Assistant attorney general's office approved wiretap in controversial gun probe

Newly uncovered memo reveals high-level Justice Department involvement

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Nick Ut/The Associated Press

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.

The newly released memo – titled “Authorization for Interception Order Application” – was one of four Justice Department documents obtained by investigators for the House Government Oversight and Reform Committee  — a panel chaired by Rep. Darrell Issa, R-Calif., who a day earlier tussled with Attorney General Eric Holder during questioning about the gun case at a congressional hearing. 

Tracy Schmaler, a Justice Department spokeswoman, said that the review of wiretap applications is a “narrow assessment of whether a legal basis exists to support a surveillance request”  rather than “approval of the underlying “ investigation. She noted that the criminal division reviews thousands of applications a year related to federal law enforcement probes.

Holder was questioned for a second day on Wednesday, this time by Sen. Charles Grassley, R-Iowa, and told a Senate Judiciary Committee hearing that it has always been the policy of the department not to allow guns to leave investigations in an “uncontrolled manner.” Holder said the Arizona probe conducted by ATF is under investigation by the department’s internal watchdog.

Other memos released by Issa’s committee include a “briefing paper” from January 2010 – about two months before Breuer approved the wiretap –  that made clear  ATF expected  weapons to be transferred from the straw buyers to “co-conspirators” in Mexican gangs.

“Currently the strategy is to allow the transfer of firearms to continue to take place … in order to further the investigation and allow for the identification of additional co-conspirators,” the memo stated, noting that agents during surveillance had witnessed the guns being transferred by the straw buyers to Hispanic males at an auto shop. It is violation of federal law to falsely buy a weapon in another person’s name.

However, the memo also notes that at that time there was “minimal evidence’ to “support any type of prosecution.” The strategy outlined in the memo was to not only prosecute straw buyers  but to bring charges against higher-ups, including members of the drug cartels in Mexico.   

The memo also divulged that the top federal prosecutor in Arizona, U.S. Attorney Dennis Burke, approved of the strategy along with the ATF agent in charge of the Phoenix, William Newell.

The January briefing paper also warned that the pace of gun trafficking was unusually high in volume. “This blitz was extremely out of the ordinary,” the memo stated.

ATF officials have said it took more than 15 months to bring the first prosecutions in the case, and the delays led to an unusually large number of guns “walking.” Just three weeks after Breuer ‘s office approved the wiretap, an ATF supervisor in the case raised serious concerns about the number of guns potentially crossing the border during a time period in which Mexico was experiencing unprecedented violence and he urged federal prosecutors to speed up their decisions. “We have a sense of urgency,” ATF supervisor David Voth wrote on April 2, 2010.

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