by Dan Bongino
Why does the process matter? Because what is known in federal law-enforcement jargon as a “PC arrest” (short for probable cause arrest) is a rare and strongly discouraged enforcement tool in the federal system. Police officers at the state and local level use their probable cause arrest authority every day to keep our neighborhoods safe. Yet federal agents, many of whom are former police officers, are strongly discouraged from making this type of arrest. They must follow the established federal procedure of completing an investigation and getting AUSA approval before moving forward with an arrest. If it appears counterintuitive that well-trained, well-educated federal agents cannot do what our police officers on the street do every day, that’s because it is. By nature, a probable cause arrest is unpredictable, and unpredictability is the enemy of our federal justice system. Everyone from the magistrate judges, to the intake AUSA, to the assigned AUSA, to the US Marshal’s Service, which will handle the prisoner, are all on relatively consistent work schedules. The fastest way to get on the bad side of the United States Attorney’s Office is to start making PC arrests late at night without having thoroughly exhausted all investigative avenues, completed mounds of paperwork, and made an appointment with the AUSA for an arrest. Yes, an appointment.
Unless the case is a justifiable emergency, a PC arrest is a virtual career death sentence. It is likely that none of your future cases will be accepted for prosecution if you get on the bad side of an AUSA. In this system the AUSA has broad latitude, and the PC arrest scenario is just one example of the power they hold. Based on my experience, I am confident that this power structure played a pivotal role in the tragic Fast and Furious operation.
The generally held belief around the operation, which has been supported by the media, is that ATF agents let guns “walk,” i.e., be purchased illegally and not tracked, and this misstep led to the tragic death of Brian Terry. After reading and analyzing multiple accounts of the circumstances surrounding the investigation, I do not believe this to be the case. From all accounts, the seven ATF agents of Group VII, led by case agent Hope MacAllister, were dedicated, nonideological federal operators genuinely trying to stop illegal gunrunning into Mexico. Allowing guns to “walk” is not a sanctioned investigative tactic, and I do not believe this was Group VII’s intention.
The trafficking of firearms from straw buyers is a federal crime, but if there is no one willing to prosecute the case, then it has the same effect of a tree falling in the woods—no one can hear it. Katherine Eban of Forbes magazine states in her June 27, 2012, piece that, “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.”
In my experience investigating similar cases at the federal level involving the purchasing of contraband, Assistant United States Attorney Emory Hurley, working with MacAllister and the agents of Group VII, could have easily moved forward with prosecution. The evidence in the case was overwhelming. It included the repeated cash purchases of expensive firearms by purchasers with no financial ability to support this type of activity. In the summer of 2010, a straw buyer cooperating with Group VII agent John Dodson delivered weapons to a suspected gun trafficker and provided wiretap recordings of the illicit transactions, and still no arrests were made. Former ATF attaché in Mexico Darren Gil may have stated it best when, in response to questions on the progress of the investigation, he said, “Again, spring time it got to the point of … at what point are we going to close this investigation down? I mean, after 500 or so seizures I think you should have enough data collection on what you’re trying to show or prove. It was my position, it was Chief [Dan Kumor’s] position as well. He says, yeah, you’re right. And he goes, ‘So when are they going to close this down?’ And we were both on the same position there that this thing needed to be shut down.”
Never in my experience as a federal agent have I heard of an investigation with this much evidence and no indictments or arrest warrants. Receiving judicial approval for a federal wiretap alone takes an enormous amount of evidence. Every practical tool in the investigative toolbox must be exhausted before a federal judge will approve a wiretap. The fact that Group VII acquired wiretap authority indicates to me that the case had proceeded far past the stage of just reasonable suspicion and was known to DOJ headquarters. Any efforts by DOJ headquarters to claim ignorance of the case details prior to the tragic death of Agent Terry are suspicious at best. In the spring of 2010 the application for the federal wiretap was signed on behalf of Assistant Attorney General Lanny Breuer through DOJ’s Office of Enforcement Operations.
In a perfect world, the agents of Group VII would have ended the stream of weapons crossing the border and made probable cause arrests like any local police officer. But, it is not a perfect world, and in federal law enforcement an ever-growing army of agents insulated within competing agencies and rarely interacting with each other are forced to compete for the limited time of the US Attorney’s Office, and you cannot afford to find yourself on the receiving end of their wrath or you will be ignored. Combine this dynamic with the bureaucratic DOJ and its constantly expanding layers of hierarchy designed to insulate those at the top from having to take any responsibility for what is actually happening on their watch and you have the ingredients for a tragedy.
Solidifying my suspicions that probable cause was abundant and arrests should have taken place is the fact that within twenty-four hours of the death of Border Patrol Agent Brian Terry, an arrest was made. Jaime Avila, suspected of purchasing two of the weapons found alongside the body of Agent Terry, was arrested, and nineteen additional suspects were indicted two weeks later on January 19, 2011. Does this make sense to you? Seven veteran ATF agents investigate a gun trafficking ring for nearly a year, using every tool available to modern law enforcement, and they cannot develop a legally sound case? But magically, within twenty-four hours of Agent Terry’s murder, DOJ and the Arizona US Attorney’s Office decide the case is worth prosecuting. This reeks of prosecutorial laziness, ineptitude, and arrogance.
I am confident that the US Attorney’s Office was anxious about potentially losing the case if it went to trial, despite the reams of evidence, and chose to let the case fester. The insensitive DOJ bureaucracy and the diffused responsibility incentivized the US attorneys to produce strong prosecution numbers that can be marketed politically, rather than pursue cases that have more value to the public. They were moved to action only when they realized that there would be severe political ramifications after the highly publicized death of Agent Terry and from the investigation that would follow. Their laziness and lack of integrity had real-world consequences, and despite the numerous warnings from the ATF agents on the ground who were sounding the alarms, the DOJ acted only when there was a political cost to pay.
The ATF agents of Group VII were forced into a losing proposition by the US Attorney’s Office. They could not arrest the suspects, even though they had more than enough evidence, because probable cause arrests were frowned upon by the AUSA. But they could not abandon the case and allow the weapons trafficking to continue unabated. Regardless of the ATF’s actions, guns were going to “walk” across the border, and prosecutorial and bureaucratic ineptitude would be to blame. No federal agent ever wants to be in this kind of scenario, where bloodshed is the result of a crime you know you could have prevented.
In addition, Department of Justice headquarters cannot claim that they were unaware of the potential danger of inaction, because AUSA Joe Cooley was briefed personally on the significance of the case on March 5, 2010. Cooley attended the meeting at ATF headquarters on behalf of Assistant Attorney General Lanny Breuer and was briefed by Group VII supervisor David Voth on the troubling specifics of the case. According to ATF officials, the attendance of a DOJ headquarters representative at these briefings was unusual. In addition, according to the Joint Staff Report produced for Congress, the spe
cial agent in charge of the ATF’s Dallas office, Robert Champion, expressed anxiety about the growing number of weapons sourced to Fast and Furious. During a video conference he asked, “What are we doing about this?”
DOJ headquarters, represented at the meeting by AUSA Cooley, stated in response that the volume of the illegal trafficking was “an acceptable practice.” It was not.
A media frenzy ensued when it was uncovered that Fast and Furious weapons were used in the slayings of Mexican citizens; however few in the media bothered to ask if Fast and Furious guns were used on US soil. It continues to baffle me why this question has eluded many investigative journalists. With over a hundred high-powered weapons recovered from crime scenes in Mexico, based on my analysis of the data in this case, that must be the tip of the iceberg.
Here are some of the data that I believe show that Fast and Furious weapons have been used on United States soil, and that the DOJ bureaucracy knew about it and did nothing to stop it:
On January 13, 2010, agents in the ATF’s Dallas office seized forty weapons in El Paso, Texas, that were traced back to a straw purchaser who was the subject of Group VII’s Fast and Furious investigation. ATF agents suspect that these weapons were being used by Mexican cartel operatives to help gain control of a prolific drug trafficking corridor.
An analysis of publicly available trace data from the ATF points to a suspicious pattern of weapon recoveries at crime scenes. Prior to the initiation of the Fast and Furious investigation in 2009, it was relatively uncommon to recover a weapon from a crime scene in New York that had originally been purchased in Arizona. Yet in 2010, after the case began, Arizona rose into the top fifteen sources for weapons recovered at New York crime scenes and remained so through 2011.
The number of firearms recovered from crime scenes in Texas, and sourced to Arizona, numbered 56 in 2009, making it the eleventh largest source of recoveries by state. Yet in 2010, Arizona-sourced recoveries more than doubled to 128, moving Arizona up to the third largest source state for recoveries.
Firearms recovered from crime scenes in California, and sourced to Arizona, numbered between 832 and 846 from 2008 to 2010, yet jumped to 995 in 2011.
According to a Joint Staff Report produced for Congress and released on July 26, 2011, ATF Group VII supervisor David Voth sent an e-mail to William Newell, who was then special agent in charge of the Phoenix office, at 7:22 p.m. on Thursday, December 16, 2010, incredibly stating that 350 weapons were recovered within the United States that could be sourced to the Fast and Furious investigation.*
When looking at these data, it is not difficult to conclude that these weapons were not only found but used on American soil, despite the lack of media coverage on the topic. Federal restrictions prevent trace-data specifics, such as the federal firearm licensee who sold the firearm, from being publicly released, but it is my unfortunate conclusion that the connection eventually will be made. One of these weapons is going to be tied to a crime on United States soil. It is only a matter of time. This dangerous consequence of the Department of Justice’s failure to vigorously and promptly act on the illegal trafficking of high-powered firearms has shocked some, but sadly it does not surprise me.
21
BENGHAZI: WHO GAVE THE ORDER TO STAND DOWN?
DURING MY TWELVE-YEAR CAREER as a special agent with the United States Secret Service, I was honored to serve with some of the finest military and law-enforcement personnel in the world. I was consistently humbled by the character of the men and women in our military who, for little money and even less fame, agree to protect this nation with their lives so millions of Americans can sleep peacefully at night. The battle-hardened special operators who served as a counterassault team in Indonesia and were willing to perform any task in service to our mission of keeping the president safe, and the Delta Force operator in Afghanistan whose blank stare clearly captured the emotional suppression of all he had seen and done in service to our country, served as inspiring portraits of courage and sacrifice for me.
Although being a Secret Service agent is an extremely stressful position, I never felt underappreciated or undercompensated, and I always regretted the fact that my words of thanks to the members of our military whose paths I would intersect never really captured the true depth of my appreciation. These men and women work long hours under the harshest of conditions and in the most dangerous environments in the world, and all for little pay. My brief and sometimes incomplete words of appreciation were a small token of gratitude to a group of men and women who deserve far more.
When I initially heard on the news about the tragic events in Benghazi, Libya, on September 11, 2012, I assumed it was a mistake or poor reporting. Having been assigned to many protective details for foreign leaders, dignitaries, and of course the president, I had a long history of working with the Diplomatic Security Service, the security and protection branch of the US Department of State. The reports that the ambassador to Libya, Christopher Stevens, was unaccounted for were unbelievable to me. I could not imagine a scenario in which an ambassador would be missing and possibly dead under their watch.
The Diplomatic Security Service is an elite group of men and women who surely had a fully equipped and fully manned security team on the scene, given that they were conducting operations in an active conflict zone. I was also shocked by reports of the alleged communication breakdown during the assault on our diplomatic mission in Benghazi. From my years in the White House constantly shadowing the president, I saw how he and his top officials had instantaneous access to information. When anything significant occurs, the president or a pertinent cabinet member is made aware of it by multiple means of communication. They receive e-mail, phone briefings, personal briefings, and a near-endless supply of briefing documents, which are constantly updated. The alleged lack of information filtering up to the president and secretary of state regarding the unfolding emergency in Libya was in direct conflict with my personal experience within the walls of the eighteen-acre White House complex.
Analyzing Benghazi as someone who has experienced the behind-the-scenes workings of the White House and made a career of managing risk and mitigation, there are three specific areas of concern that I found especially alarming, and they all relate to the DC web of bureaucracy getting in the way of operations on the ground. First, the inadequacy of the security detail was not at all commensurate with the threat level in an active conflict zone. Second, the information stream disseminated by the White House and other administration surrogates was not consistent with any prior crisis-management message strategy I ever witnessed in two presidential administrations, and it directly conflicted with the accounts of personnel on the ground and even with information coming from within the government. Third, the survivors of the Benghazi attack seemingly disappeared and were not made readily available to either the media or our elected representatives for questioning.
My first concern centers on the assigned protection team and the security plan in place on the night of the attack. When a United States government official is assigned a protective detail from the growing army of siloed and distinct federal agencies that provide this service, manpower and equipment are allocated according to a threat assessment based on intelligence reports. This assessment is a thorough analysis of the current and potential threats that could endanger the protectee and any support personnel. It takes into account the protectee’s diplomatic status, the geographic environment he operates in, and his potential value to our enemies as the target of an attack. Using this methodology, the agents who design the protection plan can determine the number of agents to assign to the protective detail; the weaponry they carry; the number of vehicles required and the armor capabilities of those vehicles; the number, if any, of special weapons teams to assign; the use of military assets, to include special ops forces if necessary; the level of security necessary at the physical sites where the protectee will live, work, and visit; and a multitude of other details that encompass the art of building a we
ll-designed security plan.
I worked often with the superb agents of the Diplomatic Security Service and was immediately surprised to learn from a friend that there was no Mobile Security Deployment (MSD) tactical team assigned to Ambassador Stevens while he was in Benghazi on the night of September 11, 2012. This cadre of highly trained special weapons operators normally serves on high-risk protection details and carries advanced weapons designed to thwart and counter any potential attack against a high-value target. Why were these men, the best-trained and most highly skilled protection agents the DSS has in its arsenal, not being used when a United States ambassador was present in an active conflict area? As many as twenty-one members of this skilled unit were in Libya less than a year earlier with former ambassador Gene Cretz. Why were they removed?
It is clear that officials within the DSS knew the security footprint assigned to Ambassador Stevens was insufficient, and despite their warnings and requests, the deficient protection plan tragically persisted. Ambassador Stevens was aware of the inadequate security and expressed concerns with the loss of the MSD teams when he wrote in a May 2012 e-mail to State Department official John Moretti that he and his team “would feel much safer if we could keep two MSD teams with us through this period.” The request was denied.