Order Code 98-174 F
Report for Congress
Received through the CRS Web
Mexican Drug Certification Issues:
U.S. Congressional Action, 1986-2002
Updated October 22, 2002
K. Larry Storrs
Specialist in Latin American Affairs
Foreign Affairs, Trade, and Defense Division
Congressional Research Service ˜
The Library of Congress
Mexican Drug Certification Issues:
U.S. Congressional Action, 1986-2002
Summary
Beginning in 1986, Congress required the President to certify annually, subject
to congressional review, that drug producing or drug transit countries had cooperated
fully with the United States in drug control efforts to avoid a series of aid and trade
sanctions. Mexico has been fully certified each year, but Congress closely monitored
these certification decisions and submitted resolutions of disapproval in some years.
In 1987 and 1988, Congress took some initial steps on resolutions to disapprove
the certification of Mexico, and, in 1989 and 1996, it passed some drug-related
restrictions on Mexico. In 1997, congressional efforts to overturn the President’s
certification of Mexico advanced the furthest when both houses passed separate
resolutions of disapproval, and President Clinton provided additional reports on
Mexican and U.S. efforts in specified areas in compliance with the Senate-passed
version. In 1998, resolutions of disapproval were introduced in both houses, but
S.J.Res. 42 was defeated by a vote of 45 to 54 in the Senate, and no floor action was
taken in the House. In 1999, resolutions of disapproval were introduced in the
House, but no action was taken, and no resolutions of disapproval were introduced
in the Senate.
In 2000, despite some congressional criticism, no resolutions of disapproval
were introduced in either house to overturn the presidential certification of Mexico.
Following the mid-year election of opposition candidate Vicente Fox as President of
Mexico, measures were introduced but not passed to exempt Mexico from the drug
certification requirements in FY2001.
In 2001, no resolutions of disapproval were introduced in either house, and the
Senate Foreign Relations Committee reported out two measures (S. 219 and S. 1401)
that would have modified the certification requirements for three years. By the end
of the year, the only measure that passed was the Foreign Operations Appropriations
for FY2002 (H.R. 2506/P.L. 107-115) that waived the drug certification
requirements for FY2002 only, but required the President, with some waiver
authority, to designate and withhold assistance from the worst offending countries
that had failed demonstrably to adhere to international counter-narcotics agreements.
In 2002, both houses passed the Foreign Relations Authorization for FY2003
(H.R. 1646/P.L. 107-228) that permanently modified the drug certification
requirements. Section 706 requires the President, with some waiver authority, to
designate and withhold assistance from the worst offending countries that have
“failed demonstrably” to make substantial counter-narcotics efforts. At the same
time, it permits the President to use his discretion to withhold assistance and apply
previous sanctions against countries that are failing to cooperate fully with the United
States in counter-narcotics efforts whenever he determines that such actions would
be helpful.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congressional Action in the 1980s:
Drug Certification Requirements and Initial Action on
Resolutions of Disapproval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congressional Action in 1996:
Restrictions on Foreign Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Congressional Action in 1997:
Weakened Resolution of Disapproval Despite Non-Enactment
Elicits Additional Presidential Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Congressional Action in 1998:
Resolution of Disapproval Defeated in Senate; U.S.
Counter-Narcotics Efforts Strengthened . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Congressional Action in 1999:
Resolutions of Disapproval Introduced in the House But Not Passed;
Narcotics Kingpin Designation Act Passed . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Congressional Action in 2000:
No Resolutions of Disapproval Introduced; Efforts Made to
Waive the FY2001 Drug Certification Requirements for Mexico . . . . . . . . . 7
Congressional Action in 2001:
Efforts to Modify Drug Certification Requirements End with
One-Year Waiver and Modified Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Congressional Action in 2002:
Permanent New Requirements Enacted,
But Previous Procedures Still Available . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Mexican Drug Certification Issues:
U.S. Congressional Action, 1986-2002
Introduction
This report summarizes U.S. congressional action relating to Mexican drug
control and drug certification issues from 1986 to 2002, with emphasis on recent
actions. It explains the development and the procedures of the drug certification
requirements in the mid-1980s and the steps taken in the initial years following
enactment of the bill. It provides detailed information about congressional action in
the more recent years, from 1996 to 2002, including the temporary modification of
the requirements in 2001 and the permanent modification of the procedures in 2002.
Congressional Action in the 1980s:
Drug Certification Requirements and Initial Action
on Resolutions of Disapproval
Congress has had a longstanding interest in Mexico’s counter-narcotics efforts,
stimulated by the killing and torture of U.S. Drug Enforcement Administration
(DEA) agents, and focusing more recently on the presidential drug certifications. In
the mid-1980s, Congress – through the Anti-Drug Abuse Acts of 1986 (P.L. 99-570)
and 1988 (P.L. 100-690) – created what has been modified and extended to become
Sections 489- 490 of the Foreign Assistance Act of 1961 (P.L. 87-195). This and
related sections require the President to certify, subject to congressional review, that
drug-producing or drug-transit countries have cooperated fully with the United States
in drug control efforts in the previous year in order to avoid a series of aid and trade
sanctions. Under the legislation, Congress is given 30 days to pass a resolution to
disapprove the President’s certification, and set in motion the various sanctions.1 The
original action took place in the context of the kidnaping, torture, and murder of DEA
Special Agent Enrique Camarena and his Mexican pilot in Guadalajara, Mexico, in
March 1985, and the torture of DEA Agent Victor Cortez in Guadalajara in August
1986.
Mexico was fully certified by President Reagan under the initial certifications,
but Congress carefully monitored the presidential determinations. In 1987, the
1For more details on the certification process and possible sanctions, see CRS Report
RL30080,
Mexico and Drug Certification in 1999: Consequences of Decertification, by K.
Larry Storrs. For general information on current U.S.-Mexican relations, including
legislation on trade, immigration, and drug trafficking issues, see CRS Issue Brief IB10070,
Mexico-U.S. Relations: Issues for the 107th Congress, by K. Larry Storrs.
CRS-2
Senate Foreign Relations Committee reported out a resolution to disapprove the
presidential certification, and in 1988 the full Senate voted 63-27 to disapprove the
President’s certification. However, without complete action by both houses, these
measures were never adopted.
In late 1989, Congress passed the International Narcotics Control Act of 1989
(P.L. 101-231) with critical references to Mexico. Earlier in the year, the Senate
Foreign Relations Committee voted against reporting an introduced resolution of
disapproval (S.J.Res. 82) to the Senate floor, and no action was taken in the House
to reverse the President’s certification.
Congressional Action in 1996:
Restrictions on Foreign Assistance
In the early 1990s, with improving bilateral trade and border relations with
Mexico, symbolized by the entry into force in 1994 of the North American Free
Trade Agreement (NAFTA), few if any resolutions to disapprove presidential
certifications were introduced and no congressional action was taken until 1996.
In action in early 1996, the Foreign Operations Appropriations Act for FY1996
(P.L. 104-99 and P.L. 104-107), dropped a House-passed restriction on aid to
Mexico unless Mexico controlled illegal drug trafficking, but the report urged U.S.
efforts to encourage greater Mexican action in these areas. Later, Senators Feinstein
and D’Amato and Representatives Miller and Shaw criticized Mexican drug control
efforts and introduced measures calling for disapproval of the President’s
certification (S.J.Res. 50/H.J.Res. 162) and for action against the country unless drug
trafficking was controlled (S.Res. 218/H.Res. 362/H.R. 2947), but action was not
completed on these measures.
In June and July 1996, the House and the Senate passed the Foreign Operations
Appropriations Act for FY1997 (H.R. 3540), with restrictions on Mexico. The
House version contained the Souder amendment which would have prohibited
funding under the act unless Mexico was reducing the flow of drugs and controlling
money-laundering. The Senate version contained the Domenici amendment which
would have prohibited military education and training funds for Mexico unless the
President certified that Mexico had extradited or prosecuted major drug lords wanted
in the United States. The final version in Section 587 of the foreign operations
appropriation — incorporated into the Omnibus Consolidated Appropriations for
FY1997 (P.L. 104-208) — provided that not less than $2.5 million shall be withheld
from Mexico until the President has reported that Mexico is taking actions to reduce
the flow of illegal drugs to the United States and is taking action to prosecute those
involved in drug trafficking and money-laundering.
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Congressional Action in 1997:
Weakened Resolution of Disapproval Despite Non-
Enactment Elicits Additional Presidential Report
Following the mid-February 1997 arrest on corruption charges of the head of
Mexico’s drug fighting agency, some Members of Congress urged President Clinton
to send Mexico a message for more forceful action by making a national interests
certification. As a result, when the President fully certified Mexico in late February
1997, congressional resolutions of disapproval were introduced by Representative
Shaw (H.J.Res. 58) and Senator Coverdell (S.J.Res. 19, S.J.Res. 20, and S.J.Res. 21),
while Senators Hutchison and Grassley also developed sense of Congress resolutions
(S.Con.Res. 9 and S.Con.Res. 10) in the Senate.2
The House International Relations Committee voted 27-5 on March 6, 1997, to
report out H.J.Res. 58, with the Gilman amendment permitting the President to waive
sanctions for one year by submitting a national interests certification, and requiring
consultation with Congress on drug trafficking issues. In floor debate on March 13,
1997, the House, by a vote of 251-175, passed H.J.Res. 58, with the Hastert
amendment, as modified, that would have deferred disapproval of the presidential
certification of Mexico if, within 90 days of enactment, the President reported that
he had obtained assurances of progress with Mexico in specified areas of drug control
cooperation. These included support for DEA agents, extradition, overflight and
refueling rights, and maritime agreements. Indicating some discomfort with the
certification process, the resolution also would have established a High Level
Commission of International Narcotics Control to review the annual certification
process and produce an interim report within six months.
Responding in part to Mexican and Administration criticism, the Senate, on
March 20, 1997, voted 94-5, to pass the Coverdell-Feinstein amendment to H.J.Res.
58, in the nature of a substitute, which, instead of disapproving the President’s
certification, required a report by September 1, 1997, on Mexican efforts to
strengthen drug control in 10 areas and U.S. efforts in three areas. The Mexican
areas for reporting included effective action against drug cartels; and cooperation on
law enforcement, extradition, eradication and money laundering activities. The U.S.
areas for reporting included implementation of effective domestic anti-drug
educational campaigns and international interdiction and law enforcement programs,
and deployment of additional INS agents at the border. Congress did not complete
action on this measure within the specified time, but President Clinton indicated in
May 1997 that he would abide by the Senate version of H.J.Res. 58 and the
Administration reported, as promised, in September 1997.3
In further expressions of sentiment, each of the houses subsequently considered
and failed to pass legislation to modify or suspend the existing drug certification
2For some arguments about the effects of past congressional actions, see CRS Report 97-
361,
Mexico’s Anti-Drug Efforts: Effects of Past U.S. Pressures and Sanctions, March 13,
1997, by K. Larry Storrs.
3See
Office of National Drug Control Policy, Report to Congress, September 1997.
CRS-4
requirements. In the House, on May 9, 1997, the House International Relations
Committee reported out H.R. 1486, the Foreign Policy Reform Act, with Section
403, proposed by Representative Hamilton, which would have eliminated the
presidential certification, congressional review, and sanctions against countries under
the certification process. Instead, it would have required the President to continue
to report yearly and to consult regularly with Congress on drug control issues, and
would have given the President the authority to withhold bilateral assistance and to
oppose multilateral bank financing for countries that are not fully cooperative if he
found those measures to be helpful. In early June 1997, H.R. 1486 was divided into
three bills, and the foreign aid and drug certification provisions were placed in H.R.
1759, which was not scheduled for debate in 1997. In the Senate, on July 16, 1997,
the Senate defeated (60-38) Amendment 901, proposed by Senators Dodd and
McCain, to the Foreign Operations Appropriations Bill (S. 955), which would have
suspended the drug certification requirements for two years, and called upon relevant
country leaders to develop a multilateral framework for improving international
cooperation in counter-narcotics efforts.
Congressional Action in 1998:
Resolution of Disapproval Defeated in Senate;
U.S. Counter-Narcotics Efforts Strengthened
President Clinton certified, on February 26, 1998, that Mexico was fully
cooperative in drug control efforts, citing increased drug seizures, creation of a new
anti-drug force with fully screened officers, progress in the return of fugitives, tough
sentencing of major traffickers, and actions against organized crime and money
laundering. The certification and related material also cited U.S.-Mexico cooperation
through the High Level Contact Group (HLCG) on Narcotics Control that led to the
U.S.-Mexico Alliance Against Drugs in May 1997, and to the issuance of the U.S.-
Mexico Binational Drug Strategy in February 1998.4
While Administration witnesses defended the certification decision in
congressional hearings, several Members of Congress criticized the decision. Among
other things, the critics argue that inadequate efforts have been made to arrest major
drug traffickers, to extradite Mexican citizens to the United States on drug-related
charges, and to permit DEA agents to carry firearms for their protection. While
recognizing that Mexico had made progress in some areas, the critics argue that
Mexico could not be said to be fully cooperative in drug control efforts, the standard
set by the certification procedure.
In early March 1998, resolutions of disapproval were introduced in both houses
of Congress.5 In the Senate, Senator Coverdell, with Senators Feinstein, Helms, and
4See the presidential certification of February 26, 1998, the
Statement of Explanation on
Mexico, and the State Department’s
International Narcotics Control Strategy Report, March
1998, pp. 148-159.
5For a discussion of pros and cons, see CRS Report 98-272,
Drug Certification of Mexico
in 1998: Arguments For and Against Congressional Resolutions of Disapproval.
CRS-5
Hutchison as cosponsors, introduced S.J.Res. 42 (which, if approved, would
disapprove the President’s certification and require withdrawal of assistance) and
S.J.Res. 43 (which, if approved, would disapprove the President’s certification but
would permit him to avoid the withholding of assistance if he subsequently found
that vital U.S. national interests required non-application of sanctions). The
resolutions were referred to the Senate Committee on Foreign Relations. In the
House, Representative Shaw, with Representative Mica as cosponsor, introduced
H.J.Res. 114 (which, if approved, would disapprove the President’s certification, but
would permit him to waive the withholding of assistance if he subsequently
determined that vital U.S. national interests require the provision of the assistance).
The resolution was referred to the House International Relations Committee and the
House Banking and Financial Services Committee, where hearings were held but no
further action was taken.
The Senate considered the Senate measures on March 26, 1998. When Majority
Leader Lott requested unanimous consent to consider S.J.Res. 43 (the resolution with
a national interest waiver and therefore more than the simple resolution of
disapproval required under the certification legislation), objection was raised by
Senator Daschle. When S.J.Res. 42 was considered, proponents argued that Mexico
had failed to meet the standards and had made inadequate progress, while opponents
argued that approval of the resolution would harm relations with Mexico and
terminate recent cooperative efforts with Mexico. S.J.Res. 42 was defeated by a vote
of 45 to 54.
In other efforts to deal with the flow of drugs from Mexico, several measures
were incorporated into the Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1998 (P.L. 105-277). Foreign Operations Appropriations,
including counter-narcotics funding for Mexico, were incorporated as Section 101(d)
of Division A, of the omnibus measure, following passage by both houses of separate
measures (S. 2334, H.R. 4569) in September 1998. Supplemental FY1998 funding
for counter-drug activities and interdiction, including $90 million for Southwest
border enhancement, was incorporated as Title V of Division B of the omnibus
measure. The Western Hemisphere Drug Elimination Act, which authorized funds
to strengthen interdiction and surveillance on the U.S.-Mexico border, was
incorporated as Title VIII of Division C, of the omnibus measure, following passage
by the House of H.R. 4300 on September 16, 1998. The conference report (H.Rept.
105-825) on the omnibus measure was approved by the House and the Senate on
October 20 and 21, respectively. It was signed into law (P.L. 105-277) on October
21, 1998.
CRS-6
Congressional Action in 1999:
Resolutions of Disapproval Introduced in the House
But Not Passed; Narcotics Kingpin Designation Act
Passed
President Clinton certified, on February 26, 1999, that Mexico was fully
cooperative in drug control efforts, citing the broad array of cooperation between the
countries, the arrest and conviction of some major traffickers, and the continuing
eradication and interdiction programs. He mentioned the work of the bilateral High
Level Contact Group (HLCG) on Narcotics Control that led to the Alliance Against
Drugs in May 1997, the Binational Drug Strategy in February 1998, and the
agreement on performance measures of effectiveness, announced during President
Clinton’s trip to Mexico in mid-February 1999, to gauge the effectiveness of the
joint anti-drug strategy.6
On March 2, 1999, Representative Bachus and 12 cosponsors introduced
H.J.Res. 35 in the House that would disapprove the President’s certification of
Mexico but permit the President to waive the withholding of assistance to Mexico
and the voting against multilateral development bank loans for Mexico by
determining that the vital national interests of the United States so require. The
resolution was referred to the House International Relations Committee. On March
24, 1999, Representatives Mica and Gilman introduced H.J.Res. 43 that would
disapprove the President’s certification of Mexico, permit the President to waive any
sanctions, and extend the congressional period of consideration by providing a rule
of construction that any action would be considered to have been enacted within the
30-day period following presidential certification.7 The resolution was referred to the
House International Relations Committee and to the House Banking and Financial
Services Committee. Mr. Gilman, Chairman of the House International Relations
Committee, announced that the Committee would carefully examine how to proceed
next. No committee or floor action was taken on either resolution.
On July 1, 1999, Representatives Mica, Traficant, Gilman, and others
introduced H.J.Res. 61, calling upon the Mexican government to undertake greater
and more effective counterdrug measures, including a maritime agreement with the
United States, and to return any unwanted Huey helicopters to the United States for
distribution to other drug fighting countries. The measure was referred to the House
International Relations Committee, but no further action was taken.
On the Senate side, while no resolution of disapproval was ever introduced, on
March 1, 1999, Senators Coverdell, Feinstein, and Grassley and four other Senators
6See the presidential certification of February 26, 1999, the
Statement of Explanation on
Mexico, and the State Department’s
International Narcotics Control Strategy Report, March
1999, pp. 166-178. See also CRS Report RL30098,
Mexico’s Counter-Narcotics Efforts
Under Zedillo, December 1994 to March 1999, March 18, 1999, by K. Larry Storrs.
7For a discussion of pros and cons, see CRS Report RS20127,
Drug Certification of Mexico
in 1999: Arguments For and Against Congressional Resolutions of Disapproval, by K.
Larry Storrs.
CRS-7
sent a letter to President Clinton urging that specific benchmarks be used for judging
Mexico’s performance in future certification decisions. These included extradition
of major drug traffickers, arrest and prosecution of drug lords, enforcement of
money-laundering laws, eradication and seizure efforts, cooperation between law
enforcement agencies, and the conclusion and implementation of a U.S.-Mexico
maritime agreement. On March 8, 1999, Senators Coverdell and Feinstein
introduced S. 565 and S. 1171 to strengthen President Clinton’s authority under the
International Emergency Economic Powers Act (IEEPA) to freeze assets in the
United States of drug traffickers and to prevent traffickers from doing business with
the U.S. companies. On March 11, Senators Boxer, Dodd, and Gramm introduced
S. 596 to provide that the annual drug certification procedures would not apply to
countries like Mexico that have bilateral counter-narcotics agreements with the
United States. On March 18, 1999, Senator Gramm and eight cosponsors introduced
S. 658, the Drug Free Borders Act of 1999, to authorize funding for advanced sensing
equipment for detecting illegal drugs at the border.
Legislation strengthening the President’s IEEPA authority to freeze assets in the
United States of drug traffickers and to prevent drug traffickers from doing business
with U.S. companies was eventually enacted by the end of the year. A variation of
the measures introduced by Senators Coverdell and Feinstein was approved by the
Senate on July 20, 1999, as an amendment to the Intelligence Authorization Act for
FY2000 (H.R. 1555). In related action, the House passed H.R. 3164, the Foreign
Narcotics Kingpin Designation Act, by a vote of 385-26 under suspension of rules
on November 2, 1999. The conference report on H.R. 1555 (H.Rept. 106-457) was
filed on November 5, 1999, with Title VIII essentially containing the text of H.R.
3164, with the addition of a Judicial Review Commission to examine judicial review
and due process issues raised in the previous debate. The House passed the
conference report on H.R. 1555 by voice vote on November 9, 1999, and the Senate
passed it on November 19, 1999. The President signed the measure into law (P.L.
106-120) on December 3, 1999.
Congressional Action in 2000:
No Resolutions of Disapproval Introduced; Efforts
Made to Waive the FY2001 Drug Certification
Requirements for Mexico
President Clinton certified, on March 1, 2000, that Mexico was cooperating
fully with the United States in efforts to control drug trafficking. He cited the broad
array of cooperation between the countries, the unprecedented agreement on
performance measures of effectiveness to gauge the success of the binational anti-
drug strategy, enhanced maritime cooperation, significant increases in seizures and
eradication of illicit drugs, and the extradition of two Mexican national drug fugitives
to the United States.8
8 See the presidential certification of March 1, 2000, the
Statement of Explanation on
Mexico, and the State Department’s
International Narcotics Control Strategy Report, March
2000, pp. V-27-37.
CRS-8
In anticipation of the Administration’s certification of Mexico, the Chairmen of
the House International Relations Committee and the Senate Foreign Relations
Committee wrote to Secretary of State Albright to urge non-certification of Mexico,
citing, in particular, Mexico’s failure to prosecute and extradite to the United States
any major drug traffickers. Citing similar evidence, some Representatives were
critical of Mexico’s counter-narcotics performance in a hearing on February 29,
2000, by the Subcommittee on Criminal Justice, Drug Policy and Human Resources
of the House Committee on Governmental Reform. Some Senators also criticized
the President’s certification of Mexico in a hearing on March 21, 2000, by the Senate
Caucus on International Narcotics Control. However, by the end of the 30-day
congressional review period, no resolution of disapproval had been introduced in
either house of Congress to overturn the President’s certification.
Following the election of Vicente Fox of the conservative Alliance for Change
as President of Mexico in the July 2, 2000 election, ending 71 years of presidential
control by the dominant party, bills were introduced to exempt Mexico from the drug
certification requirement in FY2001 in order to avoid an early confrontation with the
new government. S. 3021 was introduced by Senator Hutchison on September 7 and
was placed on the Senate calendar on September 8, 2000; H.R. 5155 was introduced
by Representative Kolbe on September 12, 2000, and referred to the House
International Relations Committee. No additional action was taken on these
measures. On October 11, 2000, the Senate agreed to S.Res. 366, introduced by
Senator Hutchison, that welcomed the constitutional transition in Mexico and
expressed the sense of the Senate that a one-year waiver of the drug certification
requirement is warranted in order for incoming new governments in both countries
to develop more effective and cooperative counter-narcotics programs.
Congressional Action in 2001:
Efforts to Modify Drug Certification Requirements
End with One-Year Waiver and Modified Procedure
In the period leading up to the deadline of March 1, 2001, when President Bush
would be required to certify that Mexico and other drug producing or drug transit
countries had cooperated fully with the United States in drug control efforts, there
were a number of congressional efforts to modify or suspend the longstanding drug
certification requirements.
In early January 2001, Senator Gramm was quoted as saying, following a
congressional delegation trip to Mexico and meetings with Mexican President Fox,
that members of the delegation would work to eliminate the drug certification
requirement and that he believed President Bush wanted to eliminate the requirement
as well.
In late January 2001, Senators Dodd, McCain, Hollings, and Hagel introduced
S. 219, to suspend the existing drug certification process for all countries for the two
fiscal years following enactment, unless the President determined that the
certification of one or more countries would advance U.S. drug control goals. The
measure specifies that the certification requirements would be suspended for fiscal
CRS-9
years 2001 and 2002 if enacted on or before February 28, 2001. Finding that the
annual certification process does not foster effective bilateral or multilateral
cooperation with the United States, the bill urges the President to take advantage of
the period of suspension to convene a conference of drug producing, transit, and
consuming countries to develop an effective multilateral strategy, and to transmit to
Congress the necessary legislation to implement a new strategy.
In mid-February 2001, Senator Kay Bailey Hutchison with 6 cosponsors
introduced S. 353 that would exempt Mexico from the drug certification requirement
in FY2001, but would require development of a comprehensive plan of proposals, by
June 30, 2001, for enhanced counter-narcotics cooperation between Mexico and the
United States. About the same time, Senator Grassley and Senator DeWine
introduced S. 376 that would modify the certification process for FY2002-FY2004
to require the President to identify only those countries that are failing to cooperate
fully with the United States in drug control efforts.
On the eve of President Bush’s February 16, 2001 visit with President Fox in
Mexico, the Senate passed S.Con.Res. 13 expressing the sense of Congress that the
President should work with the President of Mexico to advance bilateral cooperation
and should seek, among other things, “to review the current illicit drug certification
process, and should seek to be open to consideration of other evaluation mechanisms
that would promote increased cooperation and effectiveness in combating the illicit
drug trade.” In a joint press conference with President Fox after the meeting in
Mexico, President Bush noted that there was a movement in Congress to review the
certification process, and he indicated that he believed that President Fox would do
everything in his power to root out the drug lords and to halt drug trafficking.
In late February and early March, additional measures were introduced to
modify the existing drug certification procedures. On February 27, 2001,
Representative Kolbe and 6 cosponsors introduced H.R. 753 to exempt Mexico from
the drug certification requirements in FY2001. On March 1, 2001, Senators Boxer
and Gramm introduced S. 435 to provide that the drug certification procedures would
not apply to countries with which the United States has bilateral agreements and
other plans; and Representative Reyes introduced H.R. 841 to suspend the
certification procedures for two years and to express the sense of Congress that the
President should convene a conference of drug producing, transit, and consuming
countries to develop an effective multilateral strategy and should transmit to
Congress the necessary legislation to implement a new strategy.9
President Bush certified, on March 1, 2001, that Mexico had cooperated fully
with the United States in drug control efforts, citing the arrest of two key members
of the Tijuana-based Arellano Felix Organization, the aggressive eradication
programs, and continuing cooperation with the United States in a number of areas.
While noting the daunting challenges Mexico faces to control corruption, the State
Department report stated that President Fox’s commitments to fight crime, drug
9 For a discussion of proposed measures, see CRS Report RL30892,
Drug Certification
Requirements and Proposed Congressional Modifications in 2001, by K. Larry Storrs.
CRS-10
trafficking, and corruption offered “unprecedented opportunities for greater
cooperation and mutual assistance with the United States.”10
At a March 1 hearing on the certification process conducted by the Senate
Foreign Relations Committee, Senators Boxer, Dodd, Grassley, and Hutchison, and
Representative Reyes spoke in favor of the modifications to the procedures that they
are sponsoring. Representative Gilman argued that the certification process had
proven to be very useful and should be retained. Assistant Secretary of State for
International Narcotics and Law Enforcement Affairs, Rand Beers, testified that the
“certification process has proved to be an effective, if blunt, policy instrument for
enhancing counternarcotics cooperation,” but he indicated that the Administration
was aware “that there is a growing sense among some in Congress that there may
now be more effective approaches to strengthening international counterdrug
cooperation.” Although noting that the Administration was still reviewing the
various legislative proposals, he indicated that any modification “should have an
enforcement mechanism to ensure continued international counternarcotics
cooperation” and that the President should retain the power to sanction countries
even if the certification procedures were suspended. In addition, he indicated that the
Administration does not believe “that there should be exemptions for individual
countries or regions at this time.”
By the end of the 30-day period for congressional review of presidential drug
certifications, no resolutions of disapproval had been introduced to disapprove
President Bush’s certification of Mexico.
On April 3, 2001, the Senate Foreign Relations Committee marked up S. 219
with an amendment in the nature of a substitute, with elements from the various
proposals. As approved, S. 219 would modify the existing drug certification
procedures for a 3-year trial period. In its place, it would require the President to
identify by October 1 of each year major drug-transit or major illicit drug producing
countries and to designate each such country that has failed demonstrably, during the
previous 12 months, to make substantial efforts to adhere to its obligations under
international counter-narcotics agreements (multilateral and bilateral) and other
standards. U.S. assistance would be withheld from any designated countries unless
the President determined that the provision of assistance was vital to the national
interest of the United States or until the country made substantial counter-narcotics
efforts.
The approved measure also expresses the sense of Congress that the United
States should at the earliest feasible date in 2001 convene a multilateral conference
of relevant countries to develop multilateral drug reduction and prevention strategies,
and it urges the President to request legislative changes to implement the strategies
no later than one year after enactment. It continues the requirement for the yearly
International Narcotics Control Strategy Report (INCSR) detailing the performance
10 See the presidential certification of March 1, 2001, the
Statement of Explanation on
Mexico, and the State Department’s
International Narcotics Control Strategy Report, March
2001, pp. V-26-36. See also CRS Report RL30886,
Mexico’s Counter-Narcotics Efforts
under Zedillo and Fox, December 1994 to March 2001, by K. Larry Storrs.
CRS-11
of individual countries, and it adds the requirement to report on major drug
trafficking organizations. It also amends the Foreign Narcotics Kingpin Designation
Act to allow judicial review of executive branch decisions to freeze the assets of
suspected drug kingpins.11 The measure was reported out without written report on
April 5, 2001, and was placed on the Senate Legislative Calendar on April 5, 2001.
On July 17, 2001, the House Appropriations Committee reported out H.R. 2506,
Foreign Operations Appropriations for FY2002 (H.Rept. 107-142), with no
legislative changes relating to the drug certification procedures, but with the
following report language: “The Committee is concerned that the United States’
annual drug certification process fails to establish an effective and accountable drug
policy, while creating tensions with our neighbor, Mexico. The Committee strongly
supports change to the present certification process. Priority should be given to
installing a sound accountability system where an obligation to deterring drug
trafficking is the ultimate goal. The Committee asks the Secretary of State to work
with the appropriate committees of Congress to modify the certification process to
mirror the concerns made by the Committee.”
On August 1, 2001, the Senate Foreign Relations Committee approved S. 1401,
the Foreign Relations Authorizations Act for FY2002-FY2003, with the provisions
of previously reported S. 219 incorporated as Sections 741-745 in Title VII, Subtitle
D, Reform of Certification Procedures Applicable to Certain Drug Producing or
Trafficking Countries.12 The Committee reported out S. 1401 (S.Rept. 107-60) on
September 4, 2001, and the measure was placed on the Senate Legislative Calendar.
During President Fox’s official state visit to the United States on September 5-7,
2001, the Mexican President, in addressing a joint session of Congress, called upon
Congress to pass legislation to suspend the drug certification requirements as a
gesture of trust and faith in the new government, arguing that “trust requires that one
partner not be judged unilaterally by the other.” Following the Bush-Fox talks, the
joint communique praised the growing law enforcement cooperation between the
countries, expressed support for the OAS’ multilateral evaluation of counter-
narcotics efforts, and noted President Bush’s commitment “to work with the U.S.
Congress, on a priority basis, to replace the annual counter-narcotics certification
regime with new measures designed to enhance international cooperation in this
area.”
On October 24, 2001, the Senate passed the Foreign Operations Appropriations
for FY2002 (H.R. 2506), with an amendment by Senators Dodd and Hutchison
(Senate Amendment 1959) that generally incorporated the provisions of S. 219 as
reported, except that the modifications in the drug certification procedures would
11 For more detailed comparisons of the existing drug certification procedures and those in
Senate bill S. 219 as reported out by the Senate Foreign Relations Committee, see CRS
Report RL30949,
Drug Certification Procedures: Side-by-side Comparison of Existing
Procedures and S. 219 as Reported, by K. Larry Storrs.
12 For comparison of existing drug certification procedures to the provisions in S. 219 and
S. 1401 as reported, see CRS Report RL30950,
Drug Certification Procedures: A
Comparison of Current Law to S. 219 and S. 1401 as Reported, by K. Larry Storrs.
CRS-12
apply only to FY2002 and would apply only to countries in the Western Hemisphere.
As passed by the Senate, the bill would require the President to identify by November
30, 2001, the major drug-transit or major illicit drug-producing countries in the
Western Hemisphere and to designate each such country that has failed
demonstrably, during the previous 12 months, to make substantial efforts to adhere
to its obligations under international counter-narcotics agreements (multilateral and
bilateral) and other standards. U.S. assistance would be withheld from any
designated countries unless the President determined that the provision of assistance
was vital to the national interest of the United States or until the country made
substantial counter-narcotics efforts.
Consistent with the provisions of previously reported S. 219, the Senate-passed
Foreign Operations Appropriations bill expressed the sense of Congress that the
United States should at the earliest feasible date convene a multilateral conference
of relevant countries to develop multilateral drug reduction and prevention strategies,
and it urged the President to request legislative changes to implement the strategies
no later than one year after enactment. It would continue the requirement for the
yearly International Narcotics Control Strategy Report (INCSR) detailing the
performance of individual countries, and it would add the requirement to report on
major drug trafficking organizations. It would also amend the Foreign Narcotics
Kingpin Designation Act to allow judicial review of executive branch decisions to
freeze the assets of suspected drug kingpins.
The conference report on the Foreign Operations Appropriations for FY2002
(H.Rept. 107-345 on H.R. 2506) was filed on December 19, 2001, and contained, in
Section 591, major elements of the Senate-passed provisions modifying the annual
drug certification procedures. This section provides that the drug certification
procedures in Section 490 of the Foreign Assistance Act would not apply during
FY2002, essentially providing a one-year waiver of the procedures on a global basis
for all major drug-transit and drug producing countries. However, the President is
required to make a report within 45 days of enactment identifying the major drug
transit and drug producing countries. He is also required to designate each such
country that has failed demonstrably, during the previous 12 months, to make
substantial efforts to adhere to its obligations under international counter-narcotics
agreements (multilateral and bilateral) and other standards. U.S. assistance would
be withheld from any of the designated worst offending countries, unless the
President determines that the provision of assistance is vital to the national interest
of the United States, or until the designated country makes substantial counter-
narcotics efforts. In addition, the section clarifies that the President’s obligation to
make the yearly International Narcotics Control Strategy Report (INCSR) detailing
the performance of all drug-transit and drug producing countries by March 1 remains
in force.
Although some Members in each house criticized this provision as a weakening
of the drug certification procedures when it was approved by the House on December
19, 2001, and by the Senate on December 20, 2001, a letter from the State
Department characterized the provision as a “significant first step toward improving
the current narcotics certification process” that “would place a premium on
cooperation rather than confrontation with other governments.” The measure was
signed into law (P.L. 107-115) by President Bush on January 10, 2002.
CRS-13
Congressional Action in 2002:
Permanent New Requirements Enacted,
But Previous Procedures Still Available
In 2002, Congress continued to move toward adoption of new requirements
relating to drug producing and drug transit countries. With passage of the Foreign
Relations Authorization Act for FY2003, it approved permanent new procedures,
while permitting the President to use the old procedures at his discretion.
Acting under the new temporary procedures in the Foreign Operations
Appropriation Act for FY2002, President Bush found, on February 25, 2002, that
three countries – Afghanistan, Burma, and Haiti – had demonstrably failed to meet
international counter-narcotics obligations, but he determined that it was in the
national interest of the United States for Afghanistan (under the new government)
and Haiti to continue to receive U.S. assistance.
Although the State Department’s early March 2002 International Narcotics
Control Strategy Report mentioned that Mexico was a major supplier of heroin,
methamphetamine, and marijuana and the transit point for more than one-half of the
cocaine sold in the United States, it noted that Mexico’s counter-narcotics efforts had
been impressive and had resulted in tangible successes against the three major drug
cartels in the country.13 During the Bush-Fox meeting in Monterrey, Mexico in
March 2002, the Presidents acknowledged “major successes achieved by Mexico in
the fight against narco-trafficking” and agreed on “the importance of redoubling
judicial cooperation” between the countries.
In congressional action on the Foreign Operations Appropriations for FY2003,
the bill (S. 2779) reported by the Senate Appropriations Committee on July 18,
2002, would have extended through FY2003 the modifications of the U.S. drug
certification requirements enacted in the previous year. However, the bill (H.R.
5410) reported by the House Appropriations Committee on September 19, 2002, did
not contain a similar provision. As a result, this issue was an item to be resolved in
conference at the end of the session.
In congressional action on the Foreign Relations Authorization for FY2003, the
conference report on H.R. 1646 (H.Rept. 107-671) was filed on September 23, 2002,
with Section 706 dealing with International Drug Control Certification Procedures.
The House International Relations Committee had reported out H.R. 1646 on May
4, 2001, without any provisions on drug certification, and the measure was passed
by the House on May 16, 2001. The Senate approved H.R. 1646 on May 1, 2002,
after incorporating the text of a Senate measure on security assistance (S. 1803)
approved in December 2001.
13 See the State Department’s
International Narcotics Control Strategy Report, March 2002,
pp. V-27-36. See also CRS Report RL31412,
Mexico’s Counter-Narcotics Efforts under
Fox, December 2000 to April 2002, by K. Larry Storrs.
CRS-14
Drawing from S. 1401, mentioned above, which was reported out by the Senate
Foreign Relations Committee on September 4, 2001, the conference report on H.R.
1646 establishes new drug certification and designation procedures in Section 706.
This section requires the President to make a report, not later than September 15 of
each year, identifying the major drug transit or major illicit drug producing countries.
At the same time the President is required to designate any of the named countries
that has “failed demonstrably,” during the previous 12 months, to make substantial
efforts to adhere to international counter-narcotics agreements (defined in the
legislation) and to take other identified counter-narcotics measures. U.S. assistance
would be withheld from any designated countries unless the President determines that
the provision of assistance to that country is vital to the national interest of the United
States, or that the designated country subsequently made substantial counter-narcotics
efforts.
Another section clarifies that the requirement for the yearly International
Narcotics Control Strategy Report (INCSR) detailing the performance of individual
countries by March 1 of each year is retained. Notwithstanding the general
suspension of the previous drug certification and sanctions procedures, subsection
706(5)(B) provides that the President may apply those procedures at his discretion.
A transition rule provides that for FY2003, the required report must be submitted at
least 15 days before foreign assistance funds are obligated or expended. The
conference report on H.R. 1646 was approved by the House by voice vote on
September 25, 2002, and was approved by the Senate by unanimous consent on
September 26, 2002. It was signed into law (P.L. 107-228) on September 30, 2002.
In short, Section 706 requires the President to designate and withhold assistance
from the worst offending countries (those that have “failed demonstrably” to make
substantial counter-narcotics efforts). It also permits the President to use his
discretion to maintain a higher standard and to withhold assistance and apply other
sanctions against countries that are failing to cooperate fully with the United States
in counter-narcotics efforts whenever he determines that such actions would be
helpful. In keeping with this approach, the Joint Explanatory Statement of the
Committee of Conference indicates that Managers believe that the President should
direct U.S. Executive Directors in multilateral development banks to vote against
loans for countries failing to qualify for assistance under either the old or the new
procedures.