The Center for Public Integrity

The office of an assistant attorney general  in March 2010 approved a wiretap request for a federal  gunrunning  probe in which agents purposely allowed gun sales to go to straw buyers with the hope that they would uncover criminal activity across the border in Mexico, documents released Wednesday by congressional investigators show.

The approval memo from the office of Lanny Breuer, assistant attorney general for the Justice Department’s criminal division, marks the highest-level Justice Department involvement identified to date in a gun case that President Barack Obama himself has said might have been flawed. The memo says it came from Breuer, but it was actually signed by one of his deputies.

The Center for Public Integrity reported in March that federal agents, with the blessing of federal prosecutors, allowed more than 1,700 weapons to be sold from federal dealers in Arizona to suspected straw buyers for Mexican drug and gun gangs.  More than 300 of those guns were ultimately recovered in criminal activity on both sides of the border.

The revelation has stirred controversy in Mexico and the United States, in part because some front-line agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives opposed letting the weapons “walk” because of fears that might be used in crimes or used to attack U.S. border agents. Some of the gun dealers who continued to sell the weapons had similar concerns. Two guns linked to the investigation, known as “Fast and Furious,” were found near  the scene  of the murder of Border Patrol agent Brian Terry last December, though ATF says they were not the murder weapons.

U.S. Attorney General Eric Holder clashed heatedly with California Republican Darrell Issa Tuesday as a House hearing raised questions about whether a  federal gun trafficking probe that ultimately allowed U.S. - bought guns to reach Mexican cartels might bear some responsibility for the deaths of U.S. agents.  

Issa, chairman of the House Oversight and Government Reform Committee,  has subpoenaed records from the Bureau of Alcohol, Tobacco, Firearms and Explosives regarding the agency’s so-called Fast and Furious gun smuggling investigation.  ATF is a component of the Justice Department.  ATF acknowledges that more than 1,700 firearms were purchased by suspected agents of Mexican drug cartels during the operation.  At least 195 of those guns were later recovered at Mexican crime scenes. ATF said the investigation went on for more than a year in hopes of snaring high-level cartel operatives,  but some front-line bureau agents have gone to Congress to complain about the investigation’s  strategy. 

That strategy  has been especially controversial in part because two guns bought during the investigation were recovered near the scene of the murder of border patrol agent Brian Terry in Arizona last December;  ATF has said that the murder weapon was not a gun from the sting operation.  The agency has also stated that a gun used to kill another border agent – Jaime Zapata – in Mexico in March was not part of the Fast and Furious investigation.

But discussion of the two agents’ deaths engendered an emotional exchange between Issa and Holder. Issa asked whether the House had the right to investigate “whether the Justice Department is basically guilty of allowing weapons to kill Americans” to be sold.

A House committee chairman threatened Wednesday to hold the head of a federal law enforcement agency in contempt for not producing subpoenaed documents about a gun-smuggling operation into Mexico.

Rep. Darrell Issa, chairman of the House Oversight and Government Reform Committee, made the threat in a lettter to Kenneth Melson, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. It was the first time since 2008 that the committee cited its contempt authority in an effort to spring government records.

Issa’s committee is looking into complaints by whistleblowers within ATF who complained that the bureau allowed 1,700 guns to be sold illegally to straw buyers for more than a year in its so-called Fast and Furious operation first disclosed by the Center for Public Integrity. Two of the weapons were later recovered near the murder scene of border patrol agent Brian Terry.

The ATF contended that the investigation takes time because it was trying to gather evidence against the leaders of the gun-smuggling operation rather than prosecute lowly straw buyers.

Assistant Attorney General Ronald Weich responded earlier to Issa that some of the records reveal ATF techniques that would help criminals while others involve an investigation that’s not yet complete. Based on long-standing policy, Weich said the Justice Department can’t release those documents or even confirm that they exist.

Issa, R-Calif., who subpoenaed documents on March 31, argued that an on-going investigation is not a good enough excuse to withhold records.

An Arizona gun dealer pressed by federal agents to continue selling weapons to suspected straw buyers for Mexican cartels repeatedly sought assurances from prosecutors and law enforcement that the government would not let the guns cross into Mexico or be used against U.S. border agents, according to evidence gathered by Senate investigators.

The Bureau of Alcohol, Tobacco, Firearms and Explosives and federal prosecutors assured the dealer in e-mails that they were “continually monitoring the suspects” who ended up buying more than 1,700 guns in 2009 and 2010 with the government’s knowledge as part of a controversial investigation code-named Operation Fast and Furious, the e-mails show.

But the government’s promises, detailed in emails obtained the Center for Public Integrity, turned out to be hollow. In fact, almost 800 of the weapons turned up after they were used in crimes, collected during arrests or seized through other law enforcement operations, including 195 in Mexico alone. Two weapons traced to the Fast and Furious operation were recovered near the scene of a murdered Border Patrol agent – an outcome that the firearms dealer specifically feared, according to the e-mails.

The e-mails and testimony gathered by investigators for Sen. Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee, are the latest twist in a growing controversy over an Obama administration law enforcement operation that let guns “walk” to straw buyers in hopes of making a bigger criminal case against Mexican drug cartels.

“The Justice Department’s claim that ATF never knowingly sanctioned or allowed the sale of assault weapons to straw purchasers is simply not credible,” Grassley wrote in a letter delivered late Wednesday night to Attorney General Eric Holder.

A senior manager in the Phoenix office of the Bureau of Alcohol, Tobacco, Firearms and Explosives is now talking to Senate investigators about a controversial sting operation that allowed guns to be smuggled into Mexico.

Sen. Charles Grassley, R-Iowa, revealed today that George T. Gillett Jr., an assistant special agent in charge in Phoenix, is cooperating with his office as it looks into decisions made by ATF and the Justice Department in the so-called “Fast and Furious” sting operation.

Gillett is the second ATF employee to reveal his cooperation. James Dodson, a Phoenix-based agent, has also spoken to Grassley’s staff, criticizing his agency for allowing guns bought by straw purchasers to fall into the hands of criminals in Mexico.

Grassley’s office did not reveal what Gillett said. His attorney, Peter Noone, did not wish to comment, and ATF officials declined to comment on Gillett as well.

Meanwhile, Grassley wrote a new letter to ATF Acting Director Kenneth E. Melson, warning that any agency actions taken against employees who cooperate with Congress may violate federal law.

Grassley’s letter was in response to recently released e-mails raising the possibility that ATF supervisors might be harassing employees who were cooperating with Grassley’s staff. An unidentified ATF employee alleged that he was “called to the carpet” by supervisors, accused of lying and ordered to write down everything that was said in meetings that were held with Senate staffers conducting an inquiry, according to those e-mails.

The e-mails, released under the Freedom of Information Act, reveal discussions within the agency on how to respond to Grassley’s questions about the “Fast and Furious” operation. The heavily redacted documents were produced in response to a FOIA request by David Cordrea, a reporter for examiner.com but passed on to the Center for Public Integrity by a government source.

For almost a month now, the Bureau of Alcohol, Tobacco, Firearms and Explosives has endured sharp criticism for a decision to risk letting hundreds of assault weapons slip into the hands of brutal Mexican drug cartels as part of a controversial sting operation last year.

But problems highlighted by the so-called Fast and Furious investigation, which enabled at least 195 guns to cross into Mexico, point to what U.S. authorities say is a broader enforcement crisis. Their efforts to stop drug cartels from smuggling thousands of firearms into Mexico each year are handcuffed, they say, by a debilitating lack of resources and an absence of statutes to outlaw gun trafficking.

Without a targeted federal gun trafficking law, prosecutors are forced to rely on other statutes that agents and prosecutors say are difficult to enforce and riddled with loopholes.

Chief among them: a frequently used law against lying on the ATF’s Form 4473 at a gun shop – especially in claiming the buyer is purchasing for himself, rather than someone else. But court decisions have made this “straw buyer” charge difficult to prove and judges often don’t take it seriously. The issue has been highlighted in recent months by both U.S. Attorneys posted along the border and the Justice Department’s inspector general.

The House Committee on Oversight and Government Reform today issued a subpoena for documents about a controversial federal gun smuggling probe after the investigating agency missed a deadline for providing the documents voluntarily.

“The unwillingness of this Administration – most specifically the Bureau of Alcohol, Tobacco, and Firearms – to answer questions about this deadly serious matter is deeply troubling,” said Chairman Darrell Issa, R-Calif., said in a statement.

Assistant Attorney General Ronald Weich quickly responded to Issa, noting that the Justice Department had just yesterday told committee staff that it planned to produce some of the documents yet this week. Weich said Justice cannot provide other documents without compromising ongoing criminal investigations. 

“We were therefore surprised and disappointed when shortly after we notified your staff of our intent to work with the Committee, you nevertheless issued a subpoena a few hours later,” Weich said. ATF is a component of the Justice Department.

Issa wrote a letter to ATF Acting Director Kenneth Melson on March 16, asking him for documents about the so-called Fast and Furious investigation. But Melson didn’t provide the documents by today’s deadline.

Several ATF agents blew the whistle on the Fast and Furious probe, contending that the bureau had allowed hundreds of suspicious firearms to “walk” across the border; some of those firearms were recovered at crime scenes in Mexico. The ATF says it prolonged the investigation to try to bring down the leaders of the gun-trafficking ring.

Two AK-47 semi-automatic rifles being tracked by that investigation were found not far away from where federal Border Patrol agent Brian Terry was shot and killed on Dec. 16. However, ATF says forensic tests show the guns were not the murder weapons.

On Jan. 14, 2010, federal border patrol agents stopped two men driving a car through the border-crossing town of Columbus, New Mexico. Inside the vehicle was a cache of assault weapons, including AK-47s, Ruger .45-caliber handguns and pistols called “cop killers” because their ammunition can penetrate armor.

The U.S. Customs and Border Protection officers ran the guns’ serial numbers in a nationwide database and waited. None of the eight came back flagged as stolen or suspect, so the agents let the men go — just a few short miles from the Mexican border, where gun trafficking is fueling a violent and deadly drug war.

At the time, the border guards were unaware that six of the weapons had been purchased by alleged straw buyers in a federal sting and were supposed to be monitored by Bureau of Alcohol, Tobacco, Firearms and Explosives agents trying to bust a major Mexican gun running ring.

The ATF had not yet flagged the weapons in a law enforcement database, and CBP wouldn’t alert its sister law enforcement agency to the traffic stop for five months, delays that would prove fateful for both agencies.

The two men in the car turned out to be Blas Gutierrez and Miguel Carrillo, who earlier this month were indicted as part of a Mexican cartel gun trafficking operation that also involved Columbus’ mayor and police chief, court records show.

And one of the Ruger pistols from the vehicle turned up at a murder scene directly across the border in Puerto Palomas, Mexico, on Feb. 8 of this year, according to court records and a lawyer for one of the defendants.

The episode — confirmed by the Center for Public Integrity through interviews, internal agency memos and court records — highlights major gaps in the U.S. war on Mexican gun and drug cartels: America’s frontline agencies aren’t always coordinated fully and often feel powerless to arrest suspected gun runners in the absence of tougher federal laws.