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lIIu!14ingtIlU. 1I0l 20515
The Honorable Eric H. Holder, Jr. Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Dear Mr. Attorney General: During your testimony before the Committee last week, you pledged to work with Congress to find a way to make the wiretap applications from the Fast and Furious investigation available for congressional review. We appreciate your willingness to work with us on this issue, and we believe these applications will advance the investigation in a meaningful way. The contents of the wiretap applications are central in determining the level of involvement of senior Department officials during the pendency of Operation Fast and Furious. It is indisputable that gunwalking occurred during Fast and Furious, and it is therefore important to know whether any facts in the wiretap applications should have raised concerns that gunwalking, or other i1ladvised tactics, were occurring. The contents of the wiretap applications are likely to resolve factual disputes about the level of detail available to senior Department officials during Fast and Furious. Legal Sufficiency The Office of Enforcement Operations (OEO), part of the Justice Department's Criminal Division, is "primarily responsible for the Department's statutory wiretap authorizations." [ Generally, federal prosecutors across the country submit wiretap packages to OEO, whose lawyers ensure that these wiretap packages "meet statutory requirements and DOJ policies.Y When OEO deems a wiretap package sufficient, "[t]he Attorney General or his designee" - in practice, a Deputy Assistant Attorney General in the Criminal Division - reviews and authorizes it.3 Each package includes an affidavit which details the factual basis upon which the authorization is sought. In previous testimony before the Senate Judiciary Committee on November l , 2011, Assistant Attorney General Lanny Breuer commented that the "one role" Main Justice pJays in authorizing wiretap applications is to "ensure there is legal sufficiency to make an application.'" The federal wiretap statute describes what this legal sufficiency entails, requiring that the
I Letter from James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice, to Rep. Darrell E. Issa, Chairman, H. Comm. on Oversight & Gov't Reform, et al., at 6 (Jan. 27, 2012) [hereinafter Cole Letter]. 2 [d. 318 U.S.C. § 2516(1). 4 Combating International Organized Crime: Evaluating Current Authorities, Tools and Resources: Hearing Before the Subcomm. on Crime and Terrorism, S. Comm. on the Judiciary, 112th Congo (Nov. I, 20 II) (Test. of Assistant Att'y Gen. Lanny Breuer)
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The Honorable Eric H. Holder, Jr. February 8,2012 Page 2 of 5 application include "a full and complete statement of facts and circumstances justifying the application.r''' In addition, for a judge to order the requested wire interception, the appl ication must show that "[n]ormal investigative procedures have been tried and have failed or will likely fail, or are too dangerous.t'" The Department, therefore, must include specific facts in the application that demonstrate other investigative procedures have been exhausted. During our investigation into Operation Fast and Furious, several ATF agents have testified about the use of many long-standing and highly effective investigative techniques used in firearms trafficking investigations. These procedures include "knock and talks," traffic stops conducted by local law enforcement, consensual encounters, sustained surveillance of suspects and investigative targets, search warrants for suspected stash houses, use of undercover informants, and advising federal firearms licensees of their prerogative to refuse to sell weapons to individuals they deem suspicious. Last week, you testified that wiretap applications "don't always go into all of the techniques that are used in a particular investigaticn.v Yet, a wiretap application must include precisely this type of information in order to meet the legal sufficiency standard required by the Criminal Division in its review. Therefore, law enforcement officials would have to include these procedures, and possibly others, in the wiretap applications to meet the statutory requirement and obtain the Criminal Division's approval. As such, if the Fast and Furious wiretap applications were accurate and complete, they should contain significant indications of gunwalking. If they were not accurate and complete, then serious questions arise as to why the Criminal Division approved them despite being legally deficient for failing to describe the specific techniques that had been used and failed. Therefore, the content of the applications is crucial in order to gain a complete understanding of the issues surrounding this controversy. Violations of ATF and Department of Justice Policy The highly questionable investigative techniques used in Fast and Furious violated both ATF and Department policy. If the Fast and Furious wiretap applications mention ATF breaking off surveillance or allowing illegally purchased guns to be transferred in an uncontrolled manner, then the Criminal Division approved the applications in direct conflict with ATF policy. If the Fast and Furious wiretap applications mention guns crossing the border with ATF's foreknowledge, then the Criminal Division approved the applications in direct conflict with Department of Justice policy. Congress needs to understand the exact facts and circumstances in detail to conduct adequate oversight and fully inform our legislative functions under the Constitution.
IS § 2SIS(I)(b) IS U.S.C. § 2S1S(J)(c)
7 Fast and Furious: Management Failures at the Department of Jus/ice: Hearing Before the H. Comm. on Oversight & Gov'f Reform, 112th Congo (Feb. 2,2012) (Test. of Hon. Eric H. Holder, Jr., Art'y Gen. of the U.S.).
The Honorable Eric H. Holder, Jr. February 8, 2012 Page 3 of 5 The core mission of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is to "protectj] our communities from ... the illegal use and trafficking of firearms."g Multiple agents testified last year that in Fast and Furious, AIF prematurely broke off surveillance after witnessing illegal weapons purchases and allowed guns to walk. These tactics went against everything ATF stands for. On March 9, 2011, Deputy Attorney General James M. Cole sent an e-mail to southwest border U.S. Attorneys stating: "I want to reiterate the Department's policy: We should not design or conduct undercover operations which include guns crossing the border.,,9 Since this e-mail was a reiteration of Department policy, any operations allowing guns to cross the border would violate Department policy. On January 27,2012, Deputy Attorney General Cole sent a letter to Congress stating that the Department's "lawyers help AUSAs and trial attorneys ensure that their wiretap packages meet statutory requirements and DOJ policies." Thus, Mr. Cole acknowledged that Criminal Division lawyers are responsible for ensuring that wiretap packages comply with both federal law and Department policies, including the policy against designing operations that allow guns to cross the border. Wiretap Information We seek to determine whether wiretap applications were approved in contravention of either AIF or Department policy. It is highly likely that information contained in the wiretap applications will provide answers to the following questions: 1. Do the wiretap applications include the nwnber of guns purchased by individual members of the straw purchasing ring? If so, do the applications demonstrate that other investigative techniques, such as "knock and talks," traffic stops, or search warrants, were attempted and failed, or avoided, so as to not "tip off" the subjects and cause them to cease further illegal acti vity? 2. Do the wiretap applications include the amount of money spent on weapons by individual members of the straw purchasing ring? 3. Do the wiretap applications include information individual members of the straw purchasing ring? about the taxable Incomes of
4. Do the wiretap applications contain any evidence that suspects were acquiring the weapons with the intent to transfer them to another person? If so, why wasn't such evidence immediately used to arrest and prosecute those suspects for the crime of straw purchasing? 5. Do the wiretap applications include information about whether any of the targets or suspects were attempting to acquire firearms for the purpose of trafficking them to
Bureau of Alcohol, Tobacco, Firearms, and Explosives, "ATF's Mission," http://www.atfgov/about/mission visited Feb. 8, 2012). 9 E-mail from James M Cole to Angel Moreno, et al. (Mar. 9,20 II) [HOGR 005811].
The Honorable Eric H. Holder, Jr. February 8,2012 Page 4 of5 Mexico? If so, was blanket surveillance initiated to insure that the targets or suspects in question would not be able to effectuate their intent? 6. Do the wiretap applications contain any evidence that ATF allowed straw purchasers to acquire firearms? If so, what safeguards were put in place to protect public safety? 7. Do the wiretap applications contain any evidence of associations among individuals in the straw purchasing ring? 8. Do the wiretap applications include the number of border crossings, including dates, made by individual members of the straw purchasing ring? 9. Do the wiretap applications include the number of weapons recovered, both in the United States and in Mexico, that were bought by individual members of the straw purchasing ring?
O. Do the wiretap applications include the locations of residences where the transfer of
firearms took place during the course of the investigation?
I J. Do the wiretap applications include specific instances of law enforcement surveillance of illegal weapons purchases and subsequent transfers of those weapons without interdiction by law enforcement? 12. Do the wiretap applications contain any evidence that ATF deemed other investigative techniques, such as the execution of search warrants, not feasible because such techniques would alert the subjects to the investigation? If so, does the failure to execute these search warrants demonstrate a violation of ATF's core mission? Leave of Court By their very nature, requests for wiretap applications are intrusions into the privacy of individuals. It is for this reason that the law requires the Justice Department to exercise meaningful supervision over these applications, and one of the reasons why OEO scrutinizes each application before submitting it to federal court. Although we are mindful of the sensitive nature of the information associated with the individuals mentioned in the applications, the grave public concern over Fast and Furious weighs in favor of providing this information in furtherance of our oversight interests under the Constitution. Recently, the Arizona Republic "convinced a [federal] judge to [unseal] some documents [relating to the Brian Terry murder], saying the public had a right to inspect them."]O This marked the first time in a case relating to Fast and Furious that documents have been unsealed.
10 Dennis Wagner, Brian Terry border case: 2nd suspect revealed, ARIZ. REpUBLIC, Jan. 30,2012, available at http://tucsoncitizen.comJarizona-news/20 12/0 1/30Ibrian-terry-border-case-2nd-suspect-revealed/.
The Honorable Eric H. Holder, Jr. February 8, 2012 Page 5 of5 Likewise, in the event that the wiretap applications are sealed, we request that the Department of Justice seek leave of court to unseal them for the purpose of facilitating congressional review. If the Department requires a subpoena in order to take this step, the Committee is willing to provide one. We look forward to your response as soon as possible, but by no later than noon on February 15,2012. Sincerely,
Chairman Committee on Oversight and Government Reform United States House of Representatives
Charles E. Grassley Ranking Member Committee on the judiciary United States Senate
Patrick Meehan Member of Congress United States House of Representatives
The Honorable Elijah E. Cummings, Ranking Member Committee on Oversight and Government Reform United States House of Representatives The Honorable Patrick Leahy, Chairman Committee on the Judiciary United States Senate
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