The law: Obama's executive privilege and holder's contempt: 'operation fast and furious'.

Author:Fisher, Louis
Position:President Barack Obama and Attorney General Eric Holder

In his first use of executive privilege, President Barack Obama on June 20, 2012, denied

Congress access to documents related to the "Fast and Furious" operation carried out by the

Alcohol, Tobacco, and Firearms (ATF) agency. The program permitted more than two thousand

assault guns to leave the United States and enter Mexico, leading to the deaths of hundreds of

Mexicans. Initially, the Justice Department denied that ATF ever intended to have guns flow

to Mexico. Ten months later the department conceded that its statement was "inaccurate."

Congressional efforts to obtain agency documents resulted in a House contempt citation against

Attorney General Eric Holder, prompting Obama to invoke executive privilege.

The issue of weapons flowing from the United States into Mexico predates President Barack Obama. The administration of George W. Bush created a program called "Operation Wide Receiver." The purpose was to monitor "straw buyers"--customers who purchase guns for someone else. Instead of immediately seizing the weapons, Alcohol, Tobacco, and Firearms (ATF) decided to follow the guns to major crime syndicates. The strategy: let straw buyers lead ATF to firearms traffickers and Mexican drug cartels. The program was finally closed down after ATF concluded it lost track of too many guns. For reasons never fully explained, ATF in the Obama administration decided to renew this failed program under the name "Fast and Furious."

"Operation Wide Receiver"

In 2006, ATF agents in Phoenix, Arizona, initiated Operation Wide Receiver. With the assistance of local gun dealers, the agents watched straw buyers purchase guns with the intent to transfer them to other parties. After numerous unsuccessful efforts to interdict the weapons at the Mexican border, the lead ATF agent in charge of this program concluded a year later that "We have reached that stage where I am no longer comfortable allowing additional firearms to 'walk' " (Fatally Flawed 2012, 2). In late 2007, the operational phase of this program was terminated. In the Obama administration, a Justice Department (or DOJ) prosecutor reviewed the file for Operation Wide Receiver in 2009 and remarked that "a lot of guns seem to have gone to Mexico" and "a lot of those guns 'walked' "(Fatally Flawed 2012, 2). Details on Wide Receiver are provided in a September 2012 report by the Office of Inspector General (OIG) in the Justice Department (U.S. Justice Department 2012, 27-101).

Given the evident difficulty of tracking weapons from gun shops to the border and into Mexico, hoping to trace guns to drug cartels, why would this type of program be revived by the Obama administration? What safeguards could avoid the problems experienced by the Bush administration? When reports of gunrunning gained public attention, the Obama administration initially denied that guns had walked to Mexico. Independent investigations by members of Congress and the media forced the administration to admit that its denials were false.

"Operation Fast and Furious"

On January 27, 2011, Senator Charles E. Grassley wrote to Kenneth E. Melson, ATF acting director. Grassley said it was his understanding that ATF continued to conduct operations "along the southwestern United States border to thwart illegal firearm trafficking" (Grassley 2011a, 1). (1) He wrote about an ATF operation called "Project Gunrunner," an effort to deal with weapons trafficking along the border. Operation Fast and Furious, begun on October 31, 2009, was a related law enforcement effort to track and control guns (U.S. Justice Department 2012, 330-31).

Grassley expressed concern that ATF "may have become careless, if not negligent, in implementing the Gunrunner strategy." He told Melson that members of the Senate Judiciary Committee had received reports that ATF had "sanctioned the sale of hundreds of assault weapons to suspected straw purchasers, who then allegedly transported these weapons throughout the southwestern border area and into Mexico" (Grassley 201 la, 1). Grassley said that one of those individuals purchased three assault rifles with cash in Glendale, Arizona, on January 16, 2010. Two of the weapons "were then allegedly used in a firefight on December 14, 2010, against Customs and Border Protection (CBP) agents, killing CBP Agent Brian Terry" (Grassley 2011a, 1).

In a follow-up letter of January 31 to Melson, Grassley objected that an ATF agent in the Phoenix office had questioned one of the agents who responded to inquiries from Grassley's staff about Project Gunrunner. According to Grassley, ATF "accused the agent of misconduct related to his contacts with the Senate Judiciary Committee" (Grassley 2011b, 1). Grassley advised Melson not to retaliate against whistleblowers and "to remind ATF management about the value of protected disclosures to Congress and/or Inspectors General in accordance with the whistleblower protection laws" (Grassley 2011b, 1). Citing 18 U.S.C. [section] 1505 and 5 U.S.C. [section] 7211, he told Melson that obstructing a congressional investigation is against the law. Grassley also called attention to section 714 of Public Law 111-117, which withholds federal funds to pay the salaries of officials who deny or interfere with the rights of federal employees to furnish information to Congress (Grassley 2011b, 1-2).

Under ATF policy, weapons should be interdicted before falling into the hands of criminals. Instead, despite the protests of many ATF agents, the weapons were allowed to reach Mexico and be used by drug cartels. After the death of Border Agent Terry on December 14, 2010, Attorney General Eric Holder took steps to close down Fast and Furious. Two months later, on February 28, he ordered the inspector general in the Justice Department to conduct an investigation.

An Ill-Advised DOJ Letter

On February 4,2011, Assistant Attorney General Ronald Welch, head of the Office of Legislative Affairs in the Justice Department, responded to the two letters Grassley sent to Melson. Welch stated that Grassley's claim that ATF had "sanctioned" or "otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico--is false" (Welch 201 la, 1). That blunt statement lacked any qualifications such as "According to information we have received from our ATF office in Phoenix." The DOJ decided to respond quickly to Grassley without asking him for the documentation he possessed. In time, it became necessary to retract the letter, but it took the DOJ 10 months to do that.

From the beginning, Main Justice wondered how to handle possible evidence that Grassley possessed about gunrunning. Gregory Rasnake, ATF's chief of legislative affairs, e-mailed Welch on January 27,2011, at 4:14 p.m.: "They claim to have 'documentation' that confirms their concerns" (HOGR DOJ 003637). (2) On that same day, Rasnake was asked by Melson, "Can you ask them for documentation?" Rasnake received advice from James McDermond, ATF's assistant director for public and government affairs: "They will never share the documentation at this time" (HOGR DOJ 003660). Rasnake responded: "No way. We can't even ask" (HOGR DOJ 003662). McDermond agreed: "I concur with the fact that we can't ask" (HOGR DOJ 003665). What prevented them from asking?

Rasnake e-mailed Melson on January 27, at 5:31 p.m.: "The bottom line is we couldn't even ask them for it. It would be viewed as impolite. You see--they have no reason to share.... The likelihood that they would give it to us is so remote, that I suggest it is not worth the risk of offending them" (HOGR DOJ 003673). The only way to determine whether Grassley was willing to share his documentation was to ask him. A remark by Rasnake to Melson is revealing: "My initial thoughts were to hide and punt, but after my conversation with Grassley's staffers--I don't believe that dog is gonna hunt" (HOGR DOJ 003673). If Grassley's staffers were that able and determined, the wiser course would be to ask for their evidence. Perhaps Rasnake and McDermond worried that Grassley had reliable evidence about gunrunning, making it difficult to prepare a strong letter of rebuttal. Having decided it was not "worth the risk of offending" Grassley by asking for documentation, Main Justice deeply offended Grassley and Congress by releasing the February 4 letter.

The letter requires a careful reading. Following the language that Grassley used in his letter to Melson, Weich said that straw purchasers did not transport weapons into Mexico. Quite likely they did not. Their function was to purchase weapons and give them to other parties, who would transport the weapons to Mexico. In a subsequent letter to Senator Patrick Leahy two months later, on April 18, Weich made that distinction clear by referring to straw purchasers "who purchase the weapons not for themselves, but with the purpose of transferring them to others who then facilitate their movement across the border to the cartels" (Weich 2011b, 1).

Nothing in the February 4 letter denied that guns flowed to Mexico or that straw buyers played a key role. Weich added: "ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico" (Weich 2011a, 1). The phrase "every effort" did not rule out the possibility that weapons purchased in U.S. gun shops ended up in Mexico. As more was learned about Fast and Furious, it became clear that ATF knowingly and consciously allowed weapons to flow from the United States to Mexico.

Why was the February 4 letter signed by Weich? Grassley sent his letter to Melson. As ATF acting director, Melson had substantial knowledge about the program. The Office of Legislative Affairs did not. A Justice Department e-mail on February 3 asked if the letter would go out "under Director Melson's hand." (3) The value of an Office of Legislative Affairs (OLA) letter is that it allows the DOJ to speak with a single voice. That purpose is undercut...

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