I'm from the Government and I'm Here to Kill You
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“I will not pretend that this is Mexico’s responsibility alone. The demand for these drugs in the United States is what’s helping keep these cartels in business,” Mr. Obama said at a joint news conference with Mr. Calderon. “This war is being waged with guns purchased not here, but in the United States. More than 90 percent of the guns recovered in Mexico come from the United States, many from gun shops that line our shared border.18
There were political changes in Arizona, as well. In September 2009, Dennis Burke became the Obama U.S. Attorney for Arizona. Burke had been a political hanger-on, beginning his career as a staffer to Senator Dennis DeConcini. Burke had a political firearms agenda. He drafted and lobbied for the first “assault rifle” bill, and DeConcini attributed its passage to Burke’s work. “A lot of it was not my eloquence on the bill,” DeConcini would later say, “it was stuff that Dennis had done.”19
Burke was rewarded with the post of Senior Policy Analyst in the Clinton White House, where he seems to have continued this focus on firearms restrictions. The internal document titled “Domestic Policy Council Accomplishments and Plans, December 1996” listed him as the point man on “Crime Initiatives,” including the assault weapons ban.20 Another internal document faxed to Burke from the Treasury Department reports that the number of licensed firearms dealers had declined by half21—the Clinton Administration was anxious to put licensed dealers out of business, and he was involved in the plan.
Back in Arizona, Burke attached himself to Arizona Attorney General Janet Napolitano, becoming her Chief Deputy Attorney General. When Napolitano became Governor, Burke was her Chief of Staff; when she was tapped to head the Department of Homeland Security, he came along as her Senior Advisor. As a U.S. Attorney, Burke finally had an independent command. As a U.S. Attorney, Burke would serve this agenda and further his own career by deciding whether to prosecute or refuse to prosecute all federal cases arising in Arizona.
In short, 2009 saw the ingredients for a “perfect storm” brewing along the Arizona–Mexico border:
• A new Administration that saw American guns going to Mexican drug cartels as an issue that could advance its gun control policy priorities;
• A new U.S. Attorney in Arizona who would be very sympathetic to that approach;
• An Arizona BATF office that happened to have experience, through Operation Wide Receiver, with allowing guns to flow to Mexico quietly; and
• A firearms dealer’s report of illegal buyers, a situation that offered opportunities to renew the government-endorsed running of guns across the border.
Bingo! Linking American guns to cartel-related violence in Mexico could justify a push for more gun control. Of course, the operation would also lead to many deaths on both sides of the border.
BATF continued to receive reports of straw-man sales from the cooperating firearms dealer. In September 2009, the firearms dealer reported suspicious purchases by a Uriel Patino and a Jacob Chambers. By November, Patino purchased 77 guns and Chambers bought 102. The majority of them were new semiautomatic AK-47s—making it clear that Patino and Chambers were not gun collectors.22
In the Phoenix BATF Field Office, agents were organized into “Groups,” and Special Agent in Charge Newell had announced a new unit, Group VII. Group VII was to be devoted to border issues, and headed by Agent David Voth. The Field Office continued to watch as straw men bought up large quantities of guns and sent them to the cartels. Soon the dealer was reporting more straw men—a Joshua Moore bought sixty-seven guns over the same time period, and a Jamie Avila showed up with Patino, then branched out on his own as a straw man.
Any gun found at a crime scene can be run through the BATF National Tracing Center (NTC) in West Virginia. The NTC will trace the gun to its manufacturer, then to its distributor, then to the licensed dealer who sold it, and report the results to the law enforcement agency that requested the trace.
Since the dealer who sold the gun must be contacted as part of the trace, a dealer knows whenever a gun he has sold is being traced. BATF agents put a “block” on that trace, which meant the NTC would not trace the gun nor report to the law enforcement agency that asked for the trace. Instead NTC would notify the BATF agent who requested the block, letting him or her know which law enforcement agency requested the trace. There were two advantages to blocking traces.
First, BATF agents had assured the cooperating firearm dealers that the sold guns would be intercepted before they got to the drug cartels. Blocked traces ensured that the dealer who sold the gun would not be contacted and would never know that the gun had been recovered by a police agency. If the dealers had received multiple calls trying to trace the guns, they would have been alerted that BATF was letting the guns pass to the cartels. As it was, the dealers got zero requests to trace these guns, suggesting that BATF was indeed keeping the guns away from criminal hands.
Second, when the BATF agent was tipped off that the requesting police agency had the firearm, the agent could ask that agency to turn over the gun because it was part of a BATF case. BATF could thus inflate its gun seizure statistics by claiming credit for guns that were seized by other agencies. For example, in July 2010, Agent Voth filed a Significant Incident Report describing how the Peoria, Arizona, police had arrested a Kenneth Thompson for hit-and-run and state gun charges after he fled from a traffic stop and crashed his car. The police found twenty semiauto AK-47s, purchased earlier in the day by a different person, obviously as a straw man for Thompson. BATF accepted the AKs from the Peoria police; the report ends, “This recovery adds to the total of ninety-six firearms recovered in the last twenty-four days by Group VII agents …”23 The agents had done nothing but pick up the rifles from the Peoria police.
Late in November, BATF SAC Newell emailed U.S. Attorney Burke informing him that a number of Fast and Furious guns had been recovered by the Mexican Army. Significantly, Newell added: “We are advising ICE [Immigrations and Customs Enforcement] to stand down on their current proactice activity in Arizona in order not to compromise our case.”24 BATF had turned a blind eye to firearm transfers to the cartels, but now BATF and the U.S. Attorney were protecting the drug cartels’ shipments against the legitimate enforcement mission of another federal agency. By the end of November, BATF knew that the straw men had purchased, and presumably shipped to the cartels, 341 firearms at the cost of $190,000. Yet, as the OIG would later note, “The investigative plan did not include seizing guns or approaching subjects. There also was no discussion about taking any action to try to limit the substantial purchasing activity by the subjects of the investigation.”25 In December, the frenzied buying continued. On six occasions, licensed dealers gave BATF advance notice of a planned purchase by straw men. BATF made no arrests. Its agents simply watched the sales go down and tried, without success, to follow the straw man as he drove away. From the OIG Report:
ATF also learned in December 2009 and January 2010 of additional recoveries of firearms tied to Operation Fast and Furious subjects in Mexico and the United States. For example, on December 9, 2009, one day after the Douglas seizure of firearms which had been purchased earlier in the day by Steward, the Mexican Army recovered 900 pounds of cocaine, 132 pounds of methamphetamine, $2 million in U.S. currency, and 48 firearms (46 AK-47 style rifles) in Mexicali, Mexico, a town approximately 240 miles southwest of Phoenix. Twenty of the recovered firearms had been purchased by Operation Fast and Furious subjects Chambers [and] Moore, between October 21 and November 19, 2009. According to an ATF report, Mexican authorities believed the firearms were destined for the Sinaloa Cartel to help replenish the loss of hundreds of firearms to the Mexican government and to sustain the drug cartel’s fight with a rival cartel. ATF and the U.S. Attorney’s Office took no action with regard to the straw purchasers of the 20 firearms recovered in Mexico. ATF records indicate that Chambers purchased another 10 firearms on December 11 and Moore purchased another 21 firearms in March 2010, including two .50 caliber rifles.26
This was fol
lowed in January by a seizure of Fast and Furious guns by the El Paso Police Department. Searching a drug “stash house,” they found forty-two AK-47s that were being stored until they could be shipped across the border. When the El Paso Police tried to trace the guns, the blocked trace tipped off the BATF agents. BATF picked up the rifles and reported them as its own seizure. It took no further action.
SAC Newell announced the seizure in an email to BATF headquarters. The email’s contents were breathtaking in their audacity and their mendacity: “[W]e are working this ‘fast and furious,’ the good news being we got another 42 off the street and can keep our case going. Hopefully the big bosses realize that we are doing everything possible to prevent guns going to Mexico while at the same time trying to put together a phenomenal case.”27
FIREARMS DEALERS ASK—AND THE FEDS LIE
By January 2010, the original cooperating firearms dealer was beginning to worry. When he had cooperated with BATF investigations, arrests had always been made in one or two months. Three months later, the straw men were purchasing ten or twenty guns at a time and no arrests had been made. He requested a meeting with BATF and was reassured that his cooperation was valuable, indeed “unprecedented,” and they wanted him to continue to sell to the straw men.28
The second licensed dealer, the Scottsdale Gun Club, had also begun cooperating, and in April 2010, its owner emailed BATF, noting, “We just want to make sure we are cooperating with ATF and not viewed as selling to bad guys.”29 Agent Voth, head of Group VII, assured him, “If it helps put you at ease, we (ATF) are continually monitoring these suspects using a variety of investigative techniques which I cannot go into detail….” The email closed with the assurance, “Your continued cooperation with our office has greatly aided the investigation so far.”30
More months went by with no arrests. In June, the Scottsdale Gun Club’s owner again emailed BATF:
I wanted to make sure that none of the firearms that were sold per our conversation with you and various ATF agents could or would ever end up south of the border or in the hands of the bad guys. I guess I am looking for a bit of reassurance that the guns are not getting south or in the wrong hands…. I want to help ATF with its investigation but not at the risk of agents (sic) safety because I have some very close friends that are US Border Patrol agents in southern AZ as well as my concern for all the agents (sic) safety that protect our country.31
The owner requested a meeting with BATF. He later informed the OIG that he had told Agent Voth that his company “would not assist ATF unless the owner was assured that the firearms sold to subjects in the investigation would not be allowed to enter Mexico or fall into the hands of individuals that could use them against law enforcement. The owner said Voth assured him that the investigation would be conducted in a manner to prevent that.”32
BATF has an enforcement and a regulatory side: the regulatory side can audit dealers’ records (which, since each sale requires more than forty entries, are rarely perfect), revoke their licenses, and impose civil fines. When some dealers became reluctant despite the assurances, persuasion and even coercion were used. One dealer was told that it was his duty to help BATF battle the cartels.33 Another dealer required pressure. BATF enforcement agents told the reluctant dealer: “We’re not from the regulatory side of the house, but we do have lunch with those guys.”34 The dealer took the hint and continued with the suspicious sales.
THE MOST VIOLENT MONTH
In December 2009, Agent John Dodson reported for duty in the Phoenix Field Station. Dodson was an experienced law enforcement officer who had worked with military intelligence, local law enforcement, and the DEA before signing on with the BATF.
Dodson was confused. He’d been told that he was being brought in on a major and complicated case, one that might even qualify for wiretapping authority, a hallmark of a very complex federal case. But Fast and Furious seemed simple and routine. With the help of licensed dealers, BATF had already identified the straw-man buyers. Standard procedure would be to confront some of the lower-echelon suspects and offer them the choice of becoming informants or going to prison. They’d identify the persons for whom they’d bought the guns, and BATF would confront those and repeat the process on them, until everyone who could be rounded up had been, and the gun ring or rings had been eliminated.
Dodson was finding that Fast and Furious existed somewhere outside this simple reality. The BATF office received a phone call from a cooperating dealer that a known straw man, whose purchases had been traced to Mexican and American crime scenes, had just walked into his shop looking for guns. The dealer promised to stall him as long as he could.
Dodson and other agents raced to stake out the shop’s parking lot. They saw the straw man exiting the shop with fifteen semiautomatic AKs, requiring three trips to his car to load them all. BATF already had plenty of evidence; it was time to make the arrest. “It didn’t get much easier than this,” Dodson later reflected.35
He radioed the case agent to ask when they would make the bust. She replied there would be no arrest, the straw man was probably taking them to the suspected stash house and they were to follow him. Dodson thought, they must want to take down the stash house with a search warrant, and radioed, “We’ll keep eyes on the house and make sure the guns don’t leave. Who’s writing the paper [search warrant and its affidavit] and what kind of turnabout time are we looking at?”
The reply: “No paper. Just follow him to the house and come on back to the office.”36
Over the next few months, Dodson saw the process repeated. Get a tip from a gun dealer, race to the scene, watch the straw man leave with the guns, and return to the BATF office. Sometimes the suspects left with so many guns they had to borrow a cart or dolly and wheel them out. The BATF agents sat in their car, watched the transfer, and returned to the office.
The agency by now knew all there was to know about the straw men (they had to identify themselves in detail on the Forms 4473 and show the dealer a picture ID) and the person for whom they were buying guns, one Manuel Celis-Acosta. He was hardly a high-ranking figure—in all likelihood he wasn’t even a member of a cartel; he just sold them guns. The cartel members stayed in Mexico and let Celis-Acosta deliver the guns to them. So Celis-Acosta was as high as BATF was likely to get.
Finally, a rare opportunity came: a DEA wiretap picked up that Celis-Acosta would be traveling to El Paso, where, for once, some transporters for a cartel would meet him on U.S. soil and receive thirty-two semiautomatic AK-47s. DEA relayed the report—and BATF refused to act. The case agent in charge of the operation claimed that the Christmas holidays were approaching and the Phoenix Field Station would be too shorthanded to make the bust.37
“IF YOU ARE GOING TO MAKE AN OMELET, YOU NEED TO SCRAMBLE SOME EGGS”
Within BATF’s Phoenix office, a division arose on how to view Fast and Furious. While some agents acquiesced, others found that letting the guns go to Mexico, letting them be “walked,” was contrary to all their training and experience. Agent Larry Alt objected strongly to the plan and later told investigators, “You can’t allow thousands of guns to go south of the border without an expectation that they are going to be recovered eventually in crimes and people are going to die.”38
Agent Dodson found himself “outraged and disgusted”: “I cannot see anyone who has one iota of concern for human life being okay with this.”39
BATF management, in contrast, seemed to rejoice every time a Fast and Furious gun was recovered at a crime scene in Mexico. On April 2, 2010, Group VII’s supervisor, Agent Voth, sent an email to its members, noting that the previous month had seen “958 killed in March 2010 (most violent month since 2005)” and adding, “Our subjects purchased 359 firearms during the month of March alone, to include numerous Barrett .50 caliber rifles. I believe we are righteous in our plan to dismantle this entire organization and to rush into arrest any one person without taking into account the entire scope of the conspiracy would be ill-advised …”40
Agent Dodson later told Congressional investigators how the BATF management viewed the toll the guns would likely wreak in the hands of border criminals:
Q. [S]omebody in management … used the terminology “scramble some eggs.”
A. Yes, sir.
Q. If you are going to make an omelet you have got to scramble some eggs. Do you remember the context of that?
A. Yes, sir. It was—there was a prevailing attitude amongst the group and outside of the group in the ATF chain of command, and that was the attitude…. I had heard that … sentiment from Special Agent [redacted], Special Agent [redacted], and Special Agent Voth. And the time referenced in the interview was, I want to say, in May as the GRIT team or gunrunner initiative team was coming out. I was having a conversation with Special Agent [redacted] about the case in which the conversation ended with me asking her are you prepared to go to a border agent’s funeral over this or a Cochise County deputy’s over this, because that’s going to happen. And the sentiment that was given back to me by both her [and] the group supervisor [Voth], was that … if you are going to make an omelet, you need to scramble some eggs.41
Agent Voth emailed Group VII members that he was concerned that “there may be a schism developing within the group” and calling a meeting. He added, “Whether you care or not, people of rank and authority are paying close attention to this case …” In other words: get into line; our bosses want this and are watching us.
The email made it obvious on which side of the divide Supervisor Voth was to be found:
I will be damned if this case is going to suffer due to petty arguing, rumors, or other adolescent behavior. I don’t know what all the issues are but we are all adults, we are all professionals, and we have an exciting opportunity to use the biggest tool in our law enforcement tool box. If you don’t think this is fun you’re in the wrong line of work, period! … Maybe the Maricopa County Jail is hiring detention officers and you can get paid $30,000 (instead of $100,000) to serve meals to inmates all day.42