Foreign Policy Blogs

Brian Terry, Jesus Diaz, Dakota Meyer: Justice in 2012?

Time’s ‘Person of the Year’ is ‘The Protestor.’ Now, wait a minute, people. Nobody consulted me, but just for the record, my vote goes elsewhere–for US Border Patrol Agents Brian Terry and Jesus Diaz, and former Marine Sergeant and Medal of Honor recipient Dakota Meyer. Why? Because each member of this three-man team put his life on the line to protect the rule of law, to uphold, not challenge it, and he did it not once, not twice, but every day he got up and went out to do his job. I’m thinking an attaboy or two might not be out of place.

Wrong again.

In the end, Terry, Diaz and Meyer found themselves on the sharp end of the stick for their efforts: the US Department of Justice, agencies like DHS and the Department of State, and the usual entourage of corporate and political underwriters, including the government of Mexico, all had a hand in creating scenarios designed to transform good guys into villains, narratives that ended in Terry’s death at the hands of a cartel gunman, Diaz’s imprisonment for ‘exercising excessive force’ during the arrest of a suspected drug trafficker, and in Meyer’s case, the loss of a high-paying job with a multinational defense contractor, and blowback that now has this decorated young veteran on the ropes in the court of public opinion.

Consider–if Terry, Diaz and Meyer had ‘occupied Wall Street’ instead of the killing zones along our SW border and in Afghanistan, they might have been poster boys for the March of History, and on top of it all, alive, free, and gainfully employed.

The Good Die Young

Where do we get these guys? True believers. People who clearly don’t understand how the system works.

Let’s pretend they did understand how the system works, and that when the time came, instead of standing up, Terry, Diaz, and Meyer remained, as do so many of us, seated. Watching out, in other words, for Number One.

Scroll back one year, one month. The US Government does its job (interdicting weapons instead of walking them into Mexico), and 40 year-old Border Patrol Agent Brian Terry, a former Marine and veteran of the war in Iraq, isn’t killed, isn’t murdered, his life doesn’t stop at the end of an AK-47 supplied to a Mexican gunman by Holder’s Bureau of Alcohol, Tobacco, and Firearms (ATF).

Now imagine it’s October, 2008, and a US Border Patrol Agent named Jesus Diaz doesn’t do his job, right? Instead, he conveniently looks the other way when a Mexican teenager hauling a significant amount of marijuana across the US-Texas border wanders onto US soil in search of his criminal contact. He doesn’t apprehend and arrest the suspect, covered with gang tattoos, and most importantly, when the suspect gets out of line, Diaz doesn’t lift his handcuffed hands, forcing the young Mexican into a kneeling position, a technique used by police officers around the world.

As a result, Agent Diaz does not go to jail for two years. He’s not prosecuted by the US Attorney’s Office in West Texas, and is not, today (much to the gratification of the Mexican consul in Texas), sitting in a federal penitentiary in solitary confinement, trying to figure out how to pay an additional fine of 7k on prison inmate wages.

Finally, let’s consider Medal of Honor recipient Dakota Meyer, a former Marine Corps sergeant who saved 36 people (including more than a dozen Afghan lives) during a six-hour ambush in Afghanistan, but who plainly didn’t understand his job when he left the military and went to work for BAE Systems, a British multi-national defense contractor. BAE hired Meyer to work on developing sniper scopes (his specialty) and if the former twenty-something Marine had just kept his mouth shut about which country’s military forces he thought the company should be selling those state-of-the-art thermal imaging scopes to (clearly, not Pakistan’s)–well, then, he’d be in a different place today too, wouldn’t he?

Meyer wouldn’t be in the press, fired from BAE, rejected by another outfit on the basis of a bad (and some say, illegal) reference from BAE. His mother wouldn’t be defending him against far-flung charges of alcoholism, and he would not be pushing back against the kind of stick-to-the wall insinuations that smart businessmen and politicians use to discredit brave men whose exposure to violence so often (and sadly), we are told, clouds their judgement off the field.

Common Ground

Confused?

Ok. Let’s sort this out, focus on the intersections, the common foe, the shared, mistaken assumptions that, for Terry, Diaz and Meyer, triggered so much trouble.

Here’s what the two Border Patrol Agents, Terry and Diaz, have in common: a raw deal from Eric Holder’s Department of Justice, thrown together (look to the Diaz case in particular) at the behest of the government of Mexico.

Here’s where Brian Terry’s narrative intersects with Dakotas Meyer’s–22 U.S.C. 2778, the Arms Export Control Act (AECA) –a critical US law designed to prevent ideologues within the Executive from arming their favorite ’causes,’ and/or greedy defense contractors from trading with nations or hostile entities who may use the weapons sold to them today to shoot back at us tomorrow.

For the family of Border Patrol Agent Brian Terry, 2012 ended with a public plea for ‘justice,’ a cry picked up (human interest for the Christmas edition) by a few reporters apparently eager to transcribe what facts and quotes they were handed and hurry downstairs to the annual office party. The Terry family ‘take’on the Fast and Furious debacle, and the government’s response to it, failed to garner much press.

So let’s review.

Terry’s family wants Obama administration officials held accountable with criminal charges.

“Our priority continues to be the successful arrest and prosecution of all the individuals involved in Brian’s murder,” the family said in a statement. “However, we will continue to press for answers and accountability from our government. Those responsible for such a misguided and fundamentally flawed operation must be held fully responsible for their decisions which allowed so many weapons to flow to the criminal element on both sides of the border. We now believe that if it can be shown that laws were broken, then all those responsible for Fast and Furious should be held criminally liable.”

The Terry family wants to take on the US Government (specifically the Department of Justice), which in the case of Fast and Furious, happens to be both the criminal suspect in the case and the chief investigator into the crime. Good luck with that.

Prosecution Unlikely

Quick recap courtesy of the House Oversight investigation:

First, ATF’s Operation Fast and Furious was never intended or designed to be a ‘gun tracking/tracing’ operation, since there were never provisions in place to allow agents to trace or interdict weapons once they were sold, with the backing of ATF, to straw buyers and allowed to be trafficked, unimpeded, across the US-Mexico border.

Second, ATF never intended the existence of Fast and Furious to become public knowledge; funding requests were buried in larger appropriations requests. Although no tracing or tracking devices were attached to the military-grade weapons that ATF allowed to be trafficked into Mexico, serial numbers were entered in ATF’s eTrace data bank, allowing agents, once weapons had been recovered at crime scenes and returned to ATF by Mexican authorities, to verify that they had been obtained illegally and within a short ‘buy-to-crime’ time frame from US gun dealers. Verification of this kind would offer strong support to Mexico’s claim that gun violence along border regions is fueled by illegal gun sales in the US and lend muscle to cries in the US for stronger gun legislation.

Third, any ATF operation that involved the trafficking of weapons across the US border required Justice to coordinate first with ICE (DHS), the agency with legal jurisdiction for cross-border weapons transfers, and the US Department of State, which is responsible for issuing exemptions to the Arms Export Control Act (AECA). Janet Napolitano, in charge of ICE, denies any knowledge of Fast and Furious, as does Hillary Clinton, Secretary of State. If ATF did indeed walk roughly 2000 lethal weapons across the US border absent waivers from State, the agency and the officials involved would be guilty of violating USC 7228 (AECA)–multiple felonies.

Fourth, Fast and Furious was not a bottom-up operation: Special Agent John Dodson, a field agent in the Phoenix office was the first to claim ‘whistleblower status’ and inform Congress re the existence of the Operation and its consequences–the deaths of roughly 300 people attributable to ATF’s gunwalking operation, including the death of US Border Patrol Agent Brian Terry on US soil. Emails and other documents proving the involvement of DOJ and other admininstration officials in Fast and Furious at early stages of the operation suggests motive and planning at high levels.

These facts, the most pertinent, are already in possession of the House Oversight and Government Reform Committee, and Representative Connie Mack (R-Fla), a member of the House Judiciary Committee, has claimed ATF did violate the Arms Export Control Act in the implementation of Fast and Furious and that actors within the government with links to the operation may be guilty of felonies.

Eric Holder’s Department of Justice and ATF, which operates under DOJ, have been reeling in response to the Congressional inqueries into Fast and Furious, with the usually bottom-up sequence of forced resignations and blame-laying punctuating media reports of middling clarity over the past year.

But the investigation, which has now uncovered sufficient facts about ‘what’ Fast and Furious was all about to be able to move on to the ‘whys’ and the ‘who,’ appears to be foundering: yes, more than 75 members of Congress and every GOP presidential contender has called for Eric Holder’s resignation, but only the Terry family, it seems, has had the temerity to call for the federal prosecution of any government officials involved, via Fast and Furious, in criminal acts.

Hmmm…

Will Politics Trump the Law?

Looks to me like the US government, and that includes the loyal opposition, has a tiger by the tail.

First, there’s the risky business, if someone with the authority was so inclined, associated with opening a criminal investigation into the activities of ATF and the Department of Justice–since, as noted above, DOJ is both the suspect and the investigative authority in this matter.

If Representative Connie Mack (R-Fla) is right about DOJ/ATF violating USC 7228 (and believe me, Mack would not have challenged Hillary Clinton regarding ATF’s criminality in the event they had implemented Fast and Furious without waivers from State if he had not already been absolutely certain the law had been violated), then the responsibility for moving forward with a grand jury belongs either to a special counsel (which it seems the President is unlikely to appoint) or a US Attorney with enough courage and integrity to take on the same agency, DOJ, that wields administrative power over his career and office.

This, of course, is the heart of the matter. Whose job is it to investigate the nation’s top investigators, our own Department of Justice and the federal attorneys who run it? Are they above the law? Can only ‘special’ or top, elite prosecutors investigate DOJ’s senior people? Do the nation’s 96 US Attorneys, prosecutors whose independence is guaranteed by the Constitution, really belong to Eric Holder?

Let me start by pointing out that Senator Lamar Smith (Texas) wrote to President Obama months ago requesting the appointment of a special counsel to look into Fast and Furious.

No reply.

Surprised?

Who Prosecutes the Prosecutors?

According to Counsel for the House Judiciary Committee, Smith’s request reflected the politically appropriate manner in which a member of Congress would make such a request to a sitting President. We’re talking protocol and civility, a toothless but on-the-record stand that our Chief Executive can duly note and dismiss. And it looks like the Chief Executive has done just that.

Options?

Yes, there are some.

What the American people do not seem to understand is that any US Attorney in any district (Texas, Arizona, California, for example) in which a crime linked to Fast and Furious may have occurred, can empanel a grand jury, and if the grand jury produces indictments, that same US Attorney can move forward with the prosecution of suspects allegedly involved in the commission of crimes.

It’s called judicial independence.

What it means is that while the Offices of the US Attorney are linked to DOJ administratively–DOJ pays their salaries, handles personnel matters, etc.–each US Attorney is, in fact, appointed by the President of the United States and, by law, answerable only to him.

This reporting system is designed to ensure that no one, not even government officials at the highest levels, are above the law. It’s designed to guarantee that even an Attorney General of the United States and his deputies cannot escape investigation or prosecution if the facts so warrant.

Now, given that roughly 300 people have been killed with weapons supplied via Fast and Furious, and that State claims no waivers from the Export Control Act were obtained by the architects of the ATF operation, one would think that one of the five Offices of the US Attorney in Texas, (recent Obama appointees and all Republicans), or the Office of the Attorney General in Arizona or California, would have taken the bull by the horns.

But no. In fact just the opposite seems to be true. Pay attention. Not only does the law accord each Office of the US Attorney the discretion to open and pursue an investigation, it also affords each US Attorney the discretion to choose NOT to pursue an investigation–to pass, as it were.

And this is where the distinction between doing the right thing and the politic thing begins to blur.

Yes, sure, DOJ is only an administrative overseer to the Office of the US Attorney, but DOJ insiders, as well as sources on the House and Senate Judiciary Committees paint a similar picture of what might really happen if a US Attorney who owes his or her appointment to Barack Obama did, in fact, decide to pursue an investigation or open an investigation into Fast and Furious.

US Attorney John Doe empanels a federal grand jury (grand jury proceedings would be secret, of course, as required by Rule 6e). The grand jury does indeed arrive, on the basis of an investigation, at a ‘true bill’–indictments are forthcoming, and prosecution is in the offing. US Attorney John Doe moves forward prosecutorially against DOJ or administration officials linked via Fast and Furious to the death of Brian Terry, or anyone killed with a Fast and Furious weapon. Or the US Attorney could decide to prosecute individuals charged with the violation of the Arms Export Control Act.

If you don’t believe me, call up the Office of Public Affairs at Justice and ask them if the Attorney General has the authority to stop a US Attorney anywhere in the United States from opening an investigation into a crime committed in his or her district. Call the House or Senate Judiciary Committee…you might be surprised.

By law, US Attorney John Doe has the judicial independence to do any of the above, to take on anyone tied to a crime enabled by Operation Fast and Furious, and in this hypothetical case, we’re pretending he or she has the cojones to do it.

Why pretend?

Because in the world of realpolitik, US Attorney John Doe would also know that a letter of termination–composed in the White House, but delivered on stationary bearing DOJ letterhead–would at some point make it onto his or her desk, and that simple, administrative ‘personnel action,’ would most probably preclude or end not only the US Attorney’s career, but also any attempt to prosecute a presidential appointee such as the Attorney General of the United States or other highly placed members of the DOJ/DHS/State ‘team.’

One more time. A US Attorney has the judicial independence to empanel a federal grand jury, investigate using the resources of the FBI, or ICE, or whatever entity seems best equipped for the job, to seek indictments, and then to move forward with the prosecution of any individuals whom the evidence suggests may have violated the law. The US Department of Justice also has the power, if the White House gives the nod, to terminate the employment of a US Attorney for ‘administrative’ reasons it will tell you it is under no obligation to reveal.

Symbols instead of Justice for Terry Family in Election Year

So, where do we think this leaves the Terry family?

“The family believes in the rule of law,” said Pat McGroder, the Terry family attorney. “Brian Terry upheld the rule of law and all they want is to ensure that whoever may have criminal culpability as measured by the investigation’s results and the discretion of the U.S. Attorney’s office that whomever may have criminal culpability is brought to answer for those criminal charges. That’s all they’re saying. They’re not pointing the finger, they’re not trying to do the job of the FBI, they’re not trying to do the job of the U.S. Attorney’s office — they’re simply ensuring that that which Brian stood for, and that is upholding the rule of law, in fact does apply to their family.”

McGroder added that another track the family is considering is civil litigation. There aren’t currently any active cases against the administration on that front, but McGroder said he’s looking into whether the family can move down that road.

“There are two tracks: the criminal justice system, and we’ve talked about that,” he said. “The other is the civil justice system and currently we’re investigating whether it would be under the umbrella of the federal tort claim act or whether it be against any other people or entities that may be responsible in and under our civil justice system.”

Charges of Racism Could Scuttle a Presidential Campaign

And then, as you know, there’s the election…

Another reason almost everyone would prefer Holder’s resignation as opposed to an investigation and possible prosecution of an African-American Attorney General who recently told the press that he believes racism, directed at him as well as the President of the United States, is what’s really fueling the controversy surrounding Operation Fast and Furious.

As agitated as GOP members of Congress may be, you can bet that Mitt Romney’s advisors, as well as counselors to other Republican aspirants, took note of Holder’s election salvo. They also understand that the issue most likely to wrench the White House away from its present occupant in 2012 is the economy–that starving beast slouching toward a freer and friendlier Wall Street.

Why chance a Democratic ambush, an emotional distraction based on charges of racism (as Holder has already intimated), when you can focus on the green (not the environmental kind) and win clean? On a platform that includes easing credit (based, of course, on ‘lessons learned’), breaks for small business, ‘genuine’ trickle-down from ‘entreprenuerial opportunities,’ and more, more, more jobs?

The 2012 election doesn’t work to the advantage of the Terry family, who, according to family attorney Pat McGroder “don’t think it’s their place to pick out who should be charged, but they do think justice must be done.”

Again, that nagging question…just who does the Terry family think will point the finger?

If the Republicans win in 2012, the five Republican US Attorneys in Texas, appointed by Obama, as well as their counterparts in Arizona and California, may experience a change of heart, but to what end?

Will a new administration be likely to join a battle after the challengers have already been ousted from office–no matter what ‘crimes’ they may have committed? Or will their disappearance from the stage stand as sufficient ‘justice’ for a new team whose promise about the future of US law enforcement will most likely be ‘not on our watch’?

My bet is that any chance charges may be lodged against the architects of Fast and Furious–or even that the true architects will be identified–will fade the closer we get to the 2012 election.

In the meantime, the Terry family and other victims of Fast and Furious may end up counting themselves lucky to have escaped legal scrutiny themselves. They must have noticed, by now, that the Department of Justice, as well as the Offices of the US Attorney over which Justice ostensibly exerts no judicial control, have done their utmost to conceal, limit, and preclude access to the facts that might offer Pat McGroder any chance to score for his team.

Indeed, the Terry family has issued a statement expressing their gratitude that the case has been moved from the Office of the US Attorney in Arizona (where ATF’s Operation Fast and Furious was headquartered) to the Office of the US Attorney in Southern California, where everybody, including US Attorney Laura Duffy, is so much nicer….

Sure, the Brian Terry case records will stayed sealed in Southern California, just as the Office of the US Attorney dictated they would in Arizona, and Attorney Pat McGroder understands that even in California, even in that ‘good cop’environment, the family’s legal actions cannot in any way overlap or ‘impinge’ upon Justice’s OIG investigation, which is still going on, and might be imperiled if McGroder took it upon himself to forge new trails into the murky undergrowth that begins just before you get to the box marked ‘Attorney General’ on DOJ’s organizational chart.

Here’s the thing–any investigation the Terry family attempts may not resemble in any way an independent investigation into the ‘same facts’ now, we are told, in possession of Holder’s Office of the Inspector General (OIG). You know. National Security and all that.

Seal the Records

So Brian Terry’s case records remain sealed–no doubt ‘to protect’ the Terry family and their attorney in the event the family’s investigation unearths ordnance DOJ fears might explode in the wrong faces.

What does this suggest? That while DOJ cannot prevent the Terry family from seeking legal remedy in the case of their son’s murder, it can attempt to set ground rules restrictive enough to ensure that any justice rendered is symbolic or monetary, incapable of implicating administration principals whose own job descriptions tell us must have been linked to Fast and Furious?

Critics argue that DOJ’s insistence that Terry’s court records, even the docket, remain sealed is an affront, to the Terry family and to the American people.

The precedent, however, sparks even more controversy–the prosecution by the Office of the US Attorney in West Texas of Border Patrol Agent Jesus Diaz, in which case the court documents were also sealed (under pressure from Mexican authorities, some say). Most of us learned about the Diaz case last October, when the Office of the US Attorney announced it had obtained a conviction based on ‘deprivation of rights under color of law,’ the use of ‘excessive force’ when Agent Diaz questioned a Mexican teenager suspected of drug trafficking on US soil, and lifted the gang member’s handcuffs, forcing the suspect to the ground when he got out of line.

Washington Times reporter Jerry Seper sums up the story like this:

Diaz was named in a November 2009 federal grand jury indictment with deprivation of rights under color of law during an October 2008 arrest near the Rio Grande in Eagle Pass, Texas, where agents had responded to a report that illegal immigrants had crossed the river with bundles of drugs. He was convicted on one count of excessive force and five counts of perjury.

The prosecution had been sought by the Mexican government, with the Mexican consulate in Eagle Pass sending a formal written complaint just hours after the arrest, alleging that the teenager had been beaten.

Defense attorneys argued there were no injuries or bruises on the suspected smuggler’s lower arms where handcuffs had been placed nor any bruising resulting from an alleged knee on his back. Evidence presented at trial showed the only marks on his body came from the straps of the pack he carried containing the suspected drugs.

Border Patrol agents found more than 150 pounds of marijuana at the arrest site. The defense claimed that the smuggling suspect was handcuffed after becoming uncooperative and resisting arrest, and that Diaz had lifted the teenager’s arms to force him to the ground – a near-universal police technique.

Does Mexico Pull the Strings?

What’s really noteworthy in the Diaz case is the open admission by Mexico that it pressed for an investigation and indictment even after the Department of Homeland Affairs had ruled that Diaz’s actions were acceptable and appropriate. It was nearly a month and a half later, after Mexico had lodged its complaint with the White House, the State Department, and DOJ, that officials at Customs and Border Protection, under what we assume was pressure from the top, refocused their attention on the matter and allowed Diaz to become the target of the US Attorney’s Office in West Texas.

This is the same Office of the US Attorney that, if it were so inclined, could and should open an investigation into Fast and Furious, an undertaking that US Attorney Robert Pitman, possessed of the judicial independence to either investigate or to decline to investigate, has so far avoided. A reader notes, rightly, that the Office of the US Attorney, West Texas, has historically proved itself a guardian of Mexican, as opposed to US, interests via its investigation and prosecution of US Border Patrol agents over the past decade.

So, the extent to which the government of Mexico shaped the creation and outcome of the Diaz case is nothing new; other instances where Mexico has interfered with US policy and the administration of US law have merely been under-reported. In early March, when Fast and Furious first came to light, Calderon was visiting the White House, and it was then that the Mexican President informed Obama about his displeasure in hearing that less than complimentary comments made by the then-US Ambassador to Mexico, Carlos Pascual, had been disseminated via Wikileaks. A few weeks later, Obama had replaced Pascual.

Jump back to Fast and Furious: designed, critics say, for no other obvious purpose than shoring up Mexico’s talking points regarding the ’90 percent myth’–the claim that 90 percent of the weapons retrieved in Mexico’s drug wars had been sold illegally by US dealers to cartel assassins–the ATF operation begs the question about Mexico’s possible involvement in that effort.

Mexico, and ATF officials assigned to the US embassy in Mexico, claim ignorence of Fast and Furious, but skeptics who insinuate the gun walking operation was the product of anti-gun fervor at home do not rule out larger international involvement with Calderon lurking somewhere in the background.

If Fast and Furious had never come to light, if the operation had succeeded at sending 2000+ military weapons into the hands of Mexico’s cartels, and if those weapons, once having been returned to ATF by Mexican authorities from crime scenes, had been identified as weapons sold illegally by US dealers to Mexican gangs, Calderon would indeed have had solid evidence to support his ’90 percent myth.’

Conspiracy? Coincidence? Collaboration? Was Fast and Furious a US-Mexico construction, inspired by NAFTA, and implemented by people too powerful to believe they might not be able to see the plan through?

Mebbe. Mebbe not. Somebody, please, tell me.

I don’t expect clarification from DOJ’s internal investigation. Terry’s court documents are sealed, as were Diaz’s. Obama is ignoring the request from the Senate Judiciary Committee for the appointment of a special counsel, and every and any US Attorney who might have jurisdiction to open a separate, independent investigation into Fast and Furious seems to have gone fishing. Not for evidence, however, or for the facts.

Mexico, let’s recall, went ballistic in 1998, when US Customs agents uncovered the possible involvement of one of its cabinet members in a massive money laundering scheme–the result was the Brownsville Agreement, a treaty with the force of law signed by Attorney General Janet Reno and her Mexican counterpart to salve Mexico’s outrage at US law enforcement’s violation of its ‘sovereignty.’

Now it requires only a passing suggestion in the press that DEA is suddenly laundering money for cartels, or that the FBI is involved with cartel assassins hired to off the Saudi Ambassador to the US, any wild-eyed diversion, and the Mexicans are on the phone to the White House, venting again.

There are officials in US law enforcement who will tell you, behind closed doors, that when Mexico says ‘jump,’ the US administration says ‘how high?’ They whisper that there is no real border protection, no official policy about the murder of unwary tourists jet-skiing on Falcon Lake, or Border Patrol agents on the SW border, or unarmed ICE agents in-country. Let’s not forget Agent Jaime Zapata, an ICE agent gunned down while traveling in an official US government vehicle by cartel killers in Mexico last year.

I have been told that morale within the ranks of US law enforcement is at an all-time low, and that the US government’s frantic efforts to minimize the threat Mexico’s violence poses to men and women in the field who, like Terry and Zapata, believe their job is to uphold US law, has done immeasurable damage, not just to law enforcement, or to the families of the slain, but to America and the roughly 309 million US citizens who still believe we are a nation of laws.

Resolving Fast and Furious via forced resignations or other political machinations–without a thorough criminal investigation into motive and actors–sealing Terry’s records, Diaz’s court documents, and limiting the investigative options available to the Terry family attorney does one thing only: it increases the impunity of Mexico’s criminal actors and their confidence in the willingness of our government to look the other way to protect a too-valuable-to-the-people-who-count trade agreement. It makes Terry’s death and Zapata’s death meaningless, and it should make our leaders, and the voters who enable their inglorious choices, ashamed.

Dakota Meyer and the Arms Export Control Act (Again)

But’s let talk about Dakota Meyer, who no doubt enters the fray ignorent of the part his actions have played in this wide-ranging drama about law and order, or the questions his concerns as an employee of BAE raised about this nation’s willingness over the years to relax or ignore the restrictions imposed by ITAR, or the Arms Export Control Act.

Former Marine Sergeant Dakota Meyer is a real hero, the recipient of the nation’s highest award for valor, the Medal of Honor, and the New York Times provides a narrative of his heroism here.

In 2009, Marine Corporal Myer and two comrades battled for six hours to rescue troops trapped by an enemy ambush in a ravine near the village of Ganjigal, in Kunar province, Afghanistan. Denied artillery support and left by superiors to “fight it out alone,’ the US and Afghan forces, a number wounded, appeared doomed until Myer, ignoring instructions to stand down, rushed into the ravine five times, bringing the wounded and trapped men out on four occasions, each time under fire from Taliban forces.

Bing West, an author and former Marine who met Mr. Meyer in Afghanistan and covered his valor in a book, “The Wrong War: Grit, Strategy and the Way Out of Afghanistan,” exposed these problems [why Meyer’s superiors failed to respond] and framed Mr. Meyer in an elemental way – as a noncommissioned officer who refused to sit back and listen to other men die.

“Meyer’s performance,” he wrote, “was the greatest act of courage in the war, because he repeated it, and repeated it, and repeated it.”

When the White House called Meyer to tell him he was receiving the award, the young man, now honorably discharged from the military, was working a construction job and was onsite. He asked the White House staff if they could call him back on his lunch hour, when he could talk, and they did. Meyer’s willingness to break the rules to save the lives of his men eventually led to a position with British defense contractor, BAE Systems, but this same regard for what’s right over what’s expected led, in this case, to Meyer’s dismissal from the company.

Meyer, who was working on the design and construction of thermal-imaging scopes, realized that BAE was manufacturing the items–superior, Meyer knew, to anything US Marines had in Afghanistan–for sale to Pakistan’s military. Meyer knew as well, because he had been there, that Pakistan’s army, like so many outfits who freelance for extra cash on the side, were not above using those scopes (a temporary shift in alliance when the price is right) to ambush or fire on US and coalition forces. And Meyer complained–the corporate analogue to rushing the ravine. Only this time, it was Meyer who took a bullet to his career and his reputation.

One can only imagine the panic at BAE when executives who’d believed hiring Meyer had been a real pr coup were faced with an intractable commitment to truth, an ’emperor-has-no-clothes’ moment that called for an ethical and political defense well beyond the contractor’s ken.

BAE had two options: to involve itself in a discussion (guaranteed to be highly publicized) about what many experts have called for years the failure of US arms control (translation: the inability of venal politicians to say no to campaign support provided by unconscionable arms manufacturers ISO maximum profits), or to go after Dakota Meyer, discrediting the man and undermining his objections to the sale of rifle-scopes to shooters he knew from first-hand experience would probably use them to fire back at US marines.

Here’s what the press reports tell us:

As background, and as reported by the Wall Street Journal and others, Mr. Meyer briefly worked with BAE before resigning in protest over their proposed sale of high technology thermal-imaging rifle scopes to the Pakistani military. These scopes were so high tech, according to Mr. Meyer, that it was better than the equipment currently being provided to U.S. combat forces in Afghanistan.

According to the Wall Street Journal, in an e-mail sent to his superiors while still employed at BAE, Mr. Meyer expressed his disapproval of the proposed sale.

“‘We are taking the best gear, the best technology on the market to date and giving it to guys known to stab us in the back,” Sgt. Meyer wrote to [supervisor] Mr. [Bobby] McCreight, according to the lawsuit. ‘These are the same people killing our guys.’

While in the Marines, Sgt. Meyer had served along the Pakistan-Afghanistan border.”

For his honesty Meyer suddenly became something of a pariah, often berated, belittled, and ultimately taunted by his immediate superior about his pending Medal of Honor award.

In a boneheaded public relations move unrivaled since British Petroleum boss Carl-Henric Svanberg assured the world (after the oil debacle off the coast of Louisiana) that his big international company would indeed take care of America’s “small people,” BAE choose to turn on Dakota Meyer–as opposed to suffering the ire of the US Department of State and Hillary Clinton.

Secretary of State Clinton, in case you don’t remember, is the woman Rep. Connie Mack (R-Fla) made clear, during a House Judiciary Hearing, is accountable for the Arms Export Control Act (USC 7228) and responsible when that law falls short of what it’s designed to accomplish, i.e., protect US citizens, law enforcement and our military from being attacked with weapons manufactured by US companies or outfits belonging to US allies.

What Dakota Meyer did was unwittingly ‘blow the whistle’ on US arms sales and export policies so enfeebled that, in many cases, our own State Department acts as the middleman–via its Direct Commercial Sales program–in transactions that send extraordinarily sensitive technologies, as well as state-of-the-art weaponry–to governments, or government officials, we know intend to ‘resell’ or ‘redistribute’ at least part of the buy to rogue actors, criminals, terrorists, or military units whose loyalty, like any skid row hotel room, rents by-the-hour.

In 2011, the government of Mexico purchased enough military hardware, brokered through State’s DCS program, to outfit its military forces three times over. Guatamala, Colombia, Afghanistan, Iraq, Pakistan–none of these ‘allies’ is prohibited from buying the ‘defense items’ its military needs and wants from US manufacturers working cheek-to-jowl with the US Department of State.

Did Meyer understand any of this when he began setting off alarms at BAE?

Of course not.

Meyer spoke up and out, not because he needed to demonstrate an ideological position on US arms control, and not because he suddenly wanted ‘to occupy’ BAE, but because he understood, at some point during his short career with BAE, that the company he was working for was doing something that might bring harm to our soldiers and marines fighting overseas.

He thought, quite remarkably, that BAE might want to know.

Clearly, Meyer hadn’t been following the reports on Fast and Furious.

What happened? BAE, like Meyer’s superiors in Afghanistan, told him to stay out of the fight. Keep quiet. Do what he was told. Because that’s what they were doing, and truth be told–as BAE pointed out to Meyer, the press, and the public–“BAE doesn’t decide to whom it can sell its products…that decision belongs to the US Department of State.” Uh-oh.

Let’s just hope Hillary doesn’t get wind of this…the press says ATF is giving guns to the cartels. All we need is a story about BAE giving ‘superior’ military hardware to people this new guy says are firing back at US forces…

So Meyer is out, but he doesn’t go gently, doesn’t understand the big picture, the generosity BAE demonstrated in hiring him, the embarrassment he might cause the Administration, or the press, the press, the press.

And when he interviews for a job with another defense contractor, BAE spreads the word that Meyer has ‘a bad attitude.’ Go figure. Maybe they should have asked the Taliban forces back in that ravine near Ganjigal about Meyer’s ‘attitude.’ Or paid attention when Meyer told the White House he was on-the-clock at his employer’s construction site, and could they call him back during his lunchbreak?

Let me tell you something–the only ‘mental problem’ from which Meyer suffers is a chronic case of integrity, an inability to distort the truth to accomodate political reality.

Brian Terry, Jesus Diaz, and Dakota Meyer–and their families–are the kind of people who cannot imagine that profit or the prospect of financial/personal gain could persuade our leaders to compromise national security policy or deconstruct our laws in ways that reward those who wish us ill and penalize the men and women who believe it’s their job to keep us safe.

It’s a simple world view, the kind, no doubt, that President Obama celebrated at the White House ceremony when he presented Meyer with the Medal of Honor, or sat down with the 22 year old veteran the afternoon before to drink a beer and ‘just get to know him.’ Somehow I suspect that really didn’t happen, and that when the President left his meeting with Meyer, he was thinking, like so many people, that it was ‘instinct,’ an irrational albeit heroic impulse, that sent Meyer charging into that ravine in Afghanistan, over and over again, to rescue the living and bring back the bodies of four dead marines.

An anomolous attraction to risk.

Think again.

Courage is not an instinct, but an idea. And that same idea about what is right and what is wrong, about what good people do in bad situations, is precisely what made Meyer speak out when it would have served him better to remain silent. It is the idea that made Border Patrol Agent Jesus Diaz confident that he was doing the right thing when he apprehended a trafficking suspect in West Texas. It is the idea that allowed Border Patrol Agent Brian Terry to go out into the night with a weapon loaded with beanbags to face an enemy he probably would not have believed would be armed with a rifle supplied by his own government.

It’s an idea whose time should come.

The only question now is will 2012 be the year?

 

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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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