Holder’s Contempt Charge on Way to Appeals Court? Is Fast and Furious Politically Motivated?

Yesterday, the House of Representatives voted (255 to 67) to hold Attorney General Eric Holder in contempt for his refusal to hand over thousands of documents subpoenaed by the House Oversight and Government Reform Committee more than a year ago.

The documents, believes Darrell Issa (R-Calif), who heads the Committee, are pivotal to understanding the how’s, why’s, and who’s of an ATF operation tagged Fast and Furious, a year and a half-long investigation during which ATF agents were instructed by superiors to allow guns illegally purchased by strawbuyers from US gunshops on the southwest border to walk across the US-Mexico border and simply disappear.

The weapons, which included powerful, military grade rifles, .50 cal sniper rifles, and ordnance capable of downing helicopters and other aircraft, were allowed to be flow into Mexico sans tracking devices (in a similar operation called “Wide Receiver,” conducted during the Bush administration, weapons cartels believed were headed to Mexico were rigged with GPS chips and interdicted by US agents) or any plan in place to interdict the weapons before they might be used to commit a crime, typically homicide, by Mexican gunmen or cartel members.

What ATF agents running the operation did do, however, was enter the serial numbers of the weapons sold to straw buyers in the ATF eTrace database, knowing that information would allow ATF to identify weapons, recovered by Mexican authorities and returned to US officials, as the same weapons recently purchased, illegally, from US gun dealers.

Given that the only apparent strategy driving the operation was one that clearly succeeded in corroborating the claims of anti-gun lobbyists in Washington and Mexico—Calderon has argued for some time that the violence in northern Mexico should be attributed to the availability of weapons from US gun shops—critics of Fast and Furious argue that the effort was less a “failed or botched gun tracking operation” than it was a “highly successful operation conceived and implemented to validate the statistics put forth by ideologues on both sides of the border working against 2nd Amendment rights in the US.”

A letter sent to the House Oversight Committee by the Office of the Attorney General on February 4, 2011, asserted that “ATF makes every effort to interdict weapons that have been purchased illegally and to prevent their transport to Mexico.”

The Attorney General later retracted that statement after whistleblowers involved in the operation produced evidence that ATF supervisors, when confronted with the concerns of agents who wanted to interdict the weapons before they fell into the wrong hands, told their subordinates that no interdiction efforts were to be implemented, and that agents who didn’t think their job was ‘fun,’ should look for another position.’

The decision not to interdict the weapons, agents were told, came from the top.

Over the course of Operation Fast and Furious, hundreds of the weapons ATF had allowed to walk into Mexico were recovered at crime sites and returned by Mexican authorities to ATF for identification, proving that violence on the Mexican side of the border was, in fact, driven by illegal gun sales (which in this case had been engineered by ATF) in the US.

Holder’s critics say that none of this would have come to light had not one of the weapons later identified by ATF as one sent into Mexico via Fast and Furious been recovered at the site of the murder of US Border Patrol Agent Brian Terry, 14 miles north of the border in Arizona.

The realization that a weapon he and his colleagues had been instrumental in sending into Mexico and into the hands of cartel gunmen had been used to murder another US law enforcement officer transformed ATF Special Agent John Dodson (Phoenix) into an official government whistleblower, and triggered his subsequent testimony on ATF’s refusal to interdict policies in the case of F+F to the House Oversight Committee.

The question then turned on whether the decision to let guns walk—the choice not to follow standard policy and, consequently, not to interdict the weapons before they could be used in the commission of a crime—was deliberate or merely poor judgement, as DoJ claims.

Given the length of the operation and memos from superiors forbidding interdiction, with no specific reasons for this policy shift noted—ATF Agent Dodson testified that, previous to Fast and Furious, agents were never permitted to lose sight of weapons deliberately allowed into the hands of criminal owners–many critics argue that Fast and Furious closely resembles Iran Contra, a Reagan administration operation designed by anti-Marxist ideologues intent on supplying weapons to contras (anti-communist forces) in Nicaragua without the approval or knowledge of Congress.

The politicization of US law enforcement?

Evidence that Fast and Furious may have been, strategically at least, a mirror image of Iran Contra, has been slow in coming; clearly, investigators would have to establish the knowledge and involvement of officials at the highest levels within DoJ and other relevant agencies to make such a case. Early on in the investigation, senior officials within ATF, the Attorney General, and the heads of Homeland Security and the State Department all testified they had no knowledge of the undertaking before reports about Fast and Furious surfaced in the press.

Now, internal memos, emails, and, most importantly, wire tap applications accompanied by letters signed by Lanny Breuer, Holder’s head of the Criminal Division within DoJ—as well as documents signed by Arizona’s US Attorney Patrick Cunningham (who has invoked his Fifth Amendment right against self-incrimination)—reveal the involvement of senior administration officials at early stages of the investigation.

Emails sent by ATF Special Agent in Charge Bill Newell to White House staffer Kevin O’Reilly (whom the administration will not allow to testify to Congress) are reported to substantiate claims that the White House knew what Fast and Furious was all about as early as 2010.

The extensive correspondence about details of Fast and Furious, the concern that weapons ATF had allowed “to walk” were being used to murder civilians in Mexico and the US, and the description of operational tactics in the wire tap applications–all suggest that Lanny Breuer, the head of DoJ’s Criminal Division, a man who reported directly to the Attorney General, understood in the early stages of the operation that the only achievable end of the undertaking was the return of weapons ATF could confirm were recent illegal purchases made in the US.

Mexico’s Federales, were, in turn, able to confirm these same weapons had been used to kill Mexican citizens, or in the case that threw Fast and Furious into the headlines, a US agent.

Connecting the dots in this particular way would have been of special (political) value to anti-gun advocates in the US and Mexico.

While Mexico had been returning weapons manufactured in the US to ATF for some time, there was no sure way of proving the guns had been recently—and illegally—purchased from gun dealers in the US: the “time to crime” line (length of time from the purchase of the weapons to the commission of the crime) associated with these weapons was either too long (guns made in the US might arrive in Mexico from any number of previous locales) or too vague to be of help in support Mexico’s claim that weapons from the US are fueling violence there. ATF needed guns they could prove had been purchased, illegally, and recently, from US dealers.

Another similarity to Iran Contra: ATF enabled the shipment of more than 2000 combat-grade weapons across the US border without obtaining exemptions or waivers from the US Department of State to the Arms Export Control Act (AECA)—a prerequisite to the transfer of weapons from the US to a foreign country even when those weapons are part of an undercover operation run by a US law enforcement agency.

Oliver North and his colleagues in Iran Contra failed to obtain such waivers or exemptions—and it was this violation of US law, as opposed to the relatively minor crimes of perjury, obstruction of justice, and the like—that sent North to prison. Whoever signed off on Fast and Furious, the senior architects of this debacle, could face the same end—whether or not it is ever proved that the operation was the offspring of an ideological campaign to reinstate the ban on the sale of assault rifles and limit gun sales in the US.

Sending weapons across the US-Mexico border without waivers from State or exemptions to the Arms Export Control Act (AECA) is a serious crime.

Hillary Clinton has told Representative Connie Mack (R-Fla), a member of the House Judiciary Committee, that the DoJ never requested waivers or exemptions from her Department. Given the fact that waivers are required for each weapon or batch of weapons that cross the US border, the Attorney General and any colleagues involved in letting weapons across the border could be charged with thousands of violations of the Arms Export Control Act–as was Colonel North and his team.

So, investigators already have their “what”—the crime.

What about perpetrators?

Well, the wire tap applications issued from the early days of the operation on tell the Committee that, contrary to testimony, senior officials within DoJ had been fully briefed on Fast and Furious, its tactics, investigative techniques, its ancillary problems, and its successes (whistleblower testimony indicates the Special Agent in Charge of Fast and Furious, Bill Newell, grew “visibly excited” every time a weapon linked to a violent incident in Mexico had been identified as one of theirs).

We have an impressive list of “who’s” – with the unspoken question about whether Holder, if he does reprise the Ollie North role, will assume full responsibility for what Congress could characterize as an illegal operation—will the buck stop there, or will Holder, unlike North, kick the can down Pennsylvania Avenue?

The additional documents subpoenaed by the House Oversight Committee would, Chairman Issa (R-Calif) believes, cast light on any interaction between DoJ officials at the top, and between Holder and the White House, after investigators started to question ATF officials about the operation. Such correspondence could shed light on alleged White House involvement and/or on attempts by senior officials within the administration to impose damage control, including the cover up the involvement and motivation of key players.

Is the Committee politically motivated?

Of course, it is—as this oped by Conor Friedersdorf in The Atlantic makes perfectly clear.

Friedersdorf goes on to say there’s a ‘but’…

… even if all that is true, shouldn’t the American people know not just how gun-walking was conceived and executed at ATF, but also how higher-ups reacted to the program and its investigation? If they immediately launched an internal inquiry, disciplined the appropriate people, implemented reforms, and cooperated with legitimate Congressional oversight efforts, that would reflect well on DoJ staff and an Obama appointee who we may or may not want there in 2013.

In other words, it is DoJ’s duty and responsibility to cooperate with investigators trying to get to the bottom of a government operation that resulted in the slaying of one of its own, Border Patrol Agent Brian Terry, and hundreds of civilians on both sides of the border.

So when the President of the United States steps between Congress and DoJ at the last minute, protecting subpoenaed documents from the eyes of the people, the US Congress—what leaps to mind when this rarely invoked form of censorship materializes–is that not just DoJ, but the administration, has something to hide.

Sorry. It’s the thinking man’s response.

And even a partisan fishing expedition cannot create evidence that does not exist.

Censorship in extreme situations, where national security it at risk, for example, is understandable.

But as a last wall of defense?

The last President who invoked Executive Privilege was Richard Nixon—we not only know why, we also know it didn’t work.

Separation of Powers

What we’re talking about here is the separation of powers-the notion that US law enforcement, in this case, DoJ, answers to the people as opposed to the intermediaries who sign their paychecks.

Cry “innocent” and then tell America the corroborating materials are off-limits? In a situation where our own government may have played a part in the murder of a US law enforcement officer, a former Marine on patrol in the middle of the night with a rifle loaded with bean bags?

Congress has voted the Attorney General of the United States in contempt. Now it’s the job of a US Attorney to take the facts to a judge—to the DC Court of Appeals—for his yea or nay.

If the DC Court of Appeals takes the side of Issa’s Committee, Holder and the White House may take the matter, on appeal, to the US Supreme Court—drag the situation out past the election cycle.

And, of course, as we know, anything can happen at SCOTUS.

During today’s vote in the House, the Congressional Black Caucus, along with Democratic Leader Nancy Pelosi (D-Calif), and Whip Steny Hoyer (D-Md), walked out in a show of protest.

They call the investigation into Fast and Furious ‘a political witch hunt.’

Political, it may be.

But the hunt, during an election season even the GOP knows would be better served by talking about the economy, appears to be for the truth.