Legal Beat
Legal Beat...
cartels battled for power, and worry had increased about cross-border violence in the many burgs straddling the U.S.-Mexico boundary.
Mexico looked to the United States to both blame and beg for help. Its own stiff gun laws had long driven criminals north of the border to expand their armories, but better efforts to trace crime guns recovered in Mexico underscored the enormity of the problem.
By 2009, the ATF was reporting that some 90 percent of the weapons Mexican authorities recovered and submitted for tracing originated in the United States, and pressure was increasing from Mexican officials for the United States to address the issue.
Even before he was sworn in, Barack Obama vowed to Mexican President Felipe Calderon that the United States would step up efforts to stop the trafficking of weapons south. T he question was how to do it.
Old strategies primarily targeted the straw purchasers who were paid to buy weapons for higher-level traffickers, but those cases could be difficult to make, especially in Arizona.
For one, there is nothing illegal about walking into an Arizona gun shop and buying an unlimited number of weapons, so long as the purchaser passes a federal background check. A crime occurs only when weapons are exported to Mexico or if individuals are acting as unlicensed dealers by buying and reselling large quantities of weapons.
Straw purchasers themselves are typically prosecuted for what’s known as “lying and buying”: making a false statement on the federal documentation they fill out when purchasing a gun by claiming they are the actual intended possessor when, in fact, the gun is for someone else. But even in those cases, courts have held that the evidence must show the gun was purchased on behalf of a “prohibited possessor” – a felon, for example.
All of these things can be tough to prove, and several cases had been tossed over lack of evidence. Most notable was one of the last big cases the Phoenix ATF investigated before Fast and Furious – the widely publicized probe of gun shop owner George Iknadosian, who was accused of knowingly selling hundreds of guns to straw buyers.
In March 2009, a judge threw out the case against Iknadosian, noting that the weapons were purchased legally and there was no proof that they ultimately wound up in the hands of unlawful possessors. It was a hard pill to swallow, and the lead agent on that case, ATF special agent Hope MacAllister, would go on to become the lead case agent for Fast and Furious.
“You have a lot of worlds colliding,” said James Cavanaugh, a retired ATF supervisor who negotiated a cease-fire with the Branch Davidians following the bureau’s botched 1993 raid in Waco, the last major scandal to embroil the ATF. “You have the war on the border. Prosecutors who are overly skittish on taking a gun case” because of the laws and gun culture in Arizona but also, said Cavanaugh, because they’d been “burned by other cases.”
There was also a growing desire in both the Justice Department and the ATF to move beyond straw-purchase
investigations, considered the equivalent to arresting a corner drug dealer to try to stop drug smuggling.
In search of a more meaningful solution to the overall trafficking problem, the Justice Department in the fall of 2009 began developing a revised strategy that concluded “merely seizing firearms” wouldn’t end gun smuggling. Rather, it said, the focus should be on finding ways to investigate and eliminate an entire trafficking network. “It was with this guidance in mind that Operation Fast and Furious originated,” the former head of the ATF in Phoenix, William Newell, told a congressional committee Tuesday.
The Justice Department’s Office of Inspector General then began a review of ATF gun trafficking efforts, a report that criticized the agency’s “low-level investigative focus” and recommended “developing more complex conspiracy cases” against those further up the food chain.
Soon, the ATF issued its own reworked policy, calling for a more “creative” approach to gun probes and suggesting that straw purchasers be viewed as a stepping stone to identifying other members of a gun trafficking operation. The document noted that such a strategy was already being used in several ATF field divisions. Places like Phoenix, where ATF supervisors acknowledged in a memo summarizing Fast and Furious back in January 2010 that their strategy was to “allow the transfer of firearms” to take place in order to identify co-conspirators.
All of this led to a dramatic shift in tactics: ATF agents could let guns go in order to make a more substantial case. The ATF memo called it “limited or delayed interdiction,” and seemed to anticipate what this would mean in terms of weighing risks vs. benefits. It warned that “practical considerations” may require bringing investigations to a quick close. Those included probes in which “numerous diverted firearms ... are being used in violent crimes and recovered by law enforcement.” It’s an approach that some longtime ATFagents found astonishing.
“I can tell you in every case I was involved in, the bureau would’ve been afraid to let the guns go,” said William Vizzard, who worked almost 30 years doing gun investigations for ATF and later taught criminal justice at California State University. “There was always the obsessive fear that if a gun goes out there ... it may be misused and traced back to you, and the political implications are terrible.”
Mike Bouchard, a former assistant director for field operations, said the endless criticism may have left some at ATF figuring, “No matter what we do we’re going to get beat up. Take off the little guy, people say you’re not going after big enough people. Take off big people, these are the risks. ... And I’m not sure people thought of the risks that come along with going after the big guys.”
That’s not to say that guns were never “walked” in past ATF investigations, former agents said. The difference is how it was done. Jay Wachtel worked more than two decades as an ATF agent in Arizona and California, where he ran his own gun-trafficking unit. He now teaches firearms law and policy at California State University, Fullerton. Letting guns walk has been a practice, he said, so long as it is done in a controlled
