Letter to the Honorable Eric H. Holder, Jr, Attorney General, U.S. Department of Justice

Letter

March 3, 2011

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Kenneth E. Melson
Acting Director
Bureau of Alcohol, Tobacco, Firearms, and Explosives
99 New York Avenue, NE
Washington, DC 20226

Dear Attorney General Holder and Acting Director Melson:

It is has been over a month since I first contacted Acting Director Melson about
serious whistleblower allegations related to a Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) operation called "Fast and Furious"--part of the broader "Project
Gunrunner" initiative. Several agents alleged that ATF leadership encouraged
cooperating gun dealers to engage in sales of multiple assault weapons to individuals
suspected of illegally purchasing for resale to Mexican cartels. These agents were
motivated to come forward after federal authorities recovered two of the Operation Fast
and Furious guns at the scene where a Customs and Border Patrol Agent named Brian
Terry was killed.

In response to my letter, the Department of Justice (DOJ) denied that ATF would
ever knowingly allow weapons to fall into the hands of criminals, or let firearms "walk"
in an operation. On February 9, I wrote to DOJ and attached documents that supported
the whistleblower allegations about the guns found at the scene of Agent Terry‟s death.

My office continues to receive mounting evidence in support of the whistleblower
allegations. For example, attached are detailed accounts of three specific instances where
ATF allowed firearms to "walk."2 In all three instances, the suspect asks a cooperating defendant to purchase firearms at a gun dealer who was also cooperating with the ATF.
So, two of the three participants in the transactions were acting in concert with the ATF.
Yet, the ATF allowed the suspect to take possession of the firearms in each instance. In
one case the suspect said that he "assumed the only real risk in their trafficking
arrangement when he [REDACTED] „erase(d) the (serial) numbers‟ from the firearms
and „take (transports) them…‟"3

The whistleblowers did not wait until a federal agent was killed before voicing
their concerns internally. Several agents in the Phoenix Gun Trafficking Group (Group
VII) voiced their opposition to the ATF‟s handling of the case internally first. Group
Supervisor David Voth sent an email on March 12, 2010 about the "schism developing
amongst our group."4 His response to dissent within the group was to invite those who
disagreed with the strategy to find another job:

Whether you care or not people of rank and authority at HQ are paying
close attention to this case and they also believe we (Phoenix Group VII)
are doing what they envisioned the Southwest Border Groups doing. It
may sound cheesy, but we are "The tip of the ATF spear" [sic] when it
comes to the Southwest Border Firearms Trafficking.
We need to resolve our issues at this meeting. I will be damned if this
case is going to suffer due to petty arguing, rumors, or other adolescent
behavior.
… If you don't think this is fun, you're in the wrong line of work--
period! This is the pinnacle of domestic U.S. law enforcement
techniques. After this the toolbox is empty. Maybe the Maricopa County
Jail is hiring detention officers and you can get paid $30,000 (instead of
$100,000) to serve lunch to inmates all day.5

Two weeks later, on April 2, 2010, Voth sent an email to Assistant U.S. Attorney Emory
Hurley and Assistant Special Agent in Charge (ASAC) George Gillett with the subject,
"No pressure but perhaps an increased sense of urgency."6 In the email, he reiterated
support for the strategy, but cited increasing levels of violence as a reason to move more
quickly. Voth wrote:

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 in to arrest any
one person without taking in to [sic] account the entire scope of the
conspiracy would be ill advised to the overall good of the mission. I acknowledge that we are all in agreement that to do so properly requires
patience and planning. In the event, however, that there is anything we
can do to facilitate a timely response or turnaround by others, we should
communicate our sense of urgency with regard to this matter.7

Voth also acknowledged in a May 3, 2010 email to his group that "April was the second
most violent month during the Calderon administration with 1,231 executions."8 ATF
personnel in Mexico reportedly noted the increased violence and contacted ATF
Headquarters to express concern over the Operation Fast and Furious strategy of allowing
the weapons sales to proceed.

ATF Headquarters was fully aware of the strategy. A copy the Operation Fast
and Furious case summary sent to ATF Headquarters states:
This OCDETF [Organized Crime Drug Enforcement Task Force] case is a
large scale firearms trafficking case with the firearms being recovered in
the Republic of Mexico or on/near the US/Mexico border (El Paso, TX,
Nogales, AZ, Douglas, AZ, etc.) To date over 1,500 firearms have been
purchased since October 2009 for over one million ($1,000,000.00) cash
in over-the-counter transactions at various Phoenix area FFLs.
[REDACTION] There are many facets to this investigation but ATF is
attempting to not only secure a straw purchase/dealing in firearms without
a license case against various individuals but more specifically to make
the bigger connection to the Mexican Cartel/Drug Trafficking
Organization (DTO) obtaining these firearms for the best possible case
and the most severe charges when it is time to Indict [sic] this case.9

Dismantling the Mexican drug cartels is a worthy goal. However, asking cooperating
gun dealers to arm cartels and bandits without control of the weapons or knowledge of
their whereabouts is an extremely risky strategy. ATF leadership did not allow agents to
interdict the weapons in this case. Instead, agents simply monitored the purchases of
"suspect guns" and entered them into a database of firearms "suspected to eventually be
used in criminal activity."10 Over the course of this investigation, weapons allowed to
walk were ending up in Mexico and along the Southwestern border. The ATF was well
aware that this was happening. For example, in November 2009, four 7.62 caliber
weapons were recovered in Naco, Mexico just two weeks after being purchased by one of
the ATF‟s suspects in Glendale, Arizona.11 Also, in July 2010 a Romanian AK-47 variant--the same model found at the scene of Agent Terry‟s death--was recovered in
Navojoa, Mexico.12

In light of this evidence, the Justice Department‟s denials simply don‟t hold
water. On February 4, 2011, the Department claimed that the ATF did not "knowingly"
allow the sale of assault weapons to straw purchasers and that "ATF makes every effort
to interdict weapons that have been purchased illegally and prevent their transportation
into Mexico."13 Clearly those statements are not accurate. These documents establish
that ATF allowed illegal firearm purchases by suspected traffickers in hopes of making a
larger case against the cartels. ATF was not alone. The U.S. Attorney‟s office appears to
have been fully aware and engaged in endorsing the same strategy.
Congress needs to get to the bottom of this.

After close of business last night, I received a one-page response to my letters of
February 9 and 16.14 The response asks that I direct to the Inspector General any
individuals who believe they have knowledge of misconduct by Department employees.
You should know that just after Agent Terry died in December, at least one
whistleblower contacted the Office of Inspector General before contacting my office.
Despite reporting the allegations multiple times by phone, Internet, and fax, no one
contacted the whistleblower until after my staff contacted the Acting Inspector General
directly on February 1.

I have received no documents in response to my February 16, 2011, request. Last
night‟s DOJ reply cites the Justice Department‟s "longstanding policy regarding pending
matters" as a reason for withholding documents "relating to any ongoing investigation."15
However, as you know, that policy is merely a policy. It is not mandated by any binding
legal authority.

There are many instances where the Justice Department and its components
choose to provide information about pending investigations to Congress. These examples
are not always officially documented, but often occur when there are particularly
egregious allegations of government misconduct or there is an extremely high level of
public interest in an investigation. Getting to the truth of the ATF whistleblower
allegations in this case is extremely important to the family of Brian Terry and should be
important to all Americans. There is no reason to wait the unknown number of years it
might take for all of the trials and all of the appeals to be exhausted. The time for truth is
now.

In addition to providing the documents I previously requested, please explain how
the denials in the Justice Department‟s February 4, 2011 letter to me can be squared with
the evidence.
Sincerely,
Charles E. Grassley
Ranking Member
Committee on the Judiciary
cc:
The Honorable Patrick Leahy
Chairman
United States Senate Committee on the Judiciary

The Honorable Robert S. Mueller, III
Director
Federal Bureau of Investigation

The Honorable Alan D. Bersin
Commissioner
United States Customs and Border Protection

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