Operation Fast and Furious: Reckless Decisions, Tragic Outcomes”
by Hugh Holub on Jun. 15, 2011, under atf, politics
The House Oversight and Government Operations Committee held a hearing June 15, 2011 on the ATF “fast and furious” scheme that allowed guns to “walk” into the hands of the Mexican drug cartels.
Two of the ATF “walked” guns ended up at the murder scene of Border Patrol Agent Brian Terry south of Tucson.
Press Release from US House Committee on Oversight and Government Reform….June 15, 2011:
Issa Releases Documents Showing Intimate Involvement of ATF Director in Controversial Gunwalking Operation
WASHINGTON, D.C. – Moments ago in his opening statement at today’s hearing, Operation Fast and Furious: Reckless Decisions, Tragic Outcomes, Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) released three e-mails detailing the intimate involvement of ATF Acting Director Kenneth Melson and Acting Deputy Director Bill Hoover in Operation Fast and Furious:
• The first e-mail from March 10, 2010, to Operation Fast and Furious Group VII Leader David Voth indicates that the two most senior leaders in ATF, Acting Director Kenneth Melson, and Deputy Director Billy Hoover, were “being briefed weekly on” Operation Fast and Furious. The document shows that both Melson and Hoover were “keenly interested in case updates.”
• A second e-mail from March 12, 2010, shows that Deputy Assistant Director for Field Operations William McMahon was so excited about Fast and Furious that he received a special briefing on the program in Phoenix – scheduled for a mere 45 minutes after his plane landed.
• A third – and perhaps the most disturbing – e-mail from April 12, 2010, indicates that Acting Director Melson was very much in the weeds with Operation Fast and Furious. After a detailed briefing of the program by the ATF Phoenix Field Division, Acting Director Melson had a plethora of follow-up questions that required additional research to answer. As the document indicates, Mr. Melson was interested in the IP Address for hidden cameras located inside cooperating gun shops. With this information, Acting Director Melson was able to sit at his desk in Washington and – himself – watch a live feed of the straw buyers entering the gun stores to purchase dozens of AK-47 variants.
Schedule of hearing June 15
| Chairman Darrell Issa Hearing Preview StatementJune 15, 2011
Wednesday’s hearing of the House Committee on Oversight and Government Reform, entitled “Operation Fast and Furious: Reckless Decisions, Tragic Outcomes,” will focus on an irresponsible program that allowed guns to be trafficked into the hands of known criminals along our border with Mexico. The Committee is engaged in an ongoing investigation to determine who ultimately authorized the program, who knew about it, and why it took the murder of a 40-year old border patrol agent and a congressional inquiry before administration officials cancelled it. When Senator Chuck Grassley and I first learned of this program earlier this year, it stretched the limits of credulity to think that a federal law enforcement agency charged with rooting out criminals involved in smuggling would actually facilitate the transfer of guns to armed cartels that would kill innocent civilians and at least one federal agent. The American people have a right to know what really happened. We have learned that ATF field agents strongly objected to the program, but that their opposition was dismissed. The deadly effect of Operation Fast and Furious could have been prevented. At Wednesday’s hearing, the Committee will hear firsthand testimony of how this program has devastated the family of Border Patrol Agent Brian Terry. When Brian Terry was murdered in December, two assault rifles linked to Operation Fast and Furious were found at the scene of the crime. Additionally, Members will have an opportunity to hear from ATF agents who saw the risk, opposed the program, and have come forward to tell Americans about what happened and how they struggled with it. ###
|
|
Witnesses
Panel I
Ranking Member, Committee on the Judiciary
U.S. Senate
Panel II
Mother of Late Border Agent Brian Terry
Sister of Late Border Agent Brian Terry
Cousin of Late Border Agent Brian Terry
Special Agent, Phoenix Field Division
Bureau of Alcohol, Tobacco, Firearms and Explosives
Special Agent, Phoenix Field Division
Bureau of Alcohol, Tobacco, Firearms and Explosives
Group Supervisor, Phoenix Field Division
Bureau of Alcohol, Tobacco, Firearms and Explosives
Panel III
Assistant Attorney General
U.S. Department of Justice
|
| Other Documents |
Statement of Senator Charles Grassley:
Statement of Senator Charles E. Grassley
Before the United States House of Representatives
Fast and Furious
June 15, 2011
Thank you, Chairman Issa, for calling these important hearings and for the great work you and your staff have done. I am grateful to Agent Brian Terry’s family for being here today and wish to express my sympathies for their loss. I hope we can get them the answers they deserve. I also want to thank the federal agents who will be testifying from the Bureau of Alcohol, Tobacco, and Firearms. I know they are here to tell the unvarnished truth. I also know that can be tough, since they still work for ATF. These agents already risk their lives to keep us safe. They shouldn’t have to risk their jobs too.
Any attempt to retaliate against them for their testimony today would be unfair, unwise, and unlawful.
When I became Ranking Member of the Judiciary Committee in January, this was the first oversight issue to land on my desk. Several other Senators’ offices contacted my office to pass along these allegations about an ATF case called “Operation Fast and Furious.” At first, the allegations sounded too shocking to believe. But sadly, they turned about to be true.
ATF is supposed to stop criminals from trafficking guns to Mexican drug cartels. Instead, ATF made it easier for alleged cartel middlemen to get weapons from U.S. gun dealers. Agents were ordered to stand by and watch these middlemen — these straw purchasers — buy hundreds of weapons. Agents warned that inaction could lead to tragedy, but management didn’t want to listen. We will hear from some of those agents today.
Inaction would be bad enough, but ATF went even further.
ATF encouraged gun dealers to sell to straw buyers. Emails prove that at least one dealer worried prophetically about the risk. [1]
He wrote to ATF about his concern that a border patrol agent might end up facing the wrong end of one of these guns. ATF supervisors told the dealer not to worry. So, the agents said it was a bad idea. And, the gun dealers said it was a bad idea.
Who thought it was a good idea? Why did this happen?
The President said he didn’t authorize it and that the Attorney General didn’t authorize it. They have both admitted that a “serious mistake” may have been made. There are a lot of questions, and a lot of investigating to do. But one thing has become clear already — this was
no mistake. It was a conscious decision by senior officials. It was written down. It was briefed up to Washington, D.C. According to an internal briefing paper, Operation Fast and Furious was intentionally designed to allow the transfer of firearms to continue to take place.Why would the ATF do such a thing?
Well, the next line in the brief paper tells us. It was, “to further the investigation and allow for the identification of additional co-conspirators”.
So, that was the goal. The purpose of allowing straw buyers to keep buying was to find out who else might be working with them — who else might be in their network of gun traffickers. Of course, that assumes that they are part of a big, sophisticated network. That kind of assumption can cause you to start with a conclusion and work backwards, looking for facts that fit. Until you figure out that you’ve got the cart before the horse, you’re probably not going to get anywhere.
Professor of Criminology Gary Kleck recently published an article in the Wall Street Journal called “The Myth of Big-Time Gun Trafficking.”
Professor Kleck said that according to his study of national crime data, ATF handles only about 15 operations each year that involve more than 250 guns. According to his study, a typical trafficking operation involves fewer than 12 guns. So why would the ATF make it a priority to identify large networks of traffickers? Why would senior leadership decide to explicitly elevate that goal above ATF’s traditional work of seizing weapons that were illegally purchased?
On October 26, 2009, emails indicate that there was a meeting of senior law enforcement officials at the Justice Department.
It appears to have included the heads every law enforcement component of the Department, including directors of the FBI, the DEA and the ATF.It also included the U.S. Attorneys for all the Southwest border states, the Director of the Organized Crime Drug Enforcement Task Force, and the Chair of the Attorney General’s Advisory Committee. Sounds like a pretty big, important meeting, doesn’t it?
On the agenda at that meeting was a document describing the Department’s strategy for combatting the Mexican cartels. In a section called “Attacking the Southbound Flow of Firearms,” it says:
Thus, given the national scope of this issue, merely seizing firearms through interdiction will not stop firearms trafficking to Mexico. We must investigate, and eliminate the sources of illegally trafficked firearms and the networks that transport them.
The message was clear. Trying to identify networks of traffickers is more important than seizing weapons. This document was transmitted to the head of the Phoenix Field Division on October 27, 2009.
Four days later, the Phoenix Field Division began investigating Uriel Patino on suspicion of being involved in a gun trafficking ring. Ten days after that, Patino was assigned his own case number. In the first 24 days that the ATF was on to him, Patino bought 34 guns from dealers cooperating with the ATF. That’s nearly three times more than the typical gun trafficking operation, according to the study in the Wall Street Journal I mentioned earlier. But that was just the beginning.
Since the dealers were cooperating, ATF received notice of each purchase right away. Analysts entered the serial numbers into ATF’s Suspect Gun Database, usually within days of the purchase. On November 20th, one of the 34 guns Patino bought turned up in Mexico — just 14 days after he bought it in Phoenix. ATF learned of the recovery through a hit in the suspect gun database on November 24th.
That same day, Patino brought Jaime Avila into a cooperating gun dealer and they bought five more guns. ATF had real-time notice from the dealers and agents rushed to the store to follow them, but arrived too late. Over the next six weeks, Avila bought 13 guns at dealers cooperating with the ATF.
The dealers notified the ATF of each purchase right away. Analysts entered the serial numbers into the ATF database, usually within about 2 days of the purchase. Yet ATF did nothing to deter or interrupt the straw purchasers. Avila went back to the cooperating dealer and purchased three more AK-47-type weapons on January 16, 2010.
ATF simply put the serial numbers in its database. Still, ATF did nothing to stop Avila and Patino. 11 months later, two of those three rifles were recovered at the scene of Agent Terry’s murder.
During those 11 months, Avila purchased another 34 firearms.
It usually took about 5 days to enter the serial numbers into ATF’s database. But ATF often had real-time or even advanced notice of the purchases from the dealers.
ATF even specifically approved particular transactions.For example, in August of 2010, a gun dealer cooperating with the ATF asked for guidance. Patino wanted 20 more weapons, but the dealer only had 4 in stock.
The dealer told ATF that if he were to sell the guns, he would have to “obtain the additional 16 specifically for this purpose.” An ATF supervisor wrote back, “our guidance is that we would like you to go through with Mr Patino’s request and order the additional firearms”.
At this point, ATF already knew that he bought 673 guns from cooperating dealers and that many had already been recovered at crime scenes. I want to be clear that we don’t know whether this particular order was actually filled.However, these new emails support what agents and dealers have been telling us for months. According to them, dealers notified ATF when any of the straw purchasers bought guns — either before, during, or shortly after the sale. We don’t know what the exact totals are. But, we know the Suspect Gun Database had at least 1,880 guns related to this case.
At least 30 of them were high-power, .50 caliber rifles.The straw purchasers bought 212 guns in just six days in December 2009. 70% of all the guns in the database were bought by just 5 straw purchasers. If ATF agents had been allowed to stop just those five buyers, most of the guns in this case would not have fallen into the wrong hands.
Finally, I want to say something about the politics of gun control. This investigation is not about politics. It is about getting the facts. No matter what side of that issue you are on, the facts here should be disturbing. There will be plenty of time for both sides to argue about policy implications of all this at some point. But I hope we can do that another day.
Today is about these agents not being allowed to do their job. Today is about the Terry family and their search for the truth. Too often, we want to make everything about politics. We pick sides and only listen to what we want to hear. At least for today, let’s just listen to what these agents and this family has to say. Let’s hear their stories. Then let’s work together to get answers for this family and the other families who may have suffered. It’s time to get to the truth and hold our government accountable.
Statement on behalf of Brian Terry’s family
This is the opening statement from Border Patrol Agent Brian Terry’s family at the House Oversight and Government Reform hearings held June 15, 2011 on the ATf Fast and Furious scheme to allow weapons to “walk” into the hands of the Mexican drug cartels..
Two guns “walked” by ATF were found at agent Terry’s murder scene south of Tucson.
Terry Family Opening Statement – June 15, 2011 1
Good morning Chairman Issa, Ranking Member Cummings and other members of the committee. My name is Robert Heyer. I am the cousin of slain Border Patrol Agent Brian A. Terry. I am joined on this panel today along with Brian’s mother, Josephine Terry; and sister, Michelle Terry Balogh. They have asked me to give this opening statement on behalf of the entire Terry Family.
It was just ten days before Christmas last year when our family received the devastating news; Brian had been shot and killed while engaged in a firefight with a group of individuals seeking to do harm to Americans citizens and others.
We knew that Brian faced imminent danger on a daily basis as part of his chosen career, but we also knew that he and his unit were highly trained and equipped with the best weapons this country could provide to their fighting men and women.
They were confident in overcoming any threat that they might face in the desolate section of desert that they patrolled. He and his team prided themselves as being the tip of the spear that defended this country and its borders.
The telephone call came in the middle of the night. I know that this type of horrible notification has been received many times during the last 10 years by the families of our military’s sons and daughters as the United States has fought wars in both Iraq and Afghanistan.
After all, Brian had taken an oath to defend this country from all terrorist threats.
What makes Brian’s death so shocking to his family is that he did not die on a foreign battlefield; he was killed while in the line of duty as a U.S. Border Patrol Agent.
He died not in Iraq or Afghanistan, but in the desert outside of Rio Rico, Arizona some 18 miles inside of the U.S. – Mexican border.
His killers were not Taliban insurgents or Al Qaeda fighters but a small group of Mexican drug cartel bandits heavily armed with AK-47 assault rifles. The rifles and the ammunition they carried were designed to do one thing and that was to kill.
Brian was an amazing man. And I say that not just because he was family. Many people thought him to be almost super human. After his death, we visited his former duty stations in Arizona. Each time we met one of his fellow agents, they spoke of how impressed they were him. He was what we expect in our brothers and sons; a strong, competitive, handsome, courageous, funny, and incredibly patriotic American. Some of his co-workers even had bestowed him with the nickname of “Superman”.
Brian was very proud to serve as a federal agent. He had joined the United States Marine Corps right after high school. He went on to college and earned a Bachelor of Science Degree in Criminal Justice.
He then became a local police officer in the communities of Ecorse and Lincoln Park, Michigan. When he sought to have more of an impact on keeping this country safe, he joined the Border Patrol. Brian, it seemed had found his niche. Before long he tried out and became a member of the Border Patrol’s elite Tactical Unit known as BORTAC. At age 40, he had much to look forward to which included getting married and starting a family; but for now, he was living his dream. He wore his BORTAC winged insignia with great pride and excelled as a BORTAC team member.
During BORTAC training, Brian was given a class room writing assignment. The assignment was to write something about himself that would give the instructors some insight as to who he was. He composed a poem that he entitled “If Today Is to Be the Day…So Be It” and I would like to read it to you so that you can have a better understanding of who he was:
“If you seek to do battle with me this day, you will receive the best that I am capable of giving.
“It may not be enough, but it will be everything that I have to give and it will be impressive for I have constantly prepared myself for this day.
“I have trained, drilled and rehearsed my actions so that I might have the best chance of defeating you.
“I have kept myself in peak physical condition, schooled myself in the martial skills and have become proficient in the applications of combat tactics.
“You may defeat me, but I’m willing to die if necessary. I do not fear death for I have been close enough to it on enough occasions that it no longer concerns me.
“But, I do fear the loss of my honor and would rather die fighting than to have it said that I was without courage.
“So I will fight you, no matter how insurmountable it may seem, to the death if need be, in order that it may never be said of me that I was not a warrior.”
Brian was due to complete his shift of duty that night in the desert outside of Rio Pico at midnight on December 15 and then take some much deserved time off. He had already made his travel plans to fly back to Michigan and spend the Christmas holiday with his family. Brian’s attention to detail had insured that all the Christmas gifts he had meticulously selected for his family had already been bought and sent in the mail prior to his arrival. Brian did ultimately come home that Christmas; we buried him not far from the house that he was raised in just prior to Christmas day. The gifts that Brian had picked out with such thought and care began to arrive in the mail that same week. With each delivery, we felt the indescribable pain of Brian’s death, but at the same time also remembered his amazing love and spirit.
We hope that you now know a little bit more about our Brian. We ask that you honor his memory by continuing to ensure what he worked so hard to do and ultimately gave his life doing; that is to keep this country safe and its borders secure. We hope that the Bureau of Alcohol Tobacco and Firearms is forthcoming with all information that the panel is seeking. We ask that if a government official made a wrong decision that they admit their error and take responsibility for his or her actions. We hope that all individuals involved in Brian’s murder and those that played a role in putting the assault weapons in their hands are found and prosecuted to the full extent of the law. Finally, it is our hope that no more law enforcement officers die at the hands of these heavily armed Mexican drug cartel members operating on and inside the borders of the United States.
The Terry Family would also like to acknowledge and thank the Special Agents in the FBI’s Tucson Field Office and the prosecutors in the U.S. Attorney’s Tucson Office that have worked so hard and continue to work in bringing Brian’s killers to justice.
The Marines have the motto of Semper Fidelis which most of you know is Latin for always faithful. The Border Patrol has the motto of Honor First. Brian lived a life of honor, duty and sacrifice which reflected both of these mottos and the two organizations he was so proud to serve in. It is now up to all of us to put honor first and to remain always faithful in the quest for justice. On behalf of the entire Terry Family, thank you.
Statement of John Dodson about ATF gunwalker scandal: “The very idea of letting guns walk is unthinkable to most law enforcement.”
Statement of John Dodson to House Commitee on Oversight and Government Reform June 15, 2011.
Dodson is the first whistleblower to come forth in public after Border Patrol agent Brian Terry was murdered with guns “walked” by ATF.
TESTIMONY OF SPECIAL AGENT JOHN DODSON BEFORE THE HOUSE COMMITTEE
ON OVERSIGHT & GOVERNMENT REFORMJune 15, 2011
Mr. Chairman, Ranking Member Cummings, honorable members of this Committee. I am grateful you have called this hearing today, and I hope that my testimony will assist in your investigation. Beginning with my military service and continuing through this day, I am proud to have spent nearly my entire adult life in service of this Country, under sworn oath to defend the Constitution, with my allegiance always pledged to this Republic. I have patrolled highways and back country roads as a uniformed patrol officer while working local law enforcement in Virginia. I was a detective and then attached to a Drug Enforcement Administration Task Force just outside the beltway surrounding this city, and I am before you now, as a Special Agent with the Bureau of Alcohol, Tobacco and Firearms.
I have spent the vast majority of my law enforcement career conducting criminal investigations, with a particular focus on those involving the trafficking of narcotics and firearms. I have been involved in countless investigations and arrests, from basic misdemeanors to complex conspiracies of international drug trafficking organizations, many times as a case agent, many times as an undercover. I have made thousands of investigative stops and scores of arrests, and have testified many times in federal and state courts across the country, as a witness and often as a qualified expert.
Although it has neither been my desire nor my expectation to provide testimony to a committee such as this, I see it as merely the well and faithful discharge of my duties. I do not appear before you as a remote observer of these events, casting a judgmental finger over the actions of others. I come, as I have been asked to do, bearing only my first-hand account. I have not the burdens of rendering judgment, determining responsibility, or holding others accountable. I yield those to this committee. The only message I hope to convey is that through this process, some resolve may finally be brought to the families of Brian Terry and Jaime Zapata; that we may truly honor their service and mourn their sacrifice. I hope that your inquiry, and those of Senator Grassley and the Inspector General, will yield a true account for the many others who have already been or will be affected by this operation.
Furthermore, I am grateful to have this opportunity to appear today with the Terry family so that I may personally express my sorrow and regret about my involvement in this.
Simply put, during this operation known as Fast and Furious, we, ATF, failed to fulfill one of our most fundamental obligations, to caretake the public trust; in part, to keep guns out of the hands of criminals. When I became involved in this operation in late 2009, the ATF agents running it briefed me that local Phoenix firearms dealers had provided them with more than 40 individuals whom they believed to be purchasing guns for others—”straw purchasers”—including members of Mexican drug cartels. These identified straw purchasers were the initial subjects of this investigation. From the earliest days of the operation after being fully briefed on what was known to date, I had no question that the individuals we were watching were acting as straw purchasers and that the weapons they purchased would soon be trafficked to Mexico and locales all along the Southwest border, where they would be used in violent crime if we did not intervene. However, we did not intervene.
Over the course of the next 10 months that I was involved in this operation, we monitored as they purchased hand guns, AK-47 variants, and .50 caliber rifles almost daily. Rather than conduct any enforcement actions, we took notes, we recorded observations, we tracked movements of these individuals for a short time after their purchases, but nothing more. Knowing all the while, just days after these purchases, the guns that we saw these individuals buy would begin turning up at crime scenes in the United States and Mexico, we still did nothing. I can recall, for example, watching one suspect receive a bag filled with cash from a third party then proceed to a gun dealer and purchase weapons with that cash and deliver them to this same unknown third party. Although my instincts made me want to intervene and interdict these weapons, my supervisors directed me and my colleagues not to make any stop or arrest, but rather, to keep the straw purchaser under surveillance while allowing the guns to walk. Surveillance operations like this were the rule, not the exception. This was not a matter of some weapons getting away from us, or allowing a few to walk so as to follow them to a much larger or more significant target. Allowing loads of weapons that we knew to be destined for criminals—this was the plan. It was so mandated.
I have never heard an explanation from anyone involved in Operation Fast and Furious that I believe would justify what we did. The ATF is supposed to be a guardian of our citizens. To paraphrase the analogy of Army LTC Dave Grossman, ATF is supposed to be the sheepdog that protects against the wolves that prey upon our southern border. But rather than meet the wolf head-on, we sharpened its teeth and added number to its claws, all the while we sat idly by watching, tracking, and noting as it became a more efficient killer.
Prior to my coming to the Phoenix Field Division, I had never been involved in or even heard of an operation in which law enforcement officers let guns walk. The very idea of letting guns walk is unthinkable to most law enforcement. I and other field agents involved in the operation repeatedly raised these concerns with our supervisors. In response, we were told that we simply did not understand the plan. However, the numerous guns we let walk have yet to be recovered. Those that have been, were only recovered after the last time they were used in a crime. I cannot begin to think of how the risk of letting guns fall into the hands of known criminals could possibly advance any legitimate law enforcement interest. I hope the Committee will receive a better explanation than I ever did.
Thank you again for the opportunity to appear before you today. I look forward to answering any questions you may have.
“It has become common practice for ATF Supervisors to retaliate against employees that do not blindly tow the company line, no matter what the consequences.”
Olindo James Casa is another ATF agent with first-hand knowledge of how reckless the ATF “walking” of guns to the Mexican drug cartels was.
Casa objected to the scheme and was threatened with retalition by his superiors. The gun walking continued.
Two of the ATf “walked” guns were found at the murder scene of Border Patrol Agent Brian Terry south of Tucson.
Opening Statement
Good morning honorable members of Congress. My name is Olindo James Casa and I am a Senior Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, commonly known by the acronym ATF. I have been employed by ATF since March 1993. From March 1993 until June 1999, I held the position of Inspector with ATF. From June 1999 until the present, for the twelve past years, I have held the position of Special Agent. I am currently assigned to the Phoenix Field Division, Phoenix Group VII, an OCDETF Strike Force Group and have been assigned to that group from December 2009 to the present. Prior to this assignment, I worked in the Chicago Field Division, Chicago Group II, a Firearms Trafficking Group. I was assigned to that group from 2003 until 2009. Since being employed with ATF, I have been a case agent, co-case agent, and have participated in many firearms trafficking investigations, both domestic and international in scope. Needless to say, I feel I have extensive experience in regards to firearms trafficking investigations and my work has resulted in the successful prosecution of many individuals who have violated the law. Some of my training includes a four year criminal justice degree from Illinois State University and job specific training at the Federal Law Enforcement Training Center. In addition, while at the training center, I earned the award of Honor Graduate of my ATF Special Agent Training Course.
Upon arriving in Phoenix, AZ in December 2009, I was assigned to work full time (more or less) on an investigation, which later received OCDETF designation and funding. That investigation was titled Fast and Furious. The investigation was initiated before my arrival by a newly hired ATF Special Agent, Jose Medina, sometime in or around November 2009. Special Agent Medina’s assigned training officer was ATF Special Agent Hope MacAllister. Shortly after Special Agent Medina opened the investigation, Special Agent MacAllister had the investigation reassigned to her. Based on my experiences in ATF, this type of reassignment is uncommon and unusual, especially in a trainer / trainee situation. As the investigation developed, ATF Special Agent Tonya English assumed the role of co-case agent and Special Agent Medina assumed a subordinate role in the investigation. The 1st line supervisor around the time of the initiation of the investigation was ATF Phoenix Group VII Supervisor David Voth, a newly designated Group Supervisor with no previous ATF supervisory experience.
After I reported to Phoenix Group VII Office, I was briefed by group members on the investigation that later became titled Fast and Furious. Shortly after, I became aware of what I believed to be unusual and questionable investigative techniques. For instance, I became aware that certain suspected straw purchasers were purchasing numerous firearms from area firearm dealers. What I found concerning and alarming was more times than not, no law enforcement activity was planned to stop these suspected straw purchasers from purchasing firearms. The only law enforcement activity that was occasionally taken was to conduct a surveillance of the transaction, and nothing more. Most of the time, the firearm purchase forms (known as ATF Forms 4473) and receipts for those transactions were faxed to our office and group members, including myself, were instructed to write Reports of Investigations (ROIs) detailing the purchase of firearms by those aforementioned individuals.
As the investigation progressed over the next couple of months and additional suspected straw purchasers were identified, again with no obvious attempts to interdict the weapons or interview suspects. Around the same time, the Phoenix Group VII Office started to receive numerous firearm traces detailing recoveries of firearms in the Country of Mexico. Many of those traces disclosed that the aforementioned straw purchasers were responsible for purchasing those recovered firearms. Also around that period of time the investigation received OCDETF funding and was titled the Fast and Furious. At this time, several Special Agents in the group, including myself, became increasingly concerned and alarmed at Case Agent McAllister’s and/or Group Supervisor Voth’s refusal to address or stop the suspected straw purchaser from purchasing additional firearms. Special Agent John Dodson and I continually raised our concerns directly with Case Agent MacAllister, Co-Case Agent English, and Group Supervisor Voth, to no avail. In response to our increasingly voiced concerns, Group Supervisor Voth issued the infamous “Schism” e-mail to the group. In essence, the e-mail was a direct threat to the Special Agents who were not in agreement with how Case Agent MacAllister, Co-Case Agent English, or Group Supervisor Voth managed the investigation. Based on my eighteen years of experience with ATF, I did not think the e-mail was an empty threat and took it very serious. It has become common practice for ATF Supervisors to retaliate against employees that do not blindly tow the company line, no matter what the consequences.
Sometime in March 2010, at the direction of Group Supervisor Voth and Case Agent MacAllister, daily surveillances of straw firearm purchasers started to be conducted by members of ATF Group VII as well as ATF Special Agents from other offices who were detailed to assist with Operation Fast and Furious. The surveillances were also supported by Immigration and Customs Enforcement (ICE) Special Agent Layne France and by members of the Phoenix Police Department. ATF Special Agent Lawrence Alt reported to the Phoenix Group VII Office around this period of time and like Special Agent Dodson and I, became alarmed of the direction of the investigation and spoke out against the practices that were being utilized. I would like to mention two other Phoenix Group VII members shared their concerns with me regarding the direction of investigation, but were not outspoken for their own various personal reasons.
My role during the daily surveillances was that of Shift Supervisor. As the Shift Supervisor my responsibility was to oversee the surveillance agents at the direction of Case Agent MacAllister, Co-Case Agent English, and/or Group Supervisor David Voth. In general, my fears were realized while out on the aforementioned surveillances. On numerous occasions the surveillance team followed straw purchasers to Phoenix area firearms dealers and would observe the straw purchasers buy and then depart with numerous firearms in hand. Those firearms included but were not limited to AK-47 variant rifles, .50 caliber rifles, and 5.7mm FN pistols, all of which are devastating weapons. On many of those occasions, the surveillance team would then follow the straw purchasers either to a residence, a public location, or until the surveillance team was spotted by the straw purchasers. But the end result was always the same – the surveillance was terminated by the Case Agent MacAllister, Co-Case Agent English or Supervisor Voth, without interdicting or seizing the firearms. On several occasions I personally requested to interdict or seize firearms in such a manner that would only further the investigation, but I was always order to stand down and not to seize the firearms. I made these requests “over the air” and have many law enforcement witnesses that can verify my assertions. I challenge anyone to disprove my statements.
Reflecting back to that period of time during the investigation, I thought the poor decisions were made due to incompetence and/or lack of experience, which would have made this situation bad enough. Unfortunately, in recent light of documents that have been released, especially the Briefing Paper dated January 8, 2010, it appears the investigation was conducted in a recklessly planned manner with a specific strategy in mind. Per the Briefing Paper, the strategy was to allow the transfer of firearms to take place in order to further the investigation and allow for the identification of additional co-conspirators who would continue to operate and illegally traffic firearms to Mexican DTOs. Special Agent Dodson, Special Agent Alt, and I, at times on a daily basis, had warned the Case Agent, Co-Case Agent, and Group Supervisor of the reckless course they were taking in regards to the investigation. We sternly warned them of the consequences of their actions (or lack thereof), but we were repeatedly ignored. In fact, on at least a couple of occasions that I witnessed, Special Agent Dodson asked both Special Agent MacAllister and Group Supervisor Voth if they were prepared to attend the funeral of slain agent or officer after he or she was killed with one of those straw purchased firearms. Neither one answered or even seemed concerned by the question posed to them.
To close, I would like to extend my heartfelt condolences to Border Patrol Officer Brian Terry’s family. I am truly sorry for your loss and I hope someday you find peace.
ATF “walked” guns: “I believe that these firearms will continue to turn up at crime scenes, on both sides of the border, for years to come.”
Peter Forcelli is another ATF agent who has come forth to tell the truth about the gunwalker scamdal.
Two ATF walked guns were found at the murder scene of Border Patrol Agent Brian Terry south of Tucson.
This is Forcelli’s statement to Rep. Darrell Issa’s House Oversight and Government Reform Committee hearing June 15, 2011:
Opening statement of Peter J. Forcelli, Supervisory Special Agent, ATF, June 15, 2011.
Good morning, Chairman Issa, Ranking Member Cummings and members of the committee.Thank you for the opportunity to appear before the committee today.
I am present here today, to provide truthful testimony before the committee, which I hope will assist your inquiry into the ATF investigation that has come to be known as “Operation Fast and Furious.” I believe that your inquiry is essential. There have been grave mistakes made in this case. The committee, the American People, and the family of slain U.S. Border Patrol Agent Brian Terry deserve answers.
Please allow me to give you a little background information about myself. I have always found it best to start from the beginning when laying out facts. In 1987, I began my career in law enforcement with the New York City Police Department. I worked in Bronx County, often referred to as “The Bronx” as a uniformed police officer, and then ultimately as a detective in the Bronx Homicide Task Force. In my career, I estimate that I have responded to approximately 600 homicide scenes. The vast majority were drug related, and were committed by armed criminals. These violent criminals, armed with illegal firearms, had little regard for human life.
I retired early from the New York City Police Department in June of 2001 to take a position with the Bureau of Alcohol, Tobacco and Firearms (ATF), as it was then known. I did this because I had the honor of working hand in hand with ATF agents who were doing incredible work in investigating violations of the law with the assistance of the U.S. Attorney’s Offices for the Southern District (SDNY) and Eastern District of New York (EDNY). In working with these offices, one thing was very clear. Dedicated prosecutors worked hand in hand with dedicated ATF agents to make cases that truly impacted the safety of the public. There was an absolute sense of teamwork and respect.
Some of the cases I had the honor of working on were the “Sex, Money, Murder Bloods” investigation, which involved multiple homicides, drug trafficking and racketeering. The “Neese Bello Organization” investigation, which involved over 100 Hobbs Act violations. “Operation Stadium Shadow”, which solved six homicides, and resulted in the release of two men who were wrongfully accused, and, in fact, one convicted of murder. These are just a few of my cases.
Again, I’ll use the words teamwork and respect. Together with the prosecutors from the United States Attorney’s Office with whom I had worked, we had used, confidential informants, proffers, cooperation agreements, “Writs of Habeas Corpus”, “Waivers of Speedy Presentment”, investigative grand juries, grand jury subpoenas and an abundance of other investigative tools to make successful cases as a part of a team.
I left the New York Field Division in March of 2007, to begin working in my current post of duty as the Group Supervisor of the Phoenix I Field Office. Within a matter of weeks, I was surprised at what I had observed. In my opinion, dozens of firearms traffickers were given a pass by the U.S. Attorney’s Office for the District of Arizona. Despite the existence of “probable cause” in many cases, there were no indictments, no prosecutions, and criminals were allowed to walk free. In short, their office policies, in my opinion, helped pave a dangerous path.
Fortunately, the same could not be said of the Arizona Attorney General’s Office to which we agents were forced to turn for prosecution of firearm cases. Victor Varela and his associates, who trafficked .50 caliber rifles to Mexican Drug Cartels, one of which was used to kill a Mexican military commander were successfully prosecuted by the Arizona Attorney General’s Office, after the case was declined by Assistant U.S. Attorney Emory Hurley due to “corpus delecti” issues. Sadly, Mr. Varela was released from prison last July, due to the lesser sentencing guidelines for such offenses in state court, but the alternative- no prosecution- was unacceptable.
Another case, which involved a corrupt federal firearms licensee, who was supplying guns to several firearms trafficking organizations, was declined by Mr. Hurley. This dealer, in his post- arrest statement, admitted that “approximately 1000 of his firearms” were trafficked to Mexico. Over one half -dozen of that dealer’s firearms were found in the immediate area around the body of Arturo Beltran-Leyva. Mr. Beltran-Leyva, who was the head of Beltran-Leyva Cartel, was killed in a fierce gun battle with the Mexican Naval Infantry in Cuernavaca, Mexico.
Due the recalcitrance of the United States Attorneys Office in Arizona cases such as these were presented to the Arizona Attorney General for prosecution under state statutes subject to lesser criminal penalty than Federal Statutes. I believe that this situation, wherein the United States Attorneys Office for Arizona in Phoenix declined most of our firearm cases, was at lest one factor which led to the debacle of “Operation Fast and Furious.”
Fast forward to “Operation Fast and Furious” itself. ATF agents assigned to the Phoenix Field Division, with the concurrence of their local chain of command, “walked” guns. ATF agents allowed weapons to be provided to individuals whom they knew would traffic them to members of Mexican drug trafficking organizations (DTOs). They did so by failing to lawfully interdict weapons that they knew were going to be delivered to members of DTOs, and they did so by encouraging federal firearms licensees to continue selling weapons that were destined for delivery to members of the DTOs where no interdiction efforts were planned.
When I voiced surprise and concern with this tactic to SAC William Newell and ASAC George Gillett, my concerns were dismissed. SAC Newell referred to the case as “groundbreaking” and bragged that “we’re the only people in the country doing this”. My other ASAC, Jim Needles, merely said “Pete, You know that if you or I were running the case, it wouldn’t be run this way”
This operation, which in my opinion endangered the American public, was orchestrated in conjunction with Assistant U.S. Attorney Emory Hurley. [Emory Hurley is the same Assistant U.S. Attorney who previously prevented agents from using some of the common and accepted law enforcement techniques that are employed elsewhere in the United States to investigate and prosecute gun crimes.] I have read documents that indicate that his boss, U.S. Attorney Dennis Burke, also agreed with the direction of the case.
Allowing firearms to be trafficked to criminals is a dangerous and deadly strategy. The thought that the techniques used in the “Fast and Furious” investigation would result in “taking down a cartel” given the toothless nature of the “straw purchasing law” and the lack of a “firearms trafficking statute” is, in my opinion, delusional.
Based upon my conversations with agents who assisted in this case, surveillance on individuals who had acquired weapons was often terminated far from the Mexican border. Therefore, while the case agents and others believed that the weapons were destined for Mexico, the potential exists that many were sent with cartel drugs to other points within the United States. As a career law enforcement officer, who has had to investigate the deaths of police officers, children and others at the hands of armed criminals, I was and continue to be horrified. I believe that these firearms will continue to turn up at crime scenes, on both sides of the border, for years to come.
In closing, I want the members of the committee and all Americans to know: This is not how ATF agents conduct business. I am very proud of some of the incredible work done by ATF agents around the country every day. Many ATF agents have given their lives in the performance of their duties. On my last trip to New York City, I participated in a homicide trial on a case that I initiated in the U.S District Court for the Southern District of New York. Three other separate homicide trials were also being conducted in that courthouse. Each was the result of work done by outstanding ATF case agents, who solved those murders through conducting complex criminal investigations, while working hand in hand with dedicated prosecutors. Like myself and the members of the Committee, they too want the truth to come out, and those who acted irresponsibly held accountable. They deserve it, the family of Border Patrol Agent Brian Terry deserves it, and the American people demand it.
I thank you for your time today, and wish you Godspeed in this endeavor. God Bless America.
And the prepared statement of Department of Justice Assistant AG Ronald Weich who continued to stonewall the Congresional investigation into ATF Fast and Furious
STATEMENT OF RONALD WEICH ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS U.S. DEPARTMENT OF JUSTICEBEFORE THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
UNITED STATES HOUSE OF REPRESENTATIVES
AT A HEARING ENTITLED
“OPERATION FAST AND FURIOUS: RECKLESS DECISIONS, TRAGIC OUTCOMES”
PRESENTED JUNE 15, 2011
STATEMENT FOR THE RECORD OFIntroduction
Good morning, Mr. Chairman and Members of the Committee. I am pleased to be here today to discuss the Department’s continuing efforts to respond to the Committee’s subpoena concerning ongoing criminal investigations by the Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and the Federal Bureau of Investigations (“FBI”), and pending criminal prosecutions brought by the Office of the U.S. Attorney for the District of Arizona.
Let me say at the outset that the Department is fully committed to working in good faith with you to accommodate the Committee’s legitimate oversight interests in this matter, and I hope that the Committee will similarly continue to engage in good faith with the Department in a manner that recognizes the challenges and important confidentiality interests presented where congressional oversight involves open criminal investigations. It is always difficult when the interests and principled exercise of the prerogatives of the Legislative and Executive branches come into potential conflict. That is why the Constitution envisions, as the Court of Appeals for the D.C. Circuit has recognized, that the branches will engage in a process of accommodation to avoid such conflicts. As Attorney General William French Smith has said, the accommodation process is not, and must not be, simply an exchange of concessions or a test of political strength, but rather it is the obligation of each branch to make a principled effort to acknowledge and, if possible, to meet the legitimate needs of the other branch. It is in this spirit of principled engagement that I come before you today.As the Committee is aware, many of the subpoenaed documents concern an open criminal investigation conducted by the Department named Operation Fast and Furious, as well as the open investigation and pending prosecution in connection with the shooting death of Customs and Border Protection (“CBP”) Agent Brian Terry. Operation Fast and Furious is a criminal investigation—led by U.S. Attorney’s Office prosecutors and ATF agents—aimed at dismantling a significant transnational gun-trafficking enterprise and the network of those who support the enterprise’s criminal efforts, an investigation which has led already to the indictment of 20 defendants. CBP Agent Terry was shot and killed on December 14, 2010, while on duty near Rio Rico, Arizona. The death of CBP Agent Brian Terry was a tragic loss and our prayers go out to his family, his friends, and his colleagues in law enforcement. The Department, in an effort led by the FBI and the U.S. Attorney’s Office, already has indicted at least one of the people involved in his murder, and that suspect remains in federal custody. The investigation
actively continues into others who were involved and the Department has been in frequent contact with members of the Terry family as well as the CBP agents who were at the scene of this tragic murder. We understand and were pleased to hear at the hearing Monday the Committee’s commitment not to compromising the investigation of Agent Terry’s murder, or the broader gun trafficking investigation, through its oversight activities.The purpose of my testimony today is to describe the Department’s continuing efforts to respond to the Committee’s subpoena in a manner that satisfies the Committee’s core oversight interests in this matter while also safeguarding the important interests of the Department and the criminal justice system that are implicated by oversight of open criminal investigations.
Accommodating the Needs of Coordinate Branches
Let me start by making clear that the Department recognizes the important role of congressional oversight, including oversight of the Department’s activities. The Department appreciates that oversight is a necessary underpinning of the legislative process.
Congressional committees, such as this one, need to gather information about how statutes are applied and funds are spent so that they can assess whether additional legislation is necessary either to rectify practical problems in current law or to address problems not covered by current law. We have found that oversight can shed valuable light on the Department’s operations and in that way assist our leadership in addressing problems that might not otherwise have been clear.
At the same time, it bears emphasis that attempts to conduct congressional oversight of ongoing criminal investigations are highly unusual. Our policy with respect to all congressional oversight is uniform: it is the policy of the Executive Branch, at the instruction of the President, to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. However, as the Department’s Office of Legal Counsel under President Reagan explained in 1986, “the policy of the Executive Branch throughout our Nation’s history has generally been to decline to provide committees of Congress with access to, or copies of, open law enforcement files except in extraordinary circumstances.” Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68, 76 (1986) (“Congressional Requests”). This policy, as I will describe in more detail, is vital to the Department’s law enforcement mission, as it is designed to fulfill the Department’s constitutional and statutory obligations to preserve the independence, integrity, and effectiveness of law enforcement investigations and the criminal justice process more generally. I should add that this policy is nonpartisan: administrations of both parties have relied upon it for decades and it has been supported by top Department officials, both Democrats and Republicans alike.
In response to your subpoena, the Department has been striving to reconcile these dual principles by accommodating the Committee’s oversight interests while protecting important law enforcement confidentiality interests. Striking this delicate balance takes time and effort. It is most certainly not the case, as some have suggested, that the Department is refusing to comply with the Committee’s subpoena. To the contrary, the Department has been working diligently to satisfy the Committee’s core oversight interests, without compromising the important purposes underlying the Department’s policy against the disclosure of open criminal investigative files.
This approach to responding to the Committee’s subpoena, which attempts to balance and accommodate the respective interests of the coordinate branches, is in no sense shirking the Department’s duty to respond to Congress, but is precisely part of the give and take that the Constitution demands, as the Court of Appeals for the District of Columbia Circuit explained decades ago in the seminal oversight case of United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977).
The Department’s Accommodation of the Committee’s Subpoena
With that basic framework of the accommodation process in mind, I want to speak more directly about how the Department has been working in good faith to accommodate the Committee’s oversight interests with respect to the specific open criminal matters that are the subject of the subpoena. The starting point for our approach to accommodation in this matter is an agreement by the Department that the Committee has a reasonable and legitimate oversight interest in information shedding light on the genesis and strategy of the Fast and Furious operation. The Department agrees with the Committee that documents explaining, at a broad level, the inception of the operation may be made available to the Committee. The Department also agrees with the Committee that it has a reasonable and legitimate oversight interest in certain information relating to the basic strategies underlying the operation—namely, the decisionmaking and responsibility for strategic decisions, if any, regarding the timing of arrests in connection with the alleged sale of firearms to individuals suspected of being straw purchasers, the legal basis to seize such firearms, and any efforts to track the firearms to those higher up the chain of command in firearms and drug trafficking enterprises. It is our understanding that these topics lie at the core of the Committee’s oversight interests.
I should pause at this point to emphasize that it is a crucial mission of the Department to stop the flow of firearms into Mexico, a task that presents challenges under existing federal gun statutes. We continue to work with our law enforcement counterparts here and in Mexico to stem the flow of weapons, cash, and drugs across our borders and to interdict people whose only goal is to evade law enforcement. The Attorney General accordingly has taken very seriously allegations that firearms sold to suspected straw purchasers by Federal Firearms Licensees were intentionally allowed “to walk” into Mexico. He has referred this matter to the Department’s Office of the Inspector General, an independent and nonpartisan office that is examining the facts and will report its findings. The Attorney General also has reiterated to Department law enforcement personnel that they are not knowingly to allow any firearms to be illegally transported into Mexico for any reason. Although the Department is in the process of fully investigating and addressing these matters internally, we recognize that the Committee also has a legitimate oversight interest in understanding the genesis and inception of the Fast and Furious operation, as well as the basic strategies driving that operation. We fully share the Committee’s stated interest in getting to the bottom of the allegations.
With that description of the core oversight interests of the Committee in mind, the Department to date has been focused on identifying documents responsive to those needs. Although the breadth of the Committee’s subpoena (which includes the entire nationwide program, Project Gunrunner, of which Operation Fast and Furious is just one part), the nature of the relevant record-keeping systems, and the inherent sensitivities relating to open criminal
investigations and pending prosecutions have presented considerable challenges to the Department in responding to the subpoena as promptly as we would hope in the ordinary case, the Department has made and will continue to make a substantial amount of pertinent information available to the Committee. Indeed, given the breadth of the subpoena, we were pleased to hear the Chairman state at Monday’s hearing that the Committee would like to hear from the Department regarding our concerns. We would like to continue to work with the Committee to discuss these concerns and to narrow the subpoena as appropriate.As I have stated, however, the Department has made a good deal of information available to the Committee already notwithstanding the challenges posed by the subpoena. For example, in early May 2011, after an initial document review, the Department provided the Committee with 92 pages of documents responsive to the subpoena, and also made available more than 450 pages of documents for review by Committee staff. At that time, the Department also briefed Committee staff regarding the Fast and Furious operation, and the Department was able to learn more about what particular information the Committee seeks.
Since that briefing, ATF has collected and has been in the process of reviewing the emails of three key officials at ATF’s field office in Phoenix. The Department produced last week to the Committee an additional 69 pages of documents and made available for review another 88 pages, a clear sign that the accommodation process is ongoing. Beyond that category of documents, the Department is continuing a broader search for responsive documents at both ATF headquarters and its field offices. Recognizing the Committee’s keen interest in this matter, in order to expedite that review, the Department has taken the extraordinary step of retaining an outside contractor, at a substantial cost, to assist us in building a database of the emails of 19 individuals at ATF in whom the Committee has indicated a primary interest.
This database includes the emails of the three key ATF officials referenced above. The Department worked with Committee staff regarding search terms that will likely identify documents responsive to the Committee’s needs. The outside contractor just recently completed loading the emails into its system and ATF attorneys have now begun the review process. Searches of this magnitude take a lot of time and require diverting officials from performing their core law enforcement duties. Indeed, just the 19 selected user accounts contain over 724,000 e-mails and attachments. I am confident, however, that further information will be made available to the Committee resulting from these efforts as expeditiously as possible. Finally, the Department has also collected thousands of documents flagged as potentially responsive to the subpoena by various officials within ATF. Over two dozen lawyers at ATF and the Department are currently reviewing those documents, and, as a result of this separate review, the Department produced or made available an additional 169 pages of documents to the Committee this week. I expect that such rolling productions will continue.
I should emphasize that, although the accommodation process is still ongoing, the Department’s response to the subpoena to date has been significant, especially in view of the unusual nature of—and serious challenges presented by—congressional oversight of open criminal investigations. In total, the Department has physically produced more than 580 pages of documents to the Committee and has made available more than 900 additional pages for review. In addition, the Department made one ATF official available for an interview with Committee staff, and we hope we will be able to schedule more interviews in the upcoming weeks. In addition, Committee staff has requested—and the Department has agreed to provide—additional briefings on three specific topics of interest to the Committee. The Department, of course, always stands ready to explore other alternatives for satisfying the Committee’s legitimate oversight needs.
I understand that concerns have been raised that many of the documents that the Department has made available to the Committee to date have been made available only for review by Committee staff, without copies of the documents also being provided. Let me explain our practice in that regard. The documents that are made available for review contain law enforcement sensitive material, and the Department needs to take steps to prevent their public disclosure. For that reason, it is necessary and appropriate to make them available only for review by Committee staff at this time. The inadvertent disclosure of these documents at this time could, for the reasons I explain below, compromise the independence, integrity, or effectiveness of open criminal investigations or other law enforcement interests. I should be clear, however, that this process of review is without prejudice to the Committee’s prerogative to request copies of specific documents that it deems particularly pertinent to its oversight interests. If the Committee does so, the Department will promptly and in good faith consider whether it can provide copies of such documents to the Committee, consistent with vital law enforcement interests.
The Department’s Compelling Need to Withhold Core Investigative Documents
I must stress that the Department will not be able to make available to the Committee all documents encompassed by the subpoena. In the course of locating documents responsive to the Committee’s subpoena, we have identified certain confidential, core investigative and prosecutorial documents, the disclosure of which, in the Department’s judgment, would compromise the independence, integrity, or effectiveness of the open criminal investigations and would undermine the Department’s ability to discharge its responsibilities for the fair administration of justice. The Department, consistent with its longstanding policy, is not in a position to make such documents available to the Committee. Seventy years ago, Attorney General Robert H. Jackson, relying on positions taken by his predecessors, informed Congress that:
It is the position of the Department, restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution ‘to take care that the Laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest.
Position of the Executive Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 46 (1941) (“Investigative Reports”).
I hope that an explanation of the reasons for this policy will underscore for the Committee why the policy is so central to the Department’s law enforcement mission. The most basic justification for the policy follows from the Constitution’s careful separation of legislative and executive powers, the purpose of which is to protect individual liberty. As Charles J.
Cooper, the Assistant Attorney General heading the Department’s Office of Legal Counsel during the Reagan Administration, explained in 1986, providing a congressional committee with sensitive, Executive Branch information about an ongoing law enforcement investigation would put Congress in an inappropriate position of exercising influence over or pressure on the investigation or possible prosecution. See Congressional Requests, 10 Op. O.L.C. at 76. Such congressional influence—and, indeed, the mere public perception of such influence—could significantly damage law enforcement efforts and, in criminal matters, shake public and judicial confidence in the criminal justice system. Congressional oversight of open investigations risks compromising the core principle that decisions about criminal investigations and prosecutions must be made without reference to political considerations.Equally important, the Department’s policy reflects the reality that the disclosure of information regarding open law enforcement investigations risks compromising the effectiveness of such investigations themselves by, among other things, providing a “road map” of the investigation to subjects and targets of the investigation and discouraging the cooperation of existing and potential witnesses, informants, or other cooperators. Disclosure of information regarding open criminal investigations could disclose the identity of individuals assisting in the investigation, as well as the investigative techniques being employed and evidence that has been gathered. Such disclosures could inform subjects and targets about investigations in a manner that permits them to evade and obstruct the Department’s investigative and prosecutorial efforts. As Attorney General Jackson warned, disclosure of open investigative files could “seriously prejudice law enforcement,” as “[c]ounsel for a defendant or a prospective defendant [] could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon.” Investigative Reports, 40 Op. Att’y Gen. at 46.
These concerns, unfortunately, are not merely theoretical. The Committee’s oversight activities in this matter has already risked undermining, albeit unintentionally, the independence, integrity, and effectiveness of the Department’s criminal investigations. In connection with its oversight of the Fast and Furious operation, the Committee issued a subpoena for documents and testimony at a public hearing to a cooperating witness who was, at the time, scheduled to be a witness in a trial scheduled for this month involving 20 defendants charged with an array of firearms, drug, and money laundering offenses. At the time of the subpoena, neither the individual’s cooperation with the investigation nor his identity as a trial witness had been disclosed in the judicial proceedings. This manner of oversight risks compromising the investigation and prosecution of alleged firearms traffickers, drug dealers, and money launders by deterring current and potential cooperators. One defendant, in declining the opportunity to participate in a proffer session with the United States Attorney’s Office, specifically advised the prosecutors through his lawyer that he was declining the opportunity because he feared that any investigative report written about his proffer session would be made public. The Department has grave concerns about this approach to oversight, and I wish respectfully to repeat our request that the Committee refrain from contacting or subpoenaing witnesses and cooperators involved in either the indicted criminal case or continuing criminal investigations while these matters remain pending.
Having set forth the justifications for the Department’s policy regarding the disclosure of open criminal investigate files, I should add an important point regarding the doctrine and the practice of executive privilege. I am aware that witnesses at the Committee’s hearing on Monday raised a question about why the Department has not requested that the President assert executive privilege in response to the Committee’s subpoena. To be sure, executive privilege is available to safeguard open law enforcement investigations. See Letter for the President from Michael B. Mukasey, Attorney General, Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff (July 15, 2008) available at http://www.justice.gov/olc/2008/agletterepclaim07-15-08final.pdf (“The President may invoke executive privilege to preserve the integrity and independence of criminal investigations and prosecutions.”). Consistent with the Constitution’s implied mandate that Congress and the Executive Branch work to accommodate the needs of the other in these situations, however, it is the typical practice of the Executive Branch to avail itself of every opportunity to accommodate Congress’s needs to the fullest extent possible consistent with the confidentiality interests that are protected by executive privilege before asking the President to invoke the privilege, which is a last resort. This practice of accommodation does not in any way mean that the Department cannot or should not rely upon the interests protected by executive privilege when making judgments about appropriate disclosures during the process of accommodation. Any other approach would rapidly and prematurely escalate most oversight disagreements into constitutional confrontations, countermanding the teaching of the Court of Appeals for the District of Columbia Circuit in AT&T. Here the Department’s efforts to gather and process potentially responsive documents are not complete, and the accommodation process is ongoing. In that context, it would not be responsible to escalate prospective disagreements into constitutional confrontations without first fully engaging in the process of accommodation.
Finally, let me say a few words about the testimony the Committee received on Monday from Professor Charles Tiefer, Mr. Morton Rosenberg, Mr. Todd Tatelman, and Mr. Louis Fisher. The upshot of that testimony was that Congress has a legitimate oversight interest over the Department, even with respect to ongoing investigations, and that the Department has on certain occasions provided Congress with law enforcement materials. Although I will not engage here in a detailed assessment of these assertions, I wish to make three general observations in response. First, in both their written and oral testimony, the witnesses acknowledged that disagreements between Congress and the Executive Branch should be resolved through a process of accommodation, which often involves balancing the competing interests of each branch and a good deal of give and take. We agree. As I have explained, the Department to date has made substantial efforts at accommodation, but the voluminous and sensitive character of many of the documents has impacted the substantial review process necessary to respond to the subpoena consistent with the Department’s constitutional and statutory mandates.
Second, the Department acknowledges as a general matter that Congress’s oversight authority with respect to the Department may, in certain circumstances, implicate open matters. That congressional oversight authority, however, must also account for, and in some cases yield to, the legitimate confidentiality interests of the Department and the criminal justice system, especially in circumstances in which oversight relates to open criminal investigations. The D.C. Circuit’s decision in AT&T drives home the point that our coordinate branches must work to accommodate the legitimate interests of the other. That process of accommodation, as I have emphasized, is ongoing, making clear that the Department understands that the Committee has some legitimate interests regarding the Department’s basic policy and strategy decisions here, even though that oversight may touch upon open investigations.
Lastly, the historical precedents discussed by the witnesses, as I understand them, simply did not involve disclosure by the Department of sensitive information relating to active, ongoing criminal investigations of the type directly sought by the subpoena here. Those precedents therefore supply no reasonable basis for insisting that the Department disavow its longstanding policy—a policy applied across the political administrations of each party—in this matter. See generally Todd David Peterson, Congressional Oversight of Open Criminal Investigations, 77 Notre Dame L. Rev. 1373, 1388-1410 (2002) (discussing the limited utility of the precedents relied upon by in Congressional Research Service reports).
Conclusion
In concluding my testimony, I would like to emphasize again that the Department recognizes that the process of congressional oversight is an important part of our system of government. At the same time, congressional oversight that implicates ongoing criminal investigations is highly unusual, and presents sensitivities not raised in the ordinary case of oversight of the Executive Branch. Despite the unique challenges posed by oversight of open criminal matters, I remain optimistic that the Department, working closely with and in consultation with this Committee, will be able to satisfy the Committee’s core oversight interests in this matter, while also safeguarding the independence, integrity, and effectiveness of the Department’s ongoing criminal investigations. The Department stands ready to continue to work diligently with the Committee toward satisfying the respective interests of our coordinate branches.
Thank you again for inviting me here today to testify. I would be happy to answer your questions.
June 15th, 2011 on 1:24 pm
[...] fight, …US guns fuel Mexico drug war? The politics behind the issue.Christian Science MonitorOperation Fast and Furious: Reckless Decisions, Tragic Outcomes"Tucson CitizenIssa: Dems trying to obstruct "gunwalking" probeCBS [...]