Saturday, July 7, 2012

Fast and Furious fact and fiction: major media organizations bungle story

Operation Fast and Furious and 
the subsequent “fury” that the operation has caused in certain circles in Congress is not new. However, the operation has become a full-blown scandal in recent weeks, with 17 Democrats joining Republicans voting to hold Attorney General Eric Holder in Contempt of Congress. In the meantime, something else has come to light: that all of the charges of “gunwalking” are completely fabricated.

That’s right. Its the phrase you’ve heard over and over again. Gunwalking. The Bureau of Alcohol, Tobacco, Firearms, and Explosives knowingly allowed guns sold in Arizona to end up across the border as an operational tactic. Unanimously it seems, reporters, relying heavily on the testimony from the GOP-lead Congressional inquiry, got it wrong. One reporter got it right. Katherine Eban, reporting for Fortune, finally set the record straight after an exhaustive six month investigation. ATF agents did not allow guns to be trafficked to Mexico and they did not “lose” guns, as has been widely reported. Phoenix Group VII agents were actually powerless in many cases to intervene and seize guns from straw purchasers due to conflicts with Arizona statutes regarding the “transfer of arms,” a “lack of adequate tools,” cautious senior prosecutors, and a new agency-wide focus on bringing down gun running conspiracies, rather than focusing on low-level straw purchasers. Much of the mass media misreporting on Operation Fast and Furious revolves around three big lies:
  1.  The ATF Knowingly or willingly allowed “gunwalking,” resulting in “losing” some 2,000 guns.
  2. The Justice Department lied to Congress about the details of the program.
  3. The operation was a ploy by the Obama Administration to scare the public into approving an assault weapons ban.
 Hundreds of news articles say that the ATF either lost guns, allowed “gunwalking,” or imply that the guns were allowed to be sold “illegally.” This report, dating Aug. 11, 2011, from the LA Times went as far as to say that the ATF allowed illegal sales of firearms. 

The quality of the entire article is questionable, as the sensational headline “Supervisors in ATF gun operation are promoted,” was corrected some five days later. 

Bloomberg fared little better in accuracy in this story dating Dec. 02, 2011. Take a look, it’s full of loaded language, including the outright assertion that agents lost guns and “allowed” 2,000 guns to be carried away. The report also draws heavily from the June 2011 congressional report on the operation, the joint efforts of Senator Chuck Grassley (R-IA) and Representative Darrell Issa (R-CA).

When the scandal first broke, Arizona Attorney General Dennis Burke denied that ATF agents participated in “gunwalking.” From there, Justice Department officials informed Senator Grassley that the “ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” The scandal continued to grow, complete with loaded language coming from Republican members of Congress, which spread throughout media reports. Burke later resigned. However, the Justice Department made a significant effort to correct the erroneous notions perpetrated by Issa and Grassley. (Again from the same Bloomberg report entitled “Erroneous Gun Letter Based on US Attorney, Documents Show”).  

This is yet another article relating to the Fast and Furious scandal whose headline should be completely recanted. The article’s author (Jonathan D. Salant) makes it clear that the only information challenging the ATF, US Attorney General and Justice Department version of events is sourced from a singular congressional report. The reporter did not put in the time to investigate for themselves who was telling the truth. This is what Fortune’s Katherine Eban did. In good journalism, you don’t just publish such strong “allegations” without figuring out who the allegations are coming from (i.e. partisan members of Congress hell bent on a cognitive-dissonance fueled witch hunt), and without finding out if the allegations are remotely true. In this case, journalists from the major papers and news broadcasters failed to do this. Instead, they repeated the empty allegations and outright assertions that the ATF allowed “gunwalking,” and that the Arizona Attorney General and the Justice Department (including US Attorney General Eric Holder) lied to Congress about the supposed “sanctioned” gunwalking. The story really blew up after CBS Evening News picked it up.

Even Jon Stewart failed to get the details right when he ripped into the Obama administration over the ATF’s “Fast and Furious” gun tracking operation that had been taking place in Arizona.

The story has become so convoluted, that as both Stewart and Maddow point out, a whacked-out conspiracy theory has taken hold. And it’s coming from Darrell Issa, one of the same Congressmen who put together the congressional report that contained the initial allegations of gunwalking and sanctioning of illegal gun sales.

What Good Journalism Has Revealed

There must be some mass mediated assumption that tracing guns in an operation as sexy sounding as “Fast and Furious” involves Mission Impossible technology and 24 tactics. Well, this isn’t Hollywood, so to speak. The agents involved in Operation Fast and Furious weren’t sitting in a futuristic computerized base tracking geo-tagged AK-47’s in real time. In actuality, the Phoenix Group VII agents were going to dozens of gun stores in person to collect sales information, because keeping a comprehensive real-time digital database of guns sales is prohibited by Congress. Once the serial numbers, buyer’s information and buyer’s certificates were collected, the agents then entered it all into their database of suspect sales by hand. If the guns that were sold to straw purchasers began showing up at crime scenes or busts, or over the border or in seizures, the database would reflect where they originally came from and who purchased them. The agents then could establish patterns and narrow down their list of strawman purchasers for additional surveillance (and weapons seizures where possible). This was just one of many setbacks detailed in Eban’s report that prevented Phoenix Group VII from tracking the weapons efficiently and stopping the flow of weapons. The other major setback: lax Arizona gun laws. According to Eban:

By January 2010 the agents had identified 20 suspects who had paid some $350,000 in cash for more than 650 guns. According to Rep. Issa's congressional committee, Group VII had enough evidence to make arrests and close the case then.

Prosecutors: Transferring guns is legal in Arizona

This was not the view of federal prosecutors. In a meeting on Jan. 5, 2010, Emory Hurley, the assistant U.S. Attorney in Phoenix overseeing the Fast and Furious case, told the agents they lacked probable cause for arrests, according to ATF records. Hurley's judgment reflected accepted policy at the U.S. Attorney's Office in Arizona. "[P]urchasing multiple long guns in Arizona is lawful," Patrick Cunningham, the U.S. Attorney's then–criminal chief in Arizona would later write. "Transferring them to another is lawful and even sale or barter of the guns to another is lawful unless the United States can prove by clear and convincing evidence that the firearm is intended to be used to commit a crime." (Arizona federal prosecutors referred requests for comment to the Justice Department, which declined to make officials available. Hurley noted in an e-mail, "I am not able to comment on what I understand to be an ongoing investigation/prosecution. I am precluded by federal regulation, DOJ policy, the rules of professional conduct, and court order from talking with you about this matter." Cunningham's attorney also declined to comment.)

It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party,  sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn't necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn't mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.

The difficulty for the Group Phoenix VII agents was in proving that the guns purchased by straw men were intended to be used for illegal purposes. Criminal intent was nearly impossible to prove when it was perfectly legal to buy mass quantities of guns and resell them to anyone with no paper trail. On nearly every story you read on this matter, the phrase “transfer of arms” is repeated, but not put into context. It’s difficult to nail straw purchasers because there is no federal gun trafficking statute on the books. Operation Fast and Furious prosecutors and agents found themselves between the proverbial rock and a hard place. Straw purchasers were practically untouchable legally, as Federal Sentencing Guidelines categorize the crime as a lesser offence. As a result of the difficulty in prosecuting straw purchaser cases and the considerably light punishment that does comes with a conviction, the ATF shifted its efforts to surveillance and intelligence gathering. Agents seized guns when possible, but otherwise backed off of the straw purchasers in favor of going after those higher up in the illegal gun running conspiracy.

None of the ATF agents doubted that the Fast and Furious guns were being purchased to commit crimes in Mexico. But that was nearly impossible to prove to prosecutors' satisfaction. And agents could not seize guns or arrest suspects after being directed not to do so by a prosecutor. (Agents can be sued if they seize a weapon against prosecutors' advice. In this case, the agents had a particularly strong obligation to follow the prosecutors' direction given that Fast and Furious had received a special designation under the Justice Department's Organized Crime Drug Enforcement Task Force. That designation meant more resources for the case, but it also provided that prosecutors take the lead role.)

In their Jan. 5 meeting, Hurley suggested another way to make a case: Voth's team could wiretap the phone of a suspected recruiter and capture proof of him directing straw purchasers to buy guns. This would establish sufficient proof to arrest both the leaders and the followers.

Within days, plans had been drawn up by Dave Voth, Fast and Furious supervisor to the ATF, to begin wiretap operations on their suspected straw purchasers. This would obtain the necessary information to prove criminal intent. Yet, the application was delayed for weeks. The Operation fell apart when two of the guns that were being tracked by agents were recovered at a crime scene in which Border Patrol Agent Brian Terry was killed on December 14, 2010.

Do the myriad news articles on this subject mention the additional details that have only been revealed through extensive journalistic investigations? No. This is a big problem. This story has been Spun so many times that it’s hurdling off in hundreds of pieces. Republican members of Congress have stated that the operation was meant to scare the American public into accepting stricter gun laws, while comparisons to “watergate” have also been made by the same partisans. It was not too long ago that Republican operatives successfully hunted the heads of Van Jones, Shirely Sherrod, and ACORN.

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