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OPERATION FAST AND FURIOUS: RECKLESS

DECISIONS, TRAGIC OUTCOMES

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 15, 2011

Serial No. 112–64

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

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C O N T E N T S

Page

Hearing held on June 15, 2011 ............................................................................... 1

Statement of:

Grassley, Hon. Charles E., ranking member, Committee on the Judiciary,

U.S. Senate .................................................................................................... 10

Heyer, Robert, cousin of late Border Agent Brian Terry; Josephine Terry,

mother of late Border Agent Brian Terry; Michelle Terry Balogh, sister

of late Border Agent Brian Terry; John Dodson, Special Agent, Phoenix

Field Division, Bureau of Alcohol, Tobacco, Firearms, and Explosives;

Olindo ‘‘Lee’’ Casa, Special Agent, Phoenix Field Division, Bureau of

Alcohol, Tobacco, Firearms, and Explosives; Peter J. Forcelli, Group

Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms, and Explosives .................................................................................... 86

Casa, Olindo ‘‘Lee’’ .................................................................................... 100

Dodson, John ............................................................................................. 96

Forcelli, Peter J. ........................................................................................ 107

Heyer, Robert ............................................................................................. 86

Weich, Ronald, Assistant Attorney General, U.S. Department of Justice ... 154

Letters, statements, etc., submitted for the record by:

Casa, Olindo ‘‘Lee’’, Special Agent, Phoenix Field Division, Bureau of

Alcohol, Tobacco, Firearms, and Explosives, prepared statement of ........ 103

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 131

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland:

Letter dated June 15, 2011 ...................................................................... 178

Prepared statement of ............................................................................... 8

Dodson, John, Special Agent, Phoenix Field Division, Bureau of Alcohol,

Tobacco, Firearms, and Explosives, prepared statement of ...................... 98

Forcelli, Peter J., Group Supervisor, Phoenix Field Division, Bureau of

Alcohol, Tobacco, Firearms, and Explosives, prepared statement of ........ 110

Gosar, Hon. Paul A., a Representative in Congress from the State of

Arizona, prepared statement of ................................................................... 150

Grassley, Hon. Charles E., ranking member, Committee on the Judiciary,

U.S. Senate, prepared statement of ............................................................ 14

Heyer, Robert, cousin of late Border Agent Brian Terry, prepared statement of ........................................................................................................... 90

Issa, Chairman Darrell E., a Representative in Congress from the State

of California, prepared statement of ........................................................... 4

Kelly, Hon. Mike, a Representative in Congress from the State of Pennsylvania, prepared statement of .................................................................. 141

Weich, Ronald, Assistant Attorney General, U.S. Department of Justice,

prepared statement of ................................................................................... 157

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OPERATION FAST AND FURIOUS: RECKLESS

DECISIONS, TRAGIC OUTCOMES

WEDNESDAY, JUNE 15, 2011

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10:05 a.m., in room

2154, Rayburn House Office Building, Hon. Darrell E. Issa (chairman of the committee) presiding.

Present: Representatives Issa, McHenry, Jordan, Chaffetz, Mack,

Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan,

DesJarlais, Gowdy, Ross, Guinta, Farenthold, Kelly, Cummings,

Towns, Maloney, Kucinich, Tierney, Clay, Lynch, Connolly,

Quigley, and Yarmuth.

Staff present: Linda Good, chief clerk; Molly Boyl, parliamentarian; Steve Castor, chief counsel, investigations; Carlton Davis,

Henry J. Kerner, Jessica L. Laux, counsels; Kate Dunbar, staff assistant; Jean Humbrecht, professional staff member; Ashok M.

Pinto, deputy chief counsel, investigations; Jonathan J. Skladany,

senior investigative counsel; Beverly Britton Fraser, Justin Kim,

Scott Lindsay, Donald Sherman, and Carlos Uriarte, minority

counsels; Kevin Corbin, minority staff assistant; Ashley Etienne,

minority director of communications; Jennifer Hoffman, minority

press secretary; Carla Hultberg, minority chief clerk; Chris Knauer,

minority senior investigator; Dave Rapallo, minority staff director;

and Susanne Sachsman Grooms, minority chief counsel.

Chairman ISSA. The committee will come to order.

We exist to secure two fundamental principles: First, Americans

have a right to know that the money Washington takes from them

is well-spent. And, second, Americans deserve an efficient, effective

government that works for them. Our duty on the Oversight and

Government Reform Committee is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers,

because taxpayers have a right to know what they get from their

government. We work tirelessly, in partnership with citizen watchdogs, to deliver the facts to the American people and bring genuine

reform to the Federal bureaucracy.

The mission of the Bureau of Alcohol, Tobacco, and Firearms is

to protect our communities from violent criminals, criminal organizations, and the illegal use and trafficking of firearms. Since the

Gun Control Act of 1968, the ATF has been organized as a unique

law enforcement agency that Americans could trust to reduce the

illegal transfer of guns into the hands of criminals.

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Today’s hearing concerns a breach of that trust that has left

countless innocent Mexican citizens and at least one Federal Border Patrol agent dead.

In 2009, the ATF began allowing straw purchasers to walk guns

into Mexico, believing that this initiative would help them track

the use of firearms by higher-ups within the Mexican drug cartels.

Guns instead were being seized and allowed to cross the Mexican

border without the knowledge of the Mexican Government. This effort failed.

Over strong objections of the ATF field agents, the program continued. And approximately 2,000 AK–47s and derivatives, and

some .50-caliber sniper rifles and others, and 10,000 or more

rounds of live ammunition went into the arsenals of the Mexican

drug lords.

Despite these strong objections by field agents, Operation Fast

and Furious continued. And not only did it continue, but those at

the highest level of ATF showed great interest in the program. A

document, displayed on the screen now, shows that two of the most

senior leaders in ATF, Acting Director Kenneth Melson and Acting

Deputy Director Billy Hoover, were being briefed weekly on Fast

and Furious. The documents show that both Melson and Hoover

were keenly interested in the case and updates.

A second document shows Deputy Assistant Director for Field

Operations William McMahon was so excited about Fast and Furious that he received a special briefing on the program in Phoenix

scheduled a mere 45 minutes after his plane landed.

A third and perhaps the most disturbing document, indicates

that Acting Director Melson was very much in the weeds with Operation Fast and Furious. After a detailed briefing on the program

at the ATF field division, Acting Director Melson had a plethora of

follow-up questions that required additional research to answer.

And as documents indicate, Mr. Melson was interested even in receiving the IP address for hidden cameras located inside cooperating gun shops. With this information, Acting Director Melson was

able to sit at his desk in Washington and, himself, watch a live

feed of straw buyers entering the gun stores and purchasing dozens

of AK–47 variants.

Earlier this month, the Mexican Government reported that more

than 34,000 lives have been lost in the 41⁄2 years, and scores of others remain missing. Last year, 111 U.S. citizens were killed in

Mexico, which has been the most violent year in the drug war’s history, according to the U.S. State Department.

When Senator Chuck Grassley, who we welcome here today, and

I first learned about Operation Fast and Furious earlier this year,

we were both shocked that such a brutal and reckless, and blatantly reckless, program had ever been conceived, authorized, or

executed by Federal law enforcement. Candidly, at first I believed

that it had to be, as it was being alleged, an operation that was

a few loose cannons and could not have been possibly properly

briefed.

Last night, Senator Grassley and I released a joint report from

the investigation entitled, ‘‘Operation Fast and Furious: Accounts

of the ATF Agents.’’ After these accounts, after the many depositions that have been taken, the witnesses that have come forward,

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the whistleblowers, if you will, it is now clear this was not rogues

at a local level—just the opposite. What we find is that people at

the local level overwhelmingly objected to this program but were

assured that it was approved at the highest levels.

Today, we will hear from the family of Agent Terry about how

Fast and Furious devastated their lives. And we will hear from

ATF agents who saw the risk, opposed the program, and have come

forward to tell the American people what happened.

The American people have a right to know the facts about Operation Fast and Furious, and Congress has a responsibility to find

and reveal those facts. Thus far, more than 30 Democratic House

Members have joined Senator Grassley and myself in calls for the

truth.

I hope this will continue to be a bipartisan effort. I believe that

in spite of slowness to react by the administration, there has now

become a focus on getting the truth out in a more timely fashion,

allowing the families to understand how it happened, and hopefully, working together with Senator Grassley and this committee,

to ensure it never happens again. That includes holding those

whose judgment was so poor accountable.

And, with that, I recognize the ranking member for his opening

statement.

[The prepared statement of Chairman Darrell E. Issa follows:]

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Mr. CUMMINGS. Thank you very much, Mr. Chairman. And I

thank you, Mr. Chairman, for holding this hearing.

I would like to start by saying a few words directly to the members of the Terry family who are here today. Over the past week,

my family suffered a horrific tragedy that, in some ways, is similar

to your own.

Nobody can really know how that feels until they go through it

themselves. On the one hand, you want the criminals who did this

to be brought to justice as fast as possible. You want them punished for what they did, for who they took from you. On the other

hand, that is after the fact. It simply will not bring them back. So

you also want answers. You want to know whether something

could have been done to prevent their death, and you want to prevent it from happening to anyone else in the future.

I want to tell you that I know how you feel, and I want to help

as much as I can. Of course, we want the prosecutors to succeed

in bringing the perpetrators to justice. You also deserve direct and

straightforward answers from your government. Working together,

we can and must achieve both of these goals. And so I thank you

for being here today.

Now, let me welcome Senator Grassley. Your reputation as a defender of good government transcends party lines. I have always

been impressed by your determination, and I welcome you here

today.

And you said something in your statement, in your written statement, that I totally agree with and I want to reiterate. You said,

‘‘Any attempt to retaliate against them,’’ speaking of the ATF officers, ‘‘for their testimony today would be unfair, unwise, and unlawful.’’ And I am here to say that I have always taken that position, and I share that view with you, and I will work with you to

make sure that does not happen. And I am sure it won’t.

Let me also welcome the ATF agents who are here to provide

their testimony. It is not easy to testify before Congress under normal circumstances, but it is even more difficult when you are testifying about allegations involving your own agency. That is tough.

Nevertheless, I know you are here today because you want to improve this process.

Finally, let me welcome Mr. Weich from the Justice Department.

This will not be an easy hearing for you either, but I know that

you, too, are here because you want to improve this process. We

look forward to talking with you about ways we can meet both the

Department’s obligations for the prosecution and the committee’s

obligations for oversight.

We thank each and every one of you for your service to the country. We will have tough questions today, but you all deserve our

courtesy and respect.

On the substance of today’s hearing, the allegations that have

been made are very troubling. And new information we have obtained raises additional concerns about the role of various actors

involved in these incidents.

Based on the interviews conducted by the committee so far and

the documents we have reviewed to date, I have two concerns that

I would like to explore.

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First, we will hear testimony that surveillance of suspected straw

purchasers was discontinued repeatedly, seemingly for no reason,

so agents could return to gun stores to start over with new suspects. The Phoenix group handling this investigation was tiny, with

only three to seven ATF agents. Although other offices and agencies were involved, the allegation is that these scarce resources

were not used appropriately.

Second, we will hear testimony that specific individuals in the

U.S. attorney’s office in Phoenix refused to prosecute legitimate

and promising gun cases involving straw purchasers. This gives me

great concern. It is not clear whether this reluctance was based

upon negative court decisions, inadequate resources, or other

issues. But one thing is clear: The allegations relating to this particular office span several years and several administrations.

I want to make two additional points about today’s hearing.

This weekend, Chairman Issa stated on national television that

this committee’s investigation and these hearings are not about

finding the facts. He said, ‘‘This is not a discovery process of what

happened. We know what happened.’’ With all due respect, I

strongly disagree. We do not know all the facts. We still have much

to learn in this ongoing investigation, and we should not rush to

judgment.

Finally, no legitimate examination of this issue will be complete

without analyzing our Nation’s gun laws, which allow tens of thousands of assault weapons to flood into Mexico from the United

States every year, including .50-caliber sniper rifles, multiple AK

variants, and scores of others, some of them landing in neighborhoods like mine, the one I represent in Baltimore. When Mexican

President Calderon addressed Congress in May, he pleaded for us

to stop fueling a full-scale drug war with military-grade assault

weapons.

In order to explore these issues further today, I am exercising my

right under the rules, Mr. Chairman, of the House for a minority

day of hearings with several witnesses who will testify about these

issues in great detail. I did not think it was necessary to call these

witnesses for today’s hearing, but I will work with the chairman on

scheduling these hearings in the near future.

Finally, let me say this. ATF Special Agent Forcelli said something in his written statement that we all need to take note of, Mr.

Chairman. He says these words: ‘‘As a career law enforcement officer who has had to investigate the deaths of police officers, children, and others at the hands of armed criminals, I was and continue to be horrified.’’ And this is the piece that I want us to concentrate on: ‘‘I believe that these firearms will continue to turn up

at crime scenes on both sides of the border for years to come.’’

With that, Mr. Chairman, I yield back.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Chairman ISSA. I thank the gentleman.

Members may have 7 days to submit opening statements and extraneous materials for the record.

We now recognize our first panel. The distinguished Senator

Charles Grassley is the ranking member of the Senate Committee

on Judiciary. In that role, I have an opportunity to work with the

Senator on patent issues and many other issues of law enforcement. But today the Senator is here to speak about a joint investigation that has spanned many months and ultimately has consumed a great deal of the Senator’s personal time and attention.

And I thank you for being here. Your entire written statement

will be placed in the record. And you are recognized.

STATEMENT OF HON. CHARLES E. GRASSLEY, RANKING

MEMBER, COMMITTEE ON THE JUDICIARY, U.S. SENATE

Senator GRASSLEY. Chairman Issa, Ranking Member Cummings,

thank you very much for inviting me to be here; more importantly,

for calling these important hearings and for the great work that

you and your staff have done in your constitutional responsibility

of oversight.

I am grateful to Agent Brian Terry’s family for being here today

and wish to express my sympathy for their loss. I hope that we can

get the Terry family the answers that they deserve.

I also want to thank the brave people who are testifying from the

Bureau of Alcohol, Tobacco, and Firearms, these Federal agents. I

know that they are here to tell the unvarnished truth. I also know

that that can be very tough, since they still work for the ATF.

These agents already risk their lives to keep us safe; they shouldn’t

have to risk their jobs as well. Continuing to highlight what Congressman Cummings highlighted from my statement, any attempt

to retaliate against them for their testimony today would be unfair,

unwise, and unlawful. And let me add to what Congressman

Cummings said, it would be a personal affront to this Senator.

When I became ranking member of the Judiciary Committee in

January, this was the first oversight issue to land on my desk. Several other Senators’ offices contacted my office to pass along these

allegations about an ATF case called ‘‘Operation Fast and Furious.’’

At first, the allegations sounded too shocking to believe, but, sadly,

they turned out to be true.

ATF is supposed to stop criminals from trafficking guns to Mexican drug cartels or, I guess, anyplace else. Instead, the ATF made

it easier for alleged cartel middlemen to get weapons from U.S. gun

dealers. Agents were actually ordered to stand by and watch these

middlemen, these straw purchasers, buy hundreds upon hundreds

of weapons. Agents warned that inaction could lead to tragedy, but

management didn’t want to listen. We will hear from some of those

agents today and hear from their point of view.

Inaction would be bad enough, but ATF went even further. ATF

encouraged gun dealers to sell to straw buyers. Emails prove that

at least one dealer worried prophetically about that risk. He wrote

to ATF about his concerns that a Border Patrol agent might end

up facing the wrong end of one of those weapons. ATF supervisors

told the dealer, ‘‘Don’t worry.’’

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So, the agent said it was a bad idea, and the gun dealers said

it was a bad idea. Who thought it was a good idea? Why did this

happen? Congress deserves answers to these questions.

The President said that he didn’t authorize it and that the Attorney General didn’t authorize it. They have both admitted that, ‘‘a

serious mistake may have been made.’’

There are a lot of questions and a lot of investigating to do, but

one thing has become clear already: This was no mistake. It was

a conscious decision by senior officials. It was written down. It was

briefed all the way up to Washington, DC. According to an internal

briefing paper, Operation Fast and Furious was intentionally designed to, ‘‘allow the transfer of firearms to continue to take place.’’

Why would the ATF do such a thing? Well, the next line in the

brief paper tells us. It was, ‘‘to further the investigation and allow

for the identification of additional co-conspirators.’’ So, very clearly,

that was the goal. The purpose of allowing straw buyers to keep

buying was to find out who else might be working with them, who

else might be in their network of gun traffickers.

Of course, that assumes that they are part of a big sophisticated

network. That kind of assumption can cause one to start with a

conclusion and then work backward, looking for the facts that fit

the case. Until you figure out that you have the cart before the

horse, you are probably not going to get anywhere.

Professor of criminology Gary Kleck recently published an article

in the Wall Street Journal called, ‘‘The Myth of Big-Time Gun Trafficking.’’ Professor Kleck said that, according to his study of national crime data, ATF handles only about 15 operations each year

that involve more than 250 guns. According to his study, a typical

trafficking operation involves fewer than 12 guns.

So, why would the ATF make it a priority to identify large networks of traffickers? And, again, why would senior leadership decide to explicitly elevate that goal above ATF’s traditional work of

seizing weapons that were illegally purchased?

On October 26, 2009, emails indicate that there was a meeting

of senior law enforcement officials at our Justice Department. It

appears to have included the heads of every law enforcement component of the Department, including directors of the FBI, the DEA,

and the ATF. It also included the U.S. attorneys for all of the

southwest-border States, the director of the Organized Crime Drug

Enforcement Task Force, and the chairman of the Attorney General’s Advisory Committee. Sounds like a pretty big, important

meeting, doesn’t it?

On the agenda at the meeting was a document describing the Department’s strategy for combatting Mexican cartels. In a section

called, ‘‘Attacking the Southbound Flow of Firearms,’’ it says, and

I quote from the document, ‘‘Merely seizing firearms through interdiction will not stop firearms trafficking to Mexico. We must identify, investigate, and eliminate the sources of illegally trafficked

firearms and the networks that transport them.’’

Well, the message in that document is pretty clear, isn’t it? Trying to identify networks of traffickers is more important than seizing weapons. This document was transmitted to the head of the

Phoenix Field Division on October 27, 2009.

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Four days later, the Phoenix Field Division began investigating

Uriel Patino on suspicion of being involved in a gun-trafficking

ring. Ten days after that, Patino was assigned his own case number. In the first 24 days that the ATF was on to him, Patino bought

34 guns from dealers cooperating with the ATF. That is nearly

three times more than the typical gun-trafficking operation, according to the study in the Wall Street Journal that I just mentioned.

But that was just the beginning. Since the dealers were cooperating, ATF received notices of each purchase right away. Analysts

enter the serial numbers into ATF’s Suspect Gun Data base usually within days of the purchase. On November the 20th, one of the

34 guns Patino bought turned up in Mexico, just 14 days after he

bought it in Phoenix. ATF learned of the recovery through a hit in

a Suspect Gun Data base on November the 24th.

That same day, Patino brought Jaime Avila into a cooperating

gun dealer, and they bought five more guns. ATF had realtime notice from the dealer, and agents raced to the store to follow them,

but they arrived too late.

Over the next 6 weeks, Avila bought 13 guns at dealers cooperating with the ATF. The dealers notified the ATF of each purchase

right away. Analysts entered the serial numbers in the ATF data

base, usually within about 2 days of purchase. Yet ATF did nothing

to deter or interrupt the straw purchasers. Avila went back to a cooperating dealer and purchased three more AK–47-type weapons

on January 16, 2010. ATF simply put the serial numbers in its

data base. Still, ATF did nothing to stop Avila and Patino.

Eleven months later, two of those three rifles were recovered at

the scene of Agent Terry’s murder. During those 11 months, Avila

purchased another 34 arms, but Patino purchased 539. Again, cooperating gun dealers notified ATF of each and every purchase. It

usually took about 5 days to enter the serial numbers into the ATF

data base, but ATF often had realtime or even advanced notice of

the purchases from the dealers. ATF even specifically approved of

particular transactions.

I will give you an example. In August 2010, a gun dealer cooperating with the ATF asked for guidance. Patino wanted 20 more

weapons, but the dealer only had 4 in stock. The dealer told ATF

that if he were to sell the guns he would have to, ‘‘obtain the additional 16 specifically for this purpose.’’ An ATF supervisor wrote

back, ‘‘Our guidance is that we would like you to go through with

Mr. Patino’s request and order the additional firearms.’’ At this

point, ATF already knew that he had bought 673 guns from cooperating dealers and that many had already been recovered at crime

scenes. I want to be clear that we don’t know for sure whether this

particular order was actually filled for these additional 16 guns.

However, these new emails support what agents and dealers

have been telling us for many months. According to them, dealers

identified ATF when any of the straw purchasers bought guns either before, during, or at least shortly after the sale. We don’t

know what the exact totals are, but we know that the Suspect Gun

Data base had at least 1,880 guns related to this case. At least 30

of them were high-power .50-caliber rifles.

The straw purchasers bought 212 guns in just 6 days, December

2009. Seventy percent of all guns in the data base were bought by

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just five straw purchasers. If ATF agents had been allowed to stop

just those five buyers, most of the guns in this case would not have

fallen into the wrong hands.

Finally, I want to say something about the politics of gun control.

This investigation is not about politics. It is about getting the facts.

That is what constitutional responsibility of oversight is all about.

That is our checks and balances of government.

No matter what side of that issue you are on, the facts here

should be disturbing. There will be plenty of time for both sides to

argue about policy implications of all this at some point, but I hope

that we can do that at another day. Today is all about these agents

not being allowed to do their job. Today is about the Terry family

and their search for the truth.

Too often, we want to make everything about politics. We pick

sides and only listen to what we want to hear. At least for today,

let’s just listen to these agents and let’s just listen to this family

and hear what they have to say. Let’s hear their stories and hear

it loud and clearly. Let’s then work together to get answers for this

family and the other families who may have suffered.

It is time to get to the truth and hold our government accountable. The public’s business ought to be public, the public’s right to

know. And with the public’s right to know comes that accountability. That is the checks and balances of our government, and

that is what congressional oversight is all about.

Thank you, Mr. Chairman.

[The prepared statement of Senator Charles E. Grassley follows:]

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Chairman ISSA. Thank you, Senator. Thank you for taking so

much time out of your busy schedule to testify here today.

While we set up for the next panel, we will take a short recess.

[Recess.]

Chairman ISSA. The hearing will come to order, please.

We will now recognize our next panel of witnesses.

Mrs. Josephine Terry is the mother of the late Border Patrol

Agent Brian Terry. Ms. Michelle Terry is the sister of the late Border Patrol Agent Brian Terry. Mr. Robert Heyer is the cousin of the

late Border Patrol Agent Brian Terry.

The committee would also like to recognize other members of

Agent Terry’s family, including his father, Kent Terry, who is unable to be here today; his stepmother, Carolyn Terry; his older

brother, Kent Terry, Jr.; and his younger sister, Kelly Terry Willis.

Our thoughts today are with Agent Terry and his entire family

as they continue to mourn the untimely passing of their loved one.

Our remaining witnesses on the second panel are:

Mr. John Dodson. He is a special agent in the Phoenix Field Division of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Mr. Olindo ‘‘Lee,’’ as he is known, Casa is a special agent in the

Phoenix Field Division of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives.

And Mr. Peter Forcelli is the group supervisor of the Phoenix

Field Division of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Ladies and gentlemen, pursuant to the rules of our committee,

all witnesses are to be sworn in order to testify. Would you please

rise to take the oath and raise your right hands?

[Witnesses sworn.]

Chairman ISSA. Let the record reflect that all witnesses answered in the affirmative.

Please be seated.

In order to allow time, particularly with such a large panel, your

entire written statements and any inclusive material you want to

have put in the record will be placed in the record, so feel free to

summarize. Try to stay within 5 minutes. For the field agents, we

will hold you closer to it. For the mother and sister, not so much.

We will start with Mr. Heyer. You are recognized for 5 minutes.

STATEMENTS OF ROBERT HEYER, COUSIN OF LATE BORDER

AGENT BRIAN TERRY; JOSEPHINE TERRY, MOTHER OF LATE

BORDER AGENT BRIAN TERRY; MICHELLE TERRY BALOGH,

SISTER OF LATE BORDER AGENT BRIAN TERRY; JOHN

DODSON, SPECIAL AGENT, PHOENIX FIELD DIVISION, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES;

OLINDO ‘‘LEE’’ CASA, SPECIAL AGENT, PHOENIX FIELD DIVISION, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; PETER J. FORCELLI, GROUP SUPERVISOR, PHOENIX FIELD DIVISION, BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

STATEMENT OF ROBERT HEYER

Mr. HEYER. Good morning, Chairman Issa, Ranking Member

Cummings, and other members of the committee.

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My name is Robert Heyer. I am the cousin of slain Border Patrol

Agent Brian A. Terry. As you know, I am joined on the panel this

morning by Brian’s mother, Josephine, and his older sister,

Michelle. They have asked me to give this opening statement on

behalf of the entire Terry family.

It was just 10 days before Christmas last year when our family

received the devastating news. Brian had been shot and killed

while engaged in a firefight with a group of individuals seeking to

do harm to American citizens and others.

We knew that Brian faced imminent danger on a daily basis as

a part of his chosen career. But we also knew that he and his unit

were highly trained and equipped with the best weapons this country could provide to their fighting men and women. They were confident in overcoming any threat that they may face in the desolate

section of desert that they patrolled. He and his team prided themselves as being the tip of the spear that defended this country and

its borders.

The telephone call came in the middle of the night. I know this

type of horrible notification has been received many times during

the past 10 years by families of our military sons and daughters

as the United States has fought wars in both Iraq and Afghanistan.

After all, Brian had taken an oath to defend this country from all

terrorist threats.

What makes Brian’s death so shocking to his family is that he

did not die on a foreign battlefield. He was killed in the line of duty

as a U.S. Border Patrol agent. He died not in Iraq or Afghanistan

but in a desert outside of Rio Rico, Arizona, some 18 miles inside

of the U.S.-Mexican border. His killers were not Taliban insurgents

or al Qaeda fighters but a small group of Mexican drug cartel bandits heavily armed with AK–47 assault rifles. The rifles and the

ammunition that they carried in those weapons were designed to

do one thing, and that was to kill.

Brian was an amazing man. And I say that not just because he

was family. Many people thought he was almost superhuman. After

his death, we visited his former duty stations in Arizona. Each

time we met one of his fellow agents, they spoke of how impressed

they were with him. He was what we expect in our brothers and

sons: a strong, competitive, handsome, courageous, funny, and incredibly patriotic American. Some of his coworkers even had bestowed him with the nickname of ‘‘Superman.’’

Brian was very proud to serve as a Federal agent. He had joined

the U.S. Marine Corps right after high school. He went on to college and earned a bachelor of science degree in criminal justice. He

then became a local police officer in the communities of Ecorse and

Lincoln Park, Michigan.

When he sought to have more of an impact on keeping this country safe, he joined the Border Patrol. Brian, it seemed, had found

his niche. Before long, he tried out and became a member of the

Border Patrol’s elite tactical unit known as BORTAC. At age 40,

he had much to look forward to, which included getting married

and starting a family. But for now, he was living his dream. He

wore his BORTAC-winged insignia with great pride and excelled as

a BORTAC team member.

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During BORTAC training, Brian was given a classroom writing

assignment. The assignment was to write something about himself

that would give the instructors some insight as to who he was. He

composed a poem that he entitled, ‘‘If Today is to Be the Day, So

Be It.’’ I would like to read you that poem so that you can have

a better understanding of the man he was.

‘‘If you seek to do battle with me this day, you will receive the

best that I am capable of giving. It may not be enough, but it will

be everything that I have to give, and it will be impressive, for I

have constantly prepared myself for this day. I have trained,

drilled, and rehearsed my actions so that I might have the best

chance of defeating you. I have kept myself in peak physical condition, schooled myself in the martial skills, and have become proficient in the applications of combat tactics.

‘‘You may defeat me, but I’m willing to die if necessary. I do not

fear death, for I have been close enough to it on enough occasions

that it no longer concerns me. But I do fear the loss of my honor

and would rather die fighting than to have it said that I was without courage. So I will fight you, no matter how insurmountable it

may seem, to the death if need be, in order that it may never be

said of me that I was not a warrior.’’

Brian was due to complete his shift of duty that night in the

desert outside of Rio Rico at midnight on December 15th and then

take some much-deserved time off. He had already made his travel

plans to fly back to Michigan and spend the Christmas holiday

with his family. Brian’s attention to detail had ensured that all the

Christmas gifts he had meticulously selected for his family had already been bought and sent in the mail prior to his arrival.

Brian did ultimately come home that Christmas. We buried him

not far from the house that he was raised in, just prior to Christmas Day.

The gifts that Brian had picked out with such thought and care

began to arrive in the mail the same week. With each delivery, we

felt the indescribable pain of Brian’s death but, at the same time,

also remembered his amazing love and spirit.

We hope that you now know a little bit more about our Brian.

We ask that you honor his memory by continuing to ensure what

he worked so hard to do and ultimately gave his life doing—that

is, to keep this country safe and its borders secure.

We hope that the Bureau of Alcohol, Tobacco, and Firearms is

forthcoming with all information that the panel is seeking. We ask

that if a government official made a wrong decision, that they

admit their error and take responsibility for his or her actions. We

hope that all individuals involved in Brian’s murder and those that

played a role in putting the assault weapons in their hands are

found and prosecuted to the full extent of the law. Finally, it is our

hope that no more law enforcement officers die at the hands of

these heavily armed Mexican drug cartel members operating on

and inside the borders of the United States.

The Terry family would like to acknowledge and thank the special agents in the FBI’s Tucson Field Office and the prosecutors in

the U.S. attorney’s Tucson office that have worked so hard and continue to work in bringing Brian’s killers to justice.

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We would also like to acknowledge the courage and integrity of

the three special agents of ATF’s Phoenix Field Division sitting

with us on this panel: Lee Casa, Pete Forcelli, and John Dodson.

We recognize the professional risk you face by coming forward and

speaking to the public about an investigation that you believe was

ill-conceived and reckless.

The Marine Corps has the motto of ‘‘Semper fidelis,’’ which most

of you know is Latin for ‘‘Always faithful.’’ The Border Patrol has

the motto of ‘‘Honor first.’’ Brian lived a life of honor, duty, and

sacrifice, which reflected both of these mottos and the two organizations that he was so proud to serve in. It is now up to all of us

to put honor first and to remain always faithful in the quest for

justice.

On behalf of the entire Terry family, thank you.

[The prepared statement of Mr. Heyer follows:]

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Chairman ISSA. Thank you.

Special Agent Dodson, you are recognized for 5 minutes.

STATEMENT OF JOHN DODSON

Mr. DODSON. Mr. Chairman, Ranking Member Cummings——

Chairman ISSA. Please pull the mike a little closer, if you would,

please, and make sure it is on.

Mr. DODSON. Yes, sir. Is that better?

Mr. Chairman, Ranking Member Cummings, other honorable

members of this committee, I thank you.

Beginning with my military service and continuing through to

this day, I am proud to have spent nearly my entire adult life in

service of this country, under sworn oath to defend its Constitution,

with my allegiance always pledged to this Republic.

I spent the vast majority of my law enforcement career conducting criminal investigations, with a particular focus on those involving the trafficking of narcotics and firearms. I have been involved in countless investigations and arrests, from basic misdemeanors to complex conspiracies of international drug-trafficking

organizations, many times as an undercover. I have made thousands of investigative stops and scores of arrests and have testified

many times in Federal and State courts across this country, often

as a qualified expert.

I do not appear before you as some remote observer of these

events casting a judgmental finger over the actions of others. I

come, as I have been asked to do, bearing only my firsthand account. I have not the burdens of rendering judgment, determining

responsibility, or holding others accountable. I yield those to this

committee.

The only message I hope to convey is that through this process

some resolve may finally be brought to the families of Brian Terry

and Jaime Zapata, that we may truly honor their service and

mourn their sacrifice. I hope that your inquiry and those of Senator

Grassley’s office and the inspector general will yet yield a true account for the many others on both sides of our border who have already been or will be affected by this operation. Furthermore, I am

grateful to have the opportunity to appear here today alongside the

Terry family so that I may personally express to them my sorrow

and my regret.

Simply put, during this operation referred to as ‘‘Fast and Furious,’’ we, the ATF, failed to fulfill one of our most fundamental obligations: to caretake the public trust, in part to keep guns out of

the hands of criminals.

When I became involved in this operation in late 2009, the ATF

agents running it briefed me that the local Phoenix firearms dealers had provided them with a list of more than 40 individuals

whom they believed to be purchasing guns for others—straw purchasers. Of these individuals, several were members or believed to

have connections with Mexican drug cartels.

Those identified straw purchasers were the initial suspects of

this investigation. From the earliest days of that operation after

the briefing, I had no question that the individuals we were watching were acting as straw purchasers and that the weapons they

purchased would soon be trafficked to Mexico and/or other locales

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along the southwest border or other places in the United States

and, ultimately, that these firearms would be used in a violent

crime.

However, we did nothing to intervene. Over the course of the

next 10 months that I was involved, we monitored as they purchased handguns, AK–47 variants, and .50-caliber rifles, almost

daily at times. Rather than conduct any enforcement actions, we

took notes, we recorded observations, we tracked movements of

these individuals, we wrote reports, but nothing more, knowing all

the while, just days sometimes after these purchases, the guns that

we saw these individuals buy would begin turning up at crime

scenes in the United States and in Mexico. And yet we still did

nothing.

I recall, for example, one suspect, as he met with another, receive

a bag full of cash. That cash he then proceeded to a local FFL, who

conducted a transaction of firearms that we had authorized him to

do. This straw purchaser then left the Federal firearms dealer and

met again with that third party and delivered the firearms to him.

And still we did nothing. Although my instincts made me want to

intervene and interdict those weapons, my supervisors directed me

and my colleagues not to make any stop or arrest, but rather to

keep him under surveillance, while allowing the guns to walk.

Surveillance operations like these were the rules; they were not

the exceptions. This is not a matter of some weapons that had gotten away from us or allowing a few to walk so that we could follow

them to a much larger, more significant target. Allowing loads of

weapons that we knew to be destined for criminals was the plan.

This was the mandate.

I remember a lecture by Army Lieutenant Colonel Dave Grossman, and I borrow from it now. ATF is supposed to be the guardians, the sheepdogs that protect against the wolves that prey upon

us, especially along our southern border. But rather than meet the

wolf head-on, we sharpened his teeth, added number to his claw.

All the while, we sat idly by watching, tracking, and noting as he

became a more efficient and effective predator.

Prior to my coming to Phoenix, I had never been involved in or

even heard of an operation in which law enforcement officers would

let guns walk. The very idea of doing so is unthinkable to most law

enforcement. I and other field agents involved in this operation repeatedly raised these concerns with our supervisors. In response,

we were told that we simply did not understand the plan.

I cannot begin to think of how the risk of letting guns fall into

the hands of known criminals could possibly advance any legitimate law enforcement interest. I hope the committee will receive

a better explanation than I.

Thank you again for the opportunity to appear here today before

you, and I look forward to answering any questions that any of you

may have.

[The prepared statement of Mr. Dodson follows:]

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Chairman ISSA. Thank you, sir.

Special Agent Casa.

STATEMENT OF OLINDO ‘‘LEE’’ CASA

Mr. CASA. Good morning, Mr. Chairman. Good morning, Mr.

Cummings. Good morning, honorable Members of Congress. My

name is Olindo James Casa, and I am a senior special agent with

the Bureau of ATF.

I have been employed with ATF since March 1993 as both an inspector and later as a special agent. I am currently assigned to the

Phoenix Field Division, Phoenix Group VII, an OCDETF strike

force group, and I have been assigned to that group since December

2009 to the present.

As a special agent with ATF, I have been a case agent, I have

been a co-case agent, and I have participated in many firearmstrafficking investigations, both domestic and international in scope.

Needless to say, I feel I have extensive experience in regards to

firearms-trafficking investigations, and my work has resulted in

the successful prosecution of many individuals who have violated

the law.

After reporting to Phoenix Group VII office in December 2009, I

was briefed by group members on the investigation Fast and Furious. Shortly after, I became aware of what I believed to be unusual

and questionable investigative techniques. For instance, I became

aware that certain straw purchasers were purchasing numerous

firearms from firearm dealers. What I found concerning and alarming was, more times than not, no law enforcement activity was

planned to stop these suspected straw purchasers from purchasing

firearms. The only law enforcement activity that was occasionally

taken was to conduct a surveillance of the transaction, and then

nothing more.

As the investigation progressed over the next couple of months,

additional suspected straw purchasers were identified, again with

no obvious attempts to interdict the weapons or interview the suspects. Around the same time, Phoenix Group VII office started to

receive numerous firearm traces detailing recoveries of firearms in

the country of Mexico. Many of those traces disclosed the aforementioned straw purchasers were responsible for purchasing those recovered firearms.

At this time, several special agents in the group, including myself, became increasingly concerned and alarmed at Case Agent

Hope MacAllister and Group Supervisor Dave Voth’s refusal to stop

or address the suspected straw purchasers from purchasing additional firearms. Special Agent John Dodson and I continually

raised our concerns directly with the case agent, Co-Case Agent

Tonya English, and Group Supervisor Voth, to no avail.

In response to our increasingly voiced concerns, the group supervisor issued the infamous ‘‘schism’’ email to the group. In essence,

the email was a direct threat to the special agents who were not

in agreement on how Case Agent MacAllister, Co-Case Agent

English, or how Group Supervisor Voth managed the investigation.

Based on my 18 years of experience with ATF, I did not think the

email was an empty threat. I took it very seriously. It has been

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common practice for ATF supervisors to retaliate against employees that do not blindly toe the company line.

Sometime in March 2010, at the direction of Group Supervisor

Voth and Case Agent MacAllister, daily surveillance of the straw

purchasers started to be conducted by members of ATF Group VII

as well as ATF special agents from other offices who were detailed

to assist with the Operation Fast and Furious. ATF Special Agent

Lawrence Alt reported to the Phoenix Group VII office around this

period of time and, like Special Agent Dodson and I, became

alarmed of the direction of the investigation and spoke out against

the practices that were being utilized.

My role during these daily surveillances was that of shift supervisor. As a shift supervisor, my responsibility was to oversee surveillance agents at the direction of Case Agent MacAllister, CoCase Agent English, and/or Group Supervisor Dave Voth.

In general, my fears were realized while out on these aforementioned surveillances. On numerous occasions, the surveillance team

followed straw purchasers to Phoenix-area firearms dealers and

would observe these straw purchasers buying and depart with numerous firearms in hand. Those firearms included but were not

limited to AK–47 variant rifles, .50-caliber rifles, and 5.7-millimeter FN pistols, all of which are devastating weapons.

On many of those occasions, the surveillance team would follow

the straw purchasers either to residences, a public location, or until

the surveillance team was spotted by straw purchasers. But the

end result was always the same: The surveillance was terminated

by the case agent, co-case agent, or supervisor without interdicting

or seizing the firearms.

On several occasions, I personally requested to interdict or seize

the firearms in such a manner that would only further the investigation, but I was always told to stand down and not to seize the

firearms. I made these requests over the air and have many law

enforcement witnesses that can verify my assertions.

Reflecting back to that period of time during the investigation,

I thought the poor decisions were made due to incompetency or a

lack of experience, which would have made the situation bad

enough. Unfortunately, in recent light of documents that have been

released, especially the briefing paper dated January 8, 2010, it appears the investigation was conducted in a recklessly planned manner with a specific strategy in mind. Per the briefing paper, the

strategy was to allow the transfer of firearms to take place in order

to further the investigation and allow for the identification of additional co-conspirators who would continue to operate and illegally

traffic firearms to Mexican drug trafficking organizations.

Special Agent Dodson, Special Agent Alt, and I, at times on a

daily basis, had warned the case agent, co-case agent, and group

supervisor of the reckless course they were taking in regards to the

investigation. We sternly warned them of the consequences of their

actions but were repeatedly ignored. In fact, on at least a couple

occasions I witnessed, Special Agent Dodson asked both Special

Agent MacAllister and Group Supervisor Voth if they were prepared to attend the funeral of a slain agent or officer after he or

she was killed with one of those straw-purchased firearms. Neither

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one answered or even seemed concerned by the question posed to

them.

To close, I would like to extend my heartfelt condolences to Border Patrol Agent Brian Terry’s family. I am truly sorry for your

loss. I hope you find peace.

[The prepared statement of Mr. Casa follows:]

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Chairman ISSA. Thank you.

Special Agent Forcelli.

STATEMENT OF PETER J. FORCELLI

Mr. FORCELLI. Good morning, Chairman Issa, Ranking Member

Cummings, and members of the committee. I thank you for the opportunity to appear before the committee today.

I am here to provide testimony that I hope will assist in your inquiry into the investigation that has come to be known as ‘‘Operation Fast and Furious.’’ I believe that your inquiry is essential.

There have been grave mistakes made in this case. And the committee, the American people, and the family of slain Border Patrol

Agent Brian Terry deserve answers.

Please allow me to give you a little background information

about myself. In 1987, I began my career with the New York City

Police Department. I worked in Bronx County, often referred to as

‘‘The Bronx,’’ as a uniformed police officer and then ultimately as

a detective in the Bronx Homicide Task Force. In my career, I estimate that I have responded to approximately 600 homicide scenes.

The vast majority were drug-related, committed by armed criminals. And these violent criminals were armed with illegal firearms,

and they had little regard for human life.

I retired early from the NYPD in June 2001 to take a position

with the Bureau of Alcohol, Tobacco, and Firearms, as we were

then known, and I did this because I had the honor of working with

ATF agents who were working and making great cases, working

hand-in-hand with incredible prosecutors from the Southern and

Eastern Districts of New York.

In working with these officers, one thing was very clear: Dedicated prosecutors worked hand-in-hand with dedicated ATF agents

to make great cases that truly impacted the safety of the public.

There was an absolute sense of teamwork and respect. Again, I am

going to emphasize the words ‘‘teamwork and respect.’’ Together

with prosecutors from the U.S. attorneys’ offices with whom I had

worked, we had used confidential informants, proffers, cooperation

agreements, waivers of speedy presentment, investigative grand juries and grand-jury subpoenas, and an abundance of other investigative tools to make successful cases as part of a team.

I left the New York Field Division in March 2007 to begin working in my current post of duty as a supervisor of the Phoenix I

Field Office. Within weeks, I was surprised at what I had observed.

In my opinion—in my professional opinion, dozens of firearms traffickers were given a pass by the U.S. attorney’s office for the District of Arizona. Despite the existence of probable cause in many

cases, there were no indictments, no prosecutions, and criminals

were allowed to walk free. In short, their office policies, in my opinion, helped pave a dangerous path.

Fortunately, the same could not be said of the Arizona Attorney

General’s Office, State prosecutors, to which we agents were forced

to turn for prosecution of firearms cases. Victor Varela and his associates, who trafficked .50-caliber rifles directly to Mexican drug

cartels, one of which was used to kill a Mexican military commander, were successfully prosecuted by the Arizona Attorney General’s Office. And this was after the case had been declined for FedVerDate 17-JUN-2003 17:38 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\71077.TXT KATIE PsN: KATIE
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eral prosecution by Assistant U.S. Attorney Emory Hurley due to

what he referred to as ‘‘corpus delecti’’ issues.

Mr. Varela, sadly, was released from prison last July because of

the lesser sentencing guidelines that apply in State court.

But the alternative, no prosecution, in my eyes, was unacceptable.

Another case, which involved a corrupt Federal firearms licensee

who was supplying several firearms-trafficking organizations, was

declined by Mr. Hurley. This particular dealer in his post-arrest

statement admitted that approximately 1,000 of his firearms were

trafficked to Mexico. Over one-half dozen of that dealer’s firearms

were located around the body of Arturo Beltran Leyva, the head of

the Beltran-Leyva Cartel, after he was killed in a gun battle with

the Mexican Naval Infantry in Cuernavaca, Mexico.

Due to the recalcitrance of the U.S. attorney’s office, cases such

as these were presented for prosecution to the Arizona Attorney

General’s Office, where the State laws carried significantly lesser

penalties than they did under the Federal statutes. And I believe

that this situation, wherein the U.S. attorney’s office for the District of Arizona in Phoenix, particularly, declined most of our firearms cases, was at least one factor which led to the debacle that

is now known as Operation Fast and Furious.

And now I will fast forward to Operation Fast and Furious itself.

ATF agents assigned to the Phoenix Field Division, with the concurrence of their chain of command, walked guns. ATF agents allowed weapons to be provided to individuals that they knew would

traffic them to members of the Mexican drug-trafficking organizations. They did so by failing to lawfully interdict the weapons, and

they did so by encouraging Federal firearms licensees to continue

selling weapons in instances where they knew that no interdiction

efforts would be planned.

When I voiced surprise and concern with this tactic to ASAC

George Gillett and SAC William Newell, my concerns were dismissed. SAC Newell referred to the case as ‘‘groundbreaking’’ and

bragged that we were the only people in the country doing this. My

other ASAC, Jim Needles, merely said, ‘‘Pete, you know that if you

or I were running the case, it wouldn’t be getting run this way.’’

This operation, which, in my opinion, endangered the American

public, was orchestrated in conjunction with Assistant U.S. Attorney Emory Hurley, the same assistant U.S. attorney who prevented

us from using some of the common and accepted law enforcement

techniques utilized elsewhere in the United States. I have read documents that indicate that his boss, U.S. Attorney Dennis Burke,

also agreed with the direction of this case.

Allowing firearms to be trafficked to criminals is a dangerous

and deadly strategy. The thought that the techniques used in the

Fast and Furious investigation would result in ‘‘taking a down a

cartel,’’ given the toothless nature of the straw-purchasing law and

the lack of a strong firearms-trafficking statute, is, in my opinion,

delusional.

Based upon my conversations with agents who had assisted in

this case, surveillance was often terminated on individuals far from

the border, which means that, while the case agent believed that

these weapons were destined for Mexico, the possibility exists that

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they were trafficked, with cartel drugs, to other points within the

United States of America.

As a career law enforcement officer who has had to investigate

the deaths of police officers, children, and others at the hands of

armed criminals, I was and continue to be horrified—truly horrified. I believe that these firearms will continue to turn up at crime

scenes on both sides of the border for years to come.

In closing, I want members of the committee and all Americans

to know that this is not how ATF agents conduct business. I am

very proud of some of the incredible work done by ATF agents

around the country every day. ATF agents have given their lives

in the performance of duty.

On my last trip back to New York, sir, I had the privilege of

being present for a homicide trial. In that same courthouse in the

Southern District of New York, there were three other separate

homicide trials going on, all from three separate ATF-initiated investigations. That is the type of work ATF agents do every day,

and that is what I would like the committee to keep in mind as

well.

I thank you for your time. And, again, my condolences to the

Terry family.

[The prepared statement of Mr. Forcelli follows:]

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Chairman ISSA. I thank you.

I thank all of our witnesses.

I will now recognize myself for the first round of questioning.

Mrs. Terry, I understand the U.S. attorney in Arizona visited you

in December. Can you tell us in your own words what he had to

say?

Mrs. TERRY. Which attorney are you talking about?

Chairman ISSA. This is the U.S. attorney from Arizona that came

to visit you in December?

Mrs. TERRY. Was that—yes, that was Mr. Burke.

Chairman ISSA. And what did he have to say to you?

Mrs. TERRY. He was just trying to explain to us exactly what

happened in a roundabout way. We really never got anything out

of the visit that he did have.

Chairman ISSA. Now, if he didn’t tell you at that time that the

firearms that killed your son came from this operation, when did

you learn about Fast and Furious and its connection to your son’s

death?

Mrs. TERRY. Most of it I have heard is from the media. We

haven’t really got anything direct, phone calls or nothing, from anybody.

Chairman ISSA. Well, hopefully, today will bring you some better

answers on that.

Mr. Heyer, I understand recently you received a call from the

U.S. attorney’s office in Arizona. Could you please tell us the content of that call?

Mr. HEYER. The U.S. Attorney Dennis Burke has tried to keep

us advised on the prosecution of the individuals believed to have

a hand in Brian’s death. So I received a telephone call whenever

an indictment was going to be made, and also some information

about where the investigation was going with respect to Brian’s

killers.

Chairman ISSA. Did he ever comment about your testimony here

today?

Mr. HEYER. He did not.

Chairman ISSA. Okay.

Mr. Dodson, just yesterday, the Justice Department said the following. And I will make a supposition for the record that it is untimely and unseemly for this kind of thing to come out. But I am

going to ask you to answer in regard to something Justice put out

in the New York Times. An unnamed law enforcement source said

to the New York Times, ‘‘Gun ownership was such an ingrained

part of the culture in Arizona that it was difficult to tell straw purchasers from legal ones without’’—blank, blank, blank.

Did you have trouble discerning that? Was it so difficult because

of the culture that, in fact, any of you didn’t know who the straw

purchasers were?

Mr. DODSON. No, sir, not at all. I mean, first of all, I would question that unknown law enforcement source as to his background on

these matters——

Chairman ISSA. Here we call it ‘‘Washington spin.’’

Mr. DODSON. Yes, sir.

Sir, I can tell you this. In my knowledge and experience, when

I set ground in Phoenix, or when I got to Phoenix, the briefing that

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I got initially and the 40-some suspects that were identified right

off the bat, or they already had identified, those cases were made

against those individuals, most of them, almost that day, if not all

of them.

To identify a straw purchaser from a normal American citizen

who just happens to reside in a State where gun culture is so

prominent, you are—perhaps if a one-on-one scenario existed, or a

one time. But to have an individual purchase hundreds of firearms

over the course of an investigation while we are watching him,

make no mistake, he was a straw purchaser or——

Chairman ISSA. So, I guess, Agent Casa, I think you would probably agree that when you see someone buy hundreds—dozens or

hundreds and take them to a drop point, and even often more information, it is pretty obvious they are a straw purchaser; you have

made your case under any kind of normal prosecution, wouldn’t

you?

Mr. CASA. Yes, sir, that is correct.

Chairman ISSA. Mr. Heyer, you are a Secret Service agent. That

probably qualifies you as much as anyone that could be in this

room to understand a question I am going to ask you, but you are

also a family member.

To date, the straw purchasers that were part of the chain of

weapons that led to the murder of your cousin, they haven’t been

charged with that crime. They have been charged with whatever it

is called, buy and lie, basically signing a false affidavit that they

were the actual buyer of a gun.

Do you believe that it is reasonable to be including them in their

connection to the murder of Brian Terry?

Mr. HEYER. Congressman, again, I am here as strictly family

today and not as a Secret Service agent.

Chairman ISSA. Well, then for Peter Forcelli, you have all mentioned about the prosecutions that you see, including in New York.

You buy a gun, you knowingly sell it to a third party, you have lied

about it, it leads to the murder. Isn’t that how you get connected

to that trial in addition to the trigger puller?

Mr. FORCELLI. Yes, sir. It would be a sequence of events that you

would normally put together through interviews and other techniques.

Chairman ISSA. So it is pretty unusual to have a high-profile

murder of a Border Patrol agent and you don’t roll up everybody

involved into the prosecution which is taking place practically

today?

Mr. FORCELLI. In all fairness, sir, I don’t know what steps the

FBI has taken in their investigation because that information has

not been relayed to me at any point.

Chairman ISSA. Well, Mrs. Terry, we are going to do everything

we can to get full answers and full prosecution. We want whatever

would be the greatest relief that we can give you to let you know

that this won’t happen again.

Mrs. TERRY. Thank you.

Chairman ISSA. Thank you.

We now recognize the ranking member for his questions.

Mr. CUMMINGS. I want to thank all of you for being here today.

And to the Terry family, we thank you for your sacrifice.

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To Mrs. Terry, you raised an angel. When the description was

made by—when I listened to that poem, that poem said it all.

And I want to say to the family, I understand your pain. And I

promise you, we will not rest—and to the agents, we will not rest—

we will not rest until every single person responsible for all of this,

no matter where they are, are brought to justice.

And you said it best, Mr. Heyer, in your statement, the last thing

you said. You said, ‘‘It is now up to all of us to put honor first and

to remain always faithful in the quest for justice.’’ And you are absolutely right. And I promise you, we will not fail you.

To the ATF officers, I thank you. As I said earlier, this has to

be very, very difficult. And I make a commitment to you, and it is

what Senator Grassley said, and I want the word to go out, let it

go forth, that we want absolutely no retaliation against you. You

are simply standing up for what you believe in. You are simply carrying out your oath of office. You simply have been great Americans and continue to be, and we thank you. We thank you so very,

very much. We thank you for your bravery; we thank you for what

you are doing.

One of the most troubling allegations we have heard during this

investigation was that the ATF agents Group VII were ordered to

terminate surveillance and monitoring of suspected straw purchasers without seizing the firearms.

Special Agent Casa, in your written testimony you made this

statement: ‘‘On numerous occasions, the surveillance team followed

straw purchasers to Phoenix-area firearms dealers and would observe the straw purchasers buy and then depart with numerous

firearms in hand. On many of these occasions, the surveillance

team would then follow the straw purchasers either to a residence,

a public location, or until the surveillance team was spotted by the

straw purchasers. But the end result was always the same: The

surveillance was terminated.’’

So my question is pretty basic. Do you know why the surveillance

was terminated? Do you think it was a resource problem, or was

it a strategy type of thing?

Mr. CASA. No, sir, we had plenty of resources. I believe it was

a strategy. As I indicated later in my statement, I found out about

the briefing papers. At the time this was going on, we had no idea

why things were occurring. We were just told to fall in line and do

what we were told.

Mr. CUMMINGS. And you stated that you raised those concerns

with your group supervisor, was it Mr. Voth?

Mr. CASA. Yes, sir, Mr. Dave Voth.

Mr. CUMMINGS. And, Special Agent Dodson, you participated in

a transcribed interview with the committee, and your account is

quite similar. Let me read what you said from the transcript. You

said, ‘‘Sometimes we would follow them back to their house, sometimes to, you know, a different house or a business or to meet another vehicle in a parking lot. And then we would have to come

back to head to another FFL because one of the other suspects,

they were buying 15 or 20 of his own.’’

Special Agent Dodson, again, I am trying to understand this. If

you are following a suspected straw purchase and you start at the

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gun store and you follow it to a house, why wouldn’t you keep following that gun?

Mr. DODSON. Sir, that is the one question that I can’t answer for

you, is the why. It made no sense to us either. It is just what we

were ordered to do, and every time we questioned that order, you

know, there was punitive action against those of us that did so.

As to why we would let them go or just follow them in, tuck them

in bed at home and, you know, us leave for the night, I can’t tell

you the why, sir. I can’t. And that is what I am hopeful that this

committee can find out.

Mr. CUMMINGS. Well, we are going to find out.

I understand there might be new suspected straw purchases happening back at the gun store, but if you keep leaving the guns you

are following to start tracking new ones, you know, that doesn’t

seem to work. And I guess that is what all of you all are saying.

Did you also raise those concerns with Mr. Voth, your supervisor,

I guess he was?

Mr. DODSON. Oh, yes, sir, many times.

Mr. CUMMINGS. Have either of you ever received a substantive

explanation as to why this operation would voluntarily terminate

surveillance of suspected weapons traffickers? Anybody?

Mr. DODSON. Sir, no. Most of the time when asked or pressed for

an answer to that question, it was relayed to me that they didn’t

have to explain anything to me. I was to do as I was told. Or in

times where I questioned that even further, our boss would have

an ASAC come down and we would have a meeting, and he would

explain to us in his way of how he was not obligated to explain it

any further to us and we needed to follow orders.

Mr. CUMMINGS. Well, I think we are missing a piece of the puzzle

here, and I think we must do more. It sounds like both of you

raised concerns with your supervisor. And I don’t want to reach

any conclusions yet on this because I think we need to gather more

information. I think it makes sense to talk to the supervisor and

figure out what his answer to these allegations might be.

Thank you, Mr. Chairman. I yield back.

Chairman ISSA. Thank you. I am assuming that you now join me

in ensuring that all of the other people above these gentlemen will

be interviewed in a prompt fashion, including those here in Washington?

Mr. CUMMINGS. Mr. Chairman, absolutely no doubt about it.

And, at the same time, I am glad you asked that question because

we want to make sure, as I said, we want to make sure, in the

words of Mr. Heyer, that everyone is brought to justice.

Now, let me abundantly clear since you asked the question. I

want to make sure that there is no person—I don’t care who they

are—whose trial is jeopardized, that is able to get away, to get off

of charges. I don’t care how it is connected with this, I don’t want

their trials jeopardized. As an officer of the court and one who has

practiced criminal law for many years, I am very concerned about

that.

And so, I think that we can reach a balance. And I have urged

the Justice Department to cooperate. They have expressed their

concerns. But, again, as I said before, and I promise this family,

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I promise you, I will do everything in my power. I will not rest

until we bring everybody to justice.

Chairman ISSA. I thank the gentleman.

We now recognize the gentleman from Oklahoma, Mr. Lankford,

for 5 minutes.

Mr. LANKFORD. Thank you.

And thank all of you for being here. This has to be a very difficult day, and not a day that you had ever hoped to be testifying

in front of a congressional hearing, especially related to something

like this. So we very much appreciate your time and for being here,

as well.

Special Agent Dodson, let me ask you a series of questions. And

these will be for several agents. Give me your best guess—and it

is going to be just a guess on this—how many weapons do we have

in the United States or in Mexico that are out there that are results of Fast and Furious that we do not know where they are?

Mr. DODSON. Well, sir, my best guess, estimate at that is—and

remembering that Fast and Furious was one case from one group

in one field division—is about 2,500 in total that we facilitated the

sale of to these known straw purchasers. And I have heard numbers as many as 300 to 800 or so that we know to have been recovered. So, outstanding, you are looking in the ballpark of anywhere

from 1,000 to 1,500, 1,800 guns still.

Mr. LANKFORD. What is your best guess on how many of those

are in Mexico and how many of those are in the United States?

Mr. DODSON. I would say two to one, Mexico versus United

States.

Mr. LANKFORD. Okay. Were there any other mechanisms discussed to trace these weapons that you knew were being sold to

straw purchasers other than just serial numbers? Any other way

to be able to track them, trace them at all?

Mr. DODSON. Yes, sir.

Mr. LANKFORD. How successful do you think that was?

Mr. DODSON. I can tell you that after a trip to RadioShack with

ATF funds, I, myself, manufactured a GPS tracking device that

would fit inside the handle of an AK-variant rifle. The problem

with it was the limited battery life.

There were also attempts made through our tech departments

and other tech departments to have a GPS system wired into one

AK-variant rifle.

Mr. LANKFORD. And how was received by supervisors?

Mr. DODSON. Well, actually, the one that went through our tech

section was initiated by them——

Mr. LANKFORD. Great.

Mr. DODSON [continuing]. After my attempt to manufacture one

didn’t work out so well.

The one that we got from our tech side did actually work. And,

although it achieved its purpose, the last time I believe anyone

knew its whereabouts was about 50 miles south of the U.S.-Mexican border.

Mr. LANKFORD. Special Agent Casa, do you know of any other offices of ATF that are using this type of strategy?

Mr. CASA. Not that I am aware of, no, sir.

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Mr. LANKFORD. Would you consider this a common practice that

is being contemplated in any other area?

Mr. CASA. No, sir. I definitely hope not. No, sir.

Mr. LANKFORD. Okay.

Let me follow up on a statement that you made that is a very,

very serious statement. You made this statement in your opening

statement: ‘‘It is a common practice for supervisors to retaliate on

special agents who do not toe the company line.’’

Mr. CASA. Yes, sir.

Mr. LANKFORD. That is a pretty serious statement.

Mr. CASA. It is commonplace within ATF, sir.

Mr. LANKFORD. Is that unique to your area, or is that unique to

multiple areas, do you think, of ATF?

Mr. CASA. In my experience, sir, it is unique to multiple areas

within ATF. I have known multiple—dozens of agents that have

been—received punitive punishments, whether they were justified

or not.

Mr. LANKFORD. Okay.

Mr. Forcelli——

Mr. FORCELLI. Yes, sir.

Mr. LANKFORD [continuing]. Do we have a perfect storm here of

a U.S. attorney who is unwilling to prosecute Federal gun laws and

a group of supervisors in the ATF that are promoting a program

to release weapons here? Is that just two errors here, or is it your

sense there is something coordinated that is going on? And I understand that is a guess at this point.

Mr. FORCELLI. Sir, it is my belief that what we have here is actually a colossal failure in leadership from within ATF, within the

chain of command involved in this case, within the U.S. attorney’s

office, and within DOJ as to the individuals who are aware of this

strategy.

To walk a single gun is, in my opinion, an idiotic move. More

families will suffer, like the Terrys and like Mr. Cummings, at the

hands of armed criminals. We weren’t giving guns to people who

were hunting bear. We were giving guns to people who were killing

other humans.

The assumption that all of these guns went to Mexico is apparently something that they believed in that group——

Mr. LANKFORD. But your assumption is, this was coordinated

among all those individuals, that this plan would happen and it

was going to be allowed to happen?

Mr. FORCELLI. It would be allowed to happen, and we would

trace guns into Mexico, be able to identify a cartel, and take them

down.

The problem that we have is that I know, based on what I heard

from agents and what I heard over the radio, that surveillances

would terminate often far from the border. Some of these guns

could have been diverted with cartel drugs to New York, to Baltimore, to Oklahoma, to anywhere in the United States. This was a

catastrophic disaster.

Mr. LANKFORD. Thank you.

With that, I yield back my time.

Chairman ISSA. I thank the gentleman.

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We now recognize the gentlelady from New York, Mrs. McCarthy—Maloney. I am sorry.

Mrs. MALONEY. Thank you, Mr. Chairman.

Chairman ISSA. You are both New York, but I know the difference.

Mrs. MALONEY. Right, right—and ranking member, for calling

this important hearing.

And I join my colleagues in expressing our condolences and support to the Terry family.

And I thank all of the professionals in law enforcement for your

work and your bravery. And I especially want to welcome Special

Agent Forcelli since I used to have the honor of representing the

beautiful Bronx where you served, and I appreciate your statements in support of the ATF in New York and their fine work.

I would like to ask you, Special Agent Forcelli, about some of the

specific statements in your testimony to try to get a better understanding of what evidence is necessary in order to get a conviction

in these cases. And if I understand this correctly, there is no Federal statute that specifically prohibits straw purchases. Is that correct?

Mr. FORCELLI. No, ma’am. There is a statute, but the statute

doesn’t carry significant jail time.

And, candidly, I mean, I had great success working with Preet

Bharara and several administrations before his with the U.S. attorney’s office in New York. And we used basic techniques. You arrest

the people who were the bottom feeders, the lower people in an organization, and then you proffer them, you gather information. Utilize waivers of speedy presentment, where you have somebody go

do a delivery in the street to catch the next guy in the chain. Have

the straw buyer perhaps deliver the firearms to the trafficker and

then arrest the trafficker.

We didn’t have those tools available to us in Arizona, because the

U.S. attorney’s office wouldn’t allow us to utilize waivers of speedy

presentment before a magistrate. Proffers almost never happened.

The basic investigative techniques that I used with great success

in the Southern District of New York, Eastern District of New

York, and elsewhere weren’t being deployed in the District of Arizona.

Mrs. MALONEY. Well, working with my staff, when we looked into

it, straw purchases are typically charged under section 922 and 924

of the Criminal Code, and these sections make it a crime to knowingly make a false statement. And, in this case, the false statement

would be when the straw purchaser lies on a Form 4473 when he

or she makes a straw purchase. This was the way that they went

after straw purchases in other States.

Are you aware of these two sections and knowingly making a

false statement, are you aware of that particular——

Mr. FORCELLI. I am, ma’am. And, again, I will just state that, in

many instances, these cases weren’t prosecuted by the U.S. attorney’s office——

Mrs. MALONEY. But I want to get back to the false statement.

And what is the false statement they would make on such a form

that they could use in prosecutions; are you aware?

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Mr. FORCELLI. Well, the most blatant one is that there is a box

that you check whether or not you are purchasing the firearm for

yourself. A straw purchaser clearly is not. They are buying that

gun merely to deliver it to another person.

The other lies would be sometimes people put false addresses——

Mrs. MALONEY. And getting back to your statement on the prosecutions, border-State U.S. attorneys have complained that district

court judges view these prosecutions as mere paper violations. And

have you heard this criticism before?

Mr. FORCELLI. I have, and I agree with it. I think perhaps a

mandatory minimum of a 1-year sentence might deter an individual from buying a gun. Some people view this as no more consequential than doing 65 in a 55 zone.

Mrs. MALONEY. Yeah. And the Justice Department——

Chairman ISSA. If the gentlelady will suspend, I want to caution

the witnesses that the scope of your testimony here is limited and

that it is not about proposed legislation and the like and, under our

House rules, would not fall within the scope of this. So,

anecdotally, you can have opinions, but ultimately it would not be

considered valid testimony.

Mr. CUMMINGS. Point of order, Mr. Chairman.

Chairman ISSA. The gentleman will state his point of order.

Mr. CUMMINGS. Let me just—Officer Forcelli, in his testimony,

has a statement, Mr. Chairman, that I read, where he says that

these firearms are ending up on both sides of the border. And I

think it is only fair that, since it is his statement, that she—and

that is basically what she is pretty much going to, but——

Chairman ISSA. The gentlelady can ask any question she wants

within the scope of the hearing. Under Rule XI, clause 2(k)(8), it

is the discretion of the committee as to the breadth of the testimony.

Any question related to the operations or the failures of Fast and

Furious or factual indications of what occurred in Arizona or

throughout the system are within the scope of the hearing. Proposed legislation at a Federal level and whether or not they should

be changed are outside the scope of not only this hearing but would

not ordinarily fall under the jurisdiction of this committee.

The gentlelady may continue——

Mr. CUMMINGS. Just a further point of order, Mr. Chairman.

It is my understanding of the rules that you can object to the

question, but you can’t tell the witness what to testify to.

Chairman ISSA. Under——

Mrs. MALONEY. Well, reclaiming my time, I appreciate the chairman’s statement.

And I appreciate your statement earlier when you said you wanted full answers and full prosecution. And I think it is certainly

within the scope of this hearing to understand why we are not getting a full prosecution. And the allegation that they call them

paper excuses, as opposed to a valid, concrete way to react I think

is a valid way to go forward.

Chairman ISSA. Will the gentlelady——

Mrs. MALONEY. I am supporting your statements.

Chairman ISSA. If the gentlelady would suspend for just a moment.

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The gentlelady’s questions and whether or not the gentleman believes that law enforcement was doing its job or that the courts

were properly enforcing and whether that may have led to actions

is fully within the scope. Anything that these individuals witnessed

in or around Fast and Furious is certainly within the scope.

I only caution, we are not here to talk about proposed gun legislation. It would be outside the scope of this hearing.

Mrs. MALONEY. Well, I wasn’t discussing that. I was trying to figure out why the Justice Department and the IG found that prosecutors often decline these gun cases. I want to know why they are

declining them.

And, to quote from the testimony, one of you said, ‘‘because they

believe it is difficult to obtain convictions on these violations and

because they believe it is difficult to obtain paperwork from Mexico.’’

My question is, are these valid excuses not to bring these cases?

I think that is a valid question to get to why we are not getting

prosecutions in these cases. Are these valid excuses, to say they are

paper excuses, not to bring it?

Mr. FORCELLI. I believe not, ma’am.

And, again, to go after the mid-level and upper-level members of

a cartel, you need to start, unless you have evidence on them immediately, with the people at the bottom of the food chain.

When straw-buyer cases are dismissed because of excuses made

up by the U.S. attorney’s office, as opposed to when you have factual evidence that shows that person has committed a crime, then

you can’t prosecute that bottom feeder to move up to the next level.

Mrs. MALONEY. One of you, in your testimony, called these laws

to prosecute ‘‘toothless.’’ And could you explain to me, why are existing straw-purchase laws toothless?

Mr. FORCELLI. My opinion, ma’am, is that, with these types of

cases, for somebody to testify against members of a cartel, where

the alternative is seeing a probation officer once a month, they are

going to opt toward, you know, not cooperating with the law enforcement authorities.

Mrs. MALONEY. And what would help your interactions with the

U.S. attorney’s office? Mr. Casa, Mr. Forcelli, or others, what would

help you be able to be part of getting convictions and bringing

those to justice that are part of these straw purchases that led to

the death of Mrs. Terry’s son?

Chairman ISSA. The gentlelady’s time has expired, but you certainly can answer that.

Mr. FORCELLI. Well, I believe, first and foremost, they probably

need more resources at the U.S. attorney’s office in Arizona. There

are overwhelming numbers of gun crimes occurring there, and if

they don’t have the resources to prosecute them, then I would

imagine that they would need some assistance in those regards.

Chairman ISSA. We now recognize the gentleman from Idaho,

Mr. Labrador, for 5 minutes.

Mr. LABRADOR. Thank you, Mr. Chairman.

Terry family, thank you for being here. I will always remember

the poem. And I think I am going to put this on my wall: ‘‘I do not

fear death, but I do fear the loss of my honor.’’ I think that is something that hopefully every Member of Congress can somehow reVerDate 17-JUN-2003 17:38 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00126 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\71077.TXT KATIE PsN: KATIE
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member. I think sometimes we worry too much about death—and,

in our case, death is, you know, the next election—and too many

of us forget that what we should be worried about is our honor and

the honor of this Nation.

So, thank you, Mrs. Terry, for raising such a great son. I have

five children, and I cannot even imagine what you are going

through.

When did you, Mrs. Terry, when did you first hear that—I think

you said you first heard about the weapons being purchased

through Operation Fast and Furious, you heard that through the

media, or did you hear that from any of the agencies?

Mrs. TERRY. No. It was mostly on TV, the media, newspapers. I

never really got a call about anything like that until it was brought

out in the newspapers.

Mr. LABRADOR. And how did you feel when you heard about that?

Mrs. TERRY. I was—just was flabbergasted. I just—I didn’t believe it at first.

Mr. LABRADOR. Did you have any questions? Did any questions

come to your mind when you started learning that maybe there

was something? Because I heard about this when I was first elected—I am a freshman here—and I was just first elected. And right

after my election, I started hearing from people in my district

about this. And we, in fact, were some of the first to call for a hearing here in Congress about this, in the House.

And what went through your mind? What were some of the

thoughts that you had?

Mrs. TERRY. Well, I did ask a lot about how it happened, when

it happen, why it happened, but never got no answers because nobody wanted to say anything.

Mr. LABRADOR. So did you address these questions with the Department of Justice or any members of the Attorney General’s——

Mrs. TERRY. Oh, yes. Yes.

Mr. LABRADOR. And no one has answered those questions?

Mrs. TERRY. We got a lot of different answers.

Mr. LABRADOR. Okay. To whom did you speak, specifically? Do

you remember?

Mrs. TERRY. Well, we have been to so many memorials and I

have talked to so many people. But I talked to a lot of his BORTAC

friends that were on the unit that was with him. And they were,

like, on a gag order, so they couldn’t tell us nothing. It was like

they didn’t even want to talk to us.

Mr. LABRADOR. Are you satisfied with the answers you are getting?

Mrs. TERRY. No.

Mr. LABRADOR. No.

Any of the members of the family, are you satisfied with the answers you are getting? Mr. Heyer.

Mr. HEYER. I think I can speak for the family, Congressman,

that there is a level of frustration for the family.

I want to make it clear that our number-one goal is to pursue

the prosecution of all the killers of Brian. That is our number-one

goal. And, you know, the U.S. attorney’s office in Tucson and the

FBI is working very hard to do that.

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But I also think that I can speak for the family—we have talked

about this this morning—that there seems to be a separation, a

distinct separation, between Brian’s murder investigation and the

ATF Operation Gunrunner, Fast and Furious Operation. There

seems to be a hesitancy to connect the two. So that part is very

frustrating.

Mr. LABRADOR. Can you tell me, Special Agent Casa or any of the

special agents—that is a great point. Why do you think there is

this separation? Why are they making the separation between the

murder of the agent and the Operation Gunrunner?

Mr. CASA. Simply put, just to reduce their liability and our ATF’s

role in this murder. It started with the straw purchase that wasn’t

interdicted; it ends up in the murder of a law enforcement officer—

by the sounds of it, a very honorable law enforcement officer.

Mr. LABRADOR. Thank you.

I have no further questions.

Chairman ISSA. Would the gentleman yield?

Mr. LABRADOR. Absolutely.

Chairman ISSA. Well, following up on that, the two serial numbers that were used and found at the scene, to your knowledge,

aren’t those serial numbers not the first, the second, or the third

purchases—meaning, there already was a case made against a potential defendant, and he could have been arrested and even

turned as an informant, potentially, prior to the sale of those two

weapons?

Mr. CASA. My understanding is, yes.

Chairman ISSA. Thank you.

We now recognize the gentleman from Massachusetts, Mr.

Lynch.

Mr. LYNCH. Thank you, Mr. Chairman.

First of all, Mrs. Terry and Mr. Heyer, my prayers and condolences go to your son, your cousin, and your family.

Special Agent Forcelli, in your statement, you expressed extreme

frustration with the U.S. attorney’s office in Phoenix. You said that

they gave dozens of firearms traffickers a pass. You also testified

that they allowed criminals to walk free. And you indicated that

they declined most of the cases—most of your cases. And this was

at least one factor which led to the debacle and perhaps the necessity of Operation Fast and Furious. Is that correct?

Mr. FORCELLI. Yes, sir. I strongly believe that.

Mr. LYNCH. Those are very strong allegations, so I want to ask

you about the specific cases that you cite.

First, you talk about the 2007 case of Victor Varela, who trafficked, I think, .50-caliber rifles to the Mexican drug cartels, one

of which was used to kill a Mexican military commander. The U.S.

Marshal David Gonzalez said at the time, ‘‘This case was made one

of our highest priorities because of the nature of the crime.’’ But

you say that the assistant U.S. attorney in Phoenix wouldn’t prosecute.

Do you believe, in that case, that we had sufficient evidence——

Mr. FORCELLI. Absolutely.

Mr. LYNCH [continuing]. To move forward with the prosecution?

Mr. FORCELLI. Absolutely. In fact, sir, that case was prosecuted

by the Arizona Attorney General’s Office, where they had to utilize

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statutes that aren’t normally utilized in gun cases. They had to

charge them with fraud schemes for falsifying the Form 4473s.

Mr. Hurley, the assistant U.S. attorney who declined the case,

stated that, because the gun was in Mexico, the body of the crime

was in Mexico, we have no case, and just outright declined prosecution for that reason.

We had identified additional straw buyers in Mr. Varela’s network. We had gotten cooperating statements from them. They also

went to jail.

This could have been a very good Federal case. But, again, the

U.S. attorney’s office declined it because, in their opinion, the gun

being in Mexico meant that the evidence of the crime was in Mexico.

Mr. LYNCH. Do you know any other office or region that applies

that type of standard to go forward with prosecutions?

Mr. FORCELLI. Sir, I was told this was a Ninth Circuit issue, but

I have had discussions with prosecutors in Los Angeles, which is

also in the Ninth Circuit, that say that they didn’t carry it to that

extreme.

And what I will say for the record, sir, is, since then, since Mr.

Hurley is no longer running the firearms unit—he has been replaced, or now answers to another supervisor—they have now

amended that to say that if we can go down and physically examine the weapon or have one of our assets in Mexico examine the

weapon, that they will now charge those crimes. But for 2 years

where I was in charge of the firearms-trafficking unit, if the gun

went to Mexico, that case was dead.

Mr. LYNCH. Okay.

You also testified regarding the Excalibur gun store case in 2008.

You said the dealer in that case admitted that about a thousand

firearms were trafficked to Mexico, and half a dozen of them were

found around the dead body of cartel leader Beltran Leyva, who

was killed by the Mexican Naval Infantry.Is that correct?

Mr. FORCELLI. Yes, sir.

For the record, though, I would like to point out that that case

was brought to trial by the Arizona Attorney General’s Office. However, the case was dismissed by the judge.

Mr. LYNCH. Right.

Mr. FORCELLI. So that case was dismissed.

What I will say in regards to that case is, I did, after that case

was declined by the U.S. attorney’s office, present that case to the

Southern District of New York for prosecution, because they were

doing a lot of international narcotics-trafficking case. And that office had told me, if we could have shown one wire transfer, one

banking transaction through their district, they would have been

interested in taking that case. Meanwhile, the State where all

these crimes took place, they were readily willing to just dismiss

prosecution efforts.

Mr. LYNCH. Right.

Both The Washington Post and PBS ‘‘Frontline’’ support your

version, I guess, and concluded that, ‘‘If there were ever a good

case against a set of rogue gun traffickers, the case against the

owner of Excalibur gun store was it.’’

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And I will read excerpts from The Washington Post here. It says,

‘‘This was a case that seemingly had everything in its favor. In this

case, the agents had tons of evidence—surveillance, recorded phone

calls, confidential informants and undercover agents posing as

straw buyers.’’

But this case was also denied, as you say, by the assistant U.S.

attorney in Phoenix. Is that correct?

Mr. FORCELLI. Yes, sir. The same assistant U.S. attorney who

was the prosecutor in the Fast and Furious investigation, as a matter of fact.

Mr. LYNCH. Okay. And then, in 2009 and 2010—I am running

out of time—you also say the same assistant U.S. attorney declined

dozens of other cases. Is that correct?

Mr. FORCELLI. After 2009, sir, my duties were changed to home

invasion investigations, so I am not certain what happened with

the firearms-trafficking investigation.

Mr. LYNCH. Okay. What is your assessment of why this specific

U.S. attorney repeatedly refused to take the gun cases?

Mr. FORCELLI. Sir, I don’t know. I couldn’t give you a reason as

to why.

Mr. LYNCH. Okay. Maybe we should have him in for questioning.

Mr. FORCELLI. That would be great.

Mr. LYNCH. All right.

Mr. Chairman, I have run out of time. I yield——

Chairman ISSA. Would the gentleman like an additional 30 seconds?

Mr. LYNCH. Please. Yeah, that would be great.

Chairman ISSA. Without objection.

Mr. LYNCH. Thank you.

I just want to note that your testimony, which is very good—and,

look, it takes a lot of courage to do what you gentlemen are doing—

it goes back to 2007.

Mr. FORCELLI. It does.

Mr. LYNCH. So, you know, this isn’t a political issue because, obviously, you know, we are talking about career prosecutors who

have been there since the Bush administration. And, as you cite,

going back to 2007, you are not alone in your assessment. We have

heard other complaints from other witnesses.

So I just want to thank you for your willingness to come forward

and help the committee with its work.

And I want to thank the chairman for the extra 30 seconds.

Thank you.

Mr. FORCELLI. Thank you, sir.

Chairman ISSA. I thank the gentleman.

We now recognize the gentleman from Utah, Mr. Chaffetz, for 5

minutes.

Mr. CHAFFETZ. Thank you.

First, to the Terry family, thank you for your son’s service, your

relative’s service. He is a hero. You know, we got a lot of people

on the front line doing tough things. And there will be nights

ahead—I just want you to know and express, given an opportunity,

know how much we appreciate his service and will remember him.

And to the agents who are brave enough to step forward and tell

it like it is, we thank you. It takes a lot of bravery to step forward

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and do the right thing. I know you probably had sleepless nights

and will have some others moving forward, but you are doing the

right thing. And we want to thank you for your service and for

your bravery in sharing your personal perspective in this situation.

Mr. Dodson, let’s start with you for a second. At what point did

you come to where you just had to come forward, you had to actually say something? Because usually these things sort of build up

or something big happens. Explain to me what happened, where

you thought, ‘‘Enough is enough.’’

Mr. DODSON. Do you mean outside of ATF, sir, or——

Mr. CHAFFETZ. In this particular case. I mean, why did you get

to this point where you are sharing this information?

Mr. DODSON. Well, I questioned my supervisors almost immediately, once we realized—you know, once we had relocated to

Phoenix and got briefed in and then actually started operationally,

that we were allowing all these guns to go.

Then, as the case agent and my supervisor and ultimately my

chain of command had all informed me that I was wrong and they

were right and this, you know, was a righteous operation, it wasn’t

until December 15, 2010, when I read what—we have a SIR report,

a significant incident report, detailing ATF’s preliminary investigation into the trace and weapons purchased by Jaime Avila.

And after reading that and then speaking with my FBI counterparts and learning that they were unaware of all of the events surrounding the purchase and trace of those firearms is when I had

to go outside of ATF. And I attempted to contact, originally, our

chief counsel’s office, our ethics section. I made several attempts to

contact the OIG’s office. And, ultimately, I was able to speak to

someone at Senator Grassley’s office.

Mr. CHAFFETZ. Do you think that there is a conflict between the

OIG, given that maybe this started as a result of a recommendation? Or do you see any sort of conflict that the investigator general

has in this case?

Mr. DODSON. Well, I can see a conflict between the office of the

OIG, yes, sir. The actual individuals that are working the case, my

interaction with them, since I have been interviewed by them, is

that I think that they get it.

However, those two offices, being what they are and how they

are aligned, there is inherently a conflict of interest there. If, in

fact, someone at DOJ authorized this, knows about it, is as wellversed in it as everyone at ATF, that thereby creates the conflict

with OIG.

Mr. CHAFFETZ. Give me an idea of the size and scope. I mean,

we are talking about thousands of guns knowingly going south, so

to speak. In your normal course of business, if you thought that

there was a straw purchase happening, how many guns would kind

of push you over the threshold to say, ‘‘We better stop that?’’

Mr. DODSON. Well, sir, I can tell you this. Prior to my arriving

in Phoenix in December 2009, my entire career, we have never

walked a firearm. And, as a matter of fact, even if one had gotten

away from us, if it was only a prop which had been mechanically

engineered so that it could not effectively fire a round, even if that

got away from us, no one went home until we got it back.

Mr. CHAFFETZ. Even just one gun?

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Mr. DODSON. Yes, sir.

Mr. CHAFFETZ. And, in this case, we have thousands of guns.

Now, what was the goal here? I mean——

Mr. DODSON. Sir, I can tell you what I was told. I was told that

the goal was to ultimately target and bring an entire cartel to prosecution.

Mr. CHAFFETZ. But how were they going to do that? I mean, the

suspected cartels were in Mexico, were they not?

Mr. DODSON. Yes, sir, they were. And I have no idea how they

planned to do that by this operation or how it was designed to

function.

Mr. CHAFFETZ. So was it the goal to knowingly and intentionally

allow these guns to go into Mexico?

Mr. DODSON. Was that the ultimate goal? Not as explained to

me. Was that part of, was that the rules in play to achieve the goal

that they had explained? Yes. We were mandated, let these guns

go.

Make no mistake, there was not a time we were out there on surveillance where we didn’t have the forethought that these were

going to be recovered in crimes. The next time we became aware

of these guns would be when they were recovered at their final

crime. Not whatever crime they might have done. It was the last

crime that they commit that they—not ‘‘they’’ commit, but the person who has them commits—that they are recovered in. There may

be 9 or 10 that the cartels have perpetrated with those firearms

prior to that date, but that recovery date is when we will learn

about it.

So, ultimately, what was the main goal, as explained to me, was

to get a cartel. The mission, what we were doing, what we were

ordered to do every day was watch these—the same guys buy the

same guns from the same dealers who we told to make the sales,

and then we would sit back and wait for the traces.

And when they came through from places in Mexico where it was

definitively related to cartels, they were giddy. They thought that

that justified—that created their nexus from this straw purchaser

to the cartel. However, there is not a rookie police officer in this

country that can explain to you how we are going to make a case

on them with that information.

Mr. CHAFFETZ. My time has expired. I yield back.

Chairman ISSA. I thank the gentleman.

We now yield 5 minutes to the gentleman from Virginia, Mr.

Connolly.

Mr. CONNOLLY. Thank you, Mr. Chairman.

And let me first join my colleagues in expressing my profound

sympathy to the Terry family for your loss and the country’s loss.

And it maybe sounds hollow to say thank you for his service. We

are in a terrible battle in the southwest of our country and on the

border with Mexico and in northern Mexico. Sadly, he is another

victim of that terrible battle, but his memory and his contribution

are something that will long be remembered and appreciated. And

our thoughts and prayers go out to you and the family.

I want to thank our three agents for being here, for your courage

and for your testimony. I want to respectfully suggest, however,

that I think that—you know, we urged you to speak freely at some

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risk. And that means answering questions freely without interference from any other member of this committee. And we don’t

sensor content here. The hearing has a scope, but if you feel an answer to a question requires amplification, you don’t need to be

mindful of the scope. And an individual member of this committee

has an individual right to ask questions and to solicit answers

without censorship.

So I want you to have that confidence, just as we began this

hearing urging you to speak freely. So you can speak freely in answering questions, including questions put by this Member.

Let me ask you, Special Agent Forcelli—I read your testimony

about the U.S. attorney in Phoenix, and I want to explore with you

just a little bit, to what do you attribute the seeming reluctance to

prosecute aggressively obvious illegal behavior that has a direct impact on your mission and that of the U.S. attorney’s office?

Mr. FORCELLI. Sir, I can’t say for sure.

And, again, I don’t want to paint the entire U.S. attorney’s office

with a broad brush. We had a very successful program that took

place two summers ago where we arrested 70 home invaders, violent criminals who were doing drug robberies, and prosecuted them

and went to trial.

For some reason, the firearms unit, which was at first when I

first arrived in Phoenix was run by Rachel Hernandez and then

subsequently run by Emory Hurley, consistently had issues with

prosecuting our cases.

One example, we had an informant that they dismissed outright.

This informant had provided truthful testimony, had provided accurate information, everything that met all the standards that we

look for in law enforcement. They dismissed every case that this informant had anything to do with. When I questioned them as to

why are we no longer using this informant, they said that his information was inaccurate and he lied.

Well, I was upset, because I had such a good relationship with

the prosecutors in New York, that my agents would bring a substandard product to the U.S. attorney’s office, so I went back and

questioned them and looked at that document. And that informant’s information was dead-on.

I then re-engaged Ms. Hernandez and asked why were not using

this informant, and she stated, ‘‘Well, he was moved with EWAP

funds,’’ Emergency Witness Assistance Program funds, ‘‘and DOJ

policy says we can’t do that.’’ Well, having worked with the Southern District of New York and having contacted main Justice, I

found out that that wasn’t true. The only disclosure would be, at

trial, you may have to articulate that that informant was paid

those funds.

When I approached her again about this particular situation, because dozens of cases hung in the balance, she finally conceded,

‘‘Well, he wore a lot of jewelry, he doesn’t have jury appeal. My

final answer is, no, we won’t use him.’’

I know, I have used murderers, I have used robbers, I have used

all sorts of people to put on the witness stand to make cases as

part of cooperation agreements. Part of a lawyer’s job is to prep a

witness. If this guy wore too much gold chain or didn’t have jury

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appeal, it is incumbent on the prosecutor to help get him ready for

testimony.

So I found it was either laziness or arrogance that really terminated many of our cases.

Mr. CONNOLLY. And when you compare that experience to your

experience in New York, this was unusual?

Mr. FORCELLI. Sir, I can say that I worked at the U.S. attorney’s

office, mostly for the Southern District, through Mary Jo White’s

tenure there, through Dave Kelley, James Comey, even currently

with Preet Bharara—consistently outstanding.

I can tell you that in the U.S. attorney’s office from Arizona—

when I got there, Daniel Canales was acting because the U.S. attorney had been fired—it was bad doing gun cases. And it continued to be. It has improved slightly since this flare-up, but it has

been consistently bad.

Mr. CONNOLLY. Thank you.

One final question. I wish I had more time, but we talked about

resources. There are 8,500 licensed gun dealers in the four southwestern States. You have 224 ATF agents assigned to Project Gunrunner. Do you really have the resources you need to do your job?

Mr. FORCELLI. It is amazing, sir, that you ask me that because

I just had contact last week with a friend of mine who works in

the 46th Precinct where I worked as a New York police officer. It

is one square mile. There are 355 police officers assigned to the

46th Precinct—one square mile. I have less than 100 agents assigned to the entire State of Arizona that is 114,006 square miles.

So do we have the resources? No, we don’t. We desperately need

them. Does that justify us not stopping——

Mr. CONNOLLY. No, no.

Mr. FORCELLI. No.

Mr. CONNOLLY. Different issue.

Mr. CONNOLLY. Thank you, Special Agent.

[The prepared statement of Hon. Gerald E. Connolly follows:]

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Chairman ISSA. Thank you.

We now go to the gentleman from South Carolina, Mr. Gowdy,

for 5 minutes.

Mr. GOWDY. Thank you, Mr. Chairman. Thank you for your leadership on this issue.

And to the family of Agent Terry, let me say on behalf of the people from the upstate of South Carolina, we offer our condolences,

and we thank you for the service and, ultimately, the sacrifice of

your son, your brother, your friend.

To ATF, I worked with ATF for 16 years, and I find this hearing

to be bitterly disappointing. This is not reflective of the ATF agents

that I worked with for 16 years.

And this panel is perhaps not the best panel for me to express

my displeasure, but, nonetheless, let me ask you this: When did

ATF have either constructive or actual knowledge that guns were

going to Mexico?

Mr. FORCELLI. Sir, it is my understanding that in 2009, when

Operation Fast and Furious was initiated, they were not interdicting firearms and they had knowledge that those guns were

being trafficked to Mexico.

Mr. GOWDY. Now, when you say interdicting firearms, you mean

something as simple as a traffic stop several miles away from

where the purchase was made, pretextual if it need be, but a traffic

stop so you don’t blow your informant, that easily could have been

done, right?

Mr. FORCELLI. Absolutely.

In fact, let me point out something, sir. We say an ‘‘informant.’’

A lot of the information that came into ATF came in from gun dealers who didn’t like the fact that they are portrayed as this nefarious, gray market. The gun dealers were our friends. They helped

us make a lot of these cases. And we had some successful cases.

This is an anomaly, this Fast and Furious investigation. But the

problem is, then, by getting them mixed up in this thing and encouraging them to sell guns when they decided to stop did not help

our reputation with the gun industry.

The other thing is, if our job is to stem the flow of firearms into

Mexico, and certain gun dealers realize there is a straw-purchasing

problem and they are willing to—forgive me for using an analogy—

turn off the faucets, well, we could have diverted our assets elsewhere and looked at other gun dealers where we thought the straw

purchasers were going to. Instead, we just encouraged them to continue selling guns. It made no sense.

Mr. GOWDY. But even for this investigation, as half-baked as it

was, to ever have worked, you would have had to have extradited

folks from Mexico back for prosecution in a lying-and-buying case

with a statutory maximum of what, 10 years? What are the guidelines in a typical lying-and-buying case?

Mr. FORCELLI. Generally speaking, people with—well, because

they don’t have a criminal history, which is why they can fill out

the form—they get probation. But, again, that is if they are prosecuted at all.

Mr. GOWDY. They could have done car stops. They could have

done search warrants. They already had a Title III up, from what

I understand. Correct?

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Mr. FORCELLI. Yes.

Mr. GOWDY. All right. So, even if it had worked, I don’t understand how it ever would have worked.

Mr. FORCELLI. Sir, let’s say, for example, that we wouldn’t get as

far as to be able to extradite the heads of the cartel. Perhaps, by

going out there, doing interdictions, we could have deterred some

of these guns from being purchased. Second, had we been able to

go out there and stop a straw buyer and then perhaps go do a controlled delivery, we would have made it up to the next level in the

organization.

Mr. GOWDY. You could have flipped them, though. You don’t have

to let the guns walk. Flip them.

Mr. FORCELLI. Absolutely. I agree.

Mr. GOWDY. How does your U.S. attorney not do proffers?

Mr. FORCELLI. That shocks me, sir. They do them very sparingly.

Seventy home-invasion defendants we arrested, as I pointed out

earlier. We proffered one. We could have solved unsolved robberies.

We could have solved unsolved homicides. We could have solved an

untold number of crimes had we had access to those defendants.

Mr. GOWDY. Now, this was an OCDETF case, right?

Mr. FORCELLI. Yes, sir.

Mr. GOWDY. Fast and Furious was an OCDETF case.

Mr. FORCELLI. Yes, sir.

Mr. DODSON. Yes, sir.

Mr. GOWDY. What other Federal agencies were involved, and

what complaints did they lodge?

Mr. DODSON. Well, sir, I can tell you, from almost the genesis of

the case, we had an agent with Immigration and Customs Enforcement embedded in Group VII acting on a co-case-agent status. So

ICE was well-aware of it.

Mr. GOWDY. Was the Bureau involved?

Mr. DODSON. I am sorry?

Mr. GOWDY. The Bureau, FBI?

Mr. DODSON. You got to understand, ATF Group VII is the Phoenix Strike Force Group. The DOJ strike force consists of entities

from DEA, FBI, ATF, and ICE.

Mr. GOWDY. What I am trying get a sense of—and I have less

than a minute—I want to know how many different law enforcement officers and agencies told the U.S. attorney’s office, ‘‘This is

a dreadful idea.’’ How many different people and agencies said,

‘‘This is unprecedented, it is a dreadful law enforcement idea, and

it needs to stop?’’ How many people told Ms. MacAllister and Ms.

English, ‘‘This is a horrible idea?’’

Mr. DODSON. As for agencies that expressed that to the U.S. attorney’s office, sir, none that I am aware of.

As for individuals that expressed it to Ms. MacAllister:

myself——

Mr. CASA. Many.

Mr. DODSON [continuing]. Special Agent Casa, Special Agent Alt,

Special Agent Medina voiced his concern.

Mr. CASA. So, countless detailees that came through.

Mr. DODSON. Yes.

Mr. CASA. Almost every person that came though that group,

that saw what was going on——

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Mr. DODSON. Every agent from outside of the Phoenix Field Division, sir, as well as many in it. But, specifically, those that came

in from the outside were appalled as soon as they learned.

Mr. CASA. Shocked and appalled.

Mr. GOWDY. I am out of time, but I would like to ask one more

question.

When the supervisors realized that guns were making it into

Mexico, acknowledging the fact that we do not have much success

extraditing people from Mexico for lying-and-buying cases, were the

Mexico authorities warned, ‘‘Hey, something bad has happened,

and firearms are in your country because we turned an eye to it?’’

Mr. FORCELLI. Sir, I can say, having had conversations with our

staff in Mexico City—this is ATF personnel assigned to Mexico

City—that they were not fully briefed on this. They were very

upset about it. This is something that was contained within the

ATF Group VII.

Mr. GOWDY. So we are going to ask for extradition cooperation

from a country that doesn’t even know what we are doing, that

doesn’t even know that we are letting guns go into their country

that murders their citizens as well as our agents.

Mr. DODSON. No, sir. Because, actually, the way this case is designed, we don’t even have a lying-and-buying charge on the individual that committed the crime in Mexico with these firearms.

They are not the ones that lied on the form.

Mr. GOWDY. You would have to have a conspiracy case, which—

I am sorry. I am out of time.

Mr. DODSON. We never took the steps to develop that conspiracy,

sir.

Mr. GOWDY. Thank you, Mr. Chairman.

Chairman ISSA. And I thank the gentleman.

We now recognize the gentleman from Massachusetts, Mr.

Tierney.

Mr. TIERNEY. Thank you very much.

And my condolences to the family, as well, and friends. And I am

not going to be asking you any questions, but I don’t want you to

interpret that as being unmindful of your pain and your sacrifice

on that. I hope you accept it as such.

But I would like to talk to the three special agents on this a little

bit and go back.

First of all, I do suspect that the Mexican Government understands that there are guns coming from the United States into

Mexico. I mean, Mexico’s Ambassador, Arturo Sarukhan, has stated pretty clearly that he thinks guns from the United States have

been feeding violence, and overwhelming firepower is being unleashed by drug traffickers. So I think they are quite aware of that.

But before this Fast and Furious became the policy that we are

all seriously questioning now, was it the Project Gunrunner, was

that the policy of the government from 2006 to 2009?

Mr. FORCELLI. Sir, if I may, Project Gunrunner was a funding

source that led to staffing many groups along the southwest border,

you know, offices with agents.

Project Gunrunner was preceded by something that they referred

to as ‘‘Operation Southbound.’’ And what that did was, we identified straw buyers through the cooperation of gun dealers or

136

through reviewing documents of past firearms purchases, and then

we would go out and do car stops and do interdictions. In many of

those interdictions, there were no prosecutions, for the reasons I

stated earlier. But the point was that we lawfully seized the weapons based on probable cause, and those weapons wouldn’t hurt anybody.

Now, there were plenty of times where, if a gun dealer was suspicious of a person and we would stop them and that person was

a law-abiding citizen, they went on their way with their lawfully

purchased firearm and our apology. But if they were criminals,

those guns were in our custody whether they went to jail or not,

and they never hurt a soul.

Mr. TIERNEY. Were there any appreciable amount of weapons, do

you think, getting through that system, still making it to Mexico?

Mr. FORCELLI. Oh, absolutely. And it is the nature of the straw

purchasing. I mean, a straw purchaser is somebody who is legitimate. If the gun dealer isn’t suspicious and he makes that sale,

and then that person then hands it off to somebody who is going

to bring it down to Mexico, we are going to have no way of knowing

that until the gun is recovered in Mexico.

Mr. TIERNEY. All right.

So, in fact, you are familiar with the Iknadosian case?

Mr. FORCELLI. I was the supervisor of that investigation, sir.

Mr. TIERNEY. Well, I assume you were unhappy with that result.

Mr. FORCELLI. Extremely.

Mr. TIERNEY. And, in that case, didn’t the judge make a determination that—essentially, he threw the case out after about 8

days of trial on the premise that there was no proof that the ultimate person that got that gun was a person not allowed or not lawfully in possession?

Mr. FORCELLI. Correct. What he was stating was that we couldn’t

prove that he was supplying prohibited persons. That wasn’t the allegation or the nature of the case.

And, again, that is why, after that happened, I tried to present

this case to the U.S. attorney’s office in New York, which is just

incredible at doing international narcotics cases. And had we had

one wire transfer or one banking transaction occur in that district,

I am convinced we would have had a successful prosecution there.

Mr. TIERNEY. Do you think there is any hesitation on Federal

prosecutors—and I ask this of all of you agents because you have

been so candid—any hesitation on the part of Federal prosecutors

because they think, somehow, pursuing these cases is going interpreted as violating or looking to violate somebody’s Second Amendment rights?

Mr. FORCELLI. No, sir. I honestly don’t think so, from my perspective, having——

Mr. TIERNEY. That is not what is causing the inertia on the part

of the prosecutors?

Mr. FORCELLI. I can’t say for sure, sir.

Mr. CASA. I would have to agree with Agent Forcelli that, no.

Mr. TIERNEY. So if a person goes into a store, a gun store, and

buys two or three or four handguns, does Federal law require them

to report that?

Mr. FORCELLI. Yes, sir.

137

Mr. TIERNEY. Okay. And if I were a person who went into a store

and I bought four or five long guns——

Mr. FORCELLI. No such requirement, sir.

Mr. TIERNEY. What if I went in—and you are familiar with the

Romanian AKs?

Mr. FORCELLI. Yes.

Mr. TIERNEY. All right. And it is fair to say that a high amount

or a large proportion of the guns that are going to Mexico constitute the AKs, the Romanian AKs?

Mr. FORCELLI. Absolutely.

Mr. TIERNEY. All right. So they are coming from Romania to this

country, they get doctored up and changed, and then they move on

down to Mexico?

Mr. FORCELLI. Yes, sir.

Mr. TIERNEY. All right. So if I went into a store and bought any

number of those, the store owner doesn’t have to report that?

Mr. FORCELLI. No.

Mr. TIERNEY. All right. If it was reported to you, would that give

you some indication that here is something you ought to investigate?

Mr. FORCELLI. Sir, it is my opinion, just like we monitor moneys

wired to the Middle East and we monitor how much Sudafed somebody buys in a pharmacy nowadays because that is what is utilized

to make methamphetamine, it would be similar to that. Not everybody who buys more than one gun is a criminal, but it would give

us an indicator that, hey, why is this person buying seven AKs?

Maybe that is somebody we want to speak to.

Now we are not aware of those multiple sales unless one of two

things happens. A is that we have a cooperative gun dealer who

calls us and says, hey, something is not right here; or, B, that

weapon is—one of those weapons is found at a crime scene and

traced back to that individual. And then we go pull the paperwork

manually from the gun dealer.

Mr. TIERNEY. Is there any law enforcement reason or rationale

that you can think of why we would not want to have that information reported? Multiple sales of long arms, like Romanian AKs or

something?

Mr. FORCELLI. I can only give you my personal opinion, sir. It

would be a good indicator for us, a good starting point, much like

it is with handguns.

Mr. TIERNEY. But no reasons you can think of why you wouldn’t

want to have it reported. It wouldn’t interfere with law enforcement efforts if it was reported.

Mr. FORCELLI. In my opinion, it would help our efforts, sir.

Mr. TIERNEY. Okay. Thank you.

Chairman ISSA. The gentleman’s time has expired.

The gentleman from Texas, Mr. Farenthold, is recognized for 5

minutes.

Mr. FARENTHOLD. Thank you very much, Mr. Chairman.

I, too, would like to express my condolences to the Terry family.

The district I represent includes Brownsville, where the family of

Special Agent Jaime Zapata reside, as well. And they are going

through some pain similar to what you guys are going through,

very possibly as a result of ill-conceived policies by the ATF.

138

I did have a couple of questions for the gentlemen here from the

agency. And we appreciate your courage in testifying and want to

assure you that—I think I speak for the bulk of this committee—

that we really appreciate your courage in coming out. It certainly

would be a bad thing if there were to be any repercussions.

My question to you is, in your testimony, you were talking about,

you had followed the straw buyer from the gun store, and it would

stop. Did you all ever go beyond the first handoff of that weapon,

to trace them to where they were going?

Mr. DODSON. Sir, not really, no. Many a times, what we would

do is, we would have the information beforehand, where they would

call the FFL and say, ‘‘Hey, we are coming by to pick up 10 or 15

of these AK-variant rifles,’’ at which time the FFL would notify the

case agent and we would begin the surveillance. We would often go

to the straw purchaser’s house and catch him before he leaves

there, catch him as he meets an individual, you know, at a carwash

or a gas station——

Mr. FARENTHOLD. But you didn’t follow that individual to move

it up the chain.

Mr. DODSON. No.

Mr. FARENTHOLD. So if you were out to make a case against people higher up in the chain, wouldn’t the next logical step have been

following the gun the next step?

Mr. DODSON. That would be very logical, sir.

After he purchased the firearms and delivered them to another

parking lot, and Special Agent Casa and I took pictures of them

taking them out of one vehicle and putting them in another, yet we

had to follow the straw purchaser back to his house, while we knew

the guns were headed the other way on the highway. I cannot tell

you the logic behind that either.

Mr. FARENTHOLD. Did you have something to add?

Mr. CASA. Yes, sir. We were given direction by either the case

agent or the group supervisor—we were literally pulled off of surveillances. When we would make requests. After a straw-purchase

exchange had taken place, we requested, hey, this is a good opportunity to seize the firearms from an unknown person, plus we get

to identify that unknown person, plus we might be able to move

up the chain. And we were told point-blank, time and time again,

absolutely not, no.

Mr. FARENTHOLD. All right. All right.

I apologize for going so fast. I have limited time.

You say, at one time, you built a tracking device from stuff you

bought at RadioShack, and then you had one, out of the thousands

of weapons, you had one that the agency provided for you that ran

out of battery. Is that correct?

Mr. DODSON. To my knowledge, there was just the one, yes, sir.

Mr. FARENTHOLD. So if you were trying to track guns, wouldn’t

the logical way to do that be to embed some type of tracking device

either in the gun or its packaging?

Mr. DODSON. Sir, when the statement was made that we were

trying to track these firearms, what that means is we were tracing

them once they were recovered in the last crime they were utilized

in.

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Mr. FARENTHOLD. Right. But if you were trying to make a case

that this is going up to the Mexican drug cartels and is involved

in multiple murders and, you know, potentially bringing bigger

charges against these straw men for being part of a conspiracy, you

would want to see, you know, everybody involved in that conspiracy, wouldn’t you?

Mr. DODSON. Oh, most definitely, sir. And what I would have

done, I would have landed on these straw purchasers, and, before

long, I would have had that information for you.

Mr. FARENTHOLD. All right. So let me ask you this. The policy

we had of just following them and then quitting, do you see any

rationale behind that? Could you come up with any reason we were

stopping when we were stopping? Any theory at all?

Mr. FORCELLI. Sir, I will say this. For years, when I first got to

Phoenix, I was supervising firearms-trafficking investigations, and

we utilized trackers, and we did what you just pointed out. We

would make a car stop at the hand-to-hand exchange, or we would

seize the weapon if it got to a reasonable point where we thought

it might go to Mexico.

To answer your question, I have sat down many times to try to

figure out what the logic would be to let these firearms go to Mexico, and I can’t think of a single logical reason why this strategy

would work.

Mr. FARENTHOLD. And you are not aware of any cooperation with

the Mexican authorities or any of our intelligence agencies that

might be tracking these beyond Mexico or anything?

Mr. FORCELLI. I think if we were tracking them, we wouldn’t see

the tragic results we see when these guns get traced back from

murder scenes.

Mr. FARENTHOLD. And were you doing anything to identify these

weapons, other than recording the serial numbers? For instance,

test-firing them and gathering ballistics information or anything

else?

Mr. FORCELLI. Sir, no. The firearms were being sold and, like I

said, in most instances taken out of the country. I know that once

the Mexican Government takes possession of them, our assets in

Mexico go examine them. And I am not exactly sure what——

Mr. FARENTHOLD. And, I mean, you work on the border. You realize Mexico takes bringing guns into their country pretty seriously. I, mean just taking a shotgun to Mexico to go bird hunting

is an experience.

Mr. FORCELLI. Yes, sir.

Mr. FARENTHOLD. So this is something our friends, our allies,

and our neighbors would be very concerned about, and we didn’t

bother to inform them.

Mr. FORCELLI. We did not.

Mr. FARENTHOLD. Thank you very much.

Chairman ISSA. I thank the gentleman.

We now go to the gentleman from Pennsylvania, Mr. Kelly, for

5 minutes.

Mr. KELLY. Thank you, Mr. Chairman.

And I want to thank you, special agents, for appearing. I think

like everybody on this panel, we admire your courage and your patriotism for doing that.

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But my questions really are to the Terry family. And, Mr. Heyer,

I know how difficult it was for your opening statement. And I will

tell you now that, as I am in the autumn of my life, being the father of four and the grandfather of five, I think the unintended

consequences of poor policies and procedures and failed strategies—

at some point, somebody has to be held accountable for these

things.

And as difficult as it may be for yourself and the Terry family,

if the person responsible were in the room right now for Operation

Fast and Furious, what might you want to say to them?

And, please, I think it is so important for the public to understand the purpose of these hearings. While we are very upset with

the policies, it is important that people understand that there is a

loss of human life here. So it is more than just a strategy that has

failed, it is more than a filled policy and procedure. It is the loss

of someone which is so near and dear to you.

So, your opportunity to do that. I would appreciate it.

Mr. HEYER. Well, it is tough. Brian was an amazing kid, an

amazingly brave kid that was willing to put his life on the line.

If that person were in the room, obviously we would want him

or her to accept responsibility.

Right now, looking back at this operation, it appears that it has

cost the life of our Brian. We hope and pray that it is not going

to result in any additional lives of U.S. law enforcement. But I

don’t know if we can truly—if that is truly going to happen. Those

guns are out there.

So, beyond accepting responsibility for these decisions, we would

be curious to hear, why did you feel that this was within that risk?

You know, I have heard from the ATF agents here that even a

mockup weapon normally would not have been allowed to walk

during these operations. And, you know, an awful lot of weapons

walked, and we would be curious to find out why.

Mr. KELLY. Ms. Balogh or Ms. Terry, anything you have to add?

Mrs. TERRY. I don’t know what I would say to them, but I would

like to know what they would say to me. That is all I would say.

Mr. KELLY. Well, I know it is difficult, and I don’t want to put

you through any of this. But I think it is incredibly important, because the fabric of your family has been irreparably torn; it can

never be put back together again. And so the purpose of these

hearings really is to make sure that nobody else has to go through

the same things that you have gone through. So I appreciate you

being here.

And, with that, Mr. Chairman——

Chairman ISSA. Would the gentleman yield?

Mr. KELLY. I will yield back.

Chairman ISSA. Would the gentleman yield to the chair?

Mr. KELLY. Yes, sir.

[The prepared statement of Hon. Mike Kelly follows:]

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Chairman ISSA. Thank you.

I am going to follow a line of questioning that I think I have been

seeing develop throughout here with the four law enforcement experts.

You have two points. You know, the old expression, you know,

you connect the dots. The first point is the straw buyer. The last

point is the scene of the crime. You have said, each of you special

agents, that in this case, as soon as you got to the next point of

connect the dots, you were generally sent the other direction. You

were not allowed to go beyond that next point. You weren’t even

allowed to follow that next point even when they headed north

with the weapons.

Now, if an operation like Fast and Furious seems to have a pattern, a consistent pattern, that you are only looking for two points,

the beginning and the end, it is not a criminal prosecution, it is not

an effective one. Plus, of course, if you take the logic that you can’t

prosecute a straw purchaser if the gun is in Mexico, if you take

that point, then that part of it was frivolous from the start, even

though, today, every one of those straw purchasers has been

charged, oddly enough, with the evidence that was available before

that gun ever walked beyond the first step.

So let me just ask a question for your supposition, but I think

it is a very well-educated one. If you only look at the beginning and

the end of the dot, isn’t the only thing you have proven is that guns

in America go to Mexico?

Now, could that be a political decision? Could that be a decision

that, basically, we just want to substantiate that guns in America

go to Mexico—something we all knew, but would have considerable

political impact as Mexico began complaining about these, and they

could say, ‘‘Well, yeah, we were even rolling up the straw purchasers.’’ It wouldn’t change the fact that Mexicans were dying at

the bequest of the United States, but wouldn’t it ultimately meet

a political goal?

Mr. FORCELLI. I imagine, sir, that it is possible. In this instance,

I think it is more just, as I said earlier, a case agent that had a

bad idea, a group supervisor who failed to rein her in, an ASAC

who failed to rein in—the chain of command, all the way up, failed.

Chairman ISSA. But you would agree that it doesn’t meet any

criminal goal of prosecuting, the way it was handled?

Mr. FORCELLI. No, because you can’t show the chain of how those

pieces of evidence went from point A to point B, which you would

need to prove at a trial.

Chairman ISSA. I hope it was just a terrible mistake.

Mr. Clay, you are recognized for 5 minutes.

Mr. CLAY. Mr. Chairman, at this time, I have no questions for

this panel in the interests of——

Chairman ISSA. You yield to the ranking member then?

Mr. CLAY. I yield to Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

It seems to me that we do have a—there are some serious disconnects. And why that is, you know, I cannot imagine. And I want

to say to you all, your testimony has been abundantly clear.

But I want to, for a moment, go back to Mrs. Terry.

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Ms. Terry, you know, I often say—right now I am preparing to

do a eulogy on Saturday. And one of the things that I thought

about as I am sitting here is, I do believe that part of life is death,

but, also, part of death is life.

And what I mean by that is that, you know, we can’t fully understand why somebody would leave us so young, particularly somebody like your son and your relative, who was so full of courage,

in the fact that he was willing to basically die for his country. And

we cannot always understand it. And I think we all struggle, we

struggle with it, particularly when it is a young person.

But I can say this, that I believe deep in my heart that, some

kind of way, out of his death will come life. In other words, the

mere fact that we are here right now, Mr. Heyer, talking about

this, the mere fact that this was not something that was just

shoved under the rug and just moving on, the mere fact that there

are probably already changes being made to this program—and I

think it was you that said it, that you wished you could say that

this was the end of it, but there are guns still out there. But at

least—and to the agents I say this too—at least we are now moving

in a direction where hopefully we reverse this and save some lives.

That is why I said, Ms. Terry, sometimes out of death comes life.

And it is not—nothing, nothing, nothing, nothing can—I am not

trying to—you know, nothing can bring a person back. But, you

know—because I have wrestled with the question, I wrestle with

it all the time, of, why do so many of our best die young?

And so that is why I said to you before—Chairman Issa asked

me a question a moment ago about cooperation with the Justice

Department. And I wanted to make it clear that I fought all my

adult life trying to take guns, illegal guns, out of hands of folks,

period. It was you, Mr. Forcelli—and all of your testimony was absolutely brilliant. It was straightforward, no frill, just straight testimony. And that is what I appreciated so much about it.

But what you said, I don’t want us to lose sight of it. And even

the chairman just talked about it, to a degree. These guns don’t

just end up in Mexico. They end up in the United States, too. And

they are not just killing people—used to kill people in Mexico. It

is happening everywhere in our streets.

And some kind of way, some kind of way, and as I listened to

Senator Grassley, he is right, we do need to leave the political piece

at the door and try to figure out, how do we address this problem?

We got to keep in mind, too, Mexico is right next-door. So, basically, in a sense, in a sense, if these guns are flowing to Mexico,

basically what we are doing is turning a gun on ourselves, or guns

on ourselves. And this case is a prime example of that.

And so, you know, I just believe that we have to take this moment and make it bring life, bring life, out of this very horrific and

terrible death.

And, with that, I yield back.

Chairman ISSA. I thank the gentleman for his comments.

We now go to the gentleman from Florida, Mr. Ross, for 5 minutes.

Mr. ROSS. Thank you, Mr. Chairman.

And to the Terry family, I cannot imagine the emotional roller

coaster that you have gone through and what today’s testimony

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does for you. But I can appreciate that you are here, and I am

grateful for that.

To our agents that are here, you know, this investigation, as you

well know, relies intensely on your testimony, not only in whole

but, quite frankly, in hope so that we find an answer at the result

of this investigation to see that this never happens again.

And to that end, I want to ask a couple of questions, and specifically to you, Mr. Casa, because I was here for your opening testimony and had to leave for some votes. But you mentioned that it

was the rule, rather than the exception, I think, to have the surveillance without the interdiction or the arrests. Did I get the gist

of it?

Mr. CASA. For this investigation, yes, it was.

Mr. ROSS. And then you stated in your testimony, ‘‘It has become

common practice for ATF supervisors to retaliate against employees that do not blindly toe the company line, no matter what the

consequences.’’

Can you describe what any of that retaliation may have been?

Mr. CASA. I would just say, refer back to OIG investigations over

the countless years: FLEOA attorneys that have represented ATF

employees for all types of retaliation for whistleblowing; punitive

actions, whether that agent or inspector deserved the punitive actions for——

Mr. ROSS. You mentioned that the email that you received, you

felt that was threatening.

Mr. CASA. Oh, yes.

Mr. ROSS. And were you personally threatened by MacAllister or

English or anybody else?

Mr. CASA. No. They are my equal, or, you know, they——

Mr. ROSS. Right.

Mr. CASA. But my supervisor put in there, ‘‘Hey, if you don’t like

what we are telling you to do, go work for Maricopa County Sheriff’s Department.’’ First of all, it was in horrible taste.

Mr. ROSS. Yeah, I agree.

Mr. CASA. Second of all, because they are our brave men and

women of law enforcement side-by-side with us in the fight against

violent crime in the Phoenix area.

Mr. ROSS. What has happened to your supervisor since then?

Mr. CASA. I have no idea.

Mr. ROSS. Were there any repercussions as a result of his actions?

Mr. CASA. Not as of yet. My understanding——

Mr. ROSS. So he is still in the same position, his supervisory capacity?

Mr. CASA. Yes, I still understand he is a group supervisor. I believe he is in Minneapolis-St. Paul, currently still a GS–14 group

supervisor.

Mr. ROSS. Now, you mentioned that they would stop you from arresting straw purchasers and interdicting their weapons. Were

there other occasions when your case agent told you to stand down

and not make such arrests?

Mr. CASA. I mean, in this investigation?

Mr. ROSS. Yes, in this investigation.

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Mr. CASA. Again, it was common. It was more than on one occasion. It was a few occasions.

Mr. ROSS. Was there one where you watched them come out with

a bag of guns, I guess, and——

Mr. CASA. Yes. On one specific occasion—I wish I had more time;

I will try and be as brief as possible—we observed—and, in fact,

I was with Special Agent Dodson, and we observed an individual

do a straw purchase, I believe on that day it is 10 FN pistols,

which, by the way, they penetrate law enforcement vests. They are

called ‘‘cop killers.’’

Mr. ROSS. And that had to be particularly painful.

Mr. CASA. Yes.

Mr. ROSS. And you saw this happen and you were ordered to

stand down?

Mr. CASA. We followed it, we followed the straw purchaser. We

saw him transfer the guns to an unknown individual—unknown.

And I said, okay—since I was the shift supervisor, I called the case

agent and said, we need to interdict these firearms.

Mr. ROSS. And who was the case agent? Was that——

Mr. CASA. MacAllister.

Mr. ROSS. MacAllister. Okay.

Mr. CASA. And I was told, no, stand down, do not interdict. I was

given no explanation why, other than to keep on following the unknown individual with firearms.

Well, he is street-savvy. He makes our—a 10-person surveillance,

each car over and over again, to the point where he stops in the

middle of a small subdivision in front of Special Agent Dodson and

I. And he is a lot higher up in a jacked-up pickup truck; we are

down here. And we know he has at least 10 FN 5.7-millimeter pistols.

And then I say, we need to engage. I call back in. Unfortunately,

the group supervisor, who should have been there during the operation, or the case agent, who should have been there during the operation, they were gone for the day. They left.

Mr. ROSS. And there was no way to get in touch with them?

Mr. CASA. Well, I was told the point of contact at that point was

a probationary employee named Tonya English, who wasn’t even a

tenured ATF special agent. And I had to take my instruction from

her, who told me, no, fall back, just resurveil.

Mr. ROSS. That fallback, that resurveillance, isn’t that contrary

to what ATF policy should be?

Mr. CASA. Yes.

Mr. ROSS. I mean, shouldn’t the policy have been, go in and

make the arrest or the interdiction?

Mr. CASA. I am sorry to cut you off. Yes, sir, most definitely. Furthermore, it created a very serious officer safety issue.

Mr. ROSS. Yes.

Mr. CASA. The guy knew he was being followed, but he didn’t

know by who. For all he knew, we could have been cartel members

trying to rob him of those 10 guns, or we could have been law enforcement. We don’t know what he thought. But it caused a very

serious officer safety issue.

Mr. ROSS. So but for the grace of God, there could have been

more than Brian Terry lost as a result of this.

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Mr. CASA. Yes, sir.

Mr. ROSS. Ms. Balogh, just briefly—I have just a couple of seconds—is there anything that you think that your brother would

want this committee to know about his life and about his service?

Ms. BALOGH. Brian was about making a difference and justice.

And I just feel that this country owes it to him, because he spent

his whole life fighting for this country some way or another.

Mr. ROSS. I agree, and he is a hero.

I yield back.

Chairman ISSA. I thank the gentleman.

We now go to the gentleman from Arizona, Mr. Gosar, for 5 minutes.

Mr. GOSAR. Mrs. Terry and the family, I am deeply sorry. As a

father, I don’t know—I can just feel that pain. And I hope what I

am going to say next does not aggravate that in advance, okay?

For the law enforcement folks, when you first heard about the

shootings of Congressman Gabby Giffords, was there a level of anxiety from the ATF fearing that one of the weapons might trace

back to the operations of Fast and Furious?

Mr. CASA. Yes, sir.

Mr. FORCELLI. Yes, sir.

Mr. DODSON. Yes, sir.

Mr. GOSAR. Where did this anxiety come from and from whom

specifically?

Mr. FORCELLI. Sir, I received a phone call from my public information officer, who is a friend of mine, who said that there was

concern from the chain of command that the gun was hopefully not

a Fast and Furious gun.

Mr. CASA. Sir, I would like to also add, every time there is a

shooting, whether it was Mrs. Giffords or anybody, any time there

is a shooting in the general Phoenix area or even in, you know, Arizona, we are fearful that it might be one of these firearms.

Mr. DODSON. And this happened time and time again. When

there was U.S. Embassy personnel killed in Juarez, Mexico, the

fear spread through the division.

Mr. GOSAR. Well, there is a reason I am asking, because I am

feeling like—I mean, I am a dentist. I didn’t participate in the military. But I understand that there is a chain of command. And I feel

like I am watching the movie ‘‘A Few Good Men.’’

And, you know, this wasn’t done—from what I am gathering, you

know, we have talked about—Special Agent Forcelli, you were talking about trying to get a jurisdiction in the New York courts. We

are talking about the drug cartels. So we are not talking about

something really simple here.

So I guess my point is, if an issue is this great, typically, before

this one, if you have been involved in one, how far did it go up that

people knew about something like that?

Mr. FORCELLI. Sir, I know I have had discussions with SAC William Newell, who is the special agent in charge—well, former special agent in charge of the Phoenix Field Division. The assistant

special agent in charge who was involved in this case when it first

started was George Gillett. He and I had discussions where he

pretty much just rolled his eyes when you voiced opposition to this.

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David Voth and I hadn’t conversed much. He is in a different building.

But I know from the review of a briefing paper that went up that

was prepared by either SAC Newell or vetted through SAC Newell

by Mr. Gillett that this was briefed at the highest levels of ATF.

I have heard that Mr. Melson, our director, was aware of it.

And what I find most appalling, sir, is that nobody has stepped

up and had a statement beyond the Phoenix Field Division. I mean,

there were tragic errors made here, and nobody has shown the decency and leadership to step up and say, hey, we made a mistake

and we shouldn’t have done something wrong. That is what I find

as appalling as anything else in this case, short of, of course, the

tragedy that happened to the Terry family.

Mr. DODSON. That is absolutely right, sir. No one in ATF involved in this, up to Acting Director Melson, has shown any significant leadership in this matter. And I can tell you, I know that our

former group supervisor, Dave Voth, had to come to D.C. to brief

our headquarters, DEA Special Operations Division in Chantilly,

Virginia, and that he briefed EPIC on it. And, obviously, OCDETF

was briefed because we secured the funding from OCDETF.

I recall in March 2010, when Acting Director Melson came to the

Phoenix Field Division, spoke about the case, he knew the case

agent by name, the group supervisor by name, and, I believe, even

some of the defendants or would-be defendants in the case.

Mr. GOSAR. Well, boy, this is going in the right way here. You

know I am from Arizona.

Mr. CASA. Yes, sir.

Mr. FORCELLI. Yes, sir.

Mr. GOSAR. You are currently aware, and have for some time,

that Department of Justice has had lawsuits against Arizona. Were

you aware of any biases within your scope at ATF or comments

versus Arizona by the ATF or by the DOJ in regards to those?

Mr. FORCELLI. No, sir.

Mr. DODSON. No, sir.

Mr. GOSAR. You are sure?

Mr. FORCELLI. I don’t recall any.

Mr. GOSAR. It just seems like just this whole lax attitude, I

mean, from jurisdiction, from timely and aggressive law enforcement that would create this. I am getting this opinion, because you

said it, that you couldn’t get a jurisdictional aspect of oversight in

Arizona, and you took it to New York, did you not, sir?

Mr. FORCELLI. Yes, sir, I did.

Mr. GOSAR. Okay. So it seems like a continued dismissal of actually trumping charges. And we have a problem in Arizona. And,

you know, we have seen a concerted effort that we have called out

law enforcement on the border, I think it is specifically Sheriff

Dever, as lying. I just see a lack of cooperation all the way across,

and so does Arizona. And we see a very defunct cooperative type

of format that is trying to be uniform in adjudicating these laws.

And we see it—I can tell you from Arizona, we see a very organized, orchestrated plan—lack of a plan from the DOJ, particularly

with Arizona.

Mr. FORCELLI. Well, it is interesting, sir. And what I will add is

that, the one thing I will say emphatically is that I have had limVerDate 17-JUN-2003 17:38 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00152 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\71077.TXT KATIE PsN: KATIE
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ited dealings with the Tucson office of the U.S. attorney’s office. I

have had extensive dealing with the Phoenix office. And, again, in

the Phoenix office there are some good people, and I apologize that

I have had to speak ill of that office. But there is a distinct difference in attitude between the Tucson and Phoenix offices.

The U.S. attorney’s office in Tucson seems to be more amenable

to working on cases with ATF, amenable to finding justice than the

U.S. attorney’s office in Phoenix. And it is ironic, because the U.S.

attorney, himself, and his immediate chain of command are based

in Phoenix.

That is all I can really add.

Mr. GOSAR. Thank you.

[The prepared statement of Hon. Paul A. Gosar follows:]

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Chairman ISSA. I thank the gentleman.

We now recognized gentlelady from New York, Ms. Buerkle, for

5 minutes.

Ms. BUERKLE. Thank you, Mr. Chairman.

I want to begin by saying to the mother of Brian Terry, Ms.

Terry, I have six children, and my heart is broken for you because

your life is irreparably changed. And I want you to know that what

Mr. Heyer said about having someone step up and accept responsibility, that will be the charge of this committee, and that is what

we will do for you because of the loss that you all have sustained.

You have my deepest sympathy.

To the agents, thank you. Thanks for your courage for being here

today and for your forthrightness in standing up and doing the

right thing. We appreciate that very much.

I want to begin with Ms. Terry. If there is a question that you

would like us to ask or find out, can you share that with us? Is

there something that is nagging you and you would like the answer

to?

Mrs. TERRY. Well, most of my questions and answers are done

by my nephew Bob. And if I have anything to ask, I usually ask

him and he gets me my right answers.

Ms. BUERKLE. Well, then I would ask Mr. Heyer, is there a question that you would like us to ask?

Mr. HEYER. I think we would want to know if the dragnet that

is set to find everyone involved in Brian’s murder will be set deep

enough and wide enough to encompass anyone involved in Operation Fast and Furious. If the guns used in Brian’s murder were

part of this operation, then we would want to know, will everyone

in that operation that had to deal with those specific weapons be

brought up on charges of facilitating the murder of Brian Terry?

Ms. BUERKLE. Thank you. We will ask that question on your behalf.

There was a press conference held shortly after Agent Terry’s

murder, and during that press conference Special Agent William

Newell vehemently denied that guns were walked.

This question is for Mr. Forcelli, if you could. Were you at that

press conference?

Mr. FORCELLI. No, ma’am, I was not, but I watched it on TV.

Ms. BUERKLE. Okay. And did you hear him, when he was asked

regarding guns walking, did you hear his response to that?

Mr. FORCELLI. The ‘‘Hell, no’’ response?

Ms. BUERKLE. Yes, sir.

Mr. FORCELLI. I did, ma’am.

Ms. BUERKLE. Okay. And what was your reaction to that?

Mr. FORCELLI. I was appalled, because it was a blatant lie.

Ms. BUERKLE. He was aware that guns were being walked?

Mr. FORCELLI. Yes, ma’am. In fact, as I stated earlier, there was

a briefing paper that was forwarded up to headquarters. Mr. Newell, if not the author, would have had his ASAC prepare it, and it

would have been forwarded through Mr. Newell.

And I can tell that you Mr. Newell, as recently as 2 months ago,

was stating that the case agent in this case should be getting an

award. He still thinks this is an outstanding investigation, and I

find it personally appalling.

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Ms. BUERKLE. My colleague Dr. Gosar brought up—he made an

analogy between ‘‘A Few Good Men’’ and this situation and the reminder. But with ‘‘A Few Good Men’’ there was an order in place.

This was a, ‘‘This was what everyone followed. This was the policy.’’

But my sense is, and I would like to ask the three agents today,

that what happened in this situation was not the ordinary course

of business. And so, if you could each comment on that.

Mr. FORCELLI. Ma’am, I can tell you, as recently as 3 weeks ago

we conducted an interdiction of a .50-caliber belt-fed rifle through

a cooperative gun dealer. That individual showed up to pick up the

rifle with cash, probably drug money. He was not a resident of the

United States, but he had false ID. We had three trackers—well,

two on the gun, one in the package. And we had air support, the

whole nine yards.

And once we got to a point where we realized we could not safely

monitor that weapon, that individual was immediately stopped and

that weapon seized and he was arrested. That is how we normally

do business. And I can tell you, as a supervisor, no agents under

my watch would have ever let a gun walk. I wouldn’t have allowed

it.

Ms. BUERKLE. Special Agent Casa, did you want to comment on

that?

Mr. CASA. Yes, ma’am. Thank you.

I would have to back exactly what Pete said. I am working a

number of investigations throughout what we are going through

now. I am still juggling them with everything else. And I would

never let one firearm walk.

I work with—I am working a number of OCDETF cases with

other agencies, and I have to assure them—and they know who I

am—that we will not let one firearm walk. We will stop that firearm at all costs. Because one firearm on the street is one too many.

That firearm could kill any one of us at this table.

That is what I would like to add, ma’am. Thank you.

Ms. BUERKLE. Thank you.

Special Agent Dodson.

Mr. DODSON. Yes, ma’am. Prior to my involvement in Phoenix

with the Fast and Furious investigation, in all of my ATF experience and my experience in local law enforcement, ma’am, I can tell

you this, that we have never let a gun walk. I have never seen it

authorized or allowed to let a gun walk. And if one even got away

from us, like I stated earlier, nobody went home until we found it.

Ms. BUERKLE. Thank you all very much. Again, thank you for

your service, for being here today.

And to Brian’s family, again, our deepest sympathy.

I yield back.

Chairman ISSA. I thank the gentlelady.

I thank our witnesses for their testimony. It is not a normal

practice to have government witnesses along with a family or what

are sometimes called civilians. But in this case, I thought it was

appropriate that you all be there together. I appreciate all that you

have done for us today to have us better understand the situation.

And, Mrs. Terry, although I can never guarantee the outcome,

about 2 years ago we were able to name a Border Patrol station

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after three fallen Border Patrol agents several decades after they

were killed. I have instructed my staff to work with the Border Patrol to find a mutually acceptable-to-you-and-the-family location to

name after Brian. And I will author that bill as soon as a location

is determined by the family.

You have my promise that we will do the other things that you

asked for here today, that we will keep this from being political

until we get to the full truth of everything surrounding this tragic

incident that we know clearly could have been avoided.

I thank you.

And we will take a short recess before the next panel.

[Recess.]

Chairman ISSA. The hearing will now come back to order.

We will now recognize our third panel. Mr. Ronald Weich is Assistant Attorney General, U.S. Department of Justice.

Pursuant to the rules, would you please rise and take the oath?

[Witness sworn.]

Chairman ISSA. Let the record indicate the witness answered in

the affirmative.

I note that you sat patiently through all of the previous testimony. So not only do you understand the red-light/green-light, but

you will be the final witness. And I appreciate your patience and

your being here to hear everything that came before.

You are now recognized.

STATEMENT OF RONALD WEICH, ASSISTANT ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE

Mr. WEICH. Thank you very much, Mr. Chairman. And I would

ask that my full statement be included in the record.

Chairman ISSA. Without objection, so ordered.

Mr. WEICH. Mr. Chairman, Ranking Member Cummings, members of the committee, I am very pleased to be here today to discuss

the Justice Department’s continuing efforts to respond to the committee’s subpoena concerning ongoing criminal investigations on

the southwest border and pending indictments in the U.S. District

Court for the District of Arizona.

I want to say at the outset that the Department is fully committed to working with you in good faith to accommodate the committee’s legitimate oversight interests. We hope the committee will

similarly engage in good faith with the Department in a manner

that recognizes the important confidentiality interests presented

when congressional oversight involves open criminal investigations.

It is difficult when the interests and principled exercise of the prerogatives of the legislative and executive branches come into potential conflict. The Constitution envisions that the branches will engage in a process of cooperation and accommodation to avoid such

conflicts. And we look forward to engaging in that process with

you.

As the committee is aware, many of the subpoenaed documents

concern an open criminal investigation conducted by the Bureau of

Alcohol, Tobacco, and Firearms known as ‘‘Operation Fast and Furious.’’ Other subpoenaed documents concern the open investigation

and pending prosecution regarding the shooting death of Agent

Brian Terry.

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Let me just say here that the death of Agent Terry was a tragic

loss, and the Justice Department extends its deepest sympathies to

his family. They testified courageously here a moment ago. We

were very pleased to hear on Monday of the committee’s commitment not to compromise the investigation into Agent Terry’s murder or the broader gun-trafficking investigation. And we are fully

committed to bringing to justice those who are responsible for

Agent Terry’s death.

The Department recognizes the important role of congressional

oversight, including oversight of the Department’s activities. It is

the policy of the executive branch, at the instruction of the President, to comply with congressional requests for information to the

fullest extent, consistent with the constitutional and statutory obligations of the executive branch.

At the same time, attempts to conduct congressional oversight of

ongoing criminal investigations are highly unusual and present serious issues. As the Department’s Office of Legal Counsel under

President Reagan explained in 1986, ‘‘The policy of the executive

branch throughout our Nation’s history has generally been to decline to provide committees of Congress with access to, or copies of,

open law enforcement files except in extraordinary circumstances.’’

The policy is designed to fulfill the Department’s obligations to preserve the independence, integrity, and effectiveness of law enforcement investigations and the criminal justice process generally.

And I want to say, this policy is completely nonpartisan. It has

been relied on by administrations of both parties for decades.

So, in response to your subpoena, this department has been striving to reconcile the two principles by accommodating the committee’s oversight interests while protecting our confidentiality interests. Striking this balance can take time and effort. It is not the

case that the Department is refusing to comply with the committee’s subpoena. In fact, we are working diligently to satisfy the

committee’s core oversight interests without compromising the important purposes underlying the Department’s policy that I have

described.

The starting point for our approach is an agreement by the Department that this committee has a legitimate oversight interest in

information shedding light on the genesis and strategy of the Fast

and Furious operation. We have focused on identifying documents

responsive to those needs.

We have already made a good deal of information available. In

total, the Department has physically produced more than 675

pages of documents to the committee, made available more than

900 additional pages for review. In addition, we have made one

ATF official available for an interview with the committee staff,

and we hope we will be able to schedule more interviews in the upcoming weeks. The committee has requested briefings on specific

topics, and we have agreed to provide those.

The Department has taken the extraordinary step of retaining an

outside consultant, a contractor, at substantial cost, to assist us in

building a data base of the emails of the 19 individuals at ATF

whom the committee has indicated a primary interest in. We have

engaged in a search of great magnitude to ensure that we get the

documents that you have asked for to the best of our ability.

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The individuals, the 19 selected user accounts that you have focused on, they contain over 724,000 emails and attachments. In addition, the Department has collected thousands of documents

flagged to us by ATF as potentially responsive. Over two dozen

lawyers at ATF and the Department are reviewing those documents, and we have been able to provide documents to the committee each of the last 3 working days—yesterday, Monday, and

the Friday before.

The Department will not be able to make available all of the documents encompassed by the subpoena because of the law enforcement confidentiality interests that I have already identified. We

cannot provide certain core investigative and prosecutorial documents. But we will work with the committee to identify and make

available documents responsive to your core request.

Let me conclude by emphasizing that the Department recognizes

that congressional oversight is an important part of our system of

government. At the same time, congressional oversight that implicates ongoing congressional investigations present sensitivities not

raised in ordinary cases. Despite the unique challenges posed by

oversight of open criminal matters, we remain optimistic that the

Department will be able to satisfy the committee’s core oversight

interests while safeguarding the integrity, independence, and effectiveness of the Department’s ongoing criminal investigations.

Thank you for inviting me to testify, and I would be pleased to

answer your questions.

[The prepared statement of Mr. Weich follows:]

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Chairman ISSA. I certainly hope so.

I would recognize myself.

Sir, if you are going to count pages like this as discovery, you

should be ashamed of yourself. The only thing that this says is,

‘‘Internal use only. Not for dissemination outside the ATF.’’ That is

not discovery. That is saying that nothing within the document requested, under any circumstances, are we going to be shown.

It doesn’t take so long if you don’t spend your life redacting. The

pages go on like this forever. You have given us black paper instead of white paper. You might as well have given us a ream still

in its original binder.

How dare you make an opening statement—how dare you make

an opening statement of cooperation. We have had to subpoena

again and again. Your representatives of your organization, of the

executive branch, have discouraged witnesses from coming forward.

It has only been the courage of whistleblowers like the ones you

saw here today that have caused us to have more documents on

this case than you have ever suggested turning over.

And how dare you talk about 900 pages, all of which were available on the Internet. Your first discovery that you ever turned over,

you gave us already-available-on-a-Google-search documents only.

So, sir, what executive privilege are you claiming? Sensitivity is

not envisioned. On Monday we held a hearing here, and I hope you

had plenty of people watching it. And if you didn’t, get it on

YouTube. Not one witness, not on direct or on cross, talked in

terms of the kind of unique sensitivity. Instead, they gave us

caselaw and cases involving Justice that say just the opposite of

what you are saying.

Sir, you heard from the family and you heard from the whistleblowers. They have concerns about whether you are charging everybody in Brian Terry’s murder. And, yes, I am deeply concerned,

and we promised to get to the bottom of it. And if somebody wants

to call that political interference, so be it. You should be held to

a standard of why everybody, including the people who lie, buy and

lie, those weapons, why they are not being charged if there is any

chance they can be properly linked to his murder.

But let’s move on. Understand, that is for the family. For this

committee, we are investigating you, your organization. The executive branch above the Phoenix office is who we are investigating.

We want to know what felony, stupid, bad judgment led to allowing

this program at the highest levels.

When you have the head of Alcohol, Tobacco, and Firearms on

basically his computer screen watching these things, don’t tell me

you didn’t know what it was doing. It appears to us on this side

of the aisle, and I believe on the other side, that you thought this

was a good idea.

Today, are you prepared to tell us that this program was, in fact,

necessary and a good idea? And are you prepared to tell us who

authorized it, who was the greatest, highest-ranking person who

authorized any part of it?

Mr. WEICH. Mr. Chairman, you have raised a number of issues.

Let me try to——

Chairman ISSA. Do the last ones first. Who authorized this program that was so felony stupid that it got people killed?

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Mr. WEICH. The Attorney General has said that he wants to get

to the bottom of this. He has directed the Office of the Inspector

General at the Justice Department to review this matter in order

to answer questions like the ones——

Chairman ISSA. And if that is the case, then why are we any burden at all? Isn’t every one of our requests consistent with what the

inspector general and the Attorney General should be looking at in

this case?

Mr. WEICH. I don’t know for a fact that everything you have

asked for is what they are looking at——

Chairman ISSA. I hope you came here to answer questions like

that. We are asking for things related to the above-the-field level

almost exclusively. Our questions are about, who authorized this?

Why did it happen? Why did it continue?

Our question to you today is—the President said he didn’t authorize it. He said the Attorney General didn’t authorize it. He

didn’t say he didn’t know about it. He said he didn’t authorize it.

Who at Justice authorized this program?

Mr. WEICH. As I have said, Mr. Chairman, the Office of the Inspector General——

Chairman ISSA. Who at Justice—if you know, I ask you to answer, who do you know was involved in the authorization of this,

today? Do you know?

Mr. WEICH. We——

Chairman ISSA. Do you know?

Mr. WEICH. Well, Mr. Chairman, if you will permit me to answer

the question. We sent a letter to Chairman Smith, who asked a

question like that. We pointed out that this operation, as with

other law enforcement operations, originated in the ATF’s Phoenix

office——

Chairman ISSA. That is not authorization. Who authorized it at

the highest level?

Mr. WEICH. Again, Mr. Chairman, please, if you will permit

me——

Chairman ISSA. Do you know who authorized it at the highest

level? And don’t answer Phoenix or Tucson or any part of Arizona,

if you please.

Mr. WEICH. Well, Mr. Chairman, it is difficult to answer your

questions if you won’t permit me to answer them.

Chairman ISSA. I want the answer to my question, which was,

who here in Washington authorized it? We know who looked at it

on video. We know who authorized it effectively, at least by acquiescence. Who authorized this at Justice?

Mr. WEICH. Mr. Chairman, I do not know the answer to that

question. And the inspector general is reviewing the matter.

Chairman ISSA. Then we will have somebody back who does.

The ranking member is recognized.

Mr. CUMMINGS. Mr. Weich, let me apologize for that. You don’t

deserve that. Perhaps somebody else in the Department does.

What is your role? What is your job?

Mr. WEICH. I am the Assistant Attorney General for the Office

of Legislative Affairs, Congressman.

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Mr. CUMMINGS. And these are not decisions that you make, are

they, the questions that he was just asking about, the chairman

was just asking about?

Mr. WEICH. That is correct.

Mr. CUMMINGS. And, as I have said many times, there is a certain level of integrity that we must maintain in this committee. I

see this committee as just lower than a court. And I know, and I

have said it to the chairman and I will say it over and over again,

you have to go home to your family; you have colleagues who are

watching this. And for you to be hollered at and treated that way

I just think is unfair. And so, on behalf of the committee, I apologize.

Chairman ISSA. Would you gentleman yield?

Mr. CUMMINGS. No, I will not yield. I am trying to talk to the

witness. I didn’t interrupt you.

Chairman ISSA. No, and you didn’t—I didn’t——

Mr. CUMMINGS. But I will yield——

Chairman ISSA [continuing]. Say things on behalf of the——

Mr. CUMMINGS. I will yield as long as I keep the time.

Chairman ISSA. Hold the time.

Would the gentleman please note, you may apologize on behalf

of something you say. I am not apologetic——

Mr. CUMMINGS. Fine.

Chairman ISSA [continuing]. And you may not apologize on behalf of the committee.

Mr. CUMMINGS. Thank you. I——

Chairman ISSA. The gentleman may resume.

Mr. CUMMINGS. Let me say this: I apologize. Because we are better than that. We are better than that. And I do hope that we bring

the appropriate people who can answer those questions. And even

when they come, they should not be treated that way.

On April 13th, you wrote to the committee to explain the extreme

sensitivity of some of the documents covered by your committee’s

subpoena of, you know, open law enforcement files. You explained

that the subpoena, ‘‘encompasses records that would identify individuals who are assisting in the investigation and sources and investigative techniques that have not yet been disclosed.’’

But this is not all of the records, right? And I assume that it is

just a small subset of subpoenaed documents and that you can redact such sensitive information; isn’t that correct?

Mr. WEICH. That is correct, Congressman, and that is what we

are trying to do.

Mr. CUMMINGS. Now, I can understand the chairman being

upset, because I would be upset—but I wouldn’t treat you like

that—about somebody submitting to me some blanks pages. Can

you explain that to me?

Mr. WEICH. Well, one thing that I want to make clear, Congressman, is that the number of pages that I cited in my testimony as

having been produced or made available does not include such

pages. Where those pages are redacted, it is part of a document

showing where there was law-enforcement-sensitive information

that we were unable to provide. But that is not included in the

total.

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Mr. CUMMINGS. And what were the total pages that you submitted?

Mr. WEICH. I will get you the exact numbers.

Mr. CUMMINGS. Well, while your staff is assisting you on that,

let me get going.

Mr. WEICH. I have it.

Mr. CUMMINGS. Okay.

Mr. WEICH. We have physically produced more than 675 pages

of documents and made available more than 900 additional pages

for review.

And I should say, this production is ongoing. We have made documents available and physically produced documents in each of the

last 3 business days, and I expect the document production to continue.

Mr. CUMMINGS. The purpose of our investigation is to understand

what occurred and who is responsible. Do you think that you will

be able to provide sufficient documents to answer those core questions without disclosing highly sensitive records?

Mr. WEICH. I am sorry, Congressman. Could you——

Mr. CUMMINGS. In other words, you said that there are some confidentiality issues. And I am trying to get to—and you said that

this certain policy spans over various administrations; it wasn’t

just Democratic administrations or Republican administrations.

I am just asking you, is there a way that we can get—what I

have often said, and I have said it before the hearing that the

chairman referred to the other day, I said, we need to do two

things—we have two things going on here. We are trying to look

to see how far this thing went up, but at the same time we have

these criminal prosecutions. And I am saying, is there a way that

we can resolve those issues? Is that within your purview?

Mr. WEICH. Yes, it is. And I believe that we can do so. We are

doing that by providing documents, by briefing the committee, by

making documents available, and by facilitating witness interviews.

We share the committee’s goal in getting to the bottom of these

questions. And we are assisting the committee at the same time

that the Department, itself, has a review by the Office of Inspector

General.

Mr. CUMMINGS. Now, you further explained that it is the public

release of this information that presents the most risk to ongoing

criminal investigations and prosecutions. You stated, ‘‘Disclosure of

these types of information may present risks to individuals’ safety

in the violent environment of firearms-trafficking activities. Disclosure may also prematurely inform subjects and targets about our

investigation in a manner that permits them to evade and obstruct

our prosecutorial efforts.’’

Even if we are not so upset about—and I am always concerned

about prosecutions—the fact that somebody’s life might be in danger gives me great concern, because I see it, living where I live, almost every day.

So tell me something, what is the—can you give me a response

to that?

Mr. WEICH. Yes. Congressman, some of these documents identify

cooperating witnesses, they identify confidential informants. They

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describe a strategy as to specific cases, ongoing cases, and revealing that strategy could inform potential targets of the investigation

of law enforcement activities. And it seems unwise.

You, yourself, Ranking Member Cummings, highlighted a number of ways in which the committee investigation has already inadvertently overstepped the line and, for example, made public a

sealed document.

So we are concerned about this. We really think that, if we work

cooperatively, we can help the committee avoid such missteps, help

satisfy the committee’s oversight interest, and get to the bottom of

these questions.

Mr. CUMMINGS. Thank you very much.

Chairman ISSA. The gentleman’s time has expired.

The gentleman from Oklahoma is recognized. Would you yield to

me for 30 seconds?

Mr. LANKFORD. Absolutely.

Chairman ISSA. Did you provide those documents you say were

released—that were sealed? The documents you are saying were

prematurely released, were they provided by you under any kind

of request?

Mr. WEICH. You know, I am not certain. If you will permit me

to consult with my staff, I will be able to answer that question.

Chairman ISSA. Okay. Go ahead.

Mr. WEICH. I have the answer, Mr. Chairman. And the answer

is, no, those were not documents we provided. Those were documents that your investigators obtained and then made public in

spite of the court order that they not be made public.

Chairman ISSA. So you are saying that if we get documents that

we have no idea, because you are not providing documents, that we

are responsible?

Mr. WEICH. Yes. Mr. Chairman, it seems to me that you should

ask the Justice Department whether sensitive documents should be

made public. That particular document related to a wiretap, which

is always a sensitive law enforcement step. And if the committee

would consult with us, we would help the committee avoid——

Chairman ISSA. If you had given us those documents with appropriate guidance, that obviously wouldn’t have happened. You didn’t

do it, and you had plenty of time to do it.

I yield back to the gentleman.

Mr. LANKFORD. Thank you.

As I try to follow through this whole day and try to process what

has been going on—February the 4th, there is a letter from Senator

Grassley, back and forth with you, stating, ‘‘The allegation that

ATF sanctioned or otherwise knowingly allowed the sale of assault

weapons to straw purchasers who transported them to Mexico is

false.’’

On May the 2nd, you wrote again to Senator Grassley, reiterating, ‘‘It remains our understanding that ATF’s Operation Fast

and Furious did not knowingly permit straw buyers to take guns

into Mexico.’’

Yet I just asked some agents about that, and their statement was

they think about 1,500 weapons are still out there, and probably

two to one of those are in Mexico.

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Would you like to change your statement at all on that, or have

anything that you would want to shift on your previous statements

from February or May?

Mr. WEICH. Thank you, Congressman.

The statements that you referred to are—let me say this. Every

time the Justice Department sends a letter to Congress, it is true

to the best of our knowledge at the time that we send it.

Those particular statements remain true, for the technical reason

that the committee’s report, issued last night, described. The straw

purchasers don’t take guns to Mexico. And, in any event, ATF

doesn’t sanction or approve of the transfer of weapons to Mexico.

That is obviously a crime.

Mr. LANKFORD. But ATF did permit those knowingly, understanding they were headed toward the border, and that was wellknown, apparently, among the Phoenix office and, as we can tell,

going up the food chain, that these purchases were not being purchased by someone out, as was stated, bear hunting. These were

straw purchasers buying in large quantities and headed toward

Mexico.

So how can we make a statement, we are not sanctioning that,

but we are also not interdicting, we are not trying to stop it either.

Mr. WEICH. Right. So, obviously, allegations from the ATF agents

you have heard from today and from others have given rise to serious questions about how ATF conducted its operation. And that is

why the Attorney General instituted an investigation, and it is why

we are cooperating in this committee’s investigation.

Mr. LANKFORD. Was there any communication with leadership in

Mexico, so that if these weapons showed up in Mexico, we were actually doing a law enforcement process here to make sure they

were both aware that these guns might be headed that way or that

we had a working relationship when arrests were made, we would

cooperate with them dealing with these arrests?

Mr. WEICH. Congressman, from my position in the Office of Legislative Affairs, I don’t have personal knowledge of the kind of communication. My understanding is that, in general, there are close

ties between U.S. law enforcement and Mexican law enforcement,

including on gun investigations.

So, as a general matter, the answer to your question is ‘‘yes.’’ As

to specific cases, I am not in a position to say.

Mr. LANKFORD. So are you saying they were aware that this Fast

and Furious was going on and that guns were headed in their direction and they were involved in that process? Or there is just, we

know their phone numbers and we occasionally call each other?

This specific program is what I am talking about.

Mr. WEICH. Congressman, I am not in a position to answer that

question with specificity.

Mr. LANKFORD. Do you know who might be a good person that

we could contact to get that kind of specific information?

Mr. WEICH. The committee has already interviewed one ATF

agent, and, as I said, we are prepared to make other agents available. And these include high-ranking ATF officials. I would think

that those individuals can speak with specificity to the question

that you are asking.

Mr. LANKFORD. Terrific.

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What other office besides the Phoenix office was doing this type

of program?

Mr. WEICH. Congressman, I am not in a position to answer. I

don’t know the answer to that question.

Mr. LANKFORD. Okay.

Do know how many offices that DOJ has a relationship with that

were informed about this operation as it was ongoing that might

be engaged, at least have a—not necessarily approval, but at least

acknowledgment, this is going on, just be aware, the Phoenix office

is tracking straw buyers and they are out there, there may be as

many as 1,500 guns, just be aware of that? Do we know how many

other offices or agencies were aware of that?

Mr. WEICH. Are you saying offices or agencies of the Justice Department?

Mr. LANKFORD. Well, agencies within Justice, yeah, that it has

a relationship with.

Mr. WEICH. I don’t know. There is close communication among

the various U.S. attorney’s offices and the law enforcement components. There are, you know, crosscutting meetings and task forces

and so forth, including OCDETF. But I can’t speak with specificity

as to this operation.

Mr. LANKFORD. Okay. Thank you.

I yield back.

Chairman ISSA. I thank the gentleman.

The gentleman from Missouri, Mr. Clay.

Mr. CLAY. Thank you, Mr. Chairman.

And, Mr. Weich, from what I can see, the Department of Justice

has worked hard to comply with the committee’s very large document request. Not only have you gone to considerable lengths and

cost, you have worked with majority committee staff to prioritize

documents of great interest. You have briefed the committee not

only on your ongoing processing of documents but on the case itself.

On top of delivering many documents, you have made the most

sensitive documents available for review by committee staff in

ways that protect the documents’ integrity.

It seems to me that the Department is cooperating with the committee’s extraordinary request. And I say ‘‘extraordinary’’ because

not only is the scope of the request very large but because of its

timing—during ongoing criminal investigations as well as an ongoing IG investigation.

Flashing back to when the committee was investigating

Blackwater during the previous administration, a member of this

committee, now in the majority, said that, ‘‘We are supposed to

allow the administration to do its investigation, and then we do

oversight.’’

Now, I believe we have a legitimate interest in conducting oversight of the administration, but we should not jeopardize ongoing

criminal cases or IG investigations just because a different party

now holds the White House.

Mr. Weich, in your statement, you explain that the Department

has made certain documents available to committee staff for their

review, but without providing copies. This is because the documents contain sensitive law enforcement material, and the Department needs to prevent their public disclosure.

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Mr. WEICH. That is absolutely right, yes.

Mr. CLAY. And is this a common practice?

Mr. WEICH. Yes, it is a very common practice, as I detail in my

written statement. For many years, the Department has used this

process of making documents available. In order to maximize the

number of documents that a committee can have access to, chairmen for many years have accepted this practice.

And we do it because the rules of the House do not easily permit

a committee to keep documents confidential. And, indeed, this committee has declined to provide any such assurances. So this is what

we do. We make documents available physically that we are prepared to see be made public, and those that are not we make available to the committee investigators.

Mr. CLAY. And it is obvious that it is very disturbing to you and

the Department, to the fact that, despite your procedures and clear

warnings, the majority and Senator Grassley have inappropriately

released sensitive documents?

Mr. WEICH. Let me say this, Congressman. I have, as the chairman noted, I have been here all morning, and I listened to Senator

Grassley as well as to the Terry family and to the ATF agents who

testified. The common view of all of the witnesses and the members

of the committee is that it is vital that these prosecutions, most notably the prosecution of Agent Terry’s alleged killers, be successful,

that we not do anything to harm those prosecutions.

Our effort to preserve confidentiality of certain law-enforcementsensitive documents is in furtherance of that goal.

Mr. CLAY. And you wrote on Monday that you heard, during the

hearing on Monday, that the committee is committed to not compromising the murder investigation or the broader gun-trafficking

investigation through its oversight activities.

Given what we found out about improper disclosures and improper contact with witnesses and the way that these hearings

have been structured and conducted, I am not sure I agree with

your assessment. I think that the majority’s actions have come very

close to compromising the investigations and prosecution, if they

already have not done so.

Do you still believe in the majority’s commitment to not compromise these investigations?

Mr. WEICH. Congressman Clay, we want to work with the committee. We have an ongoing relationship with the committee staff.

I think it is important for us to flag these warnings and maintain

appropriate boundaries. But we share the committee’s interest in

getting to the bottom of these allegations, and so we will work with

the committee.

Mr. CLAY. I thank the witness.

Mr. Chairman, I yield back.

Chairman ISSA. I thank the gentleman.

We now recognize the gentleman from Utah, Mr. Chaffetz.

Mr. CHAFFETZ. When did you first talk to Attorney General Holder about this issue?

Mr. WEICH. As best as I can recall, it came up in preparation for

his oversight hearings in May. He was asked about it, I think, by

Chairman Issa——

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Mr. CHAFFETZ. Do you still hold tight to the—so you are suggesting that the letters that you sent on February 4, 2011, to Senator Grassley and, again, another letter on May 2, 2011, to Senator

Grassley, that the content of those two letters is complete and accurate, as best you know?

Mr. WEICH. Congressman, I have said——

Mr. CHAFFETZ. That is a ‘‘yes’’ or ‘‘no’’ question. Is it complete

and accurate?

Mr. WEICH. Congressman——

Mr. CHAFFETZ. ‘‘Yes’’ or ‘‘no?’’

Mr. WEICH. Well, respectfully, that is not susceptible to a ‘‘yes’’

or ‘‘no’’ answer.

Mr. CHAFFETZ. Go ahead.

Mr. WEICH. Thank you.

As the committee’s report pointed out, there is a technical explanation for why the allegation that ATF sanctioned the sale of guns

to straw purchasers who then transported them to Mexico is not

an accurate statement, and so we said that that was false.

However, serious allegations have come to light, including the

testimony of the agents today, that cause Attorney General Holder

to want there to be an independent review of this matter, and he

has initiated that review.

So we are not clinging to the statements in those letters. We are

saying——

Mr. CHAFFETZ. So if I said that I think somebody knowingly and

willfully actually misled and lied to Congress, would I be off-base?

Mr. WEICH. Respectfully, Congressman, you would be, in that we

make every effort to provide truthful information to Congress. I

know that is something that I take very seriously——

Mr. CHAFFETZ. I would like to highlight—on January 8th—remember, these letters came out February 4th and May 2nd. But on

January 8th—and I will quote from this internal document here

from the Phoenix Field Division that indicated, on page 4, ‘‘Currently, our strategy is to allow the transfer of firearms to continue

to take place, albeit at a much slower pace, in order to further the

investigation and allow for the identification of co-conspirators who

would continue to operate and illegally traffic firearms to Mexican

drug-trafficking organizations,’’ and it goes on there.

The administration knew in January before these letters came

out that it was on purpose. It would continue to operate and illegally traffic firearms to Mexico.

How can that stand? And how can you and the Department of

Justice and people who take responsibility for this allow the lies to

continue to come to Congress? Why did this Obama administration

purposely allow the illegal transfer of more than 2,000 weapons

that they knew, according to this memo, were going to go to Mexico?

Mr. WEICH. Congressman, you have asked questions that the Office of the Inspector General is looking at, that this committee is

looking at, and we——

Mr. CHAFFETZ. I want answers from you. That is why you are

here. You have this document. You know that this is true.

This memo goes on to say—and, again, in January: ‘‘To date,

there have been five notable seizure events connected with the

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group. Approximately 53 firearms originally purchased by this

group have been recovered. Three of these seizures have been in

the country of Mexico.’’

We knew that these were going south. And yet, in your letter,

you state, ‘‘It remains our understanding that ATF’s Operation

Fast and Furious did not knowingly permit straw-purchase buyers

to take guns into Mexico.’’ That is patently and totally false. How

do you do that?

When this comes out in January and again in May, you write

and you tell this Congress that they did not knowingly permit

straw purchasers to take guns into Mexico, in total contradiction

of the memo of January 8th. How does that happen?

Mr. WEICH. Congressman, I have explained to you that we do our

best to provide the information to Congress as we know it. As allegations have come to light, we have initiated an investigation and

are cooperating with this committee’s investigation.

Mr. CHAFFETZ. Is Fast and Furious still ongoing?

Mr. WEICH. I don’t believe so, Congressman. I am——

Mr. CHAFFETZ. At what time did the Attorney General—did he

order that it be taken down? Did we stop doing it? At what point

did they actually say, all right, enough is enough?

Mr. WEICH. The Attorney General made very clear, as this matter came to light, that guns should never be walked to Mexico——

Mr. CHAFFETZ. I know. I want to know when the Attorney General actually got engaged in this. Why didn’t he know about it?

When did he know about it? Or was he just oblivious to it?

Mr. WEICH. No, Congressman. He answered Chairman Issa’s

question on the House Judiciary Committee. The question was,

when——

Mr. CHAFFETZ. But I questioned him, also, on the House Judiciary Committee, if you remember. You were sitting in the row right

behind him.

Mr. WEICH. I was.

Mr. CHAFFETZ. And he said he didn’t know when he first knew

about it.

So I am trying to figure out, when did he know about it? And

then what did he do about it?

Mr. WEICH. He told Congressman Issa that he first learned about

it several weeks before the hearing in connection with a press report.

Mr. CHAFFETZ. And what I don’t understand is, when you go

back and look at the record, President Obama knew about it back

in March. If the President knew about it, why didn’t the Attorney

General know about it? And why are you issuing a memo in May,

when the President of the United States, in an interview with, I

believe, Univision, is saying we know that there were some mistakes made? How does that happen?

The President makes this comment, and then, still, months later,

you have the gall to issue a memo to this Congress saying, that is

just false, it is not true.

That does not add up, and that is what this investigation is going

to continue to pursue.

I yield back.

Chairman ISSA. I thank the gentleman.

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If I may grant myself time for a colloquy because the gentleman

does seem to be rather upset.

I have read the statement. And if you were to parse words and

determine the meaning of ‘‘is,’’ then you probably could say that,

because the straw purchasers, the original buyers, did not take

them to Mexico but, rather, transferred them to intermediaries,

that, in fact, they did not knowingly take them into Mexico. I

would not call it to whole truth, but I certainly understand why if

someone is trying to deceive and mislead, that they could, in fact,

write a letter like that and think that they technically didn’t lie,

and they would be correct.

With that, we recognize next—oh, you haven’t done yours?

We recognize the gentleman from South Carolina, Mr. Gowdy.

Mr. GOWDY. Thank you, Mr. Chairman.

Sir, I know that you were here this morning while the members

of the committee were—and I will say this with all the civility that

I can muster. I think it is bitterly ironic that you would refer to

committee missteps before you referred to ATF or DOJ missteps.

In response to questioning from Mr. Issa, you used the phrase

‘‘committee missteps.’’ I think the purpose of this hearing is not so

much our missteps, real or perceived, but the missteps of ATF and

DOJ.

So let me start by asking: When did anyone at DOJ know that

firearms, in connection with this investigation, were going to Mexico?

Mr. WEICH. Congressman, that is not a question that I am

equipped to answer. As I have said, the inspector general is looking

at it, and we are cooperating in this committee’s investigation.

Mr. GOWDY. Well——

Mr. WEICH. And may I just say, Congressman, I didn’t start out

my testimony by talking about committee missteps. I didn’t talk

about it in my opening statement. I——

Mr. GOWDY. No, sir, you did not. But it is bitterly ironic that the

first criticism you would have or the first use of the word

‘‘overstep’’ would be of this committee and not of ATF and not of

the U.S. attorney’s office in Arizona.

And I, frankly, am shocked at the relationship between ATF and

that particular U.S. attorney’s office. It is untenable and unworkable. And I would hope that someone at DOJ would ask some questions of the U.S. attorney’s office in Arizona. I cannot imagine that

kind of working relationship, where proffers are not allowed and

subpoenas take 6 weeks to be approved. And I would be hopeful

that you would ask that.

So, you do not know when DOJ knew that firearms were going

to Mexico?

Mr. WEICH. No, sir, I personally do not.

Mr. GOWDY. All right. What is DOJ’s policy on guns walking?

Mr. WEICH. The Attorney General has made very clear that guns

cannot walk to Mexico. That is to say, it is a, per se, violation of

law for guns to be transported across the border to Mexico.

Mr. GOWDY. What is your definition of ‘‘walking?’’

Mr. WEICH. That, as the committee’s report made clear, is the

subject of much discussion within ATF. And——

Mr. GOWDY. I am asking about DOJ.

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Mr. WEICH. I am afraid I am not in a position to answer that

question. I will say that it is——

Mr. GOWDY. But you would agree that me physically handing

someone who is a prohibited person a gun, that cannot be the only

definition of ‘‘walking?’’ Having knowledge that a gun is leaving

your area of surveillance or jurisdiction is ‘‘walking,’’ correct?

Mr. WEICH. I can’t define ‘‘walking.’’ What I can say, Congressman, is that it is—this is a challenging enforcement environment,

as I think you know as a former Federal prosecutor——

Mr. GOWDY. I do. But I also have to tell you as a former Federal

prosecutor, this is unprecedented. I have never heard—would you

ever allow or sanction controlled substances—if it were controlled

substances and not firearms, would you have ever allowed or sanctioned or permitted them to walk?

Mr. WEICH. First of all, there is a big difference. Drugs are per

se illegal, and guns are not. The sale of a firearm or multiple firearms to an individual who is not a prohibited person is not illegal,

of course.

Mr. GOWDY. I am aware of that. Would you have allowed controlled substances to skip surveillance and go to Mexico?

Mr. WEICH. That is a question that is well beyond my area of responsibility or expertise. I will note that, of course, there are controlled buys in narcotics cases in order to pursue a drug conspiracy

and pursue the highest levels of a drug conspiracy. I know that

from my personal experience as a prosecutor.

Mr. GOWDY. Who can we ask, who can we invite before this committee that can tell us definitively when the Department of Justice

knew that guns were going into Mexico? Who would you invite us

to invite?

Mr. WEICH. I think you are pursuing the right track, if I could

be so presumptuous. You are obtaining documents, you are interviewing witnesses. You interviewed Agent Newell, who is one of the

individuals mentioned in the testimony today as having been very

involved in this. There are other agents and ATF officials who we

are ready to provide for interviews——

Mr. GOWDY. What about the U.S. attorney in Arizona? When did

the U.S. attorney know that guns that were part of this—this was

an OCDETF investigation, so it is impossible to argue the U.S. attorney’s office wasn’t part and parcel to it.

When did the U.S. attorney in Arizona know that firearms were

leaving the United States and going to Mexico?

Mr. WEICH. I don’t know the answer to that question, Congressman Gowdy.

But could I just say, I know Dennis Burke, the U.S. attorney

there. He is a very hardworking, dedicated public servant. And

what obviously happened here is there was a serious, profound disagreement about strategy. But the common goal of the U.S. attorney’s office and all of the ATF agents is to interdict guns, to stop

the gun trafficking to Mexico. So Mr. Burke, I am sure, was dedicated to that purpose.

Mr. GOWDY. Sir, with respect, given the fact that you know Mr.

Burke and I do not, would you share with him what was said this

morning about the dissatisfaction with Federal law enforcement in

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Arizona and the relationship that they have with the U.S. attorney’s office?

Mr. WEICH. Yes.

Mr. GOWDY. Because that has not been my experience, certainly

not in South Carolina and not in other jurisdictions. The level of

animosity and the fighting between law enforcement and Federal

prosecutors over something as simple as a proffer—are you aware

of any U.S. attorney’s office that doesn’t engage or allow the use

of proffers?

Mr. WEICH. It is obviously a common technique.

Mr. GOWDY. Of course it is. There is no way to build a historical

case without proffers.

Since you know Mr. Burke and I do not, would you ask him to

do what we can to repair his relationship with law enforcement?

Because it appears to be fractured, from this vantage point.

Mr. WEICH. I would be happy to talk to him, but I am sure he

is monitoring this hearing closely.

Mr. GOWDY. Thank you.

Chairman ISSA. I thank the gentleman.

We recognize the gentleman from Massachusetts, Mr. Lynch, for

5 minutes.

Mr. LYNCH. Thank you, Mr. Chairman.

Just briefly, following up on that point, it would seem that the

approach of at least the assistant U.S. attorney down there was to

require corpus delicti, the body of the crime, to actually have the

guns in order to proceed with the prosecution. If that is the case,

I believe it is an improper application of the law.

And since this committee is involved in overseeing that our laws,

once passed by Congress, are indeed enforced, it would serve us all,

I think, if we review that, the application of the law, if that indeed

is the approach of the office down there.

Mr. WEICH. Congressman Lynch, if I may, one thing that has

been brought to my attention is that the U.S. attorney’s office has

brought cases involving large numbers of guns—straw purchasers,

individuals alleged to have trafficked guns without a license—and

that those prosecutions have sometimes resulted in hung juries or

directed verdicts of acquittal because of the high standard of proof,

especially in the Ninth Circuit.

So there may be something for Congress to look at in its legislative arena, as well.

Mr. LYNCH. Okay.

With that, I will yield the balance of my time to the gentleman

from Maryland, Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

Mr. Chairman, I want to submit our letter for the record requesting the minority day of hearings. It is dated June 15th, today.

Chairman ISSA. Thank you. I am in receipt of your request.

Mr. CUMMINGS. Well, I am asking that it be admitted into the

record, Mr. Chairman. It is signed by the members of the——

Chairman ISSA. Certainly. Without objection, so ordered.

Mr. CUMMINGS. Thank you very much.

[The information referred to follows:]

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Mr. CUMMINGS. I want to say this to you, Mr. Weich. I am sitting

here and listening to all of this, and I want you to take a message

back.

Some kind of way, we have to establish—you know, the majority

has some concerns, and I think many of them probably quite legitimate. And there has to be a balance here.

I am always concerned about people possibly dying as a result of

something we might do in this committee. I am concerned about

murderers getting off. I have spent a phenomenal amount of time

trying to protect witnesses. I have submitted legislation that has

been held up on the Senate side by the other side trying to protect

witnesses. I believe in ultimate cooperation between law enforcement and the public. I have a record of it for years. You know why?

Because I go to the funerals, I see the deaths, I hear the cries, and

I experience the pain.

And some kind of way, we have to make sure that we strike the

balance that I was just talking about. And I am not sure, I am just

not sure, whether that balance has been struck the way it ought

to be.

This committee has a job to do. The Justice Department has a

job to do. And some kind of way, we have to find a way, as the

adults in all of this, to make that happen and make it work.

And I am very serious about that. You know, life is short. And

I tell my staff that every day I look in the mirror and I face my

own mortality. And the question is, how can I be most effective and

efficient? And when we do this ring-around-the-rosy stuff, what

happens is that none of us are effective.

And you heard me make a commitment to that lady, Ms. Terry,

I shall not rest until everybody involved in this process—and I

mean that—I shall not rest until all of that is addressed.

Now, the chairman said something that was very interesting. He,

a moment ago, spoke about all of this transparency and we need

to read the whole document, and I appreciate that. But the one

thing he did not say about this memo on January 5th, he didn’t

read this piece. You remember, Mr. Chaffetz mentioned this memo.

So they read a piece of the memo, but they didn’t read all of it.

And let me just read this line so that the record will be clear.

This is on January 5, 2010. It says, ‘‘Investigative and prosecution

strategies were discussed, and a determination was made that

there was minimal evidence at this time to support any type of

prosecution.’’

I just wanted to finish that, because I think it is important, particularly in the light of the chairman saying that we needed to

have the whole statement.

And, with that, I will yield back.

Chairman ISSA. I thank the gentleman.

We now go to the gentlelady from New York, Ms. Buerkle.

Ms. BUERKLE. Thank you, Mr. Chairman.

And thank you, Mr. Weich, for being here today.

I have a couple questions. You keep alluding to the inquiry and

the investigation that the IG is going to conduct at the request

of——

Mr. WEICH. That office is currently conducting that investigation.

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Ms. BUERKLE. Okay. All right. So are you concerned that their

investigation is going to conflict or interfere with DOJ’s investigation?

Mr. WEICH. Oh, you mean the criminal investigation?

Ms. BUERKLE. Yes, the IG——

Mr. WEICH. The inspector general has a good deal of experience

in avoiding those kinds of conflicts. And, of course, their work is

strictly confidential. Any report that they would issue publicly

would be carefully vetted to avoid those kinds of concerns.

Ms. BUERKLE. And so, you are not concerned that that will interfere with the DOJ’s investigation, just to be clear?

Mr. WEICH. We are not concerned.

Ms. BUERKLE. Okay. Then why are you concerned with this investigation? That is continually what we hear; ‘‘Well, there is an

ongoing investigation.’’ And so we feel we are not getting the answers we need, because you are concerned about compromising this

other investigation.

So I would like you to differentiate for this committee.

Mr. WEICH. Sure.

Well, first of all, Congresswoman, we are not saying that this

committee should not investigate. To the contrary, we recognize the

legitimate oversight interest, and we are cooperating with the committee as it pursues this. So we are not in any way saying, don’t

do this.

Ms. BUERKLE. But if I could interrupt for a minute, there is a

de facto—if you don’t provide what is being asked or you provide

what we see here, all those redacted sheets, whether or not you

agree we have legitimate oversight, the fact that you are not complying with our request is a de facto, well, you are not going to

comply.

Mr. WEICH. We have provided almost 2,000 documents in different forms.

The redacted documents that the chairman showed, it is a little

bit of a red herring, I say with respect, because those were multisubject documents, I am informed. And where the subject wasn’t

the subject, you know, that portion of the memo wasn’t responsive

to the subpoena, it was blacked out because we are obviously not

producing nonresponsive material.

We are not redacting heavily the material that the committee is

seeking and that is within its core oversight arena.

Ms. BUERKLE. Well, with all due respect, I think this committee

would disagree with your assessment. We feel like we have been

stonewalled and we have not gotten the information that we have

requested from DOJ. But I don’t want to take up all my time on

that line of questioning.

You sat here this morning during the second panel with the

three special agents. Did you hear them say that this was the first

time, and perhaps the only time, they had seen such an operation

as this one exist?

Mr. WEICH. I did hear them say that.

Ms. BUERKLE. Okay. And is that of any concern to you, that, out

of nowhere, there is this Fast and Furious program that results in

the death of Brian Terry?

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Mr. WEICH. It is obviously—some of the testimony that was provided today is of great concern to the Justice Department. And that

is why we are investigating it through the Office of the Inspector

General and cooperating with this committee’s investigation.

Ms. BUERKLE. Is this the first time you have heard any of that

testimony?

Mr. WEICH. I have been generally aware of it. In my role as the

head of the Office of Legislative Affairs, I have obviously been

aware of this for a number of months.

Ms. BUERKLE. And when you say you are generally aware, what

does that mean?

Mr. WEICH. I have been involved in producing responses to letters. I have been in discussions about how to comply with the committee’s subpoena. So I have been aware.

I must say, I was very pleased to be here today to hear personally all of the testimony that was provided.

Ms. BUERKLE. And before I get on to my last question, did you

hear the issue they raised regarding retaliation?

Mr. WEICH. I did. And I thank you, Congresswoman. I want to

assure the committee—I think a number of Members raised this—

that the Department of Justice will not, would never, retaliate

against whistleblowers.

Ms. BUERKLE. Last, I asked the family of Brian Terry, if they

had the ability to ask a question, what they would like to know.

So I am going to read the question that Mr. Heyer gave us to ask

you, and I would like you, to the best of your ability, to answer this

question.

‘‘I think that we would want to know if the dragnet that is set

to find everyone involved in Brian’s murder will be set deep enough

and wide enough to encompass anyone involved in Operation Fast

and Furious.’’

Mr. WEICH. The answer to that question is unequivocally ‘‘yes.’’

There is a firm commitment in the Department of Justice to bring

everyone responsible for Agent Terry’s death to justice.

Ms. BUERKLE. And the second part of his question: ‘‘If the guns

used in Brian’s murder were a part of this operation, then we

would want to know, will everyone in the operation that had to

deal with those specific weapons be brought up on charges of facilitating the murder of Brian Terry?’’

Mr. WEICH. Obviously, the whole purpose of the investigations

that are ongoing, both in the Office of the Inspector General and

here, is to ensure that there is accountability for the decisions that

have been made, and, most importantly, to improve, to strengthen

our law enforcement efforts. If there were flawed strategies, if

there was an insufficient surveillance of weapons, obviously that is

something that the Justice Department wants to rectify.

Ms. BUERKLE. Thank you.

I yield back, Mr. Chairman.

Chairman ISSA. I thank the gentlelady.

We now recognize the gentleman from Texas, Mr. Farenthold, for

5 minutes.

Mr. FARENTHOLD. Thank you, Mr. Chairman.

I assume you all are investigating various crimes that were associated with these guns. Aside from the tragic murder of Agent

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Terry, are there any other American law enforcement officers or

citizens who have died as a result of this program?

Mr. WEICH. Congressman, I can’t accept the premise of the question. I don’t know that any particular murder can be attributed to

this program. I think that assumes a lot of facts, and I am just not

equipped to deal with that. So I can’t answer the question because

I can’t accept the premise.

Mr. FARENTHOLD. All right. Let’s talk about—you heard the testimony this morning of the agents this morning saying that there

was some sort of strategy, that we would allow these guns to move

up the chain of command with the rather nebulous goal of snaring

a drug cartel.

Are you aware, is this the strategy? And if so, can you tell me

on any rational basis how the means that we used justified the

ends, when we quit following the guns as soon as they changed

hands the first time? There was no cooperation with the Mexican

authorities, and it just seems like once they did the first hop, we

just went away.

Mr. WEICH. Congressman, one thing I heard loud and clear from

the ATF testimony today, from those agents, was that the people

with whom they disagreed on the strategic questions told them and

believed that they were engaged in a strategy to topple a significant transnational gun-trafficking operation.

If the strategy was flawed, then individuals should be held to account and the strategies should be improved. But I did hear that

everybody had the goal of stopping illegal gun trafficking to Mexico.

Mr. FARENTHOLD. To me, it seems like the next step is you follow

the guns all the way. The actions that appear to have been taken

don’t seem to have any relationship to the strategy at all. But I

have a couple other questions, so we are going to leave that.

You have been reluctant to provide information and answer questions, continually citing ongoing criminal investigations and not

wanting criminals to go free or jeopardize these investigations. But

my understanding—and I am a lawyer—my understanding of our

justice system is that the defendant is entitled to all exculpatory

evidence. So if we have something that will help the defense, we

are obliged to turn it over.

So it seems like you ought to go ahead and turn it over to us so

we can finish our investigation and meet your legal obligation to

any defendants in this case for full disclosure.

Mr. WEICH. Congressman, we are certainly going to meet our

constitutional obligations to the defendants.

I would note that when the committee interviews potential trial

witnesses, you are creating material that wouldn’t otherwise exist

that may be used to impeach witnesses at trial.

Mr. FARENTHOLD. I mean, we are after the truth. And regardless

of whether it comes out in front of this committee or comes out in

front of a trial shouldn’t matter.

Let me go on. You also say that there are some concerns with

releasing information to us that would jeopardize other investigations and other strategies and programs.Is that correct?

Mr. WEICH. Yes.

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Mr. FARENTHOLD. Would you be willing to provide a briefing to

all or some of this committee on a classified basis about that?

I think you have sensed a lot of anger—I would go so far as to

say anger—from this committee that our government is engaged in

what we perceive to be a reckless operation. Even if in a classified

manner you could assure us you guys aren’t so far off the reservation that there is a problem, I think it would go a long way to

stemming some of the, for lack of a better word, adversarial conversations that are going on here.

Mr. WEICH. I hear you, Congressman. First of all, we would be

pleased to brief the committee. We have briefed the committee and

will continue to do so.

It should not be adversarial. I want to emphasize this. We share

the committee’s concern about the matters that you heard about

this morning. We are not adversarial to you in this. We are trying

to get to the bottom of this, ourselves.

Mr. FARENTHOLD. And I will yield my remaining 30 seconds to

the chair.

Chairman ISSA. I thank the gentleman.

You made a statement in that letter that you signed on the 4th

that said, ‘‘ATF makes every effort to interdict weapons that have

been purchased illegally and prevent their transportation to Mexico.’’

Who prepared that line in your letter?

Mr. WEICH. Chairman Issa, the——

Chairman ISSA. You signed it. Who prepared it? Was it you?

Mr. WEICH. These letters are the product of the Justice

Department——

Chairman ISSA. So your signature on that letter doesn’t mean

that you know it to be true; is that correct?

Mr. WEICH. I take ultimate responsibility——

Chairman ISSA. Okay. Isn’t that statement false now, with what

you know?

Mr. WEICH. Obviously, there have been allegations that call into

serious question that particular——

Chairman ISSA. Weren’t there documents that now have been

provided and made public that let you know that that statement

was false?

Mr. WEICH. And that is why you are investigating, and that is

why we are investigating.

Chairman ISSA. I will just take your agreement that those documents indicate that that statement that you signed that someone

prepared for signature were false.

Mr. WEICH. Congressman, I am not prepared to say that at this

time. Everything that we say is true to the best of our knowledge

at the time we say it. As more facts come out, obviously our understanding of the situation is enhanced.

Chairman ISSA. Just for the record, we will be posting online the

20-some pages that were made available, since, out of the 20-some

pages, the only thing that is not redacted, other than ‘‘internal use

only’’ statements, is, ‘‘Kevin Simpson, Acting Division Operations

Officer, U.S. Department of Justice, ATF, 201 East Washington

Street, Suite 940, Phoenix, Arizona,’’ and the ZIP. The phone numbers are redacted. That is 100 percent of what you call ‘‘discovery.’’

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Would the ranking member like a second round?

Mr. CUMMINGS. I just have one question.

Chairman ISSA. The gentleman is recognized.

Mr. CUMMINGS. It is just following up on what you just were

talking about.

Let me ask you this, Mr. Weich. Again, I want to go back to trying to be effective and efficient. Again, I am tired of—when we are

put in a position of where we are wasting time. You know, we may

be dead next week. So I am just being very frank with you: I am

tired. I don’t want to waste time. Life is short.

This is the question: If you got assurances, if the Department got

assurances that we would not be disclosing documents that are extremely sensitive and agrees to, you know, try to make sure that—

and we would commit to working out accommodations where we

could go through—I mean, you submit the documents, we go

through them, making sure that—and we sort of go through them

together, come up with some type—would you be willing to come

up with some kind of schedule whereby we can get what we want,

you can be assured that we are not doing something that interferes

with the kinds of things that you just talked about?

Mr. WEICH. We will work with you, Congressman. We strongly

favor that kind of cooperative accommodation process. It is traditional. And, in this instance, where we recognize the committee’s

legitimate oversight needs, we want to lean into that process and

do as much as we can to provide information to the committee.

Mr. CUMMINGS. Well, would you all be willing to commit to a

schedule, a document-production schedule?

See, this is what I am getting to. We can do this all day. And

a new Congress will be in. And that is why I am talking the way

I am talking. We have to get stuff done. And I can’t—we cannot

keep our commitment to Ms. Terry by doing this back-and-forth

thing. It is a waste of time, it is a waste of effort, and life is short.

Mr. WEICH. I hear you, Congressman.

Mr. CUMMINGS. So I am trying to get you to—I am trying to help

you help us——

Mr. WEICH. I understand.

Mr. CUMMINGS [continuing]. And, hopefully, help yourself at the

same time. So, I mean, if we can work something out, can we move

past this?

Mr. WEICH. Yeah. We——

Mr. CUMMINGS. Because, obviously, the majority feels like we are

not moving fast enough, and I can understand that—that you are

not moving fast enough. I know you have all kinds of—I think you

said you had something like 700,000 pages or something like that.

Mr. WEICH. More than that.

Mr. CUMMINGS. Okay. What would you suggest? Let me put it

another way. What kind of arrangements would you suggest so

that we don’t keep running into this wall?

Mr. WEICH. I don’t think we have hit a wall. I don’t think we are

at an impasse. I think we are now on track. Obviously, it may have

been a bumpy start. But we have produced documents in each of

the last 3 working days. We made a witness available for an interview, and we have a list of others we are ready to facilitate interviews of.

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We are doing what I think you are asking, Congressman, which

is trying to accommodate the committee’s needs, consistent with

our confidentiality interests.

Mr. CUMMINGS. Well, would you, after this, try to sit down with

us and try to see if we can’t—I mean, it is up to the chairman; he

is the chairman of the committee—but see if we can work out

something where we can get documents and set up a schedule so

we can get these documents faster? The last 3 days is wonderful,

but I think we need to try to see if we can move the process along

a little bit.

Mr. WEICH. I would be pleased to do that. I would welcome that.

One thing I would say is, we have devoted substantial resources,

attorneys, full-time to review these documents. We have hired a

contractor to help us put these in a form that they can be efficiently reviewed. So we are rolling here.

Mr. CUMMINGS. You know, one of the problems here is something

that I talk about a lot—and I would recommend this book to you.

It is called ‘‘The Speed of Trust’’ by Covey. And he just talks about,

when people don’t trust each other, it slows down everything.

When they trust each other, it speeds it up.

And I think maybe we need to—I know you all are worried about

documents being released. It seems like we are worried about not

getting all of the documents timely. Sometimes we have to break

through that so that we can do the work of the American people.

And, with that, I yield back.

Chairman ISSA. I thank the gentleman.

And I will close more patiently than I opened.

Would you agree to voluntarily provide a list of DOJ and/or other

personnel that prepared or participated in the preparing of the

February 4th letter that we have had so much discussion about?

Mr. WEICH. Congressman, I am not prepared to make that commitment at this time. These letters are the product of substantial

deliberation within the executive branch. As I said——

Chairman ISSA. Would you agree to make available a list of personnel who worked on and may have in some way been responsible

specifically for the misstatement in the letter that says ATF makes

every effort to interdict weapons that have been purchased illegally

and prevent the transportation to Mexico?

Mr. WEICH. I am not prepared to make that commitment at this

time. What I am prepared to commit to is an ongoing effort to help

the committee get to the underlying questions here about ATF’s

law enforcement activities.

Chairman ISSA. Now, just for the record, your job, the reason you

are paid and basically have the title you have is to answer Congress’ questions.

Mr. WEICH. That is a big part of my job.

Chairman ISSA. Roughly 5 months ago, Senator Grassley was

told by your office in writing that he wasn’t going to get answers

because he wasn’t a chairman. You are aware of that, right?

Mr. WEICH. I am. I mean, that is not an accurate statement. I

mean, if I may, respectfully——

Chairman ISSA. Or, more specifically, that——

Mr. WEICH [continuing]. Mr. Chairman. It is not that he won’t

get answers——

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Chairman ISSA [continuing]. Chairman Leahy would have to request them.

Mr. WEICH. We have answered Senator Grassley’s letters. We

have great respect for Senator Grassley, with whom the Department has worked on many projects over the years quite productively.

As to oversight, it is the long-time position of the executive

branch, through administrations of both parties, that the Congress,

each house of Congress, speaks through its committees as to oversight. And so, you are exercising the power of the House. No Senate chairman has made a parallel request.

Chairman ISSA. And I am well aware that for 2 years of this administration, there were no Republicans able to make those requests and have them granted, and the requests generally were not

made at all. That is, in fact, the position of the majority here, is

that there wasn’t valid oversight for those 2 years.

It is my personal position—and I will go on the record today,

since people were kind enough to read things from the past—that

we need to have legitimate minority rights and that, at some future

time in Congress and each time the rules are produced, I am going

to try to have a party of the opposite party of the President, even

if they are the minority, have rights. Because I think it is wrong

that, in fact, the majority ultimately often finds itself asked and

encouraged to protect the administration.

I was here for the Bush administration. I was more junior, but

I certainly saw people in your position constantly cajoling us to protect the President. I don’t approve of it. I now appreciate just how

wrong that was.

Having said that, I will, on behalf of the committee, suggest

something that you may take back to DOJ. If you are willing to do

in-camera review 100 percent unredacted—I repeat, 100 percent

unredacted—and please don’t say it is unacceptable because it is

obviously above your pay grade—you prepare, we come over—‘‘we’’

being the staff—they look at the unredacted material. To the extent that we can agree on mutual redactions, then the materials

are sent over. To the extent that we disagree, then we can talk in

terms of documents that have been seen but are not available, are

not releasable, do not fall within your concerns.

Because I share your concerns, that our rules are such that, once

something comes over here, with the exception of the Select Intelligence Committee, it becomes much more problematic as far as release. I want to get around that. I want to work with Justice on

it.

I cannot, from this side of the dais, accept any responsibility for

documents that are leaked by third parties who get them. And I

cannot enter into a negotiation where you tell us you are going to

redact what we got around you while you don’t even let us see

unredacted versions in-camera. There has never been a time in

which I was more animated than when my staff came back from

that breakthrough meeting to find out that they had mostly black

pages as your response in-camera.

So please take back, on behalf of this Member and I hope the minority, that we should be trusted to send over career professional

staff to look at unredacted documents, understanding we are not

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taking them with us, until or unless there is an agreement to how

they would be appropriately redacted.

That is an extension I am putting on the record. Until that occurs, we will continue to expect discovery and we will continue to

object to getting virtually all black pages.

With that, I think the ranking member has a question.

Mr. CUMMINGS. Would the gentleman yield just for a second?

Chairman ISSA. Of course.

Mr. CUMMINGS. I am assuming that the message that you are

sending to higher-ups, that would include both sides, staff from

both sides——

Chairman ISSA. That is exactly the intention.

Mr. CUMMINGS [continuing]. Simultaneously——

Chairman ISSA. It is a simultaneous——

Mr. CUMMINGS. Okay.

Chairman ISSA. Our policies—and for those who may want to be

aware of it—our policies are that, in fact, anything that is received

as a document production is received to both sides.

As you know, Mr. Weich, normally we ask you to send copies to

both sides simultaneously. In the case of an in-camera, we would

expect that staff would be detailed from both sides to go over and

review it.

But we will only come back for in-camera review if, in fact—and

we will send cleared personnel, you know, pre-agreed to from both

sides, if that becomes an issue. But we have to look at the source

material, if an in-camera review will be appropriate. No judge is

going to look at redacted material as in-camera. Certainly, you

wouldn’t expect us to see a part of a document that does us very

little good and then say, ‘‘Well, yes, we had production.’’

Mr. WEICH. Well, Mr. Chairman, I appreciate your recognition

that I can’t, sort of, negotiate this kind of thing at the witness

table. But I can assure you that we will work with you on these

kind of process concerns. That is the mode that we are in, trying

to help the committee address its oversight needs.

Chairman ISSA. We look forward to that.

This has been difficult. I will go again, last, on the record that

we believe that there has been some breakthrough in the last week

or so. We are thankful for the breakthrough. It has been a while

in coming. But, hopefully, it is the last time that we will have a

logjam with that.

And, with that, this hearing stands adjourned.

[Whereupon, at 2:08 p.m., the committee was adjourned.]

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