Two top Republican lawmakers say Arizona prosecutors "stifled" attempts by agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to interdict weapons purchased by "straw buyers" in that state that later were "walked" to drug smugglers in Mexico, and may have covered up the fact that two of those weapons were found at the scene of the killing of a U.S. Border Patrol agent.
Sen. Charles E. Grassley of Iowa, ranking Republican on the Senate Judiciary Committee, and Rep. Darrell Issa of California, chairman of the House Committee on Oversight and Government Reform, told Acting U.S. Attorney Ann Scheel in Phoenix in a letter Thursday that "explicit approval" was required from federal prosecutors before any of the weapons purchased in "Operation Fast and Furious" could be stopped from leaving the country.
"It is our understanding that this approval was withheld on numerous occasions," they wrote. "It is unclear why all available tools, such as civil forfeitures and seizure warrants, were not used in this case to prevent illegally-purchased guns from being trafficked to Mexican drug cartels and other criminals."
Mr. Grassley and Mr. Issa said they also had been informed that Assistant U.S. Attorney Emory Hurley improperly instructed ATF agents working on the Fast and Furious Task Force that they needed to meet "unnecessarily strict evidentiary standards merely in order to temporarily detain or speak with suspects."
The trafficked weapons included hundreds of AK-47 assault rifles, two of which turned up at the site of the Dec. 15 fatal shooting of Border Patrol Agent Brian A. Terry, 40, who was killed in a firefight with Mexican bandits just north of Nogales, Ariz.
Two AK-47 assault rifles found at the scene of the Terry killing were traced by ATF to the Lone Wolf Trading Co. in Glendale, Ariz. They were among three AK-47 variant Romanian WASR-10 assault rifles purchased on Jan. 9, 2010, by Jaime Avila Jr., a suspected straw buyer and one of the Fast and Furious targets.
ATF agents arrested Mr. Avila the same day Terry was killed. Simultaneously, the agency shut down the Fast and Furious operation. Fourteen suspected straw buyers were arrested in Arizona when the ATF undercover investigation was brought to a close. Together, they had purchased 659 AK-47 assault rifles or variants.
Mr. Grassley and Mr. Issa want to know if federal prosecutors in Arizona sought to cover up any link between the Fast and Furious operation and the Terry death. They said Mr. Hurley learned almost immediately that guns allowed onto the street, in this case, had been recovered at the site of the Terry killing, saying he "contemplated the connection between the two cases and sought to prevent the connection from being disclosed."
Internal ATF emails suggest a decision was made to not disclose the source of the weapons found at the murder scene, using the justification that it could "complicate" an investigation of the shooting by the FBI.
Mr. Hurley could not be reached. for comment.
Mr. Grassley and Mr. Issa told Ms. Scheel it was "essential" for Congress to "fully understand" the role of the U.S. Attorney's Office in Phoenix in the Fast and Furious operation to make sure it did not happen again.
U.S. Attorney Dennis K. Burke, who oversaw all federal prosecutions in the state, resigned on Tuesday in a major shakeup of the prosecutor's office and the ATF. Mr. Hurley, who served as the lead prosecutor in the Fast and Furious investigation, was reassigned from the criminal division to the civil division.
Kenneth E. Melson, ATF's acting director, was reassigned Tuesday and will be replaced by U.S. Attorney B. Todd Jones of Minnesota. Mr. Melson reported Wednesday to the Justice Department's office of legal programs, where he will assume a lesser role as senior adviser on forensic science.
As part of an investigation that began months ago, Mr. Grassley and Mr. Issa have asked Ms. Scheel for all emails, briefing papers and handwritten notes concerning the Fast and Furious investigation, along with all communications between the prosecutors and ATF concerning the operation.
"It is not our intention to second guess day-to-day decisions of your staff, but rather to make sense of them," they wrote, noting that Attorney General Eric H. Holder Jr. has said that "letting guns walk is not something that is acceptable."
The also wrote that investigators from their offices had spoken two weeks ago with Mr. Burke but he was unable to answer detailed questions about what his subordinates knew about the Fast and Furious investigation.
Mr. Grassley also noted on Thursday that the Justice Department, in what the lawmaker described as a "stunning development," acknowledged that there had been at least 24 firearms recoveries in the United States and Mexico linked to the Fast and Furious operation.
He said the latest revelation came from answers to questions for the record to Mr. Holder when he was testified May 4 before the Senate Judiciary Committee. Questions for the record are written questions for witnesses testifying before the committee that senators are unable to ask in person.
Mr. Grassley said the Justice Department's initial answers were incomplete, and later admitted that one answer in particular was inaccurate. He said the question asked, "In addition to the two guns recovered at the Terry murder scene, how many of the guns connected to Operation Fast and Furious that have been recovered were recovered in connection with violent crimes in the U.S.?"
He said in a July 22 response, the department said ATF was aware of 11 instances where a recovered firearm associated with Fast and Furious was recovered in connection with a crime of violence in the United States. But in its revised answers, the department now admits that 21 firearms associated with the Fast and Furious operation were recovered in Mexico and reportedly were associated with violent crimes.
"The Justice Department has been less than forthcoming since day one, so the revisions here are hardly surprising, and the numbers will likely rise until the more than 1,000 guns that were allowed to fall into the hands of bad guys are recovered — most likely years down the road," Mr. Grassley said.
"What we're still waiting for are the answers to the other questions the attorney general failed to answer per our agreement," he said. "The cooperation of the attorney general and his staff is needed if we're ever going to get to the bottom of this disastrous policy and help the ATF and the department move forward."
Mr. Holder has denied knowing about the Fast and Furious investigation and has asked the Justice Department's Office of Inspector General to investigate the operation. When that investigation will be complete is unknown.
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