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

• Court: Department of Justice Office of Legal Counsel
• Decided: September 18, 1986
• Status: Published

Opinion

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

T he M ansfield Am endm ent to the Foreign Assistance Act provides that “no officer or employee of the U nited States m ay engage in or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.” 22 U.S.C. § 2291(c). Although the question o f what constitutes a “d irect police arrest action” within the meaning of the Amend­ m ent is not unambiguously answered by the language of the statute, the legislative history dem onstrates that Congress was anim ated by concern that U nited States officers and employ­ ees not participate directly in jo in t drug raids with foreign authorities. The Amendment should therefore be understood to prohibit participation in narcotics control activity that w ould under norm al circumstances be likely to lead to the arrest of foreign nationals. It does not prohibit involvem ent of United States officers in activities that would not ordinarily involve arrests.

September 18, 1986

M em orandum for th e A ttorney G eneral

This memorandum responds to your request for the views of this Office regarding the applicability of the Mansfield Amendment, 22 U.S.C. § 2291(c), to the use of United States military officers and equipment to assist foreign governments in their drug enforcement activities. You have also asked this Office to consider the possible statutory bases for using United States military personnel and equipment to assist in such operations. The Mansfield Amendment provides that “no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts.” The critical legal question raised by the Amendment is what constitutes a “direct police arrest action.” The legislative history of the Amendment makes clear that Congress’ central concern was that United States narcotics agents not participate in foreign drug raids and other law enforcement operations in which force was likely to be used. The standard employed by Congress for demarcating the scope of “direct police arrest action” under the Mansfield Amendment was whether the activity would, under normal circumstances, involve the arrest of individuals. We believe the Amendment prohibits participation by United States officers in foreign anti-drug operations which typically involve arrests, such as drug 122 raids. Conversely, it does not in our judgment prohibit involvement of United States officers in activities that do not typically involve arrests, such as plan­ ning and preparing for a drug raid. Nor does it limit training of foreign agents, the provision of intelligence or equipment for drug operations, or participation in operations aimed solely at destroying drug crops or drug facilities where arrests are not expected. The application of these general observations may raise difficult questions in the circumstances of any particular case. The Mansfield Amendment to the Foreign Assistance Act provides as follows: (1) Notwithstanding any other provision of law, no officer or employee of the United States may engage or participate in any direct police arrest action in any foreign country with respect to narcotics control efforts. No such officer or employee may interrogate or be present during the interrogation of any United States person arrested in any foreign country with respect to narcotics control efforts without the written consent of such person. The provisions of this paragraph shall not apply to the activities of the United States Armed Forces in carrying out their responsibilities under applicable Status of Forces arrangements. (2) Paragraph (1) of this subsection shall not prohibit officers and employees of the United States from being present during direct police arrest actions with respect to narcotics control efforts in a foreign country to the extent that the Secretary of State and the government of that country agree to such an exemption. The Secretary of State shall report any such agree­ ment to the Congress before the agreement takes effect. 22 U.S.C. § 2291(c). Before turning specifically to the questions you have raised about the applicability of the Mansfield Amendment, we address the congressional authorization for committing military personnel and equipment to assist in foreign anti-drug operations.

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

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

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

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

2 For exam ple, 22 U .S.C . § 2382(b) instructs the C hief o f the United States Diplomatic M ission in each country to m ake sure that the recom m endations o f other U nited States representatives “pertaining to military assistance (including civic action) and m ilitary education and training program s are coordinated with political and econom ic considerations." See also id § 2403(k). 3 Prior to 1983, § 2291(a) o f Title 22 allo w ed the President to “suspend . . . military assistance furnished under this chapter or any other A ct” to any co u n try if the President “determ ines that the governm ent o f such country has failed to take steps to prevent” drugs “produced o r processed” in that country or “transported through such co u n try " from entering the U n ited States. (E m phasis added). Because the term “this chapter" includes a host o f provisions authorizing fo reig n military assistance w holly unrelated to foreign anti-drug a ctivities, the pre-1983 reference in § 22 9 1 (a) to “m ilitary assistance" cannot be read as a dispositive indication that C ongress intended § 2291(a) to authorize the provision o f American m ilitary assistance to foreign anti-drug efforts. C o n g ress’ reference in the pre-1983 version o f § 2291(a) to “econom ic or military assistan ce," how ever, provides a strong ind icatio n that C ongress knew how to distinguish among different types o f assistance. It is thus difficult to e sc a p e the conclusion that C ongress’ unqualified use o f the term “assistan ce” was intended to co v erall form s o f assistance, including m ilitary assistance. In 1983, § 2291(a) w as am ended to separate the provisions d ealin g with the P resid en t’s power to suspend assistance to countries th at do not take adequate steps to stem the illeg al flow o f narcotics to the U nited States. Pub L. No. 98-164, T itle X, § 1003, 97 Stat. 1053 (1983); 2 2 U.S.C. § 2291(h). 4 S ection 2291 (i)(4 ) o f T itle 22 defines th e term “U nited States assistance” to cover all forms o f military assistan ce provided under the Foreign A ssistance Act (w ith certain exceptions not relevant to this point, includin g an exception fo r “ international n arco tics control assistance”).

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

5 Status o f Forces Agreem ents (SOFA s) are treaties that prescribe the conditions and term s that control the status o f forces sent by one State into the territory o f another State. In particular, SOFAs avoid jurisdictional clashes w henever the m ilitary personnel o f one country, assigned to peacetim e duty w ithin another country, com m it crim inal acts. See, e.g.. A greem ent Between the Parties to the N orth A tlantic T reaty R egarding the Status o f T heir Forces, June 19, 1 9 5 1 .4 U .S .T . 1792, T.I.A .S. No. 2846. Thus, it makes sense that C ongress would preclude such agreem ents from the scope o f the M ansfield Amendm ent to allow the United States m ilitary to enforce U nited States (and perhaps foreign) drug law s, including arrests, against its own personnel serving a tour o f duty in a foreign country. 6 There may be difficult appropriations questions tied to the use of any particular authority. A ssistance provided under § 2291(a) appears to be lim ited to funds authorized by C ongress specifically for that foreign narcotics assistance program. Congress authorized appropriations o f $57,529,000 for each o f 1986 and 1987 “ [t]o carry out the purposes o f § 481.” See Pub. L. No. 9 9 -8 3 , T itle VI, § 602, 99 Stat. 228 (Aug. 8, 1985) (codified at 22 U .S.C § 2291a). Som e lim ited funds from the M ilitary A ssistance Program (M AP) can be used to equip aircraft used for anti-drug operations under § 2291(a), but additional lim itations in the form o f notification o f Congressional com m ittees are attached to the use o f these funds. Pub. L No. 9 9 -8 3 ,9 9 Stat. at 611 (codified at 22 U.S.C § 2 3 1 1 ). C ongress has placed other lim itations on the use o f the narcotics assistance funds provided under § 2291(a). C ongress provided that appropriations m ade to carry out the purposes o f § 2291(a) “shall not be made available for the procurem ent o f weapons o r am m unition.” 22 U.S.C. § 2291b. The foreign narcotics assistance program developed under the authority o f § 2291(a) is adm inistered by the Secretary o f State. Exec. Order. No. 12163, 44 Fed. Reg. 56678 (1979). 7 A uthority to use U nited States m ilitary resources to assist in foreign anti-drug activities may be found in other federal statutes as well. For exam ple, 10 U.S.C. § 374(c) provides in part that “ [i]n an em ergency circum stance” U nited States m ilitary equipm ent, and personnel to operate and maintain it, “ may be used outside the . . U nited S ta te s . . . as a base o f operations by Federal law enforcem ent o fficials to facilitate the enforcem ent o f [U nited States narcotics laws] and to transport such law enforcem ent officials in connection with such operations.” This statute on its face contains a num ber o f lim itations on the provision o f U nited States m ilitary assistance that do not apply to aid provided under § 2291(a). For exam ple, under § 2291(a) U nited States m ilitary assistance may be provided in the absence o f an “em ergency circum stance” to facilitate the enforcem ent o f foreign anti-drug laws, and it need not be to lim ited to use as a base o f operations for federal law enforcem ent officials. In addition. United States military personnel furnished under 10 U .S.C . § 374(c) are prohibited from direct participation “in an interdiction o f a vessel or aircraft, a search and seizure, arrest, o r other sim ilar activity unless participation in such activity by such [personnel] is otherw ise authorized by law .” Id. § 375. U nder 21 U .S.C. § 873(b), the A ttorney G eneral is authorized to call on other federal agencies to furnish assistance in carrying out his responsibility to enforce U nited States narcotics laws. This provision allow s the A ttorney G eneral to request assistance if that assistance is w ithin the otherw ise authorized capacity o f the assisting agency. This provision, accordingly, does not authorize the A ttorney General to request, nor a responding agency to provide, assistance in the enforcem ent o f foreign anti-drug law s. This O ffice has Continued

125 M. The Mansfield Amendment

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

7 ( . . . continued) previously suggested th at law enforcement operations conducted with assistance provided under § 873(b) m ust foreseeably lead to prosecutions u n d e r U nited States narcotics law s. See M emorandum to Jam es I. K napp, D eputy A ssistant A ttorney G eneral, C rim inal D ivision from L arry L. Simms, Deputy Assistant A ttorney G eneral, O ffice o f Legal Counsel (D ec. 18, 1984). A n additional positive source of authority to provide U nited States m ilitary resources to assist foreign governm ents in th e ir anti-drug activities is § 22 U.S.C. § 2311 (§ 503 o f the Foreign A ssistance Act). That section authorizes the President “to furnish m ilitary assistance, on such term s and conditions as he may d eterm ine, to any friendly country . . . the a ssistin g o f w hich th e President finds will strengthen the security o f the U nited S tates and prom ote world peace . . . by . . . assigning or detailing members o f the Armed Forces o f the U nited States and o th er personnel o f th e D epartm ent o f D efense to perform duties o f a non-combatant n ature.” T his provision is administered by th e State D epartm ent, and it is our understanding that the State D epartm ent does n o t read § 2311 to authorize the provision o f m ilitary assistance for purposes of foreign drug e nforcem ent activ ities unless, perhaps, those activities are conducted by foreign military forces. 8 T his O ffice has been asked whether an “ agreem ent to agree” to specific future operations satisfies the term s o f th e 1985 am endm ent to the M ansfield A mendment. T h is am endm ent allows U nited States officers to be present d uring arrest actions when the fo reig n governm ent agrees, but it remains true that no officer may engage or participate in any direct police arrest action. T he legislative history does not provide any explan atio n o f the type o f agreem ent required by the 1985 am endm ent. In the absence o f further guidance, we assum e from the language o f the am endm ent that C ongress meant to vest substantial discretion in the Secretary o f S tate to develop such agreem ents. Thus it appears that oral agreem ents, for exam ple, would satisfy th e requirem ents o f the amendment. Sim ilarly, w e assume that reports to Congress under the am endm ent m ay include notifying key com m ittees that such agreem ents have been reached. 9 T he requirem ent that the direct arrest a ctio n relate to “ narcotics control efforts” raises the question w heth er the M ansfield A m endm ent would ap p ly to individual arrests since a single arrest m ight not be seen as p art o f a “narcotics control effo rt.” It appears how ever, th a t an individual arrest, even though it m ight not necessarily relate to broader d rug control e ffo rts, is plainly w ithin the A m endm ent’s prohibition on participa­ tio n in any “direct p olice arrest action.” The M ansfield A m endm ent does not apply to arrest actions — o r any o th e r law enforcem ent action — not related to narcotics control efforts.

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

10 Senator M ansfield considered local drug enforcem ent a “function o f indigenous governm ent.'' See R eport by Senator M ansfield, “W inds o f Change* Evolving R elations and Interests in Southeast A sia," S. R ep. No. 382-38, 94th Cong., 1st Sess. (1975). 11 The A mendment as originally introduced w as passed as part o f the International Security A ssistance and Arms Export Control Act o f 1976, but this bill was vetoed by the President for reasons unrelated to the M ansfield Amendment. 12 There is no indication in the legislative history that the shift in language between the initial and final versions o f the Amendm ent reflected a change in the intentions o f the m easure’s drafters and sponsors.

127 foreign police operations where violence or the use of force could reasonably be anticipated.” H.R. Rep. No. 1144, 94th Cong., 2d Sess. 59 (1976).13 Joint drug raids provide the archetypical violation of Congress’ desire that United States agents not participate in foreign law enforcement operations in which violence or the use of force is likely to occur.14 Identifying participation in joint drug raids as the paradigm forbidden behavior, however, does not complete the necessary inquiry. It is still necessary to identify the point at which such raids, or “direct police arrest actions,” begin and end. Here, too, the legislative history provides valuable assistance.15 The House International Relations Committee and the Senate Foreign Rela­ tions Committee both defined “arrest actions” to mean “any police action which, under normal circumstances, would involve the arrest of individuals whether or not arrests, in fact, are actually made.” H.R. Rep. No. 1144, supra, at 55; S. Rep. No. 876,94th Cong., 2d Sess. 61 (1976). See also 122 Cong. Rec. 2591 (1976) (remarks of Sen. Percy). This definition of “arrest action” makes clear Congress’ intent to include more than the actual arrest of foreign nation­ als, but not to include activities which under normal circumstances would not involve such arrests. In the context of a drug raid, for example, the Mansfield Amendment would preclude the participation (though not presence)16of United States officers only in the raid itself, for only the actual raid would, under normal circumstances, involve arrests or the probable use of force. The Mansfield Amendment would not prohibit United States participation in any activity occurring before or after the raid, such as planning and preparing for the raid, or pre-positioning (including transportation) of foreign officers in the general vicinity of the raid target, because arrests do not normally occur during these 13 S im ilar lines w ere draw n by the S enate Foreign R elations Com m ittee on the initial version o f the A m endm ent. See S. Rep. No. 605, 94th C ong., 2d Sess 55 (1976), reprinted in part in 122 Cong. Rec. 2592 (1976). 14 C ongress evidently believed that operations in which, under normal circum stances, arrests would be likely w ere also operations w here violence o r the use o f force w as likely. 15 S im ilar boundaries on the participation o f m ilitary personnel have been drawn for enforcem ent of dom estic law un d er the Posse Comitatus A ct. The Posse C om itatus Act, 18 U.S.C. § 1385, a Reconstruction era provision th a t w as intended to prevent th e participation o f U nited States arm ed forces in the enforcem ent o f dom estic law , has been construed to p erm it civilian law enforcem ent agencies to use military equipm ent or receive training, and to perm it military o bservers, but not to p erm it the use o f military m anpow er in an active law enforcement role. In United States v. Red Feather, 392 F. Supp. 916,925 (D.S.D. 1974), the court explained: A ctivities w hich constitute an activ e role in direct law enforcem ent are: arrest; seizure of evidence; search o f a person, search o f a building; investigation o f a crim e, interviewing w itnesses; p u rsu it o f an escaped c iv ilian prisoner; search o f an area fo r a suspect and other like activities. A ctivities w hich constitute a passive role w hich might indirectly aid law enforcement are: m ere presence o f military personnel under orders to report on the necessity for military intervention; preparation o f contingency plans to be used if m ilitary intervention is ordered; advice o r recom m endations given to civilian law enforcem ent officers by military personnel on tactics o r logistics; presence o f m ilitary personnel to deliver m ilitary material, equipm ent or supplies, to train local law enforcem ent officials on the proper use and care o f such m aterial or equipm ent, and to m aintain such m aterial o r equipm ent; aerial photographic reconnaissance flig h ts and o th er like activities. 16 A s noted above, a 1985 amendment to the M ansfield A m endm ent specifically states that its prohibition should not be construed to forbid U nited States officers from being “present during direct police arrest action” in a foreign country if the Secretary o f State and governm ent o f the foreign country reach an agreem ent to th is effect. See Pub. L. No. 9 9 -8 3 , § 6 0 5 ,9 9 Stat. 190,229 (codified at 22 U.S.C. § 2291(c)(2)).

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

Conclusion

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

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

17 C ongress made clear that the role o f the foreign governm ent in requesting United States assistance does not alter the boundaries on the behavior o f United States officers in drug raids. Senator Percy explained the A m endm ent's “basic m eaning” as preventing involvem ent in actions in which force would result “ whether or not the host governm ent in question has requested the participation o f A m erican agents.” 122 Cong. Rec. 2S92 (1976). The Senate Foreign Relations Com m ittee Report on the original version noted that it w as intended to prohibit involvem ent in actions involving the arrest o f foreign nationals “w hether unilaterally (acting on th eir ow n) o r as mem bers o f teams involving agents o r officials o f other foreign governm ents." Id.', see also S. Rep. No. 605, 94th Cong., 2d Sess. (1976). 18 The D epartm ent has previously considered efforts to repeal or amend the M ansfield Amendm ent to remove its restn ctio n on U nited States anti-drug activities abroad. The P resident's C om m ission on O rganized Crim e has recom m ended that the M ansfield A mendment “be repealed in its entirety.” Presidential Com m is­ sion on O rganized Crim e, America's Habits, Drug Abuse, Drug Trafficking, and Organized Crime 468 (M arch 1986).