The term "statute of any state, as used in § 1257 (2),
is not confined to laws of statewide applicability, but includes
municipal ordinances 4/ and all administrative rules and orders
of a "legislative" character. 5/ In light of the doctrine of
Dahnke- Walker Milling Co. V. Bondurant, 6/ qualification for
appeal under this provision does not require that a challenge be
rejected to challenge the general validity of a state law. It
is sufficient, if a claim was rejected, that the application of
the state law under the facts of the particular case was barred
on federal grounds. Hence, the ability of a litigant to obtain
review on appeal depends, to a very large degree, on his attorney's
ability to describe the outcome of the case as a rejection of a
challenge to the validity of a state law as applied, rather than
on any substantive difference between his case and state cases
falling under the certiorari jurisdiction of the Supreme Court
described in § 1257 (3). 7/
28 U.S.C. § 1254(2). 28 U.S.C. § 1254(2) authorizes appeal
by a party relying on a state statute held to be invalid on fed-
eral grounds by a federal court of appeals. The category speci-
fied in this provision also does not define a class of cases of
unique importance either to the individual states or to the nation.
As in § 1257, the notion of a "statute" in this provision applies
to municipal ordinances 8/ and administrative orders, 9/ and it
suffices if a state law is held to be invalid as applied. 10/
4/ See, e.g., Coates V. City of Cincinnati, 402 U.S. 611 (1971);
Jamison V. Texas, 318 U.S. 413 (1943).
5/ See Lathrop V. Donohue, 367 U.S. 820, 824-27 (1961).
6/ 257 U.S. 282 (1921).
7/ See Hart & Wechsler, The Federal Courts and the Federal
System, 631-40 (2d ed., 1973).
8/ See City of New Orleans V. Dukes, 427 U.S. 297, 301 (1976).
9/ See Public Service Comm'n of Indiana V. Batesville Telephone
Co., 284 U.S. 6 (1931) (assuming that order of state Public
Service Commission invalidated by court of appeals is a "statute,"
but dismissing appeal on other grounds); Stern & Gressman, Supreme
Court Practice, 64 (5th ed., 1978).
10/ See Dutton V. Evans, 400 U.S. 74, 76 note 6 (1970); Stern &
Gressman, Supreme Court Practice, 65 (5th ed., 1978).
- 4 -
28 U.S.C. § 1252. 28 U.S.C. § 1252 provides for direct
appeal to the Supreme Court of decisions of lower federal courts
holding acts of Congress unconstitutional in proceedings in which
the United States or its agencies, officers, or employees are
parties. Ordinarily, lower federal court decisions invalidating
acts of Congress present issues of great public importance war-
ranting Supreme Court review. We doubt, however, that the Supreme
Court would frequently refuse to grant a discretionary writ of
certiorari in such a case. In addition, in cases in which expe-
dited consideration by the Supreme Court is required, it is
possible for the litigants to apply to the Supreme Court for a
writ of certiorari before final judgment in the court of appeals,
as the government recently did in Dames & Moore V. Regan, No.
80-2078 (July 2, 1981). 11/ Hence, elimination of "direct appeals"
under 28 U.S.C. § 1252 need not prove an obstacle to expeditious
review in cases of exceptional importance.
The existing grounds of Supreme Court appellate jurisdiction
are essentially arbitrary or unnecessary. We also do not believe
that alternative broad rules of mandatory review could be devised
that would assure consideration of important cases in a principled
and consistent way, but would avoid the types of problems that
have arisen under the current system.
We do not anticipate that the proposed changes in Title I
will present any problems from the perspective of the operations
of the Department of Justice. For many years Supreme Court prac-
tice has tended to minimize differences between application for
appeals as of right and review by certiorari. Parties (including
the government) wishing to invoke the Supreme Court's appellate
jurisdiction have been required, as a practical matter, to draw
up jurisdictional statements similar in character to petitions for
certiorari. Hence, the statutory reform that is proposed should
not substantially change our practice before the Supreme Court.
It should be noted that title I will entail no costs or
expenditures. The effect of title I will only be to allow the
Supreme Court to utilize the resources it presently possesses in
a more rational manner.
Title II eliminates over 50 different provisions that are
scattered throughout the United States Code which require that
particular classes of civil cases be given priority by the courts
11/ The same procedure was employed in the Nixon tapes case,
United States V. Nixon, 418 U.S. 683 (1974).
- 5 -
over other cases. In lieu of these provisions, the bill requires
the courts to expedite the sonsideration of any action "if good
cause therefor is shown." The bill also requires expedition of
"any action for temporary or permanent injunctive relief."
This title is an effective response to the problems of judi-
cial administration that have been created by the proliferation
of priority provisions throughout the United States Code. Cong-
ress has, through the years, enacted a large number of priority
provisions in widely varying terms intended to govern actions
under a bewildering array of federal statues. These provisions
have been enacted in a piecemeal fashion over the years with no
attention to their cumulative impact on the courts and no effort
to create an integrated, internally consistent set of instructions
that can be effectively implemented by the courts. Thus, for
instance, there are a number of provisions which require the
court to hear particular categories of cases before all others,
with no indication of how conflicts between such categorical
priorities are to be resolved. The sheer number of cases afforded
some kind of priority assures frequent conflict among priorities,
and can substantially limit the intended effect of a priority
provision.
The various problems presented by civil priorities led the
American Bar Association to adopt a resolution calling for the
abolition of all civil priorities except habeas corpus. 12/ A
particularly serious problem discussed at that time was the delay
to non-priority actions caused by these provisions in courts
experiencing substantial backlogs. In the late 1970's, for in-
stance, the number of priority civil and criminal cases contin-
ually filed in the heavily backlogged Fifth Circuit was so great
that for several years the court heard nothing but priority cases.
This raised a real fear that non-priority cases might never be
heard. Even today, in courts much less heavily backlogged, the
priority cases can significantly delay the progress of non-priority
cases. Thus, a report of the New York City Bar Association noted
that non-priority cases in the Ninth Circuit in 1981 were, on the
average, heard 6-8 months after priority cases. 13/
12/ See ABA Special Committee on Coordination of Judicial
Improvements, Report of the House of Delegates (Feb. 1977).
13/ New York City Bar Association Committee on Federal Legisla-
tion, The Impact of Civil Expediting Provisions on the United
States Courts of Appeals (1981).
- 6 -
Existing priority provisions are based on the premise that
it is possible for Congress. to predict in advance that expeditious
resolution of one entire class of cases is more important than it
is in other classes of cases. Such generalizations are obviously,
extraordinarily difficult. Most existing priority provisions
define broad classes of cases in which expeditious treatment is
sometimes especially important, but often is not. Though some
priority provisions properly allow the court some discretion to
distinguish among those cases which do or do not require expedited
treatment, most priority provisions can be mechanically invoked.
It is, obviously, unfair and a waste of resources to allow a case
in which there is no special need for expedition -- but which falls
in a broad "priority" class -- to take precedence over other cases
in which the need is more compelling but no statutory priority is
applicable. That is the frequent effect of the current law.
We believe that the approach taken by Title II to this
problem is fundamentally correct. We believe that all but the
most clearly necessary and justifiable priority provisions should
be revoked and replaced with a single standard which the courts
can apply to all cases to determine the need for expedition. The
courts are, in general, in the best position to determine the
need for expedition in of a particular case, to weigh the relative
needs of various cases on their dockets, and to establish an order
of hearing that treats all litigants fairly. Litigants who can
persuasively assert that there is a special public or private
interest in expeditious treatment of their case will be able to
use the general expedition provision provided in Title II to the
same effect as existing priority provisions.
We would also like to note one additional concern with this
title. As it is presently drafted, Title II would require the
court to expedite "any action for temporary or permanent injunc-
tive relief." It is clearly desirable to retain existing rules
of expedition applicable to certain injunctions under the Federal
Rules of Civil Procedure and to require that injunctive actions
be expedited "if good cause therefor is shown." As drafted,
however, we believe that the title is overly broad. This broad
priority for any injunctive action would be subject to manipula-
tion, providing litigants with an incentive to include a claim
for injunctive relief simply to obtain expedited consideration.
Certainly not all cases in which an injunction can be plausibly
claimed have a special need for expedited treatment.
On balance, we believe, however, that Title II represents
an important and needed reform to the existing law of civil
priorities.
- 7 -
Title III upgrades the judicial benefits program. We are
concerned that federal judges are becoming increasingly dissat-
isfied with the program that provides benefits to the survivors
of deceased judges. The Department wholeheartedly supports the
proposed changes in this program. These changes will help attract
skilled lawyers to the bench and eliminate the concern that judges
now serving have for the security of their families.
We would like to offer one amendment that is designed to
increase participation by the judges in the benefits program.
The attached amendment would allow the judges to borrow against
the equity that they have in the benefits fund. This is a feature
that is common in most private insurance plans. Given the fact
that in 1957, the first year that the program was in operation,
86 percent of the judges joined. In 1982, only 78 percent of
the judges were participants. By making this program similar to
private insurance plans it is hoped that participation in the
benefits program will increase.
Title IV creates a State Justice Institute that would direct
a national program of assistance for state court improvements by
providing funds to state courts and other appropriate organiza-
tions. The Department opposes the enactment of Title IV.
The Institute would be headed by a Board of Directors whose
voting members would be six judges, one state court administrator,
and four public members. The President would appoint the Board
members with the advice and consent of the Senate. The President's
choices in nominating the six judges and the state court adminis-
trator for membership on the Board would be limited to a list of
at least fourteen candidates submitted by the Conference of Chief
Justices.
The provisions of Title IV relating to grants and contracts
state that Institute funds are to be used primarily for research,
demonstrations, innovative projects, and other justice improvement
measures, and are not to be employed to support basic court serv-
ices. Matching funds equal to 25% of the total cost of a grant
to, or contract with, a state or local judicial system must nor-
mally be provided by the recipient. The Institute is generally
barred from involvement in litigation and political activities.
The funding authorized for the Institute is $20,000,000 in 1984,
$25,000,000 in 1985, and $25,000,000 in 1986.
The goals that the Institute is designed to further are
obviously important, and the specific arrangements set out in
Title IV seem generally well designed to advance these objectives.
However, we have concluded that we cannot support this legisla-
tion. The reasons for this conclusion are largely budgetary.
The proposal does not bear any of the earmarks of a necessary
funding project in this time of austerity. It does not relate
specifically to an area that has been made the responsibility of
- 8 -
the federal government by the Constitution or federal law; it
does not relate specifically to a stated priority of the Adminis-
tration or the Department of Justice; and it does not address a
problem of national scope that the states are inherently incapable
of dealing with on their own. Indeed, it is far from clear to
us that the state courts are the element of state justice systems
most urgently in need of additional funding. A discussion of
these three points follows:
(i) Federal Interest and Responsibility. The proponents of
the State Justice Institute have argued that the propriety and
desirability of federal funding for state court improvement
projects follow from the fact that the state courts are, in a
sense, federal courts. The state courts, under the Supremacy
Clause, are required to enforce federal law, and a substantial
portion of their time and resources is taken up in doing so. The
state courts are also required to comply with the constitutional
requirements of due process. The costs of discharging both of
these responsibilities have increased greatly in recent decades
as a result of the decisions of Congress in expanding the scope
of federal law and the decisions of the Supreme Court in inter-
preting the federal Constitution. It is argued that some level
of federal funding for state court activities is required as a
matter of fairness, or is at least appropriate, given the general
federal interest in the adequate administration of federal law,
and the burdens which the state courts bear in discharging their
federal responsibilities.
These considerations are not without force. However, cer-
tain countervailing considerations should also be noted. In
forming the United States the individual states made the judgment
that the general benefits of national government would outweigh
the resulting costs to them. The same judgment was made subse-
quently by the remaining states in joining the union. The quid
pro quo for the burdens resulting from the responsibilities of
statehood -- including enforcement and compliance with federal
law -- need not take the form of reimbursement to the states for
the specific expenditures incurred in discharging these responsi-
bilities, but may be found in the general functions which the
federal government carries out, to the benefit of the states,
such as national defense and the regulation of interstate commerce.
It may also be noted that the federal courts bear certain
burdens which would otherwise be borne by the state courts,
though no reimbursement is expected from the states in return for
such activities. For example, when jurisdiction is based on
diversity of citizenship, the federal courts hear state law cases
which would otherwise have to be handled by the state courts.
Essentially, the same point can be made in relation to the full
range of subjects which are currently regulated by federal laws
- 9 -
whose enforcement is partially or wholly committed to the federal
courts. In the absence of the assumption of responsibility by
the federal government for regulation and enforcement in these
areas -- for example, patents, bankruptcy and antitrust -- the
states would need to undertake their own regulation, and the
resulting burden of enforcement would fall on the state courts.
Finally, while the federal interest in the adequate adminis-
tration of federal law does provide some support for the propriety
or desirability of federal assistance to state courts in enforcing
and complying with federal law, the State Justice Institute Act
is not especially designed to further this interest. Title IV
does not require that funds disbursed by the Institute be used
exclusively or primarily to assist state courts in enforcing or
complying with federal law, but authorizes support of projects
relating to nearly all aspects of state court improvement.
(ii) Relationship to Administration Priorities. The Admin-
istration has identified violent crime as an area of priority and
concern. This priority has been reflected in the creation of the
Attorney General's Task Force on Violent Crime. The State Justice
Institute proposal does have some general relationship to this
priority, since many of the projects funded by the Institute would
presumably contribute, directly or indirectly, to the improvement
of the ability of state courts to deal with violent crime, and
crime in general. However, this legislation does not create any
presumption in favor of the allocation of Institute funds to
projects concerned with violent crime, or any other Administration
priority. By design, decisions concerning grants and contracts
are left to the Institute's Board of Directors which would operate
free of federal control.
(iii) State Competence. The principal functions of the
State Justice Institute would be to make decisions concerning the
disbursement of federal funds to state court improvement efforts,
and to handle the award and monitoring of such grants and con-
tracts. At least in theory, the same type of Institute might be
created by all the states, or a group of interested states, with
funds contributed by the subscribing states substituting for the
federal money authorized in Title IV. Supporters of Title IV
have responded to this objection by pointing to the uneven commit-
ment of the various states to providing sufficient support for
the operation and improvement of their own court systems, and
the difficulty of securing state funding for national organiza-
tions -- such as the National Center for State Courts -- which
provides important services to the state judiciaries. Problems
of this sort may make a state-based alternative less effective
than a federally supported State Justice Institute, or perhaps
simply unfeasible. However, the proponents of the Institute
have only claimed that the states have been unwilling to provide
adequate overall support for state court improvement efforts --
- 10 -
not that they are incapable of doing so -- and a statebased sys-
tem would offer certain advantages over the federal funding
approach. In particular, a state-based system would remove all
elements of federal influence and control from decisions concern-
ing the allocation of funds to state court systems, and would
allow each state to decide whether the benefits to it from parti-
cipation in the system justify the cost of subscription or member-
ship.
In sum, the Administration opposes Title IV and equivalent
proposals for the creation of a federally funded State Justice
Institute. 14/
14/ There is a specific feature of Title IV which merits sepa-
rate comment. As noted earlier, the President's choices for
seven of the members of the Board of Directors of the State Jus-
tice Institute would be limited to a list of candidates submitted
by the Conference of Chief Justices. This provision raises
serious constitutional doubts. We recognize that Congress can
impose qualifications for the persons whom the President seeks
to appoint and define the general class of persons from which
the President may make an appointment, including the requirement
that appointees to certain offices must be selected from lists
submitted by the Conference of Chief Justices. See Myers V.
United States, 252 U.S. 52, 265-74 (1926) (Brandeis, J., dis-
senting). On the other hand, the power of Congress to impose
qualifications for appointments does not mean that the President
can be compelled to appoint persons whom he considers unsuitable
for the position. In other words, the qualification provision
of the type in Title IV means that the appointee must be accept-
able to the Conference of Chief Justices as well as to the Presi-
dent. A list submitted to the President therefore must contain
a sufficient number of candidates to afford the President "ample
room for choice." 13 Op. A.G. 516, 525 (1871); see also 29 Op.
A.G. 254, 256 (1911); 41 Op. A.G. 291, 292 (1956). A provision
for a list containing "at least" fourteen names for seven appoint-
ments, i.e., two for each vacancy, does not in our view comply
with that requirement, unless it is assumed implicitly, in order
to save the constitutionality of the provision, that the President
has the right to reject a list which does not contain any accept-
able nominees. See § 4 (b) (2) of the Pacific Northwest Electric
Power Planning and Conservation Act, 94 Stat. 2702. This section
provides explicitly that under the appointing authority, the
Secretary of Energy, "may decline to appoint for any reason a
Governor's nominee for a position and shall so notify the Governor.
The Governor may thereafter make successive nominations within
forty-five days of receipt of such notice until nominees acceptable
to the Secretary are appointed for each position."
- 11 -
Title V establishes a Federal Jurisdiction and Revision
Commission. The Department supports the enactment of this title.
The functions of the Commission would be to study the jurisdic-
tion of State and Federal courts and to report to the President
and Congress on any revisions in the Constitution and laws of the
United States deemed advisable on the basis of the study. The
commission would be composed of sixteen members, four to be ap-
pointed by the President, President pro tempore of the Senate,
Speaker of the House, and Chief Justice of the United States
respectively. Each member would serve a term for the life of the
Commission, and vacancies would be filled in the same manner in
which the original appointment was made. The Commission would
select a Chairman and a Vice Chairman. Within two years after
its first meeting, the Commission would be required to transmit
to the President and to Congress a final report containing.a
detailed statement of its findings and conclusions. Ninety days
after the submission of its final report to Congress, the Commis-
sion would be terminated.
The Commission would be granted a wide range of powers. It
would be permitted to hold hearings, administer oaths, and enter
into contracts with public and private institutions. The Chairman
of the Commission would be authorized to appoint and fix the com-
pensation of an Executive Director and additional staff personnel.
The Commission would also be empowered to require, by subpoena or
otherwise, the attendance and testimony of witnesses and the pro-
duction of documentary materials. Members of the Commission
would be authorized to sign and serve the subpoenas, which would
be enforceable in district court by the Attorney General. At the
Commission's request, Executive branch agencies would be required
to furnish information, "consistent with applicable provisions of
law."
In the Department's view, the proposed Commission would be a
useful method of obtaining information and ideas on possible
revisions in federal law. The subjects of congressional power
over the jurisdiction of the federal and state courts, and the
proper exercise of that power, are important and difficult ones
that merit careful study. The Department of Justice thus agrees
with the basic goals of Title V.
We do not believe that any serious constitutional questions
are raised by Title V. Congress is plainly authorized, in fur-
therance of its legislative function, to create entities performing
advisory responsibilities. Since the Commission would not be
"exercising significant authority pursuant to the laws of the
United States, Buckley V. Valeo, 424 U.S. 1, 126 (1976), its
members would not be "Officers of the United States" within the
meaning of the Appointments Clause. U.S. Const. Art. II, $ 2,
cl. 2. Cf. Buckley V. Valeo, supra, at 125-42. Moreover, the
powers granted to the Commission do not intrude upon the Execu-
tive's constitutional duty to "take care that the Laws be faith-
- 12 -
fully executed." U.S. Const. Art. II, § 3. The bill expressly
provides that the Commission's authority to obtain information
and assistance from the Executive branch must be exercised in a
manner "consistent with applicable provisions of law," including
constitutional law. Title V thus accords the Commission no power
to obtain materials protected by Executive privilege. Nor is
Congress prohibited from authorizing the Chairman of the Commis-
sion to appoint an Executive Director and other staff members.
Finally, we believe that the grant of subpoena power to the
Commission is within Congress' authority. In Buckley V. Valeo,
supra, the Court stated that any appointee exercising significant
authority pursuant to the law of the United States must be ap-
pointed in the manner prescribed by the Appointments Clause. Id.
at 126. At the same time, the Court stated that with respect to
powers "essentially of an investigative and informative nature,
falling in the same category as those powers which Congress might
delegate to one of its own committees, there can be no question
that [a body whose members were not appointed in accordance with
the Appointments Clause] may exercise them." Id. at 137.
According to the Court, " ' A legislative body cannot legislate
wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect
....
Experience has taught that mere requests for such information
often are unavailing ...; so some means of compulsion are es-
sential to obtain what is needed. Id. at 138, quoting McGrain
V. Daugherty, 273 U.S. 135, 175 (1927). The Court thus concluded
that the functions "relating to the flow of necessary information
-- receipt, dissemination, and investigation, id. at 139, may
be vested in a Commission whose members were not officers of the
United States, unlike "more substantial powers,' such as litigating
authority or power to enforce the subpoena in court. Id.
We believe that Buckley stands for the proposition that
Congress may delegate its authority to issue subpoenas to an
entity whose members are not officers of the United States within
the meaning of the Appointments Clause. We conclude, therefore,
that the subpoena provisions of the this Title are constitutional.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the stand-
point of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
Attachment
Proposed Amendment to Title III of S. 645
Section 376 of Title 28, United States Code, is amended by
adding the following section:
(s) (1) While in office a judicial official may receive an
advance of any amount that has been deducted and withheld from
his or her salary and credited to Judicial Survivors' Annuities
Fund. Provided, That (a) the judicial official submitted a loan
agreement that was approved by the Comptroller General of the
United States, and (b) all outstanding installment payments have
been deducted from the amount advanced.
(2) Interest on the loan shall accrue from day to day at a
rate that will be determined by the Comptroller General of the
United States and shall constitute an indebtedness to the Judicial
Survivors Annuities Fund as and when it accrues. Interest shall
be payable on each anniversary of the date of the loan until
such loan is repaid, and if such interest is not paid when due
it shall be added to and form a part of the loan and bear interest
at the same rate. All interest shall be paid into the Survivors'
Annuities Fund in accordance with such procedures as may be
prescribed by the Comptroller General of the United States.
(3) All or any part of the loan may be repaid, with accrued
interest on the amount so repaid, at any time that the judicial
official is in office. If the judicial official dies before
repaying the loan and accrued interest, this debt will be deducted
from the survivors' annuity. If the judicial official retires
before repaying the loan and the accrued interest, this debt will
be deducted from the "retirement salary".
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
May 11, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement of Francis Mullen on
Production and Trafficking of
Controlled Substances in Latin America
Bud Mullen proposes to deliver the above-referenced
testimony before the Subcommittee on Crime of the House
Judiciary Committee tomorrow, May 12. The lengthy statement
reviews DEA's international program, with detailed reports
on Mexico, Columbia, Peru, Bolivia, Brazil, Jamaica, Belize,
and Cuba. The most significant aspect of the testimony in
light of recent publicity is likely to be the discussion of
the role of the Cuban government in drug trafficking. The
discussion centers on the Guillot-Lara investigation, which
revealed the involvement of Cuban government officials who
were subsequently indicted. Mullen concludes: a"When we
examine the total amount of intelligence and evidence that
is available from the 1970's, the Guillot investigation and
its follow-up, and new intelligence now being developed, it
is difficult not to believe that the Government of Cuba
remains cognizant of the movement of drugs through its
territory, and may be facilitating this movement. " a
I see no legal objection.
Attachment
THE WHITE HOUSE
WASHINGTON
May 11, 1983
MEMORANDUM FOR GREGORY JONES
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
FFFIRAH
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of Francis Mullen on
Production and Trafficking of
Controlled Substances in Latin America
Counsel's Office has reviewed the above-referenced proposed
testimony and finds no objection to it from a legal
perspective.
FFF:JGR:aw 5/11/83
cc: FFFielding
JGRoberts
Subj.
Chron
ID #
a
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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Subject: Statement of Francis Million fn Production
Ratin America
and Drafficking of Controlled Substances in
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5/81
U.S. Department of Justice
Assistant Attorney General
Legislative Affairs
5/9/83
IF YOU HAVE ANY COMMENTS PLEASE
GIVE THEM TO GREG JONES, OMB,
395-3802.
DRAFT
Statement
of
Francis M. Mullen, Jr.
Acting Administrator
Drug Enforcement Administration
U.S. Department of Justice
on
Production and Trafficking of
Controlled Substances in Latin America
Before the
Committee on the Judiciary
Subcommittee on Crime
U.S. House of Representatives
William J. Hughes, Chairman
May 12, 1983
DRAFT
Chairman Hughes and Members of the Subcommittee on Crime: I am
pleased to appear before you to discuss the Drug Enforcement
Administration's perspective on the production and trafficking of
controlled substances in Latin American countries.
Drug control is clearly an international issue. All the heroin
and cocaine and much of the cannabis available in the United
States is cultivated and processed from agricultural sources in
Southwest Asia, Southeast Asia, South America and the Caribbean.
A pillar of DEA's effort is the interdiction of drugs at their
source rather than as they approach or cross United States
borders. This results in greater impact being made, because
quantities seized at the source are much larger and purer than
those seized on the streets of United States cities.
Consequently, DEA personnel are stationed in foreign countries to
support host country efforts to eliminate cultivation, production
and conversion of drugs and to stop shipments of drugs destined
for the United States. These efforts include the provision of
technical assistance through training and the exchange of
intelligence in cooperative investigations. Stopping drugs
within the source country or as close to the source as possible
has proven to be an effective approach to reducing the supply of
illegal drugs.
During 1982, the trend of increasing heroin availability and
abuse observed in recent years in the United States continued.
Retail purity rose from an average of 3.9 percent in 1981 to 5.1
percent in 1982. Likewise, cocaine was increasingly available in
the United States during 1982. Seizures nearly tripled from the
previous year while prices remained stable and retail purity
levels increased significantly. The use of marihuana and
dangerous drugs in the United States also continued at a high
level. For all these drugs, the role of Latin American countries
as source or transit countries is significant and expanding.
The U.S. Government Role in International Narcotics Control
Last summer President Reagan released the 1982 Federal Strategy
for the Prevention of Drug Abuse and Drug Trafficking. The
Strategy sets the tone and direction for the United States
Government's overall effort to reduce drug abuse during the
coming years. DEA is involved in the drug law enforcement and
international aspects of this Federal response, which also is
directed at education and prevention, treatment, and research.
In the international forum, the United States Government is
developing and implementing a long-range, organized effort to
work with drug source nations to eliminate illicit drug
production and to interdict drugs in transit. Some specific
initiatives of the Strategy include:
Encouraging and assisting other countries to
develop programs to eradicate illicit drugs grown
or produced within their borders and to address
their own drug problems;
Exploring with other governments ways to monitor
and to impede the substantial cash flow generated
by illicit drug transactions; and
Participating in international drug control and
enforcement organizations to gain greater coopera-
tion among all nations in which illicit drugs are
produced, transited and/or consumed.
Over the past year, the U.S. Government has worked to accomplish
many of these objectives. Specifically, DEA has assigned Special
Agents and support pesonnel to 62 offices in 41 countries
throughout the world. In Latin America, our personnel are
assigned to 25 offices in 16 countries. Our staff overseas
encourage, advise and assist host countries in the development
and implementation of effective measures to control licit drug
crops, reduce illicit cultivation and conversion, and interdict
illicit drugs at staging areas in-country and along the
trafficking routes.
As a result of outstanding cooperation between DEA and our Latin
American counterparts, there have been significant advances in
coordinated operations with some source and transit countries.
This progressive approach has given the United States enhanced
operational capabilities, and has been invaluable in the
investigation of large-scale cocaine organizations.
Together with the Department of State, DEA supports a regional
approach to the cocaine problem. Coca eradication by Colombia
has begun. In Peru, a coca eradication campaign conducted in
early 1980 proved to be very encouraging and we are working with
the Peruvian authorities in continuing this program. The
Bolivian government did not appear ready to undertake any
eradication measures until the installation of the President
Hernan Siles Government last October. Since then, the Govern-
ment of Bolivia has consulted with the United Nations and other
countries with regard to funds to support eradication and
enforcement efforts. We are looking forward to specific
accomplishments regarding these initiatives.
A number of initiatives have been undertaken against the supply
of essential chemicals such as ether and acetone which are used
in the cocaine conversion process. For the past several years,
Brazil has imposed effective controls on the production of both
ether and acetone, which has simplified the process of tracing
the chemicals to the users. In January of this year, Colombia
also imposed controls on the importation of ether. DEA is now
looking for ways to establish a complimentary program which would
provide for voluntary compliance in the U.S. pharmaceutical and
chemical industries to ensure that essential chemicals for co-
caine production do not become available to cocaine traffickers.
Colombia also continues to be our largest marihuana supplier.
We support the Colombian Government's campaigns to suppress the
production and trafficking of marihuana and other illicit drugs
in their country. We are working with the Colombian Government
in a continued campaign against marihuana traffickers. Through
these efforts and the intensified interdiction operation being
conducted in the Caribbean, we have seen the amount of marihuana
entering the United States decline in 1982. I am optimistic that
this trend will continue in 1983.
Although Mexico is still a source country for marihuana destined
for the United States, its share of the overall illicit United
States market has declined in the past three to four years
because of the successful use of paraquat by the Mexican
Government in its eradication program.
While I believe there has been some progress in the cocaine and
marihuana situation in South america, we, in the United States,
recognize that fragile economies, political influences and other
considerations all serve to hamper crop eradication and control
efforts in source and production countries. Although many of the
current major marihuana source countries have shown some degree
of willingness and ability to eradicate marihuana, they are often
hesitant to initiate drug crop eradication programs unless the
United States is willing to undertake the same effort.
The United States has embarked on a multi-agency coordinated
domestic cannabis eradication and suppression program. DEA is at
the forefront of this important effort, and we work closely with
state authorities to ensure that this is a national cannabis
eradication program. It has expanded from 5 states in 1981 to
25 states last year, and 40 states will participate in the 1983
campaign. In 1982, over 1600 tons of domestically produced
marihuana were eradicated.
Our Ambassadors in Colombia, Peru and the Bahamas all note that
the enforcement actions being carried out in the United States
are important not only because they reduce the domestic
availability of marihuana, but also because they demonstrate to
other nations that we do have a domestic problem and that we are
willing to take the necessary measures to curtail it. We cannot
expect other nations to take steps we are unwilling to take
ourselves.
Our relationship with counterpart agencies in Latin American
nations was recently enhanced even further by virtue of the first
meeting of the International Drug Enforcement Conference (IDEC).
This conferencegheld at Contadora Island, Panama in April, 1983,
was a gathering of the Directors of National Police Agencies from
13 countries and other high-level law enforcement officials of
Latin American countries responsible for narcotic law enforce-
ment. During this initial meeting, the conferees agreed to focus
on three topics -- financial investigations; crop control and
eradication; and control of essential chemicals.
IDEC is of particular significance in that it provides a forum
for the future discussion and resolution of problems of mutual
concern to participating nations. The continuation of the
Conference on an annual basis assures that the activities of
narcotic law enforcement agencies in the Western Hemisphere will
be coordinated and targeted in a purposeful manner.
Country Reports
An overview of the narcotic situation and enforcement program in
selected Latin American countries follows.
Mexico
Mexico is a source country for heroin, marihuana and dangerous
drugs for the U.S. market. In addition, cocaine, Colombian
marihuana, and methaqualone transit Mexico on the way to the
United States.
Approximately 30-35 percent of the heroin available in the United
States is of Mexican origin. Mexican heroin has been available
in the United States since the late 1940's, but it was the
decline of Turkish/French heroin from the U.S. market in 1972
that created the first widespread distribution of Mexican "brown
heroin".
By 1975, Mexican heroin was no longer simply a California or
Southwest commodity. It had spread eastward and accounted for
about 80% of the U.S. market. However, successful efforts in
crop eradication and increased enforcement initiatives brought
about a significant decrease in Mexican heroin.
During the latter half of 1980, Mexican heroin began a resurgence
and by 1982, Mexican heroin had reentered the marketplace in
increasing quantity and high quality.
Currently, Mexican heroin is plentiful throughout the West, the
Southwest and the Midwest with trafficking organizations and
patterns remaining basically the same as during the late 1970's.
Mexico's share of the overall U.S. marihuana market has declined
steadily in the past several years, primarily as a result of the
vigorous eradication campaign the Mexican Government has waged
since 1976. However, Mexico is still a major source country; and
the discovery late in 1982 of several large-scale cannabis
plantations, located in non-traditional areas suggest that the
marihuana industry is rebounding.
Mexico has also played a significant role in the trafficking of
dangerous drugs. Currently, Mexico is a major source and
transiting country for diverted pharmaceutical products.
Frequently. illicit shipments of bulk substances such as
methaqualone, methamphetamine, secobarbital, or other substances
enter Mexico from Europe. Once in Mexico, substances are
tableted or repackaged for diversion into the U.S. Certain
legitimate drugs like codeine are diverted from licit channels in
Mexico and smuggled into the U.S. Others, such as amphetamine
and phendimetrazine have been manufactured in Mexico for many
years and continue to be a source for the illicit U.S. market.
Mexico and the United States have cooperated in aerial herbicide
spraying since the mid-1970's. Although the U.S. assisted
program has been directed only against opium poppy cultivation,
Mexico.
the / authorities on their own have sprayed marihuana fields since
the inception of the program.
Additionally, DEA has initiated an effort in Mexico to identify
suspect vessels and aircraft; ports and airstrips used for re-
fueling; loading and off-loading sites and land routes for
smuggling marihuana. Intelligence developed from this program
will enable DEA and Mexican officials to target interdiction
efforts in specific areas.
During January 1983, the Operations Division and the Mexican
Country Office hosted a conference at San Antonio, Texas attended
by Special Agents in Charge of Divisions located along the
Mexican border. The conferees drafted a list of recommendations
for dealing with the total drug enforcement problem between
Mexico and the U.S. Included among these was a recommendation to
obtain on-site verification of eradication efforts.
At the present time, we see an increased interest on the part of
the Mexican Federal Judicial Police (MFJP) to enter into
cooperative enforcement ventures. Our border offices report
increased liaison with the MFJP, which is an initial indicator of
commitment on the part of President de la Madrid's Administration
to effective narcotic enforcement.
Another indicator is the renewed interest in the JANUS program by
the Mexican Attorney General's Office recently reported by
management of the Mexico Country Office. This program, which was
all but discontinued from 1980-1982, allows for the prosecution
of Mexican violators in Mexico using evidence obtained in the
United States.
Colombia
Colombia plays a major role in the international traffick of
cocaine, marihuana, and illicit methaqualone. According to DEA
intelligence, it is the source of supply for approximately 75
percent of all cocaine and 50 percent of all marihuana and
approximately 50 percent of all methaqualone consumed in the
United States.
As both a processing center and a staging area for cocaine
smuggling, Colombia is the principal source and major producer of
cocaine hydrochloride worldwide. Traditionally, Colombia has
processed and distributed cocaine, relying on both coca paste and
cocaine base from Bolivia and Peru. Colombian traffickers then
refine the base and paste into cocaine hydrochloride for
distribution to consumer countries. This remains its most
significant function in the traffic.
The distribution of clandestinely-produced cocaine is controlled
by approximately 12-15 families who are capable of dealing in
lots of over 100 kilograms. These groups often have their own
cocaine hydrochloride laboratories, thus eliminating the need for
a middle man. Cocaine is smuggled out of the country via private
aircraft, commercial aircraft, air cargo shipments, couriers and
vessels. Monies received for the sales of cocaine are at times
brought back into the country and used to invest in legitimate
business, especially construction, and to purchase real estate.
In other instances, the receipts from the illicit trafficking are
invested in the same type of businesses in the United States or
deposited in foreign safe havens.
To counter the manufacture of cocaine in Colombia, DEA has
developed a program to control ether and acetone, the chemicals
needed for the conversion of cocaine. In response to DEA's
initiative, the Government of Colombia has, for the first time,
implemented controls that govern the importers and the amounts of
chemicals that are imported. Additionally, DEA is attempting to
enlist the assistance of the industrialized countries responsible
for making such chemicals available to Colombian trafficking
groups. Although Colombian traffickers are known to have
stockpiled considerable quantities of essential chemicals, we
believe that as these stockpiles are depleted, there may be a
significant reduction in their ability to manufacture unlimited
quantities of cocaine.
Within the last two to three years, Colombian trafficking
organizations have made a concerted effort to cultivate their own
coca bushes in order to become self-reliant and not dependent on
Peru or Bolivia for raw coca material.
To combat these efforts, DEA is encouraging and supporting State
Department initiatives to assist Colombian authorities in
eradicating these plantations. Until now, coca eradication has
been limited to manual efforts which have not been able to keep
abreast of expanded coca cultivation. We believe that herbicides
are the most effective means of eradication and efforts continue
to persuade the Colombian Government to use them. Otherwise,
vast increases in resources will be needed for a thorough manual
eradication program.
Colombia is also known to be a source country for marihuana.
Prior to 1982, approximately 75 to 80 percent of the marihuana
consumed in the United States was of Colombian origin. While
production levels have remained fairly constant, we believe
Colombia supplied a little more than 50 percent of the U.S.
market in 1982, largely because host country seizures, limited
manual eradication fforts and removals during international
transit have exacted a heavy toll on the marihuana traffic. In
addition, increased competition from U.S. domestic production and
expanded activity in Jamaica and Me ico have decreased the market
share represented by Colombian marihuana. The country's
,however,
production capacity and experienced distribution networks remain
formidable.
For many years Colombian drug traffickers have been the major
suppliers of dangerous drugs, and especially illicitly
manufactured Quaaludes (methaqualone) smuggled into the U.S.
More recently, Colombia has been identified as a source for other
counterfeit drugs of abuse like Dilaudid which do not always
contain the drugs they are purported to but a variety of
controlled substances.
Large international drug trafficking organizations have
established clandestine tableting operations in Colombia.
The bulk of controlled substances used to make the counterfeit
tablets are ordered from European or Asian sources through one
or more brokers and diverted from international commerce. The
importation of these substances is facilitated through the free
trade zones, even though some have been legally banned from the
country.
There has been measurable success in slowing the flow of
counterfeit methaqualone tablets from Colombia to the United
States. In 1981 and 1982, successful diplomatic initiatives from
the United States to foreign governments of source countries such
as Hungary, Austria, Federal Republic of Germany and the People's
Republic of China coupled with large multi-ton seizures in
Colombia ad other countries have contributed to reducing the
availability of legitimately produced methaqualone powder for
illicit purposes. However, traffickers are now seeking other
substances that are not controlled by law or regulation.
Experienced and highly organized Colombian drug traffickers are
using techniques developed in the course of illicit methaqualone
trafficking to capitalize on these and other drugs of abuse.
The Government of Colombia has initiated several actions to
increase its capability to control the production and trafficking
in illicit drugs. Several of the most significant of these
follows:
- The Colombian Government is studying a Mutual Legal
Assistance Treaty which provides for the exchange
of information and evidence in criminal, civil, and
administrative matters with the United States.
- In early 1981, the long-awaited Special Anti-Narcotics
Units of the National Police became fully operational
and were deployed in all active illicit drug regions.
This organization replaced the army as Colombia's
primary anti-narcotics agency.
- The 1971 Convention of Psychotropic Substances was
signed by the President in January, 1981. This action
strengthened Colombia's position in curtailing metha-
qualone imports.
Because of the extensive illicit narcotic activity in Colombia,
DEA has established its largest South American office there with
offices in four cities. Much of our activities there involve the
day-to-day monitoring of intelligence and the exchange of
information - efforts which have resulted in many significant
seizures of marihuana and cocaine.
DEA and State Department efforts have led to the development of
an extradition treaty with the Colombian Government. For the
first time, a civilian Colombian government has agreed to
extradite its nationals under specific limited circumstances. We
are currently providing a list of fugitive names to be presented
to the Colombian Government for extradition to the U.S.
Additionally, we maintain several ongoing intelligence efforts in
Colombia. Included among these are an analysis of the movement
of marihuana and cocaine out of Colombia, a probe on the
importation of cocaine HCL's essential chemicals (most
importantly ether) from foreign sources, and a probe on cocaine
labs and coca leaf, couriers from Ecuador, Bolivia and Peru.
Peru
Peru is one of the two major producers of coca leaves, the raw
material for cocaine. The output available for illicit use from
Peru (36,000 metric tons) is roughly equivalent to that of
Bolivia the only other major producer of coca leaves. The coca
leaves are generally processed into coca paste and cocaine base
which are intermediate cocaine products, and then smuggled to
Colombia. Peru also produces a significant quantity of cocaine
hydrochloride (HCL) for direct transport to the United States and
other markets.
Peru is the second most important source of cocaine for the Unite
States. High quality cocaine is produced in small amounts. The
higher quality and slightly lower price of Peruvian cocaine
compared with the Colombian product have encouraed U.S. and
European buyers to travel to Lima to make purchases of kilogram
quantities for import to their countries.
However, Peruvian traffickers lack competitive strength in major
foreign markets. They do not have the business experience of the
Colombians and, in general, are not considered reliable
suppliers. We do not expect Peruvian traffickers to replace the
Colombians.
DEA's efforts in Peru have been better than in most foreign
countries because of the generally cooperative efforts on the
part of our Peruvian counterparts. We are obviously interested
in effectively pursuing a coca eradication program in Peru. Peru
will accept assistance for eradication and crop substitution in
certain areas, however, prospects for an effective effort to
control coca cultivation are uncertain in view of competing
Peruvian Government priorities and political resistance to coca
control.
Bolivia
Bolivia is the other major source country for coca leaf. In 1981
it was estimated that in Bolivia 39,000 metroc tons of coca leaf
were produced in excess of that grown for legitimate needs.
Coca cultivation has been virtually unrestrained from 1977 to
1981, and our estimates are that, over the four-year period, coca
leaf production increased by about 75%.
Coca leaf is processed into coca paste and cocaine base in
Bolivia, but very little is converted to the finished product,
is
cocaine hydrochloride. Instead the paste or base are supplied to
Colombia traffickers.
Even though Bolivia is able to sell cocaine more cheaply than
Colombia, it does not have ready access to customers or have the
business experience of the Colombians, and in general Bolivians
are not considered reliable suppliers. Bolivian traffickers are
inhibited from expanding cocaine refining operations because of
difficulties in obtaining processing chemicals. This is due to
their country's weak industrial base and controls by neighboring
Brazil which produces these necessary chemicals. Bolivia does
not have the potential to displace Colombia in major cocaine
markets.
In the past, DEA's efforts in Bolivia have been largely
restricted to intelligence gathering. This situation has changed
dramatically in recent months. Foremost among the reasons for
this is the Joint Communique between the Government of Bo ivia
and the United States issued during the Attorney General's trip to
Bolivia in April 1983. In this communique, Bolivia and the U.S.
announced their support for increased efforts to eliminate
illicit drug traffic. Specif cally, Bolivia will undertake
development of substitute crops in coca growing regons and the
U.S. will support this and other efforts designed to stop
excessive coca leaf growth.
In another recent accomplishment, DEA worked with the Government
which
of Bolivia to establish a Special Narcotics Unit who will carry
out operations against targeted traffickers. This special force
will be trained and encouraged by DEA to use advanced
investigative techniques in their enforcement operations.
A DEA Special Enforcement Operation directed against high-level
Bolivian trafficking figures (as well as other nationalities) was.
recently successful in indicting 18 persons including the primary
target, former Bolivian Minister of the Interior, Colonel Luis
Arce-Gomez.
According to the indictment, from March 1980 and continuing for
approximately one year, Arce-Gomez used his position to extract
protection money from traffickers who were smuggling cocaine to
the U.S. Arce-Gomez fled Bolivia late last year after the
nation's new democratic government began to purge corrupt
military personnel. Bond for Arce-Gomez has been set at two
million dollars.
Efforts are now underway to extradite the individuals named in
the indictment, which, if successful, could have a substantial
impact on reducing the narcotic problem in Bolivia.
Brazil
Although it is largely a victim country, Brazil is, perhaps, our
most important ally in the struggle to overcome drug trafficking
in South America. Brazil is the primary source counry
for
acetone and ether, the essential chemicals needed to process
Bolivian coca leaf into base or paste. It is also important to
recognize that Brazil is a transit country through which cocaine
is shipped to U.S. and European markets. Some coca is also grown
in Brazil, but only in such remote areas that preclude
eradication efforts by the Government.
DEA works closely and has an excellent rapport with Brazilian
authorities. For example, we recently helped the Brazilian
Police establish an airport control program to interdict cocaine
shipped through Brazil from other countries.
Approximately three years ago, at DEA's suggestion, Brazil
developed a chemical control program which has been very
successful and remains ongoing today. Because of the Bolivian
trafficker's dependence on Brazil for essential chemicals, this
program is believed responsible for reducing their ability to
manufacture unlimited amounts of cocaine HCL.
Although some significant narcotic seizures have been made, our
efforts in Brazil are hampered by the size and geography of the
country and the adverse economic conditions brought on by the
current recession.
Jamaica
By the early 1970's, Jamaica had become an important source
country for the U.S. marihuana market. During the past several
years there have been indications of increasing interest in
Jamaican marihuana in the United States, as evidenced by the rise
in air smuggling seizure incidents involving Jamaican marihuana.
Jamaica is now believed to account for more than 15 percent of
the marihuana available in the United States.
Jamaica's role in drug trafficking, similar to many others in the
Caribbean, is primarily that of a transshipment country. The
numerous islands and isolated countries in the Caribbean provide
a series of stepping stones through which traffickers transit
enroute to the United States.
Most of the marihuana coming from the island traditionally has
been transported to the United States in small private aircraft
capable of carrying loads of 500 to 3,000 pounds. Deliveries
were usually made to Florida and to our southern Atlantic
seaboard. Due to the increased interdicton effort in South
Florida and the Bahamas in 1982, much of the air-lifted Jamaican
marihuana is no longer being landed, but rather air-dropped to
waiting speed boats which retrieve the floating bales and move
them to the Florida coast. This information is supported by
intelligence and seizures of marihuana wrapped in waterproof
packaging at several Jamaican airstrips.
DEA's primary role in this area is to support the U.S. military,
Coast Guard and Customs efforts and to enhance our interdiction
capability.
Belize
Some U.S. officials have been increasingly concerned about the
role of Belize as a marihuana exporting country. This Central
American country is a convenient staging area and transshipment
point for Colombian marihuana because it is located about mid-way
between Colombia and the United States.
In 1982, there were also increasing reports of marihuana
cultivation within the country, especially in remote areas near
the Guatemalan and Mexican borders. However, a recent inter-
national cooperative effort based on DEA-supplied intelligence
may have all but ended Belize's brief tenure as a marhuana-
exporting country. A joint eradication operation coordinated in
part by DEA's Guatemala and Mexico Country offices, using Mexican
personnel and helicopters to locate and spray marihuana fields in
neighboring Belize, was completed in late November 1982. The
objective of the operation - to survey all of Belize and destroy
the illicit crops found - was achieved, with an estaimated 223
acres of Belizean marihuana destroyed.
A report from Belize indicates that the spraying had an adverse
impact on the marihuana cultivation and trafficking areas. Not
only were the majority of fields destroyed by the spraying,
causing a financial loss to area growers, but also some growers
and traffickers were said to be convinced that perennial
eradication operations would now be inevitable. As a result,
fewer growers were. planning to replant their illicit crops, and
what had been an escalating pattern of marihuana cultivation
appears to have been halted.
Cuba
As early as 1963 and throughout the 1970's, DEA and its
predecessor agencies received information alleging a government
of Cuba role in drug trafficking.
The first well-documented example of Cuba's involvement in drug
trafficking, however, resulted from the inreased pursuit of the
Jaime Guillot-Lara investigatioin in late 1981. It was during
this investigation that intelligence was developed indicating
that certain officials of the Government of Cuba aided Guillot in
the movement of drugs from Colombia, through the Caribbean, into
the United States.
The association with Guillot provided a dual benefit to Cuba.
First, their facilitation of Guillot's smuggling ventures
provided hard currency which Cuba used to support revolutionary
activities in Latin America. Second, Cuba was able to utilize
the smuggling expertise and capabilities of Guillot by having him
transport and deliver arms which were ultimately destined for the
Colombian terrorist group, M-19.
On November 5, 1982, a Federal Grand Jury in Miami returned
indictments against 14 persons, including four Cuban officials,
charging offenses related to the importation of methaqualone
tablets and marihuana into the United States from Colombia via
Cuba. In February, 1983, five of the defendants were found
guilty and sentenced. The four Cuban officials, Guillot, and one
other defendant were not tried in absentia and remain fugitives.
The Guillot investigation exemplifies the involvement of Cuba in
drug trafficking, the connection between drugs and arms
trafficking, and the expanding relationship between terrorist
activities and drug trafficking.
Although the Government of Cuba has denounced the indictments,
DEA believes that, at the very least, Cuba is guilty of allowing
a
the movement of drugs through its territory. When we examine the
total amount of intelligence and evidence that is available from
the 1970's, the Guillot investigation and its follow-up, and new
intelligence now being developed, it is difficult not to believe
that the Government of Cuba remains cognizant of the movement of
drugs through its territory, and may be facilitating this
movement. a
Conclusion
Mr. Chairman and Members of this Subcommittee, drug trafficking
and abuse are truly worldwide problems and the drug problem in
the United States is heavily influenced by the activities of
traffickers throughout Latin America. Our resolve to solve our
own drug problms must be matched by a parallel commitment to work
with foreign nations in solving their drug problems. Long term
success requires that we work just as hard overseas as we do at
home. We must work equally on all fronts - at the local,
national and international. levels.
We must place particular emphasis on the source countries where
illicit drug supplies are most heavily concentraed
The
President and the Attorney General have visibly demonstrated this
emphasis during their trips last year to Colombia and Southwest
Asia during which drug control ranked as a top priority in their
bilateral discussions with foreign governments. The Attorney
General's recent fact-finding mission through South America again
emphasized the importance of international narcotic control
programs to this country and led to the extremely important Joint
Communique between Bolivia and the United States discussed in a
previous section of this statement. In the coming year, we will
continue to seek this high level commitment from foreign
governments particularly in the source countries.
I am optimistic that with your support significant inroads are
being made and will continue in the year ahead. Thank you for
this opportunity to discuss our activities and for your
assistance and support.