I'm from the Government and I'm Here to Kill You

by David T. Hardy

  In the wake of 9/11, the argument was made, quite predictably, that the bureaucracy needed more power, more money, and more ability to gather information. That the agencies already had the key information—that al-Qaeda was going to attack airliners, that named suspicious Middle Eastern persons were obtaining training at flight schools—was ignored. “More” must equal “better,” to the point where USDOJ operatives began using their Patriot Act powers to seek information on who had checked out certain library books.49 (A survey of 1,020 public libraries found that over 8 percent had had their checkout records searched. What they were searched for is unknown, since the Patriot Act forbids the libraries to reveal that information.50) But in intelligence work, more is not always better. In radio, there is the concept of the “sound to noise ratio.”51 A signal can be unintelligible, not because it is too weak, per se, but because it is swamped by too much noise. The same principle applies to the gathering of intelligence. Vacuuming in information about library books and the like involves processing a lot of “noise,” which may obscure the “signal” (e.g., FBI agents in the field reporting that suspicious foreigners are learning how to fly passenger jets).

  It is also predictable that the bureaucracy took a passive-aggressive approach to two measures that would have made civilian aircraft into difficult targets. One involved placing armed Air Marshals among the passengers, and the other involved arming the pilots.

  The Department of Homeland Security (DHS) undermined the undercover Air Marshals program for years by imposing a dress code and sign-in requirements. Male Air Marshals had to wear suits, ties, and dress shoes, and be clean-shaven with hair properly trimmed.52 As if that did not make them sufficiently conspicuous, for a time they had to pre-board and sign a logbook before entering the aircraft, assuring that any hijacker within eyesight would know whether the flight had an Air Marshal, and if so, who he was. Dave Adams, a DHS spokesman, tried to explain the rationale for the practice. “In order to gain respect in a situation, you must be attired to gain respect,” he told the New York Times, adding that if the Marshals dressed informally “they probably would not gain the respect of passengers if a situation were to occur.”53 (A more likely explanation is that DHS saw the Air Marshals as security theater rather than security. To DHS, having passengers think the agency was protecting them was more important than actually protecting the passengers.) For a time, the Marshals had to play hide-and-seek with supervisors, sent out to catch any who were not conforming to the agency’s sartorial standards.54 DHS finally relaxed its dress code in 2006.

  The other obvious counter to hijacking allowed pilots and cockpit crew to carry firearms. Although the crew was already trusted with the passengers’ lives, TSA resisted proposals to arm pilots until Congress forced the issue.55 Then TSA announced that certifying pilots would require five days of training, given only at a facility in Artesia, New Mexico, and the pilots would have to pay for their own travel.

  If that were not enough, TSA mandated that the pilots’ guns be carried in a strange, lockable holster that had the lock so situated that while the pistol was being holstered the locking mechanism could easily press the pistol’s trigger and fire the gun, which happened to one U.S. Airways pilot in 2008.56

  The most fundamental function of a government is to provide security against external threats, and in twenty-first-century America, the most serious external threat is terrorism. We are left with the paradox that the same government that reacted so ruthlessly against the Weaver family and against the Davidians proved utterly unable to act decisively when faced with a real threat.

  The Davidian situation in particular illustrates the paradox. In the spring of 1993, the government sent two M1 tanks, four armored combat engineering vehicles, and a number of Bradley armored personnel carriers into action at Waco to assault a building held by two dozen untrained men and fifty women and children. In fall of 1993, American military commanders in Somalia reported that they needed armor support, particularly M1 tanks—and were turned down, out of the fear that that would be seen as an “escalation” of our presence there.57 The result was the “Blackhawk Down” incident and eighteen dead American soldiers.58

  CHAPTER 7

  ARIZONA: OPERATION FAST AND FURIOUS ARMS THE DRUG CARTELS

  Attorney General Eric Holder said that putting the [assault weapon] ban back in place would not only be a positive move by the United States, it would help cut down on the flow of guns going across the border into Mexico, which is struggling with heavy violence among drug cartels along the border.

  —ABC News, February 25, 20091

  Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police officers, soldiers, and civilians.

  —Secretary of State Hillary Clinton in Mexico City, March 25, 20092

  We’re walking guns. How many guns have we flooded the border with? How much of the crime down there are we responsible for? We are just as culpable as if we had sold them ourselves. We’re never going to get anywhere with this case…. We haven’t learned anything. The only thing that’s changed from the very beginning is the number of guns we’ve let walk.

  —BATF Agent John Dodson, to the BATF agent in charge of Operation Fast and Furious3

  BORDER WORK IS DANGEROUS, WHICH IS why the Border Patrol has had more agents killed in the line of duty than any other federal agency. For especially risky work, Border Patrol has its tactical unit, BORTAC, agents specially selected, conditioned, and trained to handle exceptionally dangerous encounters.

  On December 14, 2014, the BORTAC team’s target for the night was a “rip crew,” a Mexican gang that operated north of the border and robbed drug smugglers in the desert night. If the drug cartels were dangerous, men who set out to rob the cartels’ smugglers were even more so. This rip crew had been operating for around a year and were suspects in several murders.

  The rip crew were professionals by now. They stashed their guns during the day. If apprehended, they would seem like one more group of ordinary illegal entrants to be scooped up and returned to Mexico. When they wanted to strike, they retrieved their hidden guns, semiautomatic AK-47s, and were ready to steal and, if they met with resistance, to kill. Two nights earlier, they’d had a brush with the BORTAC team. One of the rip crew was captured, but the other five got away.

  This night they had retrieved their arms and were on the hunt again, moving up Peck Canyon in southern Arizona, about a dozen miles inside the border. The half moon gave enough light for them to spot victims.

  Six BORTAC members were waiting, two in an advanced position scouting and handling radio contact. Four more were positioned on a small hill within the canyon. A ground sensor had alerted them to approaching footsteps. Soon five men could be seen carrying rifles at the ready. The rip crew on the prowl.

  The four agents on the hill waited until the rip crew was in front of them, then one agent called out, “Police, drop your weapons” in Spanish.

  The rip crew opened up with their AK-47s, pumping shots at the dimly visible agents. The agents initially responded as policy required, with shotguns firing nonlethal “bean bags,” meant to stun rather than to kill. Eventually Agent Keller got a rifle shot in that dropped one of the robbers; the rest fled into the night.

  Echoes of the gunshots had barely died away when the BORTAC team heard Agent Brian Terry shout, “I’m hit!” Agent William Castano went to his aid and Terry told him, “I can’t feel my legs. I’m paralyzed.” The bigger problem was not visible in the darkness. The AK-47 bullet had punctured Terry’s aorta, the body’s biggest artery, and he was bleeding out. He died on that little hill.4

  The effects of that murder would be heard all the way to Washington, where Cabinet officials and agency heads would publicly wash their hands of any connection to the crime. The reason for their anxious disavowals is simple: the rip crew’s guns had been obtained through an FBI informant and sold with the connivance of the U.S. Department of Justi
ce (USDOJ) and the Bureau of Alcohol, Tobacco and Firearms (BATF). Agent Terry would not be the only person killed by guns sold to border criminals in Operation Fast and Furious, the government’s covert gun-running program. Fast and Furious saw government agents blessing the sale of more than two thousand guns to cartels and other criminal groups, while falsely assuring gun dealers that they were helping a secret government program meant to destroy these cartels.

  Does that seem insane? If so, consider that Fast and Furious was not the first attempt, by a government agency, to give guns to the cartels.

  PRELUDE: OPERATION WIDE RECEIVER

  The first government gun-running operation (like many BATF cases) originated when a licensed gun dealer called the agency to report a suspicious purchaser. In 2006, Arizona gun dealer Mike Detty sold six AR-15 receivers (the receiver is the core part of a firearm and is legally regulated as the firearm) to a purchaser who wanted to buy twenty more. Detty could not see any legitimate reason why the person would want that many receivers: he must be “up to something illegal and … just not bright enough to be less obvious about it.”5

  Detty called a BATF agent whom he knew well and explained his suspicions. Whenever a gun dealer sells a gun, he and the buyer must fill out BATF’s Form 4473, recording the buyer’s name, address, driver’s license number, physical description, and usually his social security number. Detty thus had a perfect set of identifiers for the suspect. He faxed the 4473 to BATF.

  The suspect buyer called Detty and arranged to buy twenty more receivers at a gun show. For that show, Detty had a supposed salesman at his table. The salesman was actually a BATF agent, as were most of the customers standing around his table watching the sale.

  After a few more sales, a new buyer appeared and told Detty that he would be replacing the original buyer. He explained that his unnamed employer had found his predecessor unreliable; he did not say what had happened to him, but Detty guessed that it was unpleasant. The new buyer bought more than $10,000 of receivers and later placed more purchases in large quantities. The dealer informed BATF of each sale, and during one transaction an agent was able to attach a radio tracking device to the buyer’s car.6

  Detty’s sales, monitored and encouraged by BATF, were given the title Operation Wide Receiver. The program would provide 410 firearms to drug cartels or other illegal buyers in Mexico; more than 10 percent would be traced to Mexican crime scenes.7 William Newell, the Special Agent in Charge (SAC) of the Phoenix Field Office, would later say that he had concerns about using a licensed dealer as an informant. Apparently, he had no qualms about the overall plan to run guns to the cartels.

  Sometimes we have to wonder which side a government agency is on. In 2005, a federal Child Protective Services agency convinced the mother of a three-year-old to take a juvenile into her house, hiding the fact that the juvenile had a serious record as a child molester. He molested her daughter, and the mother sued, but the Eighth Circuit held that the agency’s action was protected by the discretionary function exception; keeping things secret was “a policy decision” because the agency had to balance the molester’s confidentiality against the dangers of “placing a known sexual abuser in a home filled with children.”8

  One thing was missing from the BATF operation. Obviously, once the guns crossed the border they would have to be tracked, if at all, by Mexican authorities. The agency’s liaison with Mexican law enforcement was through BATF’s Mexico City Office, also known as MCO. The gun sales began in early March 2006. No one asked the BATF MCO to coordinate with Mexico until April 2007.9 Even then coordination does not seem to have been much of a priority: the agent in charge of the MCO handed the duty off to one of their local employees, who, he later discovered, had done nothing about it.10 The result was that once the guns crossed the border, they went right to the cartels with no Mexican authority able to interfere or investigate.

  The legal effects of Wide Receiver were desultory at best: a few low-level offenders, the persons who bought directly from Detty, were indicted, and it took years just to get that far. A review of the operation by the Justice Department’s Office of Inspector General (OIG) reported that much of the delay came because the local federal prosecutors, the U.S. Attorney’s Office, declined to prosecute the offenders who bought from Detty. The reason a prosecutor gave in a 2008 internal memo was “I don’t like the case. I think it is wrong for us to allow 100s of guns to go into Mexico to drug people knowing where they are going.”11

  Mike Detty, the gun dealer who was at the heart of the case, got a somewhat different version. A local federal prosecutor told him, “I never prosecuted that case because the ATF lied to me…. I was led to believe that there was ongoing cooperation with the Mexicans on this case. When I found out they were lying to me, I wasn’t going to devote any more time or work to that case.”12 A few years later, BATF persuaded USDOJ headquarters to take the case, which eventually led to indictments against the buyers.

  SEEKING A MOTIVE

  An obvious question arises: Why would a federal agency encourage gun-running to the drug cartels? Why would it aid some of the most vicious criminal organizations on the planet and make them a gift of more than four hundred American firearms? Mike Detty, the firearms dealer whose reports had begun the operation, later asked a federal prosecutor for an explanation:

  “Dan, what do you really think was going on with Wide Receiver? I mean nothing makes sense to me.”

  “Anytime you have an operation like this you have to ask yourself; what is the end gain. Was it to take out a cartel?”

  “That’s what they told me,” I said.

  “How? By what mechanism? How do you shut down a cartel when all of their assets are in another country?”

  “I wondered about that.”

  “Was it to find out what cartels these guns were going to? Thanks to you they had that information within the first couple of buys. Was it to track the guns to see where the cartels are operating? That’s ridiculous—we already have that intelligence.”

  I looked up from my work. He made it all sound so simple.

  [The prosecutor] said, “I can only think of one reason that Newell would allow American guns to continue to cross the border and show up at Mexican crime scenes.” He cocked an eyebrow for emphasis.

  At last I understood the ugly truth…. In my opinion, the reason that guns were allowed to cross the border in Wide Receiver as well as Fast and Furious was to have American guns show up at Mexican crime scenes…. There never was a plan to take down a cartel.13

  That is a possibility: the emergence of the American-guns-are-going-to-Mexico theme was quite profitable for BATF. As the Congressional Research Service later explained,

  For the past two fiscal years, FY2009 and FY2010, Congress has provided ATF with program increases to address illegal gun trafficking from the United States to Mexico under an initiative known as “Project Gunrunner.” For FY2008, Congress also provided ATF with a program increase for domestic gun trafficking, but the focus of this program increase was also largely on the Southwest border. As a result, for those three fiscal years, Congress has provided over $49 million in program increases to address gun trafficking.14

  To be fair, it is also possible that BATF leadership thought that somehow they actually could damage the drug cartels by running guns to them. If so, the result, four hundred guns run to the cartels in exchange for prosecuting a few low-level straw men, would have ended any such expectations.

  Operation Wide Receiver was a success in one sense: BATF managed to keep it secret. There was no press coverage until years later, when the Obama Administration—under criticism for a much larger gun-running operation—used Wide Receiver to argue that the same thing had happened under the George W. Bush Administration.

  Operation Wide Receiver had one other significance. When USDOJ headquarters prosecutors took the case, they became worried that exposure of the BATF gun-running might embarrass the government and took pains to alert a number of officials,
among them Lanny Breuer, Assistant Attorney General for Criminal Division, and William Hoover, BATF’s Acting Deputy Director.15 The highest levels of the USDOJ and BATF thus knew that allowing official gun-running would do no good against the cartels—but also knew that such gun-running could be covered up.

  IF AT FIRST, YOU DON’T SUCCEED: OPERATION FAST AND FURIOUS

  Operation Fast and Furious began, as had Wide Receiver, with an Arizona firearms dealer calling BATF to report a suspicious purchaser. In this case, the dealer suspected a “straw-man sale,” where one person fills out the required paperwork and passes the criminal records background check with the intent to transfer the firearm to another person, who actually put up the money.16 (The form that the buyer must fill out asks whether the purchaser is the real buyer of the firearm and giving a false answer is a federal felony.)

  The dealer’s call came at an auspicious political moment, in January 2009, just as Barack Obama was inaugurated as the forty-fourth President of the United States; two weeks later Eric Holder was sworn in as his Attorney General. Mr. Obama was a lifelong gun control advocate.17

  The new Obama Administration wasted no time deciding that gun restrictions were to be given a high priority and that these restrictions could be promoted by arguments that American guns were being illegally taken into Mexico. The new President, Attorney General, and Secretary of State (Hillary Clinton) all began to raise the issue of U.S. guns flowing into Mexico. A month after the inauguration, the Washington Times reported:

  Mr. Obama said he wants to renew a ban on some semiautomatic weapons but that it is not likely to pass Congress. Instead, he called for the Senate to ratify a decade-old hemisphere-wide treaty that would require nations to mark all weapons produced in the country and track them to make sure no weapons were exported to countries where they were banned.