Saturday, June 30, 2012




GOP Hokum


On Wednesday, that notoriously left-wing rag and keystone of the liberal media, Fortune magazine, ran an article by Katherine Eban about the ATF's Fast and Furious scandal.     Following a six-month investigation in which she reviewed "2,000 pages of confidential ATF documents and interviewed 39 people, including seven law-enforcement agents with direct knowledge of the case,"  Eban observed 

Quite simply, there's a fundamental misconception at the heart of the Fast and Furious scandal. Nobody disputes that suspected straw purchasers under surveillance by the ATF repeatedly bought guns that eventually fell into criminal hands. Issa and others charge that the ATF intentionally allowed guns to walk as an operational tactic. But five law-enforcement agents directly involved in Fast and Furious tell Fortune that the ATF had no such tactic. They insist they never purposefully allowed guns to be illegally trafficked. Just the opposite: They say they seized weapons whenever they could but were hamstrung by prosecutors and weak laws, which stymied them at every turn.

Critics of the witchhunt investigation by the House Oversight and Government Reform Committee of Eric Holder, which has led to House approval of a contempt citation against the Attorney General, might recognize the presence of 853 federally licensed firearms dealers in the Phoenix area, which is replete with billboards advertising volume discounts for multiple purchases.    They might be aware that under Arizona law, there is no waiting period and no permit required, and that the purchaser merely must be at least 18 years of age and submit to a background check.    Further, he or she may resell the weapons and

It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party,  sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn't necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn't mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.

None of the ATF agents doubted that the Fast and Furious guns were being purchased to commit crimes in Mexico. But that was nearly impossible to prove to prosecutors' satisfaction. And agents could not seize guns or arrest suspects after being directed not to do so by a prosecutor. (Agents can be sued if they seize a weapon against prosecutors' advice. In this case, the agents had a particularly strong obligation to follow the prosecutors' direction given that Fast and Furious had received a special designation under the Justice Department's Organized Crime Drug Enforcement Task Force. That designation meant more resources for the case, but it also provided that prosecutors take the lead role.)


Some leading Republicans have alleged that the gun-walking operation (itself a misleading description) allegedly conducted by Phoenix Group VII was hatched by the Administration to create an argument for federal gun control.      The NRA announced that it would put the Holder contempt vote on its annual scorecard, a move which evidently persuaded quite a few U.S. Representatives, recipients of NRA campaign money, to vote against the Attorney General.

Even a National Review contributor, however, recognizes "there is no direct evidence that anyone involved in the creation of Fast and Furious intended to increase gun crime in Mexico (even though) some Fast and Furious critics have (been) concocting a conspiracy theory: specifically that the Obama administration allowed the guns to go to Mexico deliberately in order to increase gun crime there so it could cite that crime as a reason for more gun control here."    He cited chairman Issa as fueling the theory.

In a May 3, 2012 memo updating committee members on the status of the investigation, chairman Issa wrote

The lead federal prosecutor for Fast and Furious was Assistant U.S. Attorney Emory Hurley, who played an integral role in the day-to-day, tactical management of the case.

Many ATF agents working on Operation Fast and Furious came to believe that some of the most basic law enforcement techniques used to interdict weapons required the explicit approval of the U.S. Attorney’s Office, and specifically from Hurley.  On numerous occasions, Hurley and other federal prosecutors withheld this approval, to the mounting frustration of ATF agents.


Because the transfer of firearms in Arizona is legal and it is nearly impossible to bring a case against a straw purchaser, Hurley had suggested a wiretapping operation.     When ATF was notified that a known metamphetamine user had bought three WASR-10 rifles, a wiretap was requested to track the suspicious straw purchase.   But

in Phoenix, days turned into weeks, and Group VII's wiretap application languished with prosecutors in Arizona and Washington, D.C.

No one has yet explained this delay. Voth
(head of Phoenix Group VII)  thinks prosecutor Hurley's inexperience in wiretapping cases may have slowed the process. Several other agents speculate that Arizona's gun culture may have led to indifference. Hurley is an avid gun enthusiast, according to two law-enforcement sources who worked with him. One of those sources says he saw Hurley behind the counter at a gun show, helping a friend who is a weapons dealer.

Two of the three weapons were recovered in December, 2010 at the scene of the murder of border agent Brian Terry.     Eleven months earlier, Voth's group could have closed the operation if it had arrested the 20 suspects who apparently had purchased 650 firearms.   But

This was not the view of federal prosecutors. In a meeting on Jan. 5, 2010, Emory Hurley, the assistant U.S. Attorney in Phoenix overseeing the Fast and Furious case, told the agents they lacked probable cause for arrests, according to ATF records. Hurley's judgment reflected accepted policy at the U.S. Attorney's Office in Arizona. "[P]urchasing multiple long guns in Arizona is lawful," Patrick Cunningham, the U.S. Attorney's then–criminal chief in Arizona would later write. "Transferring them to another is lawful and even sale or barter of the guns to another is lawful unless the United States can prove by clear and convincing evidence that the firearm is intended to be used to commit a crime." (Arizona federal prosecutors referred requests for comment to the Justice Department, which declined to make officials available. Hurley noted in an e-mail, "I am not able to comment on what I understand to be an ongoing investigation/prosecution. I am precluded by federal regulation, DOJ policy, the rules of professional conduct, and court order from talking with you about this matter." Cunningham's attorney also declined to comment.)

It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party,  sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn't necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn't mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.


Neither Emory Holder, nor the President, Assistant Attorney General (Criminal Division) Lanny Breuer, or the Attorney General in an Administration which has been loathe to expend any political capital to advocate gun control is responsible for the death of a border agent in January, 2010.      Nor is the wealthiest member of Congress, Darrell Issa, responsible for anything beyond hatching a conspiracy theory in order to sow fear and, unable to destroy a President, bring down an Attorney General.   However, the winner in all of this is the California congressman, who appears to have an extensive criminal arrest record and is a faithful supporter of the pro-crime National Rifle Association.    Eban concludes

But the public bludgeoning of the ATF has had the opposite effect. From 2010, when Congress began investigating, to 2011, gun seizures by Group VII and the ATF's three other groups in Phoenix dropped by more than 90%.

Eric Holder hasn't resigned, as chairman Issa would like.   But the other part of his agenda seems to have been accomplished.




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