Editor’s Note: Here are some additional comments from Jason Foster, following our discussion today.

-On Point

Comments from Jason Foster, Chief Investigative Counsel for the Senate Judiciary Committee Ranking Member, U.S. Senator Chuck Grassley regarding claims made by Katherine Eban of Fortune magazine during a July 2, 2012, “On Point” interview live on WBUR-FM Boston

Claim: The whistleblowers lied to Congress to get back at their boss for making them work weekends

Comment:  Eban claimed it was important to note that there is “no documentation” of the whistleblowers concerns about gunwalking because they had not documented those concerns in emails before Agent Terry was killed.  She asserted that their real disputes were over personnel issues such as working weekends.  Yet, she offers no documentation of her own claim regarding the whistleblowers motivation.  Rather, she merely copied these claims directly from a letter drafted by the lawyer for the whistleblowers’ supervisor.  It is absurd to believe that the whistleblowers would risk their careers and perjure themselves in front of Congress for such a lie.

Moreover, Eban failed to even mention the testimony of ATF agents stationed in Mexico, such as Carlos Canino, who corroborate the whistleblower allegations.  Canino has 14 years experience teaching ATF undercover operations.  He was skeptical of the whistleblower claims when they were first aired on CBS News in March of last year.  But, after reading the case management log a month later, he testified: “And the first two pages, if I’m not mistaken, there are entries there that chronicle us walking away on three separate occasions from stash houses.” He said he stopped reading because he was so upset: “Walking away from one, walking away from one gun when you know that the gun is going to be used in a crime when you, I mean, there is no gray area here guys.  There was no gray area here.  We knew that these guys were trafficking guns into Mexico.”¹  In addition, two ATF agents in Phoenix who have not testified publicly and were not mentioned in Eban’s article corroborated the whistleblower accounts.  One of them even documented his concerns prior to the February 4 letter from the Justice Department to Senator Grassley denying that the Department of Justice allowed guns to walk.²

Claim: Eban is generally sympathetic to whistleblowers, but the evidence didn’t support them here

Comment:  Eban praised Senator Grassley for working with and protecting whistleblowers, indicating that whistleblowers are important in exposing wrongdoing.  Yet she claimed to be forced by the evidence in this case to cast doubt on their credibility.  In fact, from the beginning Eban went out of her way to dig up dirt on the ATF whistleblowers.   For example, in mid-November 2011, Eban contacted the ex-wife of one of the whistleblowers, asking questions about the circumstances of his divorce.

It appears she may have been following up on information leaked to her from the whistleblower’s personnel file by someone at DOJ or ATF headquarters.  The inappropriate release of that information is a potential violation of the Privacy Act and is being investigated by the Justice Department’s Office of Inspector General.  Moreover, the credibility of the whistleblowers is not in question given the mountain of documentary evidence and the Justice Department’s own admissions.

Claim: Issues of veracity/whistleblower participated in seizures

Comment:  Eban claimed there were “issues with the veracity” of the primary whistleblower, John Dodson.  She cited the fact that he had been involved in some operations where guns were interdicted rather than let walk.  It is true that Phoenix agents attempted to seize guns on occasion in Fast and Furious.  No one has ever denied that.  However, for over a year they encouraged the gun dealers to keep making sales to known straw buyers, despite knowing they could only interdict a tiny fraction of the guns.  The basic problem was that the primary goal required that they not “compromise the investigation” by letting the straw buyers know that the ATF was on to them.  Instead, the aim was to continue to gather “intelligence” on drug cartels rather than interdict guns.  The whistleblowers’ perspective was that there would be a deterrent value in confronting the straw buyers, and investigative value in questioning them to try to develop probable cause to the seize the guns.  However, they were not allowed to do so by their supervisors.

Claim: ATF had to do “archeology” to discover the gun purchases 75% of the time.

Comment:  Eban claimed that ATF witnessed “only 25%” of the purchases while conducting surveillance and had to do “archaeology” to piece together the other 75% or the purchases after-the-fact.  However, by mid-November 2009, ATF was receiving real-time notice from cooperating dealers about purchases.  There were just a little over a hundred “historical purchases” by straw buyers before the case started.  However, of the 1,880 guns associated with Fast and Furious suspects for which Congress obtained documentation, 70% were bought by just the top five buyers.  Those five were identified by ATF early in the investigation, and had purchased 203 guns before being on ATF’s radar.³  Further, they purchased 988 more guns after being identified by ATF, after ATF began receiving had real-time notice from cooperating gun dealers, and after ATF and U.S. Attorney personnel had encouraged skittish dealers to keep selling in order to assist the ATF with its investigation despite their concerns about legal liability.  Rather than doing archeology to uncover old purchases, ATF entered the serial numbers of the guns into their “suspect gun database” as the purchases were being made at the cooperating gun dealers.

Claim:  Terry Guns were “already gone” before ATF knew of them.

Comment:  Eban described the circumstances of the purchase of the firearms that later ended up that the murder scene of Border Patrol Agent Brian Terry as if ATF had no prior knowledge of the straw buyer and no opportunity to have prevented the sale or seized the weapons.  However, her narrative leaves out key events leading up to January 16, 2010, purchases.

On November 5, 2009, ATF conducted surveillance of Uriel Patino purchasing guns from a dealer cooperating with ATF.  On November 20, 2009, just 15 days later, guns purchased by Patino were recovered in Mexico.  On November 24, 2009, Jaime Avila and Patino went to the same gun dealer who was cooperating with ATF and purchased more weapons together.  ATF received real-time notice from the dealer and rushed to the store to conduct surveillance, but missed the suspects.  However, Avila was identified and known to ATF from that time forward.⁴

On December 17, 2009, the AUSA and the ATF Group Supervisor encouraged the cooperating dealer to continue to make sales to known straw buyers, such as Avila and Patino, despite the dealer’s concerns about his civil and criminal liability.  In December, Patino bought another 50 weapons from cooperating dealers, and would purchase more than 700 weapons by the end of the investigation.  Avila also continued purchasing weapons from dealers cooperating with ATF in December 2009 and January 2010.  His purchases included the three bought on January 16, 2010, two of which ended up at the murder scene of Border Patrol Agent Terry.  Avila purchased on at least nine other occasions after that, including powerful .50 caliber sniper rifles.  Neither Avila nor Patino were ever even questioned by ATF until after Agent Terry’s death, when they were finally arrested.

There is zero evidence for Eban’s claim that the three guns Avila purchased on January 16, 2010, “were already gone for three days” before ATF had notice of the purchase.  ATF had same day, real time notice of the purchase via fax.  The purchaser’s address is on the form that was faxed to ATF.  However, because ATF failed to question Avila or seek permission to search his residence, it is simply unknown whether the guns had already been transferred to someone else.

Claim: The cooperating gun dealer changed his tune after initially supporting ATF.

Comment:  Eban accepted the government’s version of events regarding a December 17, 2009, meeting between the cooperating gun dealer, the ATF, and the U.S. Attorney’s office, citing a press release by the gun dealer as evidence that he had switched his story.  It is true that the cooperating dealer issued a press release early in the investigation saying he had told Senator Grassley’s office that ATF had done nothing wrong.  At the time, that is presumably what he believed.  However, the ATF had much more information than the dealers did about the straw buyers and their connections to people trafficking guns to Mexico.  In fact, they had access to a DEA wiretaps in a separate drug case with explicit talk about price of the guns and arrangements to deliver them to the border.  Once the evidence started coming out that ATF knew for certain that the guns were headed to Mexico and also knew for certain that they were unable or unwilling to interdict 100% of them, the gun dealer cooperated with the Congressional inquiry and testified that he had been misled by assurances that the guns he was selling at the behest of the ATF would be stopped before being trafficked.

Notes:

¹ House Committee on Oversight & Government Reform and Senate Committee on the Judiciary Joint Staff Report, The Department of Justice’s Operation Fast and Furious: Fueling Cartel Violence, 112^th Congress (July 26, 2011), at 51, available at http://oversight.house.gov/wp-content/uploads/2012/02/FINAL_FINAL.pdf.

² Memo from Agent Gary Styers (Feb. 4, 2011) available at http://www.grassley.senate.gov/judiciary/upload/ATF-12-14-11-Styers-memo.pdf.

³ For more on this, including supporting documentation, visit http://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=35387.

⁴ For more on this, including supporting case documents, visit http://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=38035.