The reason weapons purchased by suspected straw buyers were not interdicted in Operation Fast and Furious was because U.S. agents and prosecutors aimed to trace them back to Mexican drug cartels, not because the Arizona U.S. Attorney’s office concluded agents lacked probable cause to seize them, the Justice Department’s Inspector General report says.
The conclusion directly contradicts one of the premises in a Fortune magazine investigation of Fast and Furious that found Bureau of Alcohol, Tobacco, Firearms and Explosives agents were told they could not lawfully seize the weapons, and had thus never “intentionally” allowed them to cross the border.
Until now, the narrative has centered on Arizona Assistant U.S. Attorney Emory Hurley, who has been portrayed as a timid prosecutor lacking in judgment. The IG report found that Hurley had an “exceedingly conservative and questionable view” of the standard for seizing weapons, and that he, like the ATF agents leading the probe, did not propose their interdiction. But the report also found that he had not directly advised that it was illegal to do so.
In fact, Hurley told IG investigators that there were times when agents could have made a case for seizing firearms. “We did not find persuasive evidence that agents sought to seize firearms or make arrests during the investigative stage of the case and were rebuffed by the prosecutor,” the report said, or that ATF agents or management complained during the probe to prosecutors about “unreasonable evidentiary requirements.”
Rather, “We found that the lack of seizures and arrests was primarily attributable to the pursuit of a strategic goal shared by both the ATF and the U.S. Attorney’s Office – to eliminate a trafficking organization – and the belief that confronting subjects and seizing firearms could compromise that goal,” the report said.
The investigators found that the lead AFT agent on the probe, Hope MacAllister, had a flawed understanding of the probable cause standard. As a front-line agent, MacAllister would have been free to make a judgment call to seize weapons, but she didn’t in order to pursue the larger investigation, the IG wrote. Neither did Hurley urge her to do so, the report said.
Hurley acknowledged to IG investigators that there were instances where the case could have been made to seize weapons. For example, suspected straw buyer Uriel Patino, suspected of buying weapons for top Fast and Furious suspect Manuel Celis-Acosta, was observed on April 16, 2010 buying three .50 caliber rifles. By that time, ATF knew that Patino had bought more than 480 firearms worth more than $380,000, and that at least 63 of the weapons had already been recovered in the U.S. and Mexico, the report said.
“We asked MacAllister and Hurley why, given all that was known about Patino at this time in the investigation, ATF did not interdict the three .50
caliber rifles he purchased on April 16,” the IG report said. Hurley responded that he could “make the argument” to seize the rifles, but he wasn’t aware of the sale until after the fact and that ATF agents had never asked him to advise whether they could seize the guns.
MacAllister told the IG that “what we believe and what we can prove without [Patino’s] help are two different things,” the report said. At that time, MacAllister said she didn’t think she could make the arrest without obtaining an admission from Patino that he was buying the weapons for someone else. But for tactical reasons, ATF wasn’t attempting to question the suspected straw buyers to obtain such an admission, as had successfully been done in other cases in the past.
In December 2010, Border Patrol agent Brian Terry was killed at a shootout in Arizona with Mexican bandits. Two guns from the Fast and Furious probe were found at the crime scene. Terry’s death ignited a long-running investigation by congressional Republicans of the flawed Operation Fast and Furious that led to the House holding Attorney General Eric Holder in contempt for not providing requested documents for the probe. The IG report concluded that Holder had not known of the flawed gun-walking tactics.
One of the ATF agents on Fast and Furious, John Dodson, who had clashed personally with MacAllister and other agents, eventually blew the whistle to Congress on the gun-walking. The Fortune magazine piece, which presented the point of view of MacAllister and her supervisor Dave Voth, portrayed Dodson as a loose cannon who sought to undermine agents with whom he had personality differences.
The IG investigation had been ordered by Holder.
