"Vast and Spurious"



For a long time now, there's been too much secrecy in this city.”

“Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency…..

“The mere fact that you have the legal power to keep something secret does not mean you should always use it.”

“The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.”

--President Barak Obama, 1/21/09

"I write now to inform you that the President has asserted executive privilege over the relevant post-February 4, 2011, documents.”

--Deputy Attorney General James Cole, 6/23/12

The Opacity of "Fast and Furious"

             "Fast and Furious" is a political hot potato. Both the Republicans and the Democrats have made it so, and have blamed the other side for politicizing it. Much of what the Republicans hope to gain as a result of this scandal and much of what the Democrats hope to prevent in the face of this scandal involves political capital.

          I am not, however, looking to advance a political party, ideology, or candidate. Those of you who have read my past articles know that I have, I hope, been as hard on Democrats as I have on Republicans. 

          Regardless, however, of whether I have agreed or disagreed with the President in the past should not marginalize my reasoning about a current issue, especially in light of my professional experience. I have run undercover operations, I have been heavily involved undercover buying and selling of weapons, and have the experience of a quarter century in the FBI. I personally briefed Attorney General Janet Reno on at least one of my cases. Trust me on this; operation "Fast and Furious" has been a debacle every sense of the word, and wise heads would have seen it as such from the beginning. Like somebody watching a horrendous movie, one wonders, "Who 'green-lighted' this?"

          The very concept of the operation reads like a practical joke: 

       “We let, say, 2,000 AK-47’s and .50 caliber rifles ‘walk’ to the Mexican drug cartels who are at war and massacring civilians. Then, we 'follow' the weapons to the cartel leadership. Oh, and we won’t tell Mexico and we won’t tell other U.S. law enforcement. Sound like a plan?”

          Even after the laughter stopped, serious questions would have to be asked:

          1.      What makes you think that your weapons would go to cartel bosses who already have the nicest guns money can buy, usually chromed and monogrammed?
              2.      What about the fact that it’s the rank and file shooters who use these guns?
              3.      How will you “track” these guns?
              4.      What if people are killed with these guns?

          Let me give you the belated and tragic answers to these questions:

               1.         Not a single cartel leader was identified or tracked with these guns.
        2.    179 of these guns have been found at the scenes of shootings. Mexican authorities contend (though this statistic is disputed by ATF) that 150 bodies have been found at the crime scenes where ATF-sold guns were abandoned. When Mexican drug-interdiction helicopters attempted to raid a drug compound recently, they were driven off by .50 caliber rifle fire, the same caliber sold to Mexican drug cartels by ATF.
               3.      How can you track these guns? See above: You find them next to bodies.
             4.      What if people are killed with these guns? That’s what the whole “political” issue is about.
The Human Cost:

         Border Patrol Special Agent Brian A. Terry is just one statistic in the human cost of “Fast and Furious.”

              A former U.S. Marine and former police officer, Brian was one of those guys law enforcement hopes to find.

          Brian and other Border Patrol agents were involved in a firefight on the U.S./Mexico border on December 14, 2010. They were engaged by gunmen who preyed on Mexicans trying to get to America. Brian was hit in the lower abdomen in the firefight.  Brian bled to death in the arms of a comrade before a medevac helicopter arrived. One Mexican gunman was hit by Border Patrol fire, the others escaped leaving behind their AK-47’s. 

          The bullet that killed Agent Terry was fired from an AK-47. Two AK-47 rifles were found abandoned in the area from which the gunmen opened up on the Border Patrol agents. Both of the rifles had been sold by ATF as part of “Fast and Furious.”

          Rightly, a congressional investigation of “Fast and Furious” was begun. This is not unprecedented. Congress has investigated law enforcement operations from the Branch Davidian siege to Abscam. Is the investigation by congress warranted? Certainly. Is it being used politically? Certainly. But Watergate was used politically, too. Yet nobody doubts the importance of the congressional hearings on that scandal. The fact that hearings are being used politically does not overcome the importance of understanding a situation. There is nothing on Capitol Hill that is not political and/or used politically. If you eliminated every congressional action that did not have a political or party-serving purpose (even in part), then nothing would occur in congress. Nothing. 
          When I took a case to trial, I used to love to show my best evidence to  the defense attorneys. It was only my weak evidence that I hoped they didn't ask about. If the Obama administration has done nothing wrong in this instance, then there should be no objection to the committee's request. One would think that just before an election, they would take every opportunity to eliminate doubt in peoples' minds.  The fact that the objection is this strenuous is troubling. 

            Attorney General Holder’s defense of the invocation of “Executive Privilege” is that the Justice Department has already provided over 7,600 documents to congress. To the uninitiated, this seems impressive and responsive to the committee.  However, a dose of reality is necessary so this claim and its relevance can be properly evaluated.  I can remember one case I worked as an FBI agent which was a major, long-term investigation against a single person. My case file was over 10,000 pages. This number in fact, included only a fraction of the documentation on informants and the use of informants on that case. That documentation was maintained in a separate file. 

         I would assume that if an agency is operating even a flawed plan to release thousands of assault weapons to drug runners, they would have generated hundreds of thousands of documents—and if they don’t they’re worse than incompetent.  7,600 pages is an insignificant amount.

          The thousands of guns that the agency released are predominantly weapons that the ATF carefully monitors to make sure that even Americans with spotless criminal records do not possess. We’re talking AK-47’s and murderous .50 caliber sniper rifles. Sniper Rifles! As a SWAT Team operator, I’ve fired AK-47s—through cinderblock walls and car bodies. The rounds don’t even slow down. I’ve fired AK-47’s into automobile engine blocks.  They are fearsome weapons. 

The .50 caliber sniper rifles send a huge slug more than a mile down-range. The bullet is about 2 inches long, travels at supersonic speeds and is used by different law enforcement agencies for shooting through engine blocks to disable cars.  

          In the photograph of the ammunition at left, the cartridge on the left is a .22 caliber rifle cartridge, ammunition for many civilian sport and target rifles. The round on the right is a .50 caliber cartridge. .50 caliber rounds are used in wartime to shoot through armored vehicles and down aircraft.

          The fact that ATF was releasing a veritable military arsenal into Mexico did not rise to the point that those in charge felt that it was important to alert the Mexican government, the State Department, or even the Attorney General, according to Mr. Holder. That this type of operation could occur without administration approval strains credibility. Are they not being candid, or do they have that little control over their own agencies?  Isn't this something you would want to know about? The result, in addition to the deaths, is an international incident, and a perceived “betrayal” by Mexican authorities.

          Two of the avowed ATF targets were, in fact, actually FBI informants. Had ATF notified other agencies, they might have obtained valuable information. Likely, I fear, they were afraid of being discovered and reported to the Justice Department. 

             This is not intended to be an indictment of the rank and file ATF agent, many of whom fought against "Fast and Furious" when they recognized its folly. Some even went to congress. It is unlikely that the public would know as much as they do without the help of ATF agents doing the right thing. One of the "whistle-blowers" has even been terminated. It is less the agent on the street that is the problem than it is the orders they receive.

            That ATF was once again attempting to unilaterally interject themselves into cases other agencies were working more efficiently and at a higher level. This case targeted fugitives and cartels that the DEA had been working for decades. DEA would certainly not have approved ATF operating in their territory, much less with such reckless abandon. DEA is looking for big-time convictions and engaging in long-term serious investigations. ATF, is looking for weapons violations. Barely felonies. Their characteristic invasion of other agency's cases is like the kid who always wants to tag along with his 18 year old brother and be “one of the guys.” 

         Yes, there are inter-agency rivalries in the federal law enforcement system, much as there are rivalries between football teams of different cities. A Cowboys fan will always love the Cowboys and will think that other teams are not as classy, talented, or competent as their own gene. These things go with the territory. However, there is almost a universal agreement in federal law enforcement that ATF is a seriously troubled organization.

          With the exception of their Bomb Lab, which should be managed by a different agency, it is my professional opinion that ATF is unnecessary, and should be disbanded. This has been my opinion since mid-career. It may have begun when I met several ATF agents at a crime scene and found to my horror that several of the agents bearing badges and guns had not yet been to the "academy." (How cavalier can an agency who regulates guns be, if they give high-powered pistols to untrained employees, who are agents in name only?)  Ruby Ridge was a botched ATF operation, as was the initial assault on the Branch Davidian complex in Waco, Texas.

          The SWAT agents of ATF who assaulted the Branch Davidian compound were brave and honorable men and women. But they were betrayed by their leadership. There is a reason SWAT uniforms are black or dark olive green: SWAT raids occur in the middle of the night when people are sleeping, disoriented and not holding a gun. The assault against the Davidian compound was initiated at about 10 am., during church services, at the time when all men in the complex were known by ATF to be in a meeting and armed. And, it was an assault against a massive complex populated by hundreds of women, children and heavily armed male religious zealots. To the trained tactical officer, this operation was doomed to failure before it began. 

          The insult to this injury was the inexplicable failure of ATF to arrest the one man they wanted, David Koresh, at his regularly-schedule breakfast appointment in town. In the interest of fairness, I should say that the FBI's handling of the subsequent siege was not a model of how these operations should be resolved. The difference, however, is that the flawed FBI decisions were at least based in some measure on reason, past experience and standard (at that time) operating procedure.

          The rumors of course are, that ATF at the time of Waco was desperately in need of funding and fearful that they would be disbanded. They were allegedly looking for the “big hit" that would show their importance to congress. That is likely why they brought the press along on the raid.

“Mr. Holder, I’m Ready for My Closeup”

Tragically, “Fast and Furious” seems like a repeat of the Branch Davidian fiasco. ATF has become the Nora Desmond of federal law enforcement, always believing that the next operation will be their comeback, the one big event that would catapult them back to where they belong. In the spotlight.

          ATF has few friends in congress. It would seem like they would be tailor-made to fit under Mr. Holder's proverbial "bus," yet he appears to be stonewalling to protect them. Which leads one to wonder whether he is protecting an agency or his career. I do not personally believe that Holder is protecting documents about "Fast and Furious" per se. All the disputed documents requested by the committee are post-"Fast and Furious;" documents which relate ONLY to e-mails and communications within the Justice Department over the ongoing controversy. It appears to be the Justice Department’s internal post-mortem on the matter, and it begs the question as to whether they are protecting a failed operation that is no longer in place, or are they protecting careers and/or elected offices?

          No, the committee wants internal communications from February 2011, when the administration denied knowledge of "gun-walking," to the end of the year, when officials acknowledged the denial was in error. Those documents covered a period after "Fast and Furious" was shut down. Surprisingly, the Attorney General did not even give the reason that secrecy is necessary.

          In the last 50 years, Executive Privilege has been used almost exclusively in fairly sordid affairs. Nixon attempted to use the privilege to save his presidency after he committed felonies in office. President Clinton used it in 1998 to protect his administration as it related to his having sex in the Oval Office with a teenage intern. (Contrary to popular belief, Ronald Reagan did not evoke Executive Privilege in the "Iran/Contra" affair.) Bush II used the privilege twice, once to protect conversations between Cheney and energy executives and again to allegedly protect Karl Rove. 

          In each and every one of these cases, the claim of “politics” was made by the side on the defense. Yet it is easy to find people on both sides of the aisle who still believe that something sinister was hidden by executive privilege in one or more of the cases.

          To an administration which claimed that it’s “touchstone” is transparency and the rule of law, it seems incongruous that they would withhold documents which deal with the rule of law. I concede that no one has all the answers and there is room for doubt on both sides of the issue. What to do then? I defer to the president:

                        “In the face of doubt, openness prevails.”  --Barack Obama