Foreign Policy Blogs

How Wiretap Applications Prove Top DOJ Officials Implicated in Fast and Furious: Issa Says Gunrunning Scheme Approved at Top

June 6, 2012. Four months after the post below (“Issa Tells Holder to Turn Over Wiretap Apps” 2/17/12) went online, the MSM (NYT, CBS, New York Post, Fox) is reporting that Representative Darrell Issa (R-CA), Chairman of the House Oversight Committee investigating DOJ’s gunrunning scheme, Fast and Furious, claims the wiretap applications submitted during the course of the operation prove that DOJ officials at the highest levels knew ATF agents were bending, ignoring, and violating US law to move more than 2000 combat-ready weapons across the US border into Mexico.


Lanny Breuer, head of Holder’s Criminal Division signed off on memos accompaning each wiretap application, and the way Issa puzzles it out, Breuer was unlikely to have given the thumbs up to the wiretap apps unless he’d first ok’d the strategy with his boss, the Attorney General.

So far, DOJ has sidestepped congressional subpeonas issued by Issa’s Committee, and in the process, some say getting away with murder. You see, none of the weapons ATF agents were ordered to let ‘walk’ across the US-Mexico border carried tracing devices, and ATF whistleblowers who pressed superiors about the need to have some sort of interdiction strategy in place that would allow them to recover the weapons before they could be used to murder innocent people (US Border Patrol Agent Brian Terry) were told to stand down or find another job.

Whether Issa’s latest revelation will revive the one-step=forward, two-steps back investigation into a government scheme to supply Mexican gangs with weapons that could be traced back to recent sales by US gundealers along the SW border, a move that even the most skeptical mind has trouble believing was designed to do anything but shore up the argument for stricter gun control in the US, is uncertain.

Attorney General Eric Holder has told the press that Issa’s Committee is on a ‘witch hunt’ meant to target high-ranking ‘African-Americans’ within the Administration, officials Holder identified more explicitly by adding ‘like me, and the President,’ and it is unlikely the GOP House Speaker John Boehner is eager to divert pre-election media coverage from Romney’s singleminded focus on the economy–even though Fast and Furious, with its parallels to Iran-Contra, might well result in the prosecution of admininstration officials for contempt, obstruction of justice, perjury, and multiple violations of the Arms Export Control Act (AECA). Think Ollie North.

In case today’s reports about the importance of wiretap applications linked to Fast and Furious still leave you confused, let me repeat–there’s a repost of my earlier analysis below. Of special interest should be the photocopy of the memo requesting approval for a wiretap signed by Lanny Breuer, in  charge of DOJ’s Criminal Division,  in March 2010. A DOJ spokesperson says Breuer never scrutized the details–just signed on the dotted line.

From FPB, February 17, 2012

Issa’s committee has weighed in on the significance of Fast and Furious wire taps, claiming they provide the House Oversight Committee with significant details about how and who was involved in the gunrunning scheme. Investigators say ATF agents involved in the gun walking scheme known as Fast and Furious made numerous applications over a significant period of time for the issuance of court orders authorizing wire taps.

Bad news for top cops at DOJ. You see, wire tap applications can tell someone who knows how to read them a lot of important things about an operation. And, like Willy Sutton, who said he robbed banks “because that’s where the money is,” members of the House Oversight Committee have told DOJ they want those wire tap applications because they know that’s where the evidence is–in detailed descriptions of investigative techniques and signatures they believe will point to the involvement of senior DOJ officials.

Chairman Darrell Issa of California complained that Justice had complied only in turning over 6,400 documents of 80,000 requested. Among the records held back, according to committee GOP member Rep. Trey Gowdy of South Carolina, are wiretap applications signed by key Justice officials in Washington laying out the plan for the gunrunning scheme. The documents, he said, are “the single best piece of evidence” that responsibility for the operation reaches into the department’s upper echelons. That would explain the stonewalling…

Attorney General Eric Holder fired back, telling Issa’s Committee that wire tap orders and the applications submitted by Fast and Furious agents to obtain the orders are off-limits to investigators, sealed by court order and impervious to the rule that, in the past, has allowed access to wire tap applications or orders, when provided by ‘whistle-blowers,’ to the press and Congress.

(Holder) “To the extent that those wiretap applications have been shared… If I find, if I find that someone in the US DOJ has shared the contents of wiretap applications, that is something that will be looked at … Anyone who read or submits that information for people to look at does so at their peril.”

Issa countered, stating that Members of Congress engaged in oversight investigations and whistle blowers are protected in these situations–and again, Holder threw out a warning…

(Holder) “You act at your peril if you think that’s the truth.”

Despite the warning, Holder’s response is no doubt a welcome one to investigators, a ‘doth protest too much’ tip-off that the wiretap apps they’re after are loaded with information refuting Holder’s insistence that Fast and Furious was a ‘bottom-up’ op that stopped at the local level, without his knowledge or involvement.

What’s in the apps?

Some background: forget what you see in the movies–agents in white vans listening, in 2-minute increments, to the bad guy’s telephone calls–wire taps are serious business, and very difficult to obtain. Indeed, wire taps qualify as investigative techniques of ‘last resort,’ inimical, except in extreme cases, to privacy rights guaranteed by the Constitution.

As a result, federal agents who apply for wire taps are required by law to jump through some pretty tough hoops, providing “a full and complete statement of facts and circumstances justifying the application” to the Criminal Division, DOJ, in order to prove ‘legal sufficiency to make such an application.’

In other words, the information provided by the lead agent in Phoenix would have had to spell out, in painful detail, every start and finish, twist and turn, that would ultimately make the gun walking debacle the object of Congressional scrutiny.

The agent in charge of the investigation would have had to put together an affidavit in which he or she demonstrated, first, that every other means of conducting the investigation had been exhausted, and second, that the facts so far gleaned via the investigation constituted ‘probable cause’–facts and circumstances that would lead any reasonable person to believe that the private communication investigators intended to intercept would lead to evidence that could not be gathered from any other source using any other investigative techniques.

This is no small undertaking, and it’s not meant to be.

If you’ve been following Fast and Furious, the posturings, the warnings, the threats ( and the theater), then you may want more legal details about what it takes to obtain authorization for a wire tap, or more information about what constitutes ‘last resort,’the procedures for obtaining authorization, and the process, (including the ‘sign-off’ by an independent district judge. Well, you can find it all here.

Language of the Law

Or you can skim through the next few paragraphs: I know it’s long and dry, but believe me, reading about it is nothing compared to the challenge of implementation:

Application for a Court Order

All government wiretaps require a court order based upon a detailed
showing of probable cause. To obtain a court order, a three-step
process is involved. First, the law enforcement officer responsible
for the investigation must draw up a detailed affidavit showing that
there is probable cause to believe that the target telephone is being
used to facilitate a specific, serious, indictable crime.

Second, an attorney for the federal, state, or local government must
work with the law enforcement officer to prepare an application for a
court order, based upon the officer’s affidavit. At the federal level,
the application must be approved by the Attorney General, Deputy
Attorney General, Associate Attorney General, any Assistant Attorney
General, any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division designated by the Attorney
General. At the state and local level, the application must be made
and approved by the principal prosecuting attorney of the state (State
Attorney General) or political subdivision thereof (District Attorney
or County Prosecutor). The attorney must be authorized by a statute of
that state to make such applications.

Third, the attorney must present the approved application ex parte
(without an adversary hearing) to a federal or state judge who is
authorized to issue a court order for electronic surveillance. A state
or local police officer or federal law enforcement agent cannot make an
application for a court order directly to a judge.

Title III requires that an application for a court order specify:

(a) the investigative or law enforcement officer making the
application and the high-level government attorney authorizing
the application;

(b) the facts and circumstances of the case justifying the
application, including details of the particular offense under
investigation, the identity of the person committing it, the
type of communications sought, and the nature and location of
the communication facilities;

(c) whether or not other investigative procedures have been tried
and failed or why they would likely fail or be too dangerous;

(d) the period of time for the interception (at most 30 days –
extensions may be permitted upon reapplication);

(e) the facts concerning all previous applications involving any of
the same persons or facilities;

(f) where the application is for the extension of an order, the
results thus far obtained from the interception.

OK, who’s still with us and which of you saw the part about who has to approve the application, the affidavit that the case agent puts together? Yes, that’s right, folks–the Attorney General of the United States or a designee he choses to represent him–someone he (and we) assume will read through the entire package of information. And these high-level signoffs come before the application even makes it to a ‘wire tap’ judge in the appropriate venue.

Issuance of a Court Order

Not all judges have the authority to grant court orders for wiretaps.
In New Jersey, for example, only eight judges are designated as
“wiretap judges” for the
entire state. These judges are given special
training to be sensitive to personal rights of privacy and to recognize
the importance of telephone intercepts for law enforcement.

Before a judge can approve an application for electronic surveillance
and issue a court order, the judge must determine that:

(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit an offense
covered by the law;

(b) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception;

(c) normal investigative procedures have been tried and have failed
or reasonably appear unlikely to succeed or to be too dangerous;

(d) there is probable cause for belief that the facilities from
which, or the place where the communications are to be intercepted
are being used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the name of,
or commonly used by such person.

In addition to showing probable cause, one of the main criteria for
determining whether a court order should be issued is whether normal
investigative techniques have been or are likely to be unsuccessful
(criterion (c) above). Electronic surveillance is a tool of last
resort and cannot be used if other methods of investigation could
reasonably be used instead. Such normal investigative methods usually
include visual surveillance, interviewing subjects, the use of
informers, telephone record analysis, and DNRs. However, these
techniques often have limited impact on an investigation. Continuous
surveillance by police can create suspicion and therefore be hazardous;
further, it cannot disclose the contents of telephone conversations.
Questioning identified suspects or executing search warrants at their
residence can substantially jeopardize an investigation before the full
scope of the operation is revealed, and information can be lost through
interpretation. Informants are useful and sought out by police, but
the information they provide does not always reveal all of the players
or the extent of an operation, and great care must be taken to ensure
that the informants are protected. Moreover, because informants are
often criminals themselves, they may not be believed in court.
Telephone record analysis and DNRs are helpful, but do not reveal the
contents of conversations or the identities of parties. Other methods
of investigation that may be tried include undercover operations and
stings. But while effective in some cases, undercover operations are
difficult and dangerous, and stings do not always work.

The bottomline here is that applications for wire tap orders must lay out the workings of the investigation in exhaustive detail, and they must be signed by senior DOJ officials each time an order is issued or reissued, after 30 days, for instance. Each and every time.

The revelatory information included in wire tap applications, and the possibility Issa’s Committee may get hold of it, does not bode well for the Department of Justice, and the Attorney General, who told the Committee on February 2 that ‘wiretap applications do not always go into all the techniques used in an investigation.’

“Wrong,” said the Committee:”A wiretap application must include precisely this type of information in order to meet the legal sufficiency standard required by the Criminal Division in its review.Therefore, law enforcement officials would have to include these procedures, and possibly others, in the wiretap applications to meet the statutory requirement and obtain the Criminal Division’s approval.”

Breuer Memo Approving Request to Seek Issuance of Wire Tap Order Already Exists

What no one on Capitol Hill, or in the press, has yet mentioned is that some of this information is already in the public domain–hidden in plain sight.

On May 4, 2011, CBS reporter Sharyl Atkisson, broke the news that Lanny Breuer, Chief of the Criminal Division at DOJ during Fast and Furious, had indeed signed off on a request by ATF agents in Phoenix for a court order authorizing a wire tap. Atkisson provided readers with a photocopy of the document signed by Breuer.

As you can see, much of the memo has been redacted, but the information that remains, says a former federal agent,”is gold,” and here’s why: when you examine the list of statutes ATF lists, violations which the agency intends to investigate, you understand that the agents running Fast and Furious were admitting specific knowledge of criminal activity ATF later denied it knew anything about.

For example, the memo cites 22 USC 2278 as justification for its application to see approval for electronic surveillance. 22 USC 2278 is the statute prohibiting the illegal export of the weapons ATF agents were, in fact, urging gun dealers to sell to strawbuyers, and its mention in the Breuer memo tells us that as of March 10, 2010, agents understood that ITAR violations were in play and might serve as basis for arrests and prosecution.

There’s more. Many of the violations covered by the statutes cited below, and referenced by ATF as a basis for the issuance of a wire tap order, fall outside of ATF’s jurisdiction (with the exception of 18 USC 922 and 924). So we’re either talking about joint investigations, which no other agency has acknowledged, or an agency, ATF, ready and willing to appropriate jurisdictional powers that belong, by law, to other enforcement organizations. What’s going on here?

Take a look at the memo–click here and then consider:

Title 21 USC 841 Controlled Substance Act falls under the jurisdiction of ICE and DEA;
Title 22 USC 2278 Arms Export Control Act falls under the sole jurisdiction of ICE;
Title 18 USC 554 Smuggling Goods out of the United States falls under the sole jurisdiction of ICE;
Title 31 USC 5332 Bulk Cash Smuggling falls under the sole jurisdiction of ICE;
Title 31 USC 5324 Structuring a Financial Transaction (Title 31 USC is also known as the Bank Secrecy Act) falls under the sole jurisdiction of the IRS/CID;
Title 18 USC 1956 The Anti Money Laundering Act of 1986 falls under the primary jurisdiction of ICE but can be used by another agency with a substantive related offense.

Investigations involving possible violations of other statutes included in the ATF memo of March 10, 2010 also belong to agencies other than ATF …
18 USC 371 Conspiracy can fall under the jurisdiction of any enforcement agency;
18 USC 922 Possession of firearm by a convicted felon, illegal alien or the mentally ill falls with ATF’s jurisdiction;
18 USC 924 Possession of firearm by a person engaged in drug trafficking per 21 USC 841 et seq also belongs to ATF;
18 USC 1343 Fraud by wire radio or television falls under the jurisdiction of the FBI or any agency with a substantive count can add 18 USC 1343 to its jurisdiction;
21 USC 960 Import/Export of a controlled substance falls under DEA’s jurisdiction;
21 USC 963 Attempt and/or conspiracy to traffic in a controlled substance falls under DEA’s jurisdiction;
31 USC 5332 Bulk Cash Smuggling belongs to ICE.

At this point, of course, anyone who’s managed to wade through the legal arcana is wondering what it all means in plain English.

Let me tell you.

We know what ATF knew in March 2010, when the Breuer memo was signed, via the scrutiny of the laws cited as justification for obtaining a wire tap order.

The ATF agent who compiled ‘sufficient reason’ to warrant the issuance of a wire tap order offers his superiors at ATF, as well as higher-ups at DOJ, specific insights into the types of crimes the Phoenix office and the Fast and Furious team believes are underway. And given the fact that this knowledge passed from Phoenix to Breuer (Number 3 and Head of the Criminal Division in DC), it means the almost certain involvement of the Attorney General, via his responsibilities in regard to the issuance of federal wire tap orders.

It means, given the statutes cited as justification for the issuance of wire tap orders, that ATF was working in cooperation with a number of partner agencies (ICE/FBI/DEA/State)–whose involvement and prior knowledge of gun walking is still to be determined.

It means ATF knew that their agents and their straw buyers were involved in illegal trafficking of arms to drug organizations across international boundaries, in violation of the Arms Export Control Act.

And it also means that, given the fact that ATF sought and obtained orders for international wire taps, DOJ would have been required to inform and cooperate with senior officials in Mexico–the Attorney General of the United States is required, via the Brownsville Agreement, to notify his or her counterpart in Mexico that federal agents are in fact using court-ordered wire taps to intercept communications involving Mexican citizens.

Did DOJ Tread on Jurisdictional Authority?

There’s also a larger irony at work here: it is the Attorney General of the United States, the nation’s top cop, who is legally responsible for protecting the jurisdictional integrity belonging to each separate law enforcement agency.

That’s part of Holder’s job description.

But if ATF/DOJ sought a wire tap order based on its intention to enforce or investigate crimes described under statutes whose jurisdictional authority rests with agencies other than ATF/DOJ, and the Attorney General, or in this case, his deputy, Lanny Breuer, signs off on that request, then Holder has in fact violated jurisdictional proprieties the AG is tasked by law with protecting. Another fine fix.

So far, DOJ denies that higher-ups were aware of any of the information contained in the wire tap apps–Holder says he signed off on the requests without reading more than the cover page. Hmmmm…

He has told Congress that agents do not always outline their investigative plans and objectives in any great detail on the affidavits the senior case agents takes to the ‘wire tap judge.’ The Breuer memo looks pretty detailed to me.

Lanny Breuer, who operated as Chief of Holder’s Criminal Division during most of Fast and Furious, remains on the hook–his signature is all over the wire tap apps. His challenge now is to convince Congress that the buck stops with him, and that his superiors at Justice may have been derelict in their duties, but never criminal in action or intent.

If the applications for wire tap orders show, as does the March 10, 2010 memo signed by Breuer, that senior DOJ officials, including the AG, testified as part of an affidavit, that all other investigative means of pursuing targets had been exhausted (and we know this is not true, because none of the F+F weapons bore tags or tracing devices and agents were told not to interdict per prior ATF policy), then Holder still has some explaining to do.

Issa may ask Holder how the Attorney General, once he’d concluded every other investigative method had been exhausted, could have approved an operation that delivered operable weapons to what insiders describe as ‘the most violent criminal organization in the world, bar none.’

The Committee may ask Holder, why at this point, he simply did not exercise his lawful authority and deny the application for a wire tap order–why he didn’t try then to get to the bottom of the gun walking debacle? Why he or Breuer failed to delve into the ‘violations of the Arms Export Control Act’ cited as a basis for obtaining a wire tap order?

And finally, someone, somewhere, may ask the Attorney General about a treaty that seems to have been largely forgotton: the Brownsville Agreement. Why didn’t DOJ notify Mexico about the operation (the ATF office in Mexico City swears they were kept in the dark), when Breuer’s memo clearly states that weapons purchased from US gun dealers were being trafficked into Mexico?

It’s a tangled web, for sure, and while Congress may understand that some big important laws have been broken, no one seems willing, in the case of Fast and Furious, to connect the dots in ways that might shed light on just who broke them.

Just a few days ago, Bradley Manning, the Army Private accused of supplying Wikileaks with hundreds of emails about US government operations was bombarded with words like ‘treason’ and accused of ‘aiding and abetting the enemy.’

Despite the old adage about the pen being mightier than the sword, and my own regard for the power of the word, it’s difficult to see how documents, overflowing with gossip, personal observations, and information anyone with a search engine could have pulled up at an internet cafe, might be of more service to America’s enemy’s than the 2000 military-grade, fully operational weapons delivered to Mexican cartels by our own government.

But no matter. Forget Fast and Furious. In the case of pirated emails delivered to Julian Assange, it looks like we’ve got our man.

If convicted of the charge of giving aid to the enemy, Manning could face life imprisonment. The maximum penalty for the other charges he faces is 150 years combined. Manning’s defense team avers that their client was unwell, and that he was not competent to have been allowed access to classified information.

Incompetence as opposed to criminality?

Why not?

If it’s good enough for DOJ, it’s good enough for Manning.


  • tomas caparroso franco

    the trouble in mexico is to legalize arms to any person that want to protect him self , bussiness is the word imagine if we in mexico legalize arms and marihuana , the price of the 2 issues ARMS AND MARIHUANA WILL help a lot ot mexico


Kathleen Millar
Kathleen Millar

Kathleen Millar began her career in public affairs working for Lyn Nofziger, White House Communications Director. She has gone on to write about a wide range of enforcement and security issues for DHS, for the US Department of the Treasury (Customs & Border Patrol), for Senator Olympia Snowe (R-ME), then a Member of the Senate Intelligence Committee, and for top law enforcement officials in the United States and abroad.

A Founding Member of the Department of Homeland Security, Millar was also the deputy spokesperson-senior writer for the United Nations Office on Drugs and Crime in Vienna, Austria. She has authored numerous speeches, articles and opeds under her own and client bylines, and her work, focusing on trafficking, terrorism, border and national security, has appeared in both national and international outlets, including The Washington Post, The Washington Times, The International Herald Tribune, The Financial Times, and Vital Speeches of the Day.

Kathleen Millar holds an MA from Georgetown University and was the recipient of a United Nations Fellowship, International Affairs, Oxford. She is a member of the Georgetown University Alumni Association, Women in International Security (GU), the Women’s Foreign Policy Group, and the American News Women’s Club in Washington, DC. Kathleen Millar is currently teaching and writing about efforts to combat transnational organized crime.