The former head of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives told congressional investigators he discovered the Obama administration's original account to Congress about the Fast and Furious gun scandal was inaccurate as early as March 2011 and urged the Justice Department to correct the record, an action that did not formally occur until eight months later.
The full testimony from retired Acting ATF Director Kenneth Melson has not yet been officially released by Congress. But excerpts were obtained by the Washington Guardian as House and Senate investigators this week issued their second report into the gun-running scandal that has become an embarrassment for the administration and prompted a court fight over executive privilege.
At issue is the Obama administration’s initial account when the Fast and Furious scandal broke in February 2011 that ATF agents never knowingly let semiautomatic weapons fall into the hands of smugglers for the Mexican drug cartels. Senior officials held that position in varying forms for months as the scandal grew, but then reversed course last December in the face of mounting evidence to the contrary.
Melson’s testimony – during a private deposition with congressional investigators – suggests the administration knew as early as March 2011 that its account was wrong and could have corrected it months earlier than it did.
“I drafted an e-mail to our people, and said, you know, you better back off, you better back off this statement,” Melson testified, recalling what he did in late March 2011 after reading files from the case that contradicted the administration’s official explanation. Melson alerted the U.S. attorney in Phoenix of his concerns, sent an email to his ATF subordinates entitled "Hold the presses" and another to the deputy attorney general's office after making the discovery, according to evidence separately gathered by the Justice Department's inspector general.
But despite those emails, Justice with Melson's blessing sent a second letter to Congress a month later again falsely reasserting no gun had been allowed to walk in the Arizona invetsigation known as Fast and Furious.
Congressional investigators also have learned of a second warning a few months later in August in which senior Justice officials were alerted their assertions were wrong.
The former ATF chief’s account likely will bolster Republican arguments that the administration has repeatedly slow walked the truth when faced with controversies such as the gun-running scandal, the BP oil spill in the Gulf or the recent terror attack on the U.S consulate in Benghazi, Libya, that killed Ambassador Chris Stevens and three others.
The administration has steadfastly denied intentionally misleading Congress, suggesting the details of complicated investigations like Benghazi and Fast and Furious take time to sort out. They also have noted that officials like Melson signed off on their various letters to Congress, leaving conflicting signals about the facts in the case.
The congressional report released Monday afternoon, on the eve of Hurricane Sandy's landfall and just one week from Election Day, officially accused the Justice Department of concocting a strategy that ultimately led ATF agents in Arizona to allow nearly 2,000 U.S. semiautomatic weapons to flow unimpeded into Mexico's violent drug wars, where they later turned up at the scenes of several killings on both sides of the border, including the site of a U.S. border agent's murder in December 2010.
“Operation Fast and Furious was not a strictly local operation conceived by a rogue ATF office in Phoenix, but rather the product of a deliberate strategy created at the highest levels of the Justice Department aimed at identifying the leaders of a major gun trafficking ring,” the report alleged. “This strategy, along with institutional inertia, led to the genesis, implementation, and year-long duration of Fast and Furious.”
The report accused Justice officials of turning a blind eye to warnings signs about the deadly consequences of their flawed strategy. “Leadership’s failure to recognize Fast and Furious was a problem until it was too late was the result of a ‘pass-the-buck’ attitude that emanated from the highest echelons of the Department of Justice,” the report from House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., and Sen. Charles Grassley, R-Iowa, said.
The report also divulged for the first time that Attorney General Eric Holder's office originally planned for him to go to Arizona to announce the results of the Fast and Furious investigation before Justice officials abruptly dropped the idea when guns from the operation showed up at the murder scence of the border agent.
The administration had no immediate reaction to the conclusions.
Justice Department spokeswoman Tracy Schmaler declined comment,referring a reporter to the Justice Department inspector general report's findings released in September.
But other Justice officials conceded to the Washington Guardian that the administration's account in Fast and Furious slowly evolved, and that it took eight months to officially correct the record even as internal discussions focused on inaccuracies in the original account. "We can parse words all we want, but we missed several chances to get straight with Congress," one senior official said, speaking only on condition of anonymity because he wasn't authorized to speak to the media.
The congressional report describes in dramatic detail how Melson came to become a cooperating witness in the congressional investigation in the summer of 2011, to the surprise of some of his superiors. But it does not reference Melson’s description of what he did when he learned the administration’s original account to Congress was inaccurate.
News reports first surfaced in early 2011 that ATF agents in an Arizona criminal case codenamed Fast and Furious were overruled by superiors and forced to let guns flow into the hands of suspected smugglers for the Mexican drug cartels. Two of the weapons had shown up at the scene of a killing of U.S. border agent Brian Terry.
Grassley, the top Republican on the Senate Judiciary Committee, began investigating, and the administration sent a letter to the senator, dated Feb. 4, 2011, that categorically denied the allegations.
Specifically, the administration claimed it had not engaged in “gun walking,” an activity in which agents knowingly let weapons flow to straw buyers without interdicting them. In fact, more than a month after Melson said he warned officials that such denial were inaccurate, the Justice Department sent a second letter to Congress standing by its denial. "It remains our understanding that ATF’s Operation Fast and Furious did not knowingly permit straw-purchase buyers to take guns into Mexico," the May 2011 letter asserted.
Eventually, starting with Attorney General Eric Holder and President Obama, officials allowed it was possible guns had been allowed to cross the border but that the matter was under investigation. Subsequent investigations by Congress and the Justice Department inspector general verified the agents had in fact let guns walk, and they sharply criticized the administration for permitting a flawed strategy.
The Justice Department, however, waited until December 2011 to formally withdraw its inaccurate letters and correct the record.
Melson told congressional investigators he originally believed the Justice Department’s assertion to be true, but while flying on a plane March 30, 2011 he reviewed investigative reports (known as ROIs) and wiretap affidavits in the Arizona case and discovered that agents had, in fact, allowed guns to “walk” on numerous occasions.
“I was reading through the some of the wiretap applications on the plane. In fact, I think I was the first, other than a couple of agents who reviewed all of the ROIs and everything, but missed the smoking guns,” Melson recounted. “I decided to have confidence that we've looked at everything, that I would read them all.
“So sitting on the plane, reading the wiretap affidavit and one of the wiretap affidavits -- in fact, I think more than one, there was a statement in there prepared by the agents -- the AUSA and reviewed by the Criminal Division that suggested there was probable cause to believe that straw purchasers were taking guns across the border,” he added.
“It was apparent to me that they were suggesting that there was probable cause to believe that this information -- that these straw purchasers were taking guns across the border,” he continued. “So while on the plane, I drafted an e-mail to our people, and said, you know, you better back off, you better back off this statement, because -- the statement in this letter, this Feb. 4 letter to Sen. Grassley, because I don't believe we can say that in light of the information that our agent was swearing to before a federal district court judge to get the wiretap.”
After getting off the plane, Melson alerted then-U.S. Attorney Dennis Burke in Phoenix, who oversaw the Fast and Furious invetsigation, to his concerns about the inaccuracies in the letter. And he sent a email to several subordinates inside ATF entitled "Hold the presses," specifically urging that the Justice Department correct the record. "We have to change ...the statement in the first Grassley response that was actually sent,” Melson wrote his subordinates, according to excerpts in the September report of the Justice inspector general.
After emailing his subordinates inside ATF to correct the record, Melson sent a separate email 10 minutes later Associate Deputy Attorney General Matt Axelrod to advise him of his concerns.
The Justice IG recounts the email this way: "Rather than title his e-mail, 'Hold the presses,' Melson simply entitled his e-mail to Axelrod 'F and F.' Additionally, instead of describing his concerns about the February 4 response to Sen.Grassley, as he had done for his ATF colleagues, Melson simply said to Axelrod, 'you need to read the [Title] III affidavit, still under seal. Changes some things.'
"Melson thereafter sent at least two additional e-mails to Axelro referencing the paragraphs in the wiretap affidavit dated July 2, 2010, which concerned him," the IG found.
Axelrod told officials he did not feel Melson's warning was raising specific concerns about the letter to Grassley but instead spurred recognition that more issues needed to be investigated.
In his deposition to Congress, Melson lamented the conduct of Justice officials in dealing with Congress, suggesting misinformation may have been used to protect the president’s political appointees.
“It was very frustrating to all of us, and it appears thoroughly to us that the Department is really trying to figure out a way to push the information away from their political appointees at the Department,” he testified.
A congressional aide familiar with the Fast and Furious investigation told the Washington Guardian that while Melson’s description of the March 2011 events did not make it into the latest congressional report, it could be important to House Republicans’ efforts to persuade the courts to reject Obama’s claim of executive privilege.
The House has gone to court to force the administration to release numerous memos showing how it handled the Fast and Furious matter with Congress and the public after the Feb. 4, 2011 letter to Grassley.
“We believe any effort by the executive branch to slow walk or obscure the truth from Congress is a matter of legitimate oversight that can provide answers to the American public about this administration’s candor,” the investigator said, speaking only on condition of anonymity because he was not authorized to talk to the news media.
The aide disclosed that earlier this summer White House lawyers allowed House Republican leaders to see some of the withheld Fast and Furious documents, hoping to reach a deal to avoid the court fight.
The aide said in addition to Melson’s emails, the Republicans were shown a second email from a senior Justice Department official showing the administration knew its account denying gun walking was inaccurate long before it corrected the record.
In the second memo, then-Assistant Attorney General Jason Weinstein wrote in August 2011 that the administration’s denial of gun walking was “no longer operative,” the aide said.
That email is referenced in a little-noticed appendix to congressional investigators’ first report on the Fast and Furious scandal issued earlier this summer. “Weinstein warned a host of senior Justice Department officials, including Attorney General Holder, that he had learned ‘new information’ that conflicted with his previous assurances that the whistleblower allegations about gunwalking in Fast and Furious were untrue,” the note in the appendix stated.
Weinstein resigned from the Justice Department last month after the inspector general’s report excoriated the department for failing to stop gun walking in the Fast and Furious investigation and failing to correct the administration’s account to Congress sooner.
Proving the administration failed to correct misinformation to Congress and the public has taken on new significance among House and Senate Republicans, who see a similar pattern of omissions and false story lines in the more recent controversy of the Benghazi attack.
The administration for days after the tragedy portrayed it as a spontaneous attack by a mob angered over an American internet video insulting to Islam, but later acknowledged it had information almost immediately that the attack was in fact a more organized terror attack by al-Qaida-inspired spinoffs in Libya.
The Washington Guardianreported on the intelligence pointing toward an organized attack inspired by al-Qaida sympathetizers just 48 hours after the Sept. 11 attack, days before the administration officially acknowledged the possibility.
In a similar pattern, documents that belatedly surfaced in the aftermath of the Gulf of Mexico oil spill showed the White House was told almost immediately after the Deepwater Horizon drilling ship sunk that the size of the oil leak was large, but publicly stuck to a lower estimate for weeks.