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Melson Out, Holder Digs In: 1700+ Violations of the Arms Export Control Act?

ATF Director Kenneth Melson and Attorney General Eric Holder

Damage control: Holder 'reassigns' Melson

Ok. Now we’re into it.

Administration top dogs have thrown ATF Director Ken Melson and US Attorney for Arizona Dennis Burke under the truck.In firefighting, they call it a ‘controlled burn,’ torching a perimeter of just enough man-made flame to meet and beat the advance of a wildfire impervious to less-drastic solutions.

Good luck, gentlemen.

The House Oversight Committee’s investigation into the DOJ/ATF gun-running operation known as Fast and Furious is roaring through the halls of Congress, and despite DOJ’s efforts to spin the story every which way but up, Representative Darrell Issa (R-Calif) and Senator Charles Grassley (R-Iowa) are on a trail insiders whisper may lead investigators all the way to the top.

Melson, who brought his own attorney with him when he first testified before the House Oversight Committee over the July 4th holiday, continues to allege that DOJ ‘planted’ rumors of his impending resignation in the press prior to that date to force the ATF Director’s hand, and that the present scapegoat strategy to jettison the ATF Director and several US Attorneys closely linked to Fast and Furious is more of the same: a last ditch attempt to stop the House Oversight Committee investigation before Congress homes in on political appointees, who, Melson suggests, devised and implemented Operation Fast and Furious at the behest of higher-ups in the Obama Administration.

Controlled burn: can DOJ contain the damage?

Note to Issa’s Committee

Consider the benefits if someone armed with a Forthwith Subpeona had been waiting to meet Melson on his way out of the building. Just because the man’s been reassigned doesn’t mean he can’t testify before a Grand Jury.

If investigators determine that Fast and Furious was intended to be something other than a bona fide law enforcement operation—an under-the-radar political ploy, for instance, designed to shore up Mexico’s claims that US gun dealers have been responsible for fueling Mexico’s gang wars and to lend support to the push for stronger gun control in the US—then Fast and Furious will stand beside the Iran-Contra scandal as a politically inspired effort devised by officials within the US government to export weapons illegally, in violation of the Arms Export Control Act (AECA), to criminal actors in Mexico.

The Oversight Committee indicates DOJ/ATF officials knew from the beginning there was a high probability the guns ATF let ‘walk’ would fall into the hands of cartel gunmen who would use those guns, not just to murder Mexican nationals, but to attack and kill US citizens as well.

Guns supplied to Mexican gangs have been linked to the killings of US Border Patrol Agent Brian Terry and ICE Agent Jaime Zapata. Just this week, CBS broke a story about an early ‘cover-up‘ on the part of ATF officials and the US Attorney’s Office in Arizona. According to a report filed by Sharyl Attkisson, Assistant US Attorney Emory Hurley, who was at that time simultaneously investigating the Terry shooting and Fast and Furious, chose to conceal the fact that the weapon used in Terry’s murder was one sent across the border via ATF’s gun-walking operation.

Investigators have also linked guns trafficked through the ATF Operation to a number of additional crimes committed in the US; reports supplied to the Committee indicate there was ‘panic’ within ATF immediately after the attack on Representative Gabrielle Giffords (D-AZ), triggered by concern that the weapon used to gun down Giffords might have been one supplied through Fast and Furious.

Export Control Act

The Arms Export Control Act is the same law that brought down the architects of Iran-Contra, officials who facilitated the illegal sales of weapons to Iran and to Nicaraguan rebels (Contras) during the Reagan Administration.

It’s a critical piece of legislation, especially for the ordinary American, who’s usually the one wearing the boots when they hit the ground in bad places. Americans have a hard time with the notion that the bullets, guns, missiles, tanks, and other military hardware the enemy may be using to kill their sons and daughters in the military may have been ‘made in the USA.’

Here’s how it’s supposed to work. The Arms Export Control Act prohibits US arms merchants and defense manufacturers from selling lethal weapons and sensitive or dual-use technology to people who may want to use those weapons and technology to fire back at US citizens—at the military, law enforcement agents, and more and more often, a lot of just plain Americans who routinely miss those signs 80 miles inland on the US side of the Mexico-Arizona border warning tourists to go no further–Mexican gunmen on the prowl.

US weapons cannot be sold and shipped to countries that support terrorism, or nations, states, groups, or other entities deemed unfriendly to the United States.

Los Zetas and US weapons

I’d say Mexican cartels, especially the violent assassination squads that comprise Los Zetas, fall into that category, wouldn’t you?

Even more importantly, the Arms Export Control Act is, in fact, a servant to Article Three of the United States Constitution, which defines the act of selling weapons to those who would ‘levy war against the United States’ or ‘giving aid and comfort to our enemies’ as treason. No kidding. Treason.

If a US law enforcement agency wants to involve itself in the sale of weapons purchased from US gun dealers for export purposes–sales that may be part of an legitimate enforcement or military operation–that agency, let’s say ATF, must apply to the State Department for an exemption from the licensing requirements normally imposed on the commercial sale and export of such weapons. If an enforcement agency or military entity intent on running a covert op involving the export of lethal weapons does not obtain the necessary exemptions from State, for–listen carefully–each weapon or bundle of weapons purchased, that agency or military purchaser has committed a crime. Consider. ATF sent more than 1700 weapons across the border into Mexico–that could translate into 1700+ violations of the Arms Export Control Act.

When arms are purchased as part of a commercial deal from US manufacturers for shipment overseas–when the sale is not part of a law enforcement or military operation–the purchasing agent must apply to State for both a license and an End-User Certificate (EUC). If the EUC is obtained as part of a fraudulent deal, i.e., the guns were never meant to go where the purchaser said they were going, then the export license is automatically deemed null and void. If a commercial buyer does not obtain an export license from State as well as a bona fide EUC, that buyer has committed a crime.

Did ATF violate the Arms Export Control Act?

But let’s give the devil his due, and suppose that Fast and Furious was, in fact, conceived as a legitimate law enforcement operation: the agency, which intended to facilitate the sale of guns from US dealers to agency informants or ATF ‘ringers,’ chosen to act as straw buyers, would have factored in the need to obtain exemptions from the licensing requirements mandated by the US Department of State.

But even before State issued those exemptions to ATF, DOJ/ATF would have had to demonstrate operational accountability, convincing State Department officials and other relevant agencies that Fast and Furious reflected solid planning, measurable objectives, and an endgame which guaranteed that none of the weapons in question would go missing or be used in the commission of crimes.

As we know, that’s not what happened with Fast and Furious.

Ice Agent Jaime Zapata killing linked to Fast and Furious

Congressional investigators tell us that from the inception of the operation, there was no strategy to trace or tag the weapons DOJ/ATF officials knew would cross illegally into Mexico, and no plan to interdict in an alternative manner, or to prevent thousands of deadly fully-functional weapons from disappearing without a trace once they moved across the US-Mexico border.

Instead, federal agents merely entered the serial numbers of the weapons sold to straw buyers (at ATF’s urging) into their database, and went back to the office to wait until Mexican, or US authorities returned these same weapons, by then used in the commission of a crime or a killing, to ATF.

ATF agents had no way of knowing to whom or where those weapons had traveled once they had crossed into Mexico, or who used any specific weapon to commit a crime or homicide. All ATF was able to do, and perhaps expected to do, was count the number of guns they knew for certain (because ATF had arranged the sale) had been purchased at gun shops along the US side of the border.

Does this sound like a gun-tracing operation that went bad? Or a clandestine gun-running operation whose purpose was to retrieve, mostly from Mexican authorities, piles of ‘illegally purchased and trafficked’ AK-47s and other lethal weapons ATF and DOJ could point to as solid evidence that the US has, as Calderon keeps insisting, been responsible for fueling the violence that’s already killed 40,000 Mexican civilians? Was the US responsible for the deaths of Border Patrol Agent Brian Terry and ICE Agent Jaime Zapata?

Who approved the ATF operation?

Ask yourself this question: who ok’d Fast and Furious? What are the chances that an interagency review board, the kind to which every enforcement agency that wants to run a cross-border covert operation goes to for approval, would give a thumbs-up to a plan to smuggle thousands of military-grade weapons into Mexico when there were no provisions in that plan to interdict, or track/trace, or somehow retrieve those guns before they could be used to kill innocent civilians?

Zero.

Why would other law enforcement/intelligence agencies put their heads on the block for a plan that promised to do nothing but send weapons to killers in Mexico and provide the Administration with a tally, after the fact, that proved how deeply involved the US had become in Mexico’s murderous gang wars?

Let’s think about who would have had representatives sitting on this kind of inter-agency review board, ready to yea or nay the ATF operation? DOJ and ATF, obviously. DHS and ICE—the latter has authority for investigating violations of the Export Control Act. Then DEA, the FBI, and the State Department—since State would have had to issue exemptions re the Export Control Act to allow ATF to move the guns into Mexico. DOD? NSA? CIA? Sometimes.

Why so many players?

The easy answer is coordination. But here’s the rest of the story . . .

First, a covert operation involving the trafficking of weapons across the US-Mexico border falls within ICE’s jurisdiction, not ATF’s.

You don’t steal turf in federal law enforcement and walk away unscathed.

If ATF wanted to ‘own’ Fast and Furious, it would have had to strike that deal with ICE and then work out the potential for jurisdictional ‘overlap’ with other enforcement and intelligence agencies as well. All of it before, not after, the operation began.

Let’s say that didn’t happen. No coordination with DHS/ICE. No green light re Fast and Furious from an interagency review board. Bad judgement. Bad form. Bordering on the illegal.

But not a crime.

Big dog in the fight: US Department of State

Did State provide ATF with exemptions to Arms Control Act?

The State Department had, and still has, the really big dog in this fight—that’s why it would have sent a department rep to a review board meeting re Fast and Furious. Play fast and loose with State, and it is, indeed, a crime. A serious one.

It was ATF’s job to make sure State knew it was engineering shipments of AK-47s and .50 cal rifles across the border and ATF’s responsibility under the law to obtain exemptions from State’s licensing requirements to send these guns south. To obtain these exemptions to the Arms Export Control Act, officials at DOJ, ATF’s parent agency, would have had to send a letter or formal request to State.

The State Department would have a copy of that letter or request in its files today, and on it would be the signature/s, no doubt, of one or more of the top three officials at DOJ–the Deputy Assistant Attorney for the Criminal Division, the Deputy Attorney General, or the Attorney General of the United States, Eric Holder. It takes horsepower to obtain authorization to send guns to Mexico.

So, where is that letter, that request for exemptions? Let’s take ATF off the hook.

The State Department isn’t talking, and the media doesn’t yet seem to understand how deafening that silence is.

ATF is talking, but their spin doctors are clinging desperately to a single message: ‘botched operation.’ Not good, but infinitely preferable to admitting Fast and Furious might have been a criminal endeavor, a deliberate effort to circumvent US law and use a US law enforcement agency to pursue political, as opposed to operational, objectives.

Plead guilty to a lesser crime, and cop a plea.

‘Botched operations’ are about ineptitude, not criminality. But ‘botched operations’ start out with good intentions and then go south. Fast and Furious, its intentions, its motive, seems to be about one thing only: supplying arms to Mexican gangs. No tag. No bag.

Listen. Melson, Burke and a slew of carefully selected US Attorneys haven’t been selected for ‘reassignment’ because ATF failed to play well with others, but because the folks who should know do know that an operation launched without the collective approval of an inter-agency law enforcement/intelligence panel was also an operation that engineered the sale and export of thousands of lethal weapons into Mexico in violation of the Arms Export Control Act (AECA)—the law that lends those big sharp teeth, even today, to Article Three of the United States Constitution.

And no one is above the law. Not ATF. Not the Attorney General of the United States. Not the Secretary of State or the President of the United States. You know who said that? Ronald Reagan, when he went on national television to admit his Administration did, in fact, “own Iran-Contra.”

Reagan takes ownership of Iran-Contra

But here’s the problem. When you start drawing comparisons between Fast and Furious and Iran-Contra, the issue ‘gets political.’ Hot. Really. Check out the blogosphere. Not a pretty picture.

One blogger writes that Fast and Furious will never become for the present Administration what Iran-Contra was to Reagan or Watergate was to Nixon. Why? He says the American people ‘love’ Obama,’ while they ‘hated’ Nixon.

A progressive blogger, and yes, even a Democratic Congresswoman, contend that any questions about possible wrongdoing directed toward the Administration are rooted in racism. And then there are the media-skeptics, who accuse writers like myself of stepping over the line with hyperbolic comparisons which are themselves only sub rosa attacks on Obama and his appointees. Stop.

It’s a good thing to support our leaders, to rally behind policies and ideas we think will benefit our country. It’s also a good thing to hold passionate opinions about political positions that we believe will shape our future for better or worse.

But here is the point, the crux of the matter now before us: it is fine to love one’s president, one’s leaders, one’s beliefs, but it is imperative, in this country, to love the law more. Forced resignations, diversionary political rationales, debates about the letter of the law versus the spirit of the law—none of this speaks to the central question. Did ATF, under advisement of its political administrators, break the laws of the United States of America?

Iran-Contra was a criminal enterprise undertaken by officials within a Republican administration–that investigation went to the top and resulted in criminal indictments. The parallels between that scandal and ATF’s Fast and Furious are hard to ignore:

Administration officials devised Iran-Contra in clear violation of the Export Control Act, a law constructed to prevent US manufactured weapons from being sold to the enemies of the US (AECA covered arms shipments to Iran; the Boland Amendment covered the use of proceeds from arms sales forwarded to the Contras)—it appears this may be the case with Fast and Furious as well.

Administration officials facilitating the shipment of arms to Iran failed to obtain licensing exemptions from the State Department—no evidence has materialized that ATF sought or obtained exemptions from State’s licensing requirement before facilitating the shipment of arms, via the ATF ‘undercover operation’ tagged Fast and Furious to Mexico.

The architects of Iran-Contra dissembled to Congress—certainly DOJ/ATF obfuscated with an intent to mislead and deceive. Even Attorney General Eric Holder claims he knew none of the details regarding ATF’s gun-running operation until he was informed that a weapon trafficked via that operation had been used to kill US Border Patrol Agent Brian Terry.

Brian Terry's family attend funeral of slain Border Patrol Agent

Of course, there were important differences between Iran-Contra and Fast and Furious, the most obvious being that none of the guns manufactured in the US and shipped to Iran were used to kill Americans. A slim moral distinction, perhaps, but one I believe that speaks powerfully to critics who will still argue that Fast and Furious will never approximate Iran-Contra in scope or intent. If we look at the consequences of the two scandals, Fast and Furious stands in a league of its own. Ask the family of slain US Border Patrol Agent Brian Terry.

Let’s get to the bottom of this ATF scandal. Stop the games, the professional executions, the subterfuge, the diversionary strategies, and the disinformation that aims to distract the press from the real story.

Administration officials can end this controversy right now. If DOJ/ATF did not break the law, if that agency did obtain exemptions to the Export Control Act, the Department of State will have that information at the ready.

All we have to do is ask.

 

Author

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.

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