Fast and Furious Hearing: Some Answers, But Case Not Closed

Capitol Hill-The Department of Justice [DOJ] Inspector General [IG] Michael Horowitz testified before the House Oversight and Government Reform committee Thursday and answered questions about his recently released report [OIG] from his office about Operation Fast and Furious.

The internal investigation into Operation Fast and Furious has been going on for 18 months. Horowitz and his staff reviewed over 100,000 pages and conducted interviews with 140 people.

In his opening remarks, Chairman Darrell Issa said the IG report and its findings are huge steps toward restoring the faith of the American people in the DOJ, but that the Committee’s work “is not done yet.”

“Operation Fast and Furious is a poster child for what you don’t do with deadly weapons,” Issa said. “Only the tragic lost of Brian A. Terry brought an end to Fast and Furious.”

The hearing and OIG report stressed the fact ATF and DOJ officials who carried out Fast and Furious had no regard for public safety, despite the risk to public safety being immediately evident through wiretap applications.

“There was a disregard for the safety of individuals in the United States and Mexico,” Horowitz said. “If you were focused and looking at the topic of gunwalking you would have read these affidavits and seen red flags……Wiretap applications did contain red flags about reckless tactics.”


THE MISSING LINKS

On July 26, 2011, we learned during a Congressional hearing White House National Security Advisor Kevin O’Reilly had been in contact with former ATF Special Agent in Charge of the Phoenix Field Division Bill Newell about Operation Fast and Furious. Immediately after this revelation, O’Reilly was shipped off to Iraq and made unavailable to Congress and the IG office for questioning. The White House has also declined Fast and Furious document requests.

"We did not get internal communications from the White House” Horowitz said during the hearing adding, "Mr. O'Reilly's refusal to speak to us made it impossible," to get answers about White House involvement.

According to the report, Horowitz was told “the White House is beyond the purview of the Inspector General’s Office, which has jurisdiction over Department of Justice programs and personnel.”

Homeland Security Secretary Janet Napolitano did not make Immigration and Customs Agent Layne France, a co-case agent on Fast and Furious, available to Horowitz, and declined the his request to be interviewed.

At this point, Congress still has not received 74,000 documents requested through subpoenas, something Horowitz found unnecessary and said documents relevant to his investigation should be made available for Congress to review.

Democrat Ron Barber said it was unacceptable that it has taken this long to bring answers to the Terry family.

CONFLICTS OF INTEREST

The OIG report shows the use of gun dealers to carry out Operation Fast and Furious and Wide Receiver was inappropriate and a conflict of interest based on the relationship between ATF and federally licensed firearms [FFL] dealerships.

“ATF’s policy at the time allowed the use of FFLs as confidential informants. However, no one appears to have recognized and taken into account the implications of authorizing illegal sales by an FFL or the conflict of interest that arises from the use of an FFL as a paid confidential informant. In addition to its investigative function, ATF regulates, licenses, and audits FFLs. Paying an FFL to act as an informant and facilitate otherwise illegal sales potentially is in tension with ATF’s regulatory function. The use of the FFL in this case illustrates the conflict,” the report says.

Another conflict of interest getting lost with the release of the OIG report, is the fact Horowitz wasn’t the IG in charge of the bulk of the internal Fast and Furious investigation.

"I wasn't here for the first 13 months,” Horowitz said.

Horowitz became the IG after Cynthia Schnedar quietly left her post as the DOJ IG in March 2012. Schnedar is a long time personal friend of Attorney General Eric Holder and worked for him during his time as the U.S. Attorney for Washington D.C.

FALLOUT AND CONSEQUENCES

Resignations have already started. Yesterday Deputy Assistant Attorney General Jason Weinstein submitted his resignation and former ATF Acting Director Kenneth Melson “retired.” Both Weinstein and Melson are part of 14 officials referred by name for discipline in the OIG report. Issa called for the resignation of the 14 officials held responsible in the report.

“We expect that all 14 would find a way to find appropriate new occupations – ones in which their poor judgment or lack of dedication or unwillingness to actually read documents they were required to read would not be held accountable,” he said in his opening statement at the hearing on the IG’s report,” Issa said.

Although Horowitz referred 14 officials for discipline, he noted in his testimony, “It’s up to the AG to decide what discipline is taken.”

Thursday’s hearing made it clear ATF and DOJ need critical reforms including the improvement of coordination among law enforcement components, enhancing the wiretap review process and for the Department to review the conduct of Department personnel to determine if discipline is necessary.

“First and foremost there needs to be seriously reforms and controls at ATF,” Horowitz said.

HOLDER VINDICATED?

Despite Attorney General Eric Holder's victory lap yesterday, celebrating that the IG report didn’t hold him responsible for the majority of Fast and Furious, he isn’t off the hook and hasn’t been “vindicated,” as many in the mainstream media have tried to portray.  When asked directly if Holder was “vindicated by the report,” Horowitz refused to say yes.  

“Finally, the report exonerates ATF whistleblowers who stepped forward to allege and end serious wrongdoing.  I hope the Department will finally recognize these brave men for their contributions and your office acts aggressively to hold those who tried to intimidate them to account,” Issa said. “Are you pursuing criminal investigations into whistleblower retaliations?” Issa asked.  

Horowitz agreed and applauded whistleblower courage of coming forward to expose wrongdoing within the department. He also said his office was looking into cases of whistleblower retaliation and taking them very seriously.

Rep. Dan Burton asked Horowitz if he knew anything about the interaction between Media Matters and the DOJ Press Office, in particular Public Affairs Director Tracy Schmaler’s efforts to smear reporters, whistleblowers and Congressman exposing Fast and Furious. Horowitz said he hasn’t looked into the relationship between Media Matters and DOJ’s public affairs office, but read about it through news reports this week.
 
It was also determined during the hearing that the Attorney General should have been briefed about the connection between Fast and Furious and Brian Terry’s murder on December 15, 2010, the day ATF and DOJ first knew the connection was there.  Holder wasn’t briefed until a month later about the link and today, Holder believes there is no need for him to be briefed directly when a law enforcement agent is killed as a result of a Justice Department program.

WHERE WE GO FROM HERE

The Inspector General has turned over his findings and recommendations of reform to Attorney General Eric Holder. Horowitz did not recommend specific disciplinary actions that should be taken against ATF and DOJ officials he demeaned heavily responsible for Fast and Furious.

President Obama’s executive privilege over Fast and Furious documents after February 4, 2011 still stands. Chairman Issa made it clear today this “isn’t over” and the lawsuit challenging the executive privilege will move forward. Issa did say he hopes there will be more cooperation in the coming days in order to avoid a court battle over Holder’s civil contempt citations, which was a result of his refusal to turn over documents requested through Congressional subpoenas.

“On August 13, the Committee filed a civil action to compel Attorney General Eric Holder to produce documents related to Operation Fast and Furious subpoenaed by the Committee on October 11, 2011. Our legal action seeks to obtain documents covered by the subpoena that will show why the Justice Department took ten months to retract a February 4, 2011 letter.  This letter contained false denials of the reckless investigative tactics used in Operation Fast and Furious,” Issa said.

In the end, we still don’t have the answer to one simple question: Who came up with the idea for Fast and Furious?