What Happened to Congress' 'Fast and Furious' Fury?

WASHINGTON – The controversy surrounding the Bureau of Alcohol, Tobacco, Firearms and Explosives’ infamous Fast and Furious program has faded over the past few months but it’s unlikely to be relegated to the background for very long.

Last week it was revealed that a high-powered rifle employed in the unsuccessful gun-tracking program was used to kill a police chief and his bodyguard in the Mexican state of Jalisco, signaling that some of the weapons used in the enterprise are now in the possession of members of drug cartels – the same people Fast and Furious was supposed to entrap as a result of the operation.

Meanwhile, the House Committee on Oversight & Government Reform, the panel that led the investigation into the brewing scandal, continues its efforts to gain access to documents in the possession of the Department of Justice. The House in June 2012 held Attorney General Eric Holder in contempt for failing to comply with the panel’s request.

President Obama, for the first time in his administration, invoked executive privilege to thwart the committee’s demand. Justice Department officials insist they had no knowledge of the operation.

Any future congressional action on Fast and Furious, which first came to light in January 2011, likely depends on the committee and its chairman, Rep. Darrell Issa (R-Calif.), gaining access to the withheld information. Ultimately the issue will be resolved in federal court.

Issa said the House remains “steadfast in its commitment to getting the full truth about this reckless gunwalking effort that has been linked to murders on both sides of our border with Mexico.”

The House actually issued two resolutions in June 2012, holding Holder in criminal contempt of Congress while also holding him in civil contempt, a move that provided the lower chamber with the authority to sue to gain access to the documents in dispute.

Ronald Machen, the U.S. attorney for the District of Columbia who technically works for Holder, rejected the House request to pursue criminal sanctions. But the lawsuit seeking access to the documents is alive and well before U.S. District Judge Amy Berman Jackson, an Obama appointee who nonetheless has expressed skepticism over the administration’s motion to dismiss the action based on the claim of executive privilege and the assertion that the courts should stay out of a dispute between the executive and legislative branches.

Attorney Kerry Kircher, representing the House of Representatives, told the court during an April 24 hearing that presidents would essentially have carte blanche to withhold documents from Congress and frustrate legislative oversight of federal agencies if the judiciary failed to intervene. Attorney Ian Gershengorn, representing the Justice Department, argued that the courts would appear to be “a tool of the political process” if it got involved.

Jackson noted the two sides have proved unable to reach a settlement after months of negotiations, leading her to surmise that a third party, like the courts, might prove beneficial to resolving the issue.

Jackson has yet to issue a ruling and the case remains open. If the House Oversight & Government Reform Committee’s effort proves successful, the panel can get its hands on documents it considers vital to the investigation of the operation and return the issue to public consciousness. Basically, the panel wants to know what the Justice Department knew about the operation and when did it know it.

On Feb. 2, 2012, the Justice Department sent a letter to Sen. Chuck Grassley (R-Iowa), ranking member on the Senate Judiciary Committee, denying the existence of any gunwalking program. The letter was rescinded 10 months later when it proved to be inaccurate. House investigators hope the contested documents, should they be made public, will shed light on the department’s degree of knowledge.

The federal courts have taken a dim view of executive privilege in recent years. The U.S. Supreme Court has held that the assertion is invalid if a suspicion of governmental wrongdoing is involved. Five years ago, during the last year of President George W. Bush’s administration, a similar executive privilege claim aimed at blocking the testimony of several senior White House officials before the House Judiciary Committee regarding the firing of nine U.S. attorneys, reportedly for political reasons, was rejected by U.S. District Judge John Bates.

“Fast and Furious” was a gunwalking operation conducted by the ATF in Arizona from 2006 to 2011. Basically, the agency abandoned its practice of immediately confiscating illegally purchased arms and instead allowed licensed firearms dealers in the Tucson and Phoenix areas to sell weapons to illegal straw buyers – middle men who purchase guns in behalf of those prohibited from doing so themselves.

The ATF hoped that by permitting these purchases agents could track the firearms that were provided to the cartels, resulting in the arrest of high-level drug kingpins. The agency monitored about 2,000 straw sales but only slightly more than 700 were recovered. Agents lost track of about 1,400 weapons. No high-level cartel figure has been arrested.

Guns purchased under “Fast and Furious” have been found on both sides of the border separating the U.S. and Mexico. On Dec. 14, 2010, U.S. Border Patrol Agent Brian Terry was killed during a firefight while on patrol near the border. Two AK-47s found at the scene were linked to Fast and Furious. The operation, which drew criticism from several agents and gun dealers while it was active, was made public shortly thereafter.

One estimate places the number of Mexican citizens killed by Fast and Furious guns at 300.

On Jan. 29, according to a report in the Los Angeles Times, one of the guns was located at the scene of a shooting that led to the death of Luis Lucio Rosales Astorga, the police chief in the city of Hostotipaquillo. Gunmen intercepted his patrol car and opened fire. A bodyguard was also killed. Astorga’s wife and a second bodyguard were wounded.

A semi-automatic WASR rifle, the firearm that killed the chief, was traced back to the Lone Wolf Trading Company, a gun store in Glendale, AZ, according to the Times. It was purchased on Feb. 22, 2010, about three months into the Fast and Furious operation, by 26-year-old Jacob A. Montelongo of Phoenix. He later pleaded guilty to conspiracy, making false statements and smuggling goods from the United States and was sentenced to 41 months in prison.

Court records show Montelongo personally obtained at least 109 firearms during Fast and Furious.

Issa’s committee isn’t the only organization seeking documents. Judicial Watch, a conservative foundation that promotes transparency in government, has filed a Freedom of Information Act lawsuit seeking access to the Fast and Furious records being withheld from Congress.

Justice refused to comply and has asked the court to stay proceedings while it deals with the committee’s civil contempt claim. Judicial Watch opposed the motion and is asking the court to address the issue.

“Getting beyond the Obama administration’s smokescreen, this lawsuit is about a very simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless others in Mexico,” said Judicial Watch President Tom Fitton. “The American people are sick and tired of the Obama administration trying to rewrite FOIA law to protect this president and his appointees. Americans want answers about Fast and Furious killings and lies.”