    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

        OPERATION FAST AND FURIOUS: RECKLESS DECISIONS, TRAGIC OUTCOMES

    =======================================================================

                                    HEARING

                                   before the

                             COMMITTEE ON OVERSIGHT

                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 15, 2011

                                   __________

                               Serial No. 112-64

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

             Available via the World Wide Web: http://www.fdsys.gov
                          http://www.house.gov/reform

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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     DARRELL E. ISSA, California, Chairman
    DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland,
    JOHN L. MICA, Florida                    Ranking Minority Member
    TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
    MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
    PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of
    JIM JORDAN, Ohio                         Columbia
    JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
    CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
    TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
    JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
    JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
    ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
    PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
    RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
    PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
    SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
    JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
    TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
    DENNIS A. ROSS, Florida              JACKIE SPEIER, California
    FRANK C. GUINTA, New Hampshire
    BLAKE FARENTHOLD, Texas
    MIKE KELLY, Pennsylvania

                       Lawrence J. Brady, Staff Director
                    John D. Cuaderes, Deputy Staff Director
                         Robert Borden, General Counsel
                           Linda A. Good, Chief Clerk
                     David Rapallo, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on June 15, 2011....................................     1
    Statement of:
        Grassley, Hon. Charles E., ranking member, Committee on the
          Judiciary, U.S. Senate.....................................    10
        Heyer, Robert, cousin of late Border Agent Brian Terry;
          Josephine Terry, mother of late Border Agent Brian Terry;
          Michelle Terry Balogh, sister of late Border Agent Brian
          Terry; John Dodson, Special Agent, Phoenix Field Division,
          Bureau of Alcohol, Tobacco, Firearms, and Explosives;
          Olindo ``Lee'' Casa, Special Agent, Phoenix Field Division,
          Bureau of Alcohol, Tobacco, Firearms, and Explosives; Peter
          J. Forcelli, Group Supervisor, Phoenix Field Division,
          Bureau of Alcohol, Tobacco, Firearms, and Explosives.......    86
            Casa, Olindo ``Lee''.....................................   100
            Dodson, John.............................................    96
            Forcelli, Peter J........................................   107
            Heyer, Robert............................................    86
        Weich, Ronald, Assistant Attorney General, U.S. Department of
          Justice....................................................   154
    Letters, statements, etc., submitted for the record by:
        Casa, Olindo ``Lee'', Special Agent, Phoenix Field Division,
          Bureau of Alcohol, Tobacco, Firearms, and Explosives,
          prepared statement of......................................   103
        Connolly, Hon. Gerald E., a Representative in Congress from
          the State of Virginia, prepared statement of...............   131
        Cummings, Hon. Elijah E., a Representative in Congress from
          the State of Maryland:
            Letter dated June 15, 2011...............................   178
            Prepared statement of....................................     8
        Dodson, John, Special Agent, Phoenix Field Division, Bureau
          of Alcohol, Tobacco, Firearms, and Explosives, prepared
          statement of...............................................    98
        Forcelli, Peter J., Group Supervisor, Phoenix Field Division,
          Bureau of Alcohol, Tobacco, Firearms, and Explosives,
          prepared statement of......................................   110
        Gosar, Hon. Paul A., a Representative in Congress from the
          State of Arizona, prepared statement of....................   150
        Grassley, Hon. Charles E., ranking member, Committee on the
          Judiciary, U.S. Senate, prepared statement of..............    14
        Heyer, Robert, cousin of late Border Agent Brian Terry,
          prepared statement of......................................    90
        Issa, Chairman Darrell E., a Representative in Congress from
          the State of California, prepared statement of.............     4
        Kelly, Hon. Mike, a Representative in Congress from the State
          of Pennsylvania, prepared statement of.....................   141
        Weich, Ronald, Assistant Attorney General, U.S. Department of
          Justice, prepared statement of.............................   157

        OPERATION FAST AND FURIOUS: RECKLESS DECISIONS, TRAGIC OUTCOMES

                                  ----------

                            WEDNESDAY, JUNE 15, 2011

                              House of Representatives,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:05 a.m., in
    room 2154, Rayburn House Office Building, Hon. Darrell E. Issa
    (chairman of the committee) presiding.
        Present: Representatives Issa, McHenry, Jordan, Chaffetz,
    Mack, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador,
    Meehan, DesJarlais, Gowdy, Ross, Guinta, Farenthold, Kelly,
    Cummings, Towns, Maloney, Kucinich, Tierney, Clay, Lynch,
    Connolly, Quigley, and Yarmuth.
        Staff present: Linda Good, chief clerk; Molly Boyl,
    parliamentarian; Steve Castor, chief counsel, investigations;
    Carlton Davis, Henry J. Kerner, Jessica L. Laux, counsels; Kate
    Dunbar, staff assistant; Jean Humbrecht, professional staff
    member; Ashok M. Pinto, deputy chief counsel, investigations;
    Jonathan J. Skladany, senior investigative counsel; Beverly
    Britton Fraser, Justin Kim, Scott Lindsay, Donald Sherman, and
    Carlos Uriarte, minority counsels; Kevin Corbin, minority staff
    assistant; Ashley Etienne, minority director of communications;
    Jennifer Hoffman, minority press secretary; Carla Hultberg,
    minority chief clerk; Chris Knauer, minority senior
    investigator; Dave Rapallo, minority staff director; and
    Susanne Sachsman Grooms, minority chief counsel.
        Chairman Issa. The committee will come to order.
        We exist to secure two fundamental principles: First,
    Americans have a right to know that the money Washington takes
    from them is well-spent. And, second, Americans deserve an
    efficient, effective government that works for them. Our duty
    on the Oversight and Government Reform Committee is to protect
    these rights. Our solemn responsibility is to hold government
    accountable to taxpayers, because taxpayers have a right to
    know what they get from their government. We work tirelessly,
    in partnership with citizen watchdogs, to deliver the facts to
    the American people and bring genuine reform to the Federal
    bureaucracy.
        The mission of the Bureau of Alcohol, Tobacco, and Firearms
    is to protect our communities from violent criminals, criminal
    organizations, and the illegal use and trafficking of firearms.
    Since the Gun Control Act of 1968, the ATF has been organized
    as a unique law enforcement agency that Americans could trust
    to reduce the illegal transfer of guns into the hands of
    criminals.
        Today's hearing concerns a breach of that trust that has
    left countless innocent Mexican citizens and at least one
    Federal Border Patrol agent dead.
        In 2009, the ATF began allowing straw purchasers to walk
    guns into Mexico, believing that this initiative would help
    them track the use of firearms by higher-ups within the Mexican
    drug cartels. Guns instead were being seized and allowed to
    cross the Mexican border without the knowledge of the Mexican
    Government. This effort failed.
        Over strong objections of the ATF field agents, the program
    continued. And approximately 2,000 AK-47s and derivatives, and
    some .50-caliber sniper rifles and others, and 10,000 or more
    rounds of live ammunition went into the arsenals of the Mexican
    drug lords.
        Despite these strong objections by field agents, Operation
    Fast and Furious continued. And not only did it continue, but
    those at the highest level of ATF showed great interest in the
    program. A document, displayed on the screen now, shows that
    two of the most senior leaders in ATF, Acting Director Kenneth
    Melson and Acting Deputy Director Billy Hoover, were being
    briefed weekly on Fast and Furious. The documents show that
    both Melson and Hoover were keenly interested in the case and
    updates.
        A second document shows Deputy Assistant Director for Field
    Operations William McMahon was so excited about Fast and
    Furious that he received a special briefing on the program in
    Phoenix scheduled a mere 45 minutes after his plane landed.
        A third and perhaps the most disturbing document, indicates
    that Acting Director Melson was very much in the weeds with
    Operation Fast and Furious. After a detailed briefing on the
    program at the ATF field division, Acting Director Melson had a
    plethora of follow-up questions that required additional
    research to answer. And as documents indicate, Mr. Melson was
    interested even in receiving the IP address for hidden cameras
    located inside cooperating gun shops. With this information,
    Acting Director Melson was able to sit at his desk in
    Washington and, himself, watch a live feed of straw buyers
    entering the gun stores and purchasing dozens of AK-47
    variants.
        Earlier this month, the Mexican Government reported that
    more than 34,000 lives have been lost in the 4\1/2\ years, and
    scores of others remain missing. Last year, 111 U.S. citizens
    were killed in Mexico, which has been the most violent year in
    the drug war's history, according to the U.S. State Department.
        When Senator Chuck Grassley, who we welcome here today, and
    I first learned about Operation Fast and Furious earlier this
    year, we were both shocked that such a brutal and reckless, and
    blatantly reckless, program had ever been conceived,
    authorized, or executed by Federal law enforcement. Candidly,
    at first I believed that it had to be, as it was being alleged,
    an operation that was a few loose cannons and could not have
    been possibly properly briefed.
        Last night, Senator Grassley and I released a joint report
    from the investigation entitled, ``Operation Fast and Furious:
    Accounts of the ATF Agents.'' After these accounts, after the
    many depositions that have been taken, the witnesses that have
    come forward, the whistleblowers, if you will, it is now clear
    this was not rogues at a local level--just the opposite. What
    we find is that people at the local level overwhelmingly
    objected to this program but were assured that it was approved
    at the highest levels.
        Today, we will hear from the family of Agent Terry about
    how Fast and Furious devastated their lives. And we will hear
    from ATF agents who saw the risk, opposed the program, and have
    come forward to tell the American people what happened.
        The American people have a right to know the facts about
    Operation Fast and Furious, and Congress has a responsibility
    to find and reveal those facts. Thus far, more than 30
    Democratic House Members have joined Senator Grassley and
    myself in calls for the truth.
        I hope this will continue to be a bipartisan effort. I
    believe that in spite of slowness to react by the
    administration, there has now become a focus on getting the
    truth out in a more timely fashion, allowing the families to
    understand how it happened, and hopefully, working together
    with Senator Grassley and this committee, to ensure it never
    happens again. That includes holding those whose judgment was
    so poor accountable.
        And, with that, I recognize the ranking member for his
    opening statement.
        [The prepared statement of Chairman Darrell E. Issa
    follows:]

    [GRAPHIC] [TIFF OMITTED] 71077.001

    [GRAPHIC] [TIFF OMITTED] 71077.002

        Mr. Cummings. Thank you very much, Mr. Chairman. And I
    thank you, Mr. Chairman, for holding this hearing.
        I would like to start by saying a few words directly to the
    members of the Terry family who are here today. Over the past
    week, my family suffered a horrific tragedy that, in some ways,
    is similar to your own.
        Nobody can really know how that feels until they go through
    it themselves. On the one hand, you want the criminals who did
    this to be brought to justice as fast as possible. You want
    them punished for what they did, for who they took from you. On
    the other hand, that is after the fact. It simply will not
    bring them back. So you also want answers. You want to know
    whether something could have been done to prevent their death,
    and you want to prevent it from happening to anyone else in the
    future.
        I want to tell you that I know how you feel, and I want to
    help as much as I can. Of course, we want the prosecutors to
    succeed in bringing the perpetrators to justice. You also
    deserve direct and straightforward answers from your
    government. Working together, we can and must achieve both of
    these goals. And so I thank you for being here today.
        Now, let me welcome Senator Grassley. Your reputation as a
    defender of good government transcends party lines. I have
    always been impressed by your determination, and I welcome you
    here today.
        And you said something in your statement, in your written
    statement, that I totally agree with and I want to reiterate.
    You said, ``Any attempt to retaliate against them,'' speaking
    of the ATF officers, ``for their testimony today would be
    unfair, unwise, and unlawful.'' And I am here to say that I
    have always taken that position, and I share that view with
    you, and I will work with you to make sure that does not
    happen. And I am sure it won't.
        Let me also welcome the ATF agents who are here to provide
    their testimony. It is not easy to testify before Congress
    under normal circumstances, but it is even more difficult when
    you are testifying about allegations involving your own agency.
    That is tough. Nevertheless, I know you are here today because
    you want to improve this process.
        Finally, let me welcome Mr. Weich from the Justice
    Department. This will not be an easy hearing for you either,
    but I know that you, too, are here because you want to improve
    this process. We look forward to talking with you about ways we
    can meet both the Department's obligations for the prosecution
    and the committee's obligations for oversight.
        We thank each and every one of you for your service to the
    country. We will have tough questions today, but you all
    deserve our courtesy and respect.
        On the substance of today's hearing, the allegations that
    have been made are very troubling. And new information we have
    obtained raises additional concerns about the role of various
    actors involved in these incidents.
        Based on the interviews conducted by the committee so far
    and the documents we have reviewed to date, I have two concerns
    that I would like to explore.
        First, we will hear testimony that surveillance of
    suspected straw purchasers was discontinued repeatedly,
    seemingly for no reason, so agents could return to gun stores
    to start over with new suspects. The Phoenix group handling
    this investigation was tiny, with only three to seven ATF
    agents. Although other offices and agencies were involved, the
    allegation is that these scarce resources were not used
    appropriately.
        Second, we will hear testimony that specific individuals in
    the U.S. attorney's office in Phoenix refused to prosecute
    legitimate and promising gun cases involving straw purchasers.
    This gives me great concern. It is not clear whether this
    reluctance was based upon negative court decisions, inadequate
    resources, or other issues. But one thing is clear: The
    allegations relating to this particular office span several
    years and several administrations.
        I want to make two additional points about today's hearing.
        This weekend, Chairman Issa stated on national television
    that this committee's investigation and these hearings are not
    about finding the facts. He said, ``This is not a discovery
    process of what happened. We know what happened.'' With all due
    respect, I strongly disagree. We do not know all the facts. We
    still have much to learn in this ongoing investigation, and we
    should not rush to judgment.
        Finally, no legitimate examination of this issue will be
    complete without analyzing our Nation's gun laws, which allow
    tens of thousands of assault weapons to flood into Mexico from
    the United States every year, including .50-caliber sniper
    rifles, multiple AK variants, and scores of others, some of
    them landing in neighborhoods like mine, the one I represent in
    Baltimore. When Mexican President Calderon addressed Congress
    in May, he pleaded for us to stop fueling a full-scale drug war
    with military-grade assault weapons.
        In order to explore these issues further today, I am
    exercising my right under the rules, Mr. Chairman, of the House
    for a minority day of hearings with several witnesses who will
    testify about these issues in great detail. I did not think it
    was necessary to call these witnesses for today's hearing, but
    I will work with the chairman on scheduling these hearings in
    the near future.
        Finally, let me say this. ATF Special Agent Forcelli said
    something in his written statement that we all need to take
    note of, Mr. Chairman. He says these words: ``As a career law
    enforcement officer who has had to investigate the deaths of
    police officers, children, and others at the hands of armed
    criminals, I was and continue to be horrified.'' And this is
    the piece that I want us to concentrate on: ``I believe that
    these firearms will continue to turn up at crime scenes on both
    sides of the border for years to come.''
        With that, Mr. Chairman, I yield back.
        [The prepared statement of Hon. Elijah E. Cummings
    follows:]
    [GRAPHIC] [TIFF OMITTED] 71077.003

    [GRAPHIC] [TIFF OMITTED] 71077.004

        Chairman Issa. I thank the gentleman.
        Members may have 7 days to submit opening statements and
    extraneous materials for the record.
        We now recognize our first panel. The distinguished Senator
    Charles Grassley is the ranking member of the Senate Committee
    on Judiciary. In that role, I have an opportunity to work with
    the Senator on patent issues and many other issues of law
    enforcement. But today the Senator is here to speak about a
    joint investigation that has spanned many months and ultimately
    has consumed a great deal of the Senator's personal time and
    attention.
        And I thank you for being here. Your entire written
    statement will be placed in the record. And you are recognized.

        STATEMENT OF HON. CHARLES E. GRASSLEY, RANKING MEMBER,
                COMMITTEE ON THE JUDICIARY, U.S. SENATE

        Senator Grassley. Chairman Issa, Ranking Member Cummings,
    thank you very much for inviting me to be here; more
    importantly, for calling these important hearings and for the
    great work that you and your staff have done in your
    constitutional responsibility of oversight.
        I am grateful to Agent Brian Terry's family for being here
    today and wish to express my sympathy for their loss. I hope
    that we can get the Terry family the answers that they deserve.
        I also want to thank the brave people who are testifying
    from the Bureau of Alcohol, Tobacco, and Firearms, these
    Federal agents. I know that they are here to tell the
    unvarnished truth. I also know that that can be very tough,
    since they still work for the ATF. These agents already risk
    their lives to keep us safe; they shouldn't have to risk their
    jobs as well. Continuing to highlight what Congressman Cummings
    highlighted from my statement, any attempt to retaliate against
    them for their testimony today would be unfair, unwise, and
    unlawful. And let me add to what Congressman Cummings said, it
    would be a personal affront to this Senator.
        When I became ranking member of the Judiciary Committee in
    January, this was the first oversight issue to land on my desk.
    Several other Senators' offices contacted my office to pass
    along these allegations about an ATF case called ``Operation
    Fast and Furious.'' At first, the allegations sounded too
    shocking to believe, but, sadly, they turned out to be true.
        ATF is supposed to stop criminals from trafficking guns to
    Mexican drug cartels or, I guess, anyplace else. Instead, the
    ATF made it easier for alleged cartel middlemen to get weapons
    from U.S. gun dealers. Agents were actually ordered to stand by
    and watch these middlemen, these straw purchasers, buy hundreds
    upon hundreds of weapons. Agents warned that inaction could
    lead to tragedy, but management didn't want to listen. We will
    hear from some of those agents today and hear from their point
    of view.
        Inaction would be bad enough, but ATF went even further.
    ATF encouraged gun dealers to sell to straw buyers. Emails
    prove that at least one dealer worried prophetically about that
    risk. He wrote to ATF about his concerns that a Border Patrol
    agent might end up facing the wrong end of one of those
    weapons. ATF supervisors told the dealer, ``Don't worry.''
        So, the agent said it was a bad idea, and the gun dealers
    said it was a bad idea. Who thought it was a good idea? Why did
    this happen? Congress deserves answers to these questions.
        The President said that he didn't authorize it and that the
    Attorney General didn't authorize it. They have both admitted
    that, ``a serious mistake may have been made.''
        There are a lot of questions and a lot of investigating to
    do, but one thing has become clear already: This was no
    mistake. It was a conscious decision by senior officials. It
    was written down. It was briefed all the way up to Washington,
    DC. According to an internal briefing paper, Operation Fast and
    Furious was intentionally designed to, ``allow the transfer of
    firearms to continue to take place.''
        Why would the ATF do such a thing? Well, the next line in
    the brief paper tells us. It was, ``to further the
    investigation and allow for the identification of additional
    co-conspirators.'' So, very clearly, that was the goal. The
    purpose of allowing straw buyers to keep buying was to find out
    who else might be working with them, who else might be in their
    network of gun traffickers.
        Of course, that assumes that they are part of a big
    sophisticated network. That kind of assumption can cause one to
    start with a conclusion and then work backward, looking for the
    facts that fit the case. Until you figure out that you have the
    cart before the horse, you are probably not going to get
    anywhere.
        Professor of criminology Gary Kleck recently published an
    article in the Wall Street Journal called, ``The Myth of Big-
    Time Gun Trafficking.'' Professor Kleck said that, according to
    his study of national crime data, ATF handles only about 15
    operations each year that involve more than 250 guns. According
    to his study, a typical trafficking operation involves fewer
    than 12 guns.
        So, why would the ATF make it a priority to identify large
    networks of traffickers? And, again, why would senior
    leadership decide to explicitly elevate that goal above ATF's
    traditional work of seizing weapons that were illegally
    purchased?
        On October 26, 2009, emails indicate that there was a
    meeting of senior law enforcement officials at our Justice
    Department. It appears to have included the heads of every law
    enforcement component of the Department, including directors of
    the FBI, the DEA, and the ATF. It also included the U.S.
    attorneys for all of the southwest-border States, the director
    of the Organized Crime Drug Enforcement Task Force, and the
    chairman of the Attorney General's Advisory Committee. Sounds
    like a pretty big, important meeting, doesn't it?
        On the agenda at the meeting was a document describing the
    Department's strategy for combatting Mexican cartels. In a
    section called, ``Attacking the Southbound Flow of Firearms,''
    it says, and I quote from the document, ``Merely seizing
    firearms through interdiction will not stop firearms
    trafficking to Mexico. We must identify, investigate, and
    eliminate the sources of illegally trafficked firearms and the
    networks that transport them.''
        Well, the message in that document is pretty clear, isn't
    it? Trying to identify networks of traffickers is more
    important than seizing weapons. This document was transmitted
    to the head of the Phoenix Field Division on October 27, 2009.
        Four days later, the Phoenix Field Division began
    investigating Uriel Patino on suspicion of being involved in a
    gun-trafficking ring. Ten days after that, Patino was assigned
    his own case number. In the first 24 days that the ATF was on
    to him, Patino bought 34 guns from dealers cooperating with the
    ATF. That is nearly three times more than the typical gun-
    trafficking operation, according to the study in the Wall
    Street Journal that I just mentioned.
        But that was just the beginning. Since the dealers were
    cooperating, ATF received notices of each purchase right away.
    Analysts enter the serial numbers into ATF's Suspect Gun Data
    base usually within days of the purchase. On November the 20th,
    one of the 34 guns Patino bought turned up in Mexico, just 14
    days after he bought it in Phoenix. ATF learned of the recovery
    through a hit in a Suspect Gun Data base on November the 24th.
        That same day, Patino brought Jaime Avila into a
    cooperating gun dealer, and they bought five more guns. ATF had
    realtime notice from the dealer, and agents raced to the store
    to follow them, but they arrived too late.
        Over the next 6 weeks, Avila bought 13 guns at dealers
    cooperating with the ATF. The dealers notified the ATF of each
    purchase right away. Analysts entered the serial numbers in the
    ATF data base, usually within about 2 days of purchase. Yet ATF
    did nothing to deter or interrupt the straw purchasers. Avila
    went back to a cooperating dealer and purchased three more AK-
    47-type weapons on January 16, 2010. ATF simply put the serial
    numbers in its data base. Still, ATF did nothing to stop Avila
    and Patino.
        Eleven months later, two of those three rifles were
    recovered at the scene of Agent Terry's murder. During those 11
    months, Avila purchased another 34 arms, but Patino purchased
    539. Again, cooperating gun dealers notified ATF of each and
    every purchase. It usually took about 5 days to enter the
    serial numbers into the ATF data base, but ATF often had
    realtime or even advanced notice of the purchases from the
    dealers. ATF even specifically approved of particular
    transactions.
        I will give you an example. In August 2010, a gun dealer
    cooperating with the ATF asked for guidance. Patino wanted 20
    more weapons, but the dealer only had 4 in stock. The dealer
    told ATF that if he were to sell the guns he would have to,
    ``obtain the additional 16 specifically for this purpose.'' An
    ATF supervisor wrote back, ``Our guidance is that we would like
    you to go through with Mr. Patino's request and order the
    additional firearms.'' At this point, ATF already knew that he
    had bought 673 guns from cooperating dealers and that many had
    already been recovered at crime scenes. I want to be clear that
    we don't know for sure whether this particular order was
    actually filled for these additional 16 guns.
        However, these new emails support what agents and dealers
    have been telling us for many months. According to them,
    dealers identified ATF when any of the straw purchasers bought
    guns either before, during, or at least shortly after the sale.
    We don't know what the exact totals are, but we know that the
    Suspect Gun Data base had at least 1,880 guns related to this
    case. At least 30 of them were high-power .50-caliber rifles.
        The straw purchasers bought 212 guns in just 6 days,
    December 2009. Seventy percent of all guns in the data base
    were bought by just five straw purchasers. If ATF agents had
    been allowed to stop just those five buyers, most of the guns
    in this case would not have fallen into the wrong hands.
        Finally, I want to say something about the politics of gun
    control. This investigation is not about politics. It is about
    getting the facts. That is what constitutional responsibility
    of oversight is all about. That is our checks and balances of
    government.
        No matter what side of that issue you are on, the facts
    here should be disturbing. There will be plenty of time for
    both sides to argue about policy implications of all this at
    some point, but I hope that we can do that at another day.
    Today is all about these agents not being allowed to do their
    job. Today is about the Terry family and their search for the
    truth.
        Too often, we want to make everything about politics. We
    pick sides and only listen to what we want to hear. At least
    for today, let's just listen to these agents and let's just
    listen to this family and hear what they have to say. Let's
    hear their stories and hear it loud and clearly. Let's then
    work together to get answers for this family and the other
    families who may have suffered.
        It is time to get to the truth and hold our government
    accountable. The public's business ought to be public, the
    public's right to know. And with the public's right to know
    comes that accountability. That is the checks and balances of
    our government, and that is what congressional oversight is all
    about.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Charles E. Grassley
    follows:]
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        Chairman Issa. Thank you, Senator. Thank you for taking so
    much time out of your busy schedule to testify here today.
        While we set up for the next panel, we will take a short
    recess.
        [Recess.]
        Chairman Issa. The hearing will come to order, please.
        We will now recognize our next panel of witnesses.
        Mrs. Josephine Terry is the mother of the late Border
    Patrol Agent Brian Terry. Ms. Michelle Terry is the sister of
    the late Border Patrol Agent Brian Terry. Mr. Robert Heyer is
    the cousin of the late Border Patrol Agent Brian Terry.
        The committee would also like to recognize other members of
    Agent Terry's family, including his father, Kent Terry, who is
    unable to be here today; his stepmother, Carolyn Terry; his
    older brother, Kent Terry, Jr.; and his younger sister, Kelly
    Terry Willis.
        Our thoughts today are with Agent Terry and his entire
    family as they continue to mourn the untimely passing of their
    loved one.
        Our remaining witnesses on the second panel are:
        Mr. John Dodson. He is a special agent in the Phoenix Field
    Division of the Bureau of Alcohol, Tobacco, Firearms, and
    Explosives.
        Mr. Olindo ``Lee,'' as he is known, Casa is a special agent
    in the Phoenix Field Division of the Bureau of Alcohol,
    Tobacco, Firearms, and Explosives.
        And Mr. Peter Forcelli is the group supervisor of the
    Phoenix Field Division of the Bureau of Alcohol, Tobacco,
    Firearms, and Explosives.
        Ladies and gentlemen, pursuant to the rules of our
    committee, all witnesses are to be sworn in order to testify.
    Would you please rise to take the oath and raise your right
    hands?
        [Witnesses sworn.]
        Chairman Issa. Let the record reflect that all witnesses
    answered in the affirmative.
        Please be seated.
        In order to allow time, particularly with such a large
    panel, your entire written statements and any inclusive
    material you want to have put in the record will be placed in
    the record, so feel free to summarize. Try to stay within 5
    minutes. For the field agents, we will hold you closer to it.
    For the mother and sister, not so much.
        We will start with Mr. Heyer. You are recognized for 5
    minutes.

     STATEMENTS OF ROBERT HEYER, COUSIN OF LATE BORDER AGENT BRIAN
       TERRY; JOSEPHINE TERRY, MOTHER OF LATE BORDER AGENT BRIAN
    TERRY; MICHELLE TERRY BALOGH, SISTER OF LATE BORDER AGENT BRIAN
      TERRY; JOHN DODSON, SPECIAL AGENT, PHOENIX FIELD DIVISION,
     BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; OLINDO
    ``LEE'' CASA, SPECIAL AGENT, PHOENIX FIELD DIVISION, BUREAU OF
    ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; PETER J. FORCELLI,
     GROUP SUPERVISOR, PHOENIX FIELD DIVISION, BUREAU OF ALCOHOL,
                   TOBACCO, FIREARMS, AND EXPLOSIVES

                       STATEMENT OF ROBERT HEYER

        Mr. Heyer. Good morning, Chairman Issa, Ranking Member
    Cummings, and other members of the committee.
        My name is Robert Heyer. I am the cousin of slain Border
    Patrol Agent Brian A. Terry. As you know, I am joined on the
    panel this morning by Brian's mother, Josephine, and his older
    sister, Michelle. They have asked me to give this opening
    statement on behalf of the entire Terry family.
        It was just 10 days before Christmas last year when our
    family received the devastating news. Brian had been shot and
    killed while engaged in a firefight with a group of individuals
    seeking to do harm to American citizens and others.
        We knew that Brian faced imminent danger on a daily basis
    as a part of his chosen career. But we also knew that he and
    his unit were highly trained and equipped with the best weapons
    this country could provide to their fighting men and women.
    They were confident in overcoming any threat that they may face
    in the desolate section of desert that they patrolled. He and
    his team prided themselves as being the tip of the spear that
    defended this country and its borders.
        The telephone call came in the middle of the night. I know
    this type of horrible notification has been received many times
    during the past 10 years by families of our military sons and
    daughters as the United States has fought wars in both Iraq and
    Afghanistan. After all, Brian had taken an oath to defend this
    country from all terrorist threats.
        What makes Brian's death so shocking to his family is that
    he did not die on a foreign battlefield. He was killed in the
    line of duty as a U.S. Border Patrol agent. He died not in Iraq
    or Afghanistan but in a desert outside of Rio Rico, Arizona,
    some 18 miles inside of the U.S.-Mexican border. His killers
    were not Taliban insurgents or al Qaeda fighters but a small
    group of Mexican drug cartel bandits heavily armed with AK-47
    assault rifles. The rifles and the ammunition that they carried
    in those weapons were designed to do one thing, and that was to
    kill.
        Brian was an amazing man. And I say that not just because
    he was family. Many people thought he was almost superhuman.
    After his death, we visited his former duty stations in
    Arizona. Each time we met one of his fellow agents, they spoke
    of how impressed they were with him. He was what we expect in
    our brothers and sons: a strong, competitive, handsome,
    courageous, funny, and incredibly patriotic American. Some of
    his coworkers even had bestowed him with the nickname of
    ``Superman.''
        Brian was very proud to serve as a Federal agent. He had
    joined the U.S. Marine Corps right after high school. He went
    on to college and earned a bachelor of science degree in
    criminal justice. He then became a local police officer in the
    communities of Ecorse and Lincoln Park, Michigan.
        When he sought to have more of an impact on keeping this
    country safe, he joined the Border Patrol. Brian, it seemed,
    had found his niche. Before long, he tried out and became a
    member of the Border Patrol's elite tactical unit known as
    BORTAC. At age 40, he had much to look forward to, which
    included getting married and starting a family. But for now, he
    was living his dream. He wore his BORTAC-winged insignia with
    great pride and excelled as a BORTAC team member.
        During BORTAC training, Brian was given a classroom writing
    assignment. The assignment was to write something about himself
    that would give the instructors some insight as to who he was.
    He composed a poem that he entitled, ``If Today is to Be the
    Day, So Be It.'' I would like to read you that poem so that you
    can have a better understanding of the man he was.
        ``If you seek to do battle with me this day, you will
    receive the best that I am capable of giving. It may not be
    enough, but it will be everything that I have to give, and it
    will be impressive, for I have constantly prepared myself for
    this day. I have trained, drilled, and rehearsed my actions so
    that I might have the best chance of defeating you. I have kept
    myself in peak physical condition, schooled myself in the
    martial skills, and have become proficient in the applications
    of combat tactics.
        ``You may defeat me, but I'm willing to die if necessary. I
    do not fear death, for I have been close enough to it on enough
    occasions that it no longer concerns me. But I do fear the loss
    of my honor and would rather die fighting than to have it said
    that I was without courage. So I will fight you, no matter how
    insurmountable it may seem, to the death if need be, in order
    that it may never be said of me that I was not a warrior.''
        Brian was due to complete his shift of duty that night in
    the desert outside of Rio Rico at midnight on December 15th and
    then take some much-deserved time off. He had already made his
    travel plans to fly back to Michigan and spend the Christmas
    holiday with his family. Brian's attention to detail had
    ensured that all the Christmas gifts he had meticulously
    selected for his family had already been bought and sent in the
    mail prior to his arrival.
        Brian did ultimately come home that Christmas. We buried
    him not far from the house that he was raised in, just prior to
    Christmas Day.
        The gifts that Brian had picked out with such thought and
    care began to arrive in the mail the same week. With each
    delivery, we felt the indescribable pain of Brian's death but,
    at the same time, also remembered his amazing love and spirit.
        We hope that you now know a little bit more about our
    Brian. We ask that you honor his memory by continuing to ensure
    what he worked so hard to do and ultimately gave his life
    doing--that is, to keep this country safe and its borders
    secure.
        We hope that the Bureau of Alcohol, Tobacco, and Firearms
    is forthcoming with all information that the panel is seeking.
    We ask that if a government official made a wrong decision,
    that they admit their error and take responsibility for his or
    her actions. We hope that all individuals involved in Brian's
    murder and those that played a role in putting the assault
    weapons in their hands are found and prosecuted to the full
    extent of the law. Finally, it is our hope that no more law
    enforcement officers die at the hands of these heavily armed
    Mexican drug cartel members operating on and inside the borders
    of the United States.
        The Terry family would like to acknowledge and thank the
    special agents in the FBI's Tucson Field Office and the
    prosecutors in the U.S. attorney's Tucson office that have
    worked so hard and continue to work in bringing Brian's killers
    to justice.
        We would also like to acknowledge the courage and integrity
    of the three special agents of ATF's Phoenix Field Division
    sitting with us on this panel: Lee Casa, Pete Forcelli, and
    John Dodson. We recognize the professional risk you face by
    coming forward and speaking to the public about an
    investigation that you believe was ill-conceived and reckless.
        The Marine Corps has the motto of ``Semper fidelis,'' which
    most of you know is Latin for ``Always faithful.'' The Border
    Patrol has the motto of ``Honor first.'' Brian lived a life of
    honor, duty, and sacrifice, which reflected both of these
    mottos and the two organizations that he was so proud to serve
    in. It is now up to all of us to put honor first and to remain
    always faithful in the quest for justice.
        On behalf of the entire Terry family, thank you.
        [The prepared statement of Mr. Heyer follows:]
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        Chairman Issa. Thank you.
        Special Agent Dodson, you are recognized for 5 minutes.

                        STATEMENT OF JOHN DODSON

        Mr. Dodson. Mr. Chairman, Ranking Member Cummings----
        Chairman Issa. Please pull the mike a little closer, if you
    would, please, and make sure it is on.
        Mr. Dodson. Yes, sir. Is that better?
        Mr. Chairman, Ranking Member Cummings, other honorable
    members of this committee, I thank you.
        Beginning with my military service and continuing through
    to this day, I am proud to have spent nearly my entire adult
    life in service of this country, under sworn oath to defend its
    Constitution, with my allegiance always pledged to this
    Republic.
        I spent the vast majority of my law enforcement career
    conducting criminal investigations, with a particular focus on
    those involving the trafficking of narcotics and firearms. I
    have been involved in countless investigations and arrests,
    from basic misdemeanors to complex conspiracies of
    international drug-trafficking organizations, many times as an
    undercover. I have made thousands of investigative stops and
    scores of arrests and have testified many times in Federal and
    State courts across this country, often as a qualified expert.
        I do not appear before you as some remote observer of these
    events casting a judgmental finger over the actions of others.
    I come, as I have been asked to do, bearing only my firsthand
    account. I have not the burdens of rendering judgment,
    determining responsibility, or holding others accountable. I
    yield those to this committee.
        The only message I hope to convey is that through this
    process some resolve may finally be brought to the families of
    Brian Terry and Jaime Zapata, that we may truly honor their
    service and mourn their sacrifice. I hope that your inquiry and
    those of Senator Grassley's office and the inspector general
    will yet yield a true account for the many others on both sides
    of our border who have already been or will be affected by this
    operation. Furthermore, I am grateful to have the opportunity
    to appear here today alongside the Terry family so that I may
    personally express to them my sorrow and my regret.
        Simply put, during this operation referred to as ``Fast and
    Furious,'' we, the ATF, failed to fulfill one of our most
    fundamental obligations: to caretake the public trust, in part
    to keep guns out of the hands of criminals.
        When I became involved in this operation in late 2009, the
    ATF agents running it briefed me that the local Phoenix
    firearms dealers had provided them with a list of more than 40
    individuals whom they believed to be purchasing guns for
    others--straw purchasers. Of these individuals, several were
    members or believed to have connections with Mexican drug
    cartels.
        Those identified straw purchasers were the initial suspects
    of this investigation. From the earliest days of that operation
    after the briefing, I had no question that the individuals we
    were watching were acting as straw purchasers and that the
    weapons they purchased would soon be trafficked to Mexico and/
    or other locales along the southwest border or other places in
    the United States and, ultimately, that these firearms would be
    used in a violent crime.
        However, we did nothing to intervene. Over the course of
    the next 10 months that I was involved, we monitored as they
    purchased handguns, AK-47 variants, and .50-caliber rifles,
    almost daily at times. Rather than conduct any enforcement
    actions, we took notes, we recorded observations, we tracked
    movements of these individuals, we wrote reports, but nothing
    more, knowing all the while, just days sometimes after these
    purchases, the guns that we saw these individuals buy would
    begin turning up at crime scenes in the United States and in
    Mexico. And yet we still did nothing.
        I recall, for example, one suspect, as he met with another,
    receive a bag full of cash. That cash he then proceeded to a
    local FFL, who conducted a transaction of firearms that we had
    authorized him to do. This straw purchaser then left the
    Federal firearms dealer and met again with that third party and
    delivered the firearms to him. And still we did nothing.
    Although my instincts made me want to intervene and interdict
    those weapons, my supervisors directed me and my colleagues not
    to make any stop or arrest, but rather to keep him under
    surveillance, while allowing the guns to walk.
        Surveillance operations like these were the rules; they
    were not the exceptions. This is not a matter of some weapons
    that had gotten away from us or allowing a few to walk so that
    we could follow them to a much larger, more significant target.
    Allowing loads of weapons that we knew to be destined for
    criminals was the plan. This was the mandate.
        I remember a lecture by Army Lieutenant Colonel Dave
    Grossman, and I borrow from it now. ATF is supposed to be the
    guardians, the sheepdogs that protect against the wolves that
    prey upon us, especially along our southern border. But rather
    than meet the wolf head-on, we sharpened his teeth, added
    number to his claw. All the while, we sat idly by watching,
    tracking, and noting as he became a more efficient and
    effective predator.
        Prior to my coming to Phoenix, I had never been involved in
    or even heard of an operation in which law enforcement officers
    would let guns walk. The very idea of doing so is unthinkable
    to most law enforcement. I and other field agents involved in
    this operation repeatedly raised these concerns with our
    supervisors. In response, we were told that we simply did not
    understand the plan.
        I cannot begin to think of how the risk of letting guns
    fall into the hands of known criminals could possibly advance
    any legitimate law enforcement interest. I hope the committee
    will receive a better explanation than I.
        Thank you again for the opportunity to appear here today
    before you, and I look forward to answering any questions that
    any of you may have.
        [The prepared statement of Mr. Dodson follows:]
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        Chairman Issa. Thank you, sir.
        Special Agent Casa.

                    STATEMENT OF OLINDO ``LEE'' CASA

        Mr. Casa. Good morning, Mr. Chairman. Good morning, Mr.
    Cummings. Good morning, honorable Members of Congress. My name
    is Olindo James Casa, and I am a senior special agent with the
    Bureau of ATF.
        I have been employed with ATF since March 1993 as both an
    inspector and later as a special agent. I am currently assigned
    to the Phoenix Field Division, Phoenix Group VII, an OCDETF
    strike force group, and I have been assigned to that group
    since December 2009 to the present.
        As a special agent with ATF, I have been a case agent, I
    have been a co-case agent, and I have participated in many
    firearms-trafficking investigations, both domestic and
    international in scope. Needless to say, I feel I have
    extensive experience in regards to firearms-trafficking
    investigations, and my work has resulted in the successful
    prosecution of many individuals who have violated the law.
        After reporting to Phoenix Group VII office in December
    2009, I was briefed by group members on the investigation Fast
    and Furious. Shortly after, I became aware of what I believed
    to be unusual and questionable investigative techniques. For
    instance, I became aware that certain straw purchasers were
    purchasing numerous firearms from firearm dealers. What I found
    concerning and alarming was, more times than not, no law
    enforcement activity was planned to stop these suspected straw
    purchasers from purchasing firearms. The only law enforcement
    activity that was occasionally taken was to conduct a
    surveillance of the transaction, and then nothing more.
        As the investigation progressed over the next couple of
    months, additional suspected straw purchasers were identified,
    again with no obvious attempts to interdict the weapons or
    interview the suspects. Around the same time, Phoenix Group VII
    office started to receive numerous firearm traces detailing
    recoveries of firearms in the country of Mexico. Many of those
    traces disclosed the aforementioned straw purchasers were
    responsible for purchasing those recovered firearms.
        At this time, several special agents in the group,
    including myself, became increasingly concerned and alarmed at
    Case Agent Hope MacAllister and Group Supervisor Dave Voth's
    refusal to stop or address the suspected straw purchasers from
    purchasing additional firearms. Special Agent John Dodson and I
    continually raised our concerns directly with the case agent,
    Co-Case Agent Tonya English, and Group Supervisor Voth, to no
    avail.
        In response to our increasingly voiced concerns, the group
    supervisor issued the infamous ``schism'' email to the group.
    In essence, the email was a direct threat to the special agents
    who were not in agreement on how Case Agent MacAllister, Co-
    Case Agent English, or how Group Supervisor Voth managed the
    investigation. Based on my 18 years of experience with ATF, I
    did not think the email was an empty threat. I took it very
    seriously. It has been common practice for ATF supervisors to
    retaliate against employees that do not blindly toe the company
    line.
        Sometime in March 2010, at the direction of Group
    Supervisor Voth and Case Agent MacAllister, daily surveillance
    of the straw purchasers started to be conducted by members of
    ATF Group VII as well as ATF special agents from other offices
    who were detailed to assist with the Operation Fast and
    Furious. ATF Special Agent Lawrence Alt reported to the Phoenix
    Group VII office around this period of time and, like Special
    Agent Dodson and I, became alarmed of the direction of the
    investigation and spoke out against the practices that were
    being utilized.
        My role during these daily surveillances was that of shift
    supervisor. As a shift supervisor, my responsibility was to
    oversee surveillance agents at the direction of Case Agent
    MacAllister, Co-Case Agent English, and/or Group Supervisor
    Dave Voth.
        In general, my fears were realized while out on these
    aforementioned surveillances. On numerous occasions, the
    surveillance team followed straw purchasers to Phoenix-area
    firearms dealers and would observe these straw purchasers
    buying and depart with numerous firearms in hand. Those
    firearms included but were not limited to AK-47 variant rifles,
    .50-caliber rifles, and 5.7-millimeter FN pistols, all of which
    are devastating weapons.
        On many of those occasions, the surveillance team would
    follow the straw purchasers either to residences, a public
    location, or until the surveillance team was spotted by straw
    purchasers. But the end result was always the same: The
    surveillance was terminated by the case agent, co-case agent,
    or supervisor without interdicting or seizing the firearms.
        On several occasions, I personally requested to interdict
    or seize the firearms in such a manner that would only further
    the investigation, but I was always told to stand down and not
    to seize the firearms. I made these requests over the air and
    have many law enforcement witnesses that can verify my
    assertions.
        Reflecting back to that period of time during the
    investigation, I thought the poor decisions were made due to
    incompetency or a lack of experience, which would have made the
    situation bad enough. Unfortunately, in recent light of
    documents that have been released, especially the briefing
    paper dated January 8, 2010, it appears the investigation was
    conducted in a recklessly planned manner with a specific
    strategy in mind. Per the briefing paper, the strategy was to
    allow the transfer of firearms to take place in order to
    further the investigation and allow for the identification of
    additional co-conspirators who would continue to operate and
    illegally traffic firearms to Mexican drug trafficking
    organizations.
        Special Agent Dodson, Special Agent Alt, and I, at times on
    a daily basis, had warned the case agent, co-case agent, and
    group supervisor of the reckless course they were taking in
    regards to the investigation. We sternly warned them of the
    consequences of their actions but were repeatedly ignored. In
    fact, on at least a couple occasions I witnessed, Special Agent
    Dodson asked both Special Agent MacAllister and Group
    Supervisor Voth if they were prepared to attend the funeral of
    a slain agent or officer after he or she was killed with one of
    those straw-purchased firearms. Neither one answered or even
    seemed concerned by the question posed to them.
        To close, I would like to extend my heartfelt condolences
    to Border Patrol Agent Brian Terry's family. I am truly sorry
    for your loss. I hope you find peace.
        [The prepared statement of Mr. Casa follows:]
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        Chairman Issa. Thank you.
        Special Agent Forcelli.

                     STATEMENT OF PETER J. FORCELLI

        Mr. Forcelli. Good morning, Chairman Issa, Ranking Member
    Cummings, and members of the committee. I thank you for the
    opportunity to appear before the committee today.
        I am here to provide testimony that I hope will assist in
    your inquiry into the investigation that has come to be known
    as ``Operation Fast and Furious.'' I believe that your inquiry
    is essential. There have been grave mistakes made in this case.
    And the committee, the American people, and the family of slain
    Border Patrol Agent Brian Terry deserve answers.
        Please allow me to give you a little background information
    about myself. In 1987, I began my career with the New York City
    Police Department. I worked in Bronx County, often referred to
    as ``The Bronx,'' as a uniformed police officer and then
    ultimately as a detective in the Bronx Homicide Task Force. In
    my career, I estimate that I have responded to approximately
    600 homicide scenes. The vast majority were drug-related,
    committed by armed criminals. And these violent criminals were
    armed with illegal firearms, and they had little regard for
    human life.
        I retired early from the NYPD in June 2001 to take a
    position with the Bureau of Alcohol, Tobacco, and Firearms, as
    we were then known, and I did this because I had the honor of
    working with ATF agents who were working and making great
    cases, working hand-in-hand with incredible prosecutors from
    the Southern and Eastern Districts of New York.
        In working with these officers, one thing was very clear:
    Dedicated prosecutors worked hand-in-hand with dedicated ATF
    agents to make great cases that truly impacted the safety of
    the public. There was an absolute sense of teamwork and
    respect. Again, I am going to emphasize the words ``teamwork
    and respect.'' Together with prosecutors from the U.S.
    attorneys' offices with whom I had worked, we had used
    confidential informants, proffers, cooperation agreements,
    waivers of speedy presentment, investigative grand juries and
    grand-jury subpoenas, and an abundance of other investigative
    tools to make successful cases as part of a team.
        I left the New York Field Division in March 2007 to begin
    working in my current post of duty as a supervisor of the
    Phoenix I Field Office. Within weeks, I was surprised at what I
    had observed. In my opinion--in my professional opinion, dozens
    of firearms traffickers were given a pass by the U.S.
    attorney's office for the District of Arizona. Despite the
    existence of probable cause in many cases, there were no
    indictments, no prosecutions, and criminals were allowed to
    walk free. In short, their office policies, in my opinion,
    helped pave a dangerous path.
        Fortunately, the same could not be said of the Arizona
    Attorney General's Office, State prosecutors, to which we
    agents were forced to turn for prosecution of firearms cases.
    Victor Varela and his associates, who trafficked .50-caliber
    rifles directly to Mexican drug cartels, one of which was used
    to kill a Mexican military commander, were successfully
    prosecuted by the Arizona Attorney General's Office. And this
    was after the case had been declined for Federal prosecution by
    Assistant U.S. Attorney Emory Hurley due to what he referred to
    as ``corpus delecti'' issues.
        Mr. Varela, sadly, was released from prison last July
    because of the lesser sentencing guidelines that apply in State
    court.
        But the alternative, no prosecution, in my eyes, was
    unacceptable.
        Another case, which involved a corrupt Federal firearms
    licensee who was supplying several firearms-trafficking
    organizations, was declined by Mr. Hurley. This particular
    dealer in his post-arrest statement admitted that approximately
    1,000 of his firearms were trafficked to Mexico. Over one-half
    dozen of that dealer's firearms were located around the body of
    Arturo Beltran Leyva, the head of the Beltran-Leyva Cartel,
    after he was killed in a gun battle with the Mexican Naval
    Infantry in Cuernavaca, Mexico.
        Due to the recalcitrance of the U.S. attorney's office,
    cases such as these were presented for prosecution to the
    Arizona Attorney General's Office, where the State laws carried
    significantly lesser penalties than they did under the Federal
    statutes. And I believe that this situation, wherein the U.S.
    attorney's office for the District of Arizona in Phoenix,
    particularly, declined most of our firearms cases, was at least
    one factor which led to the debacle that is now known as
    Operation Fast and Furious.
        And now I will fast forward to Operation Fast and Furious
    itself. ATF agents assigned to the Phoenix Field Division, with
    the concurrence of their chain of command, walked guns. ATF
    agents allowed weapons to be provided to individuals that they
    knew would traffic them to members of the Mexican drug-
    trafficking organizations. They did so by failing to lawfully
    interdict the weapons, and they did so by encouraging Federal
    firearms licensees to continue selling weapons in instances
    where they knew that no interdiction efforts would be planned.
        When I voiced surprise and concern with this tactic to ASAC
    George Gillett and SAC William Newell, my concerns were
    dismissed. SAC Newell referred to the case as
    ``groundbreaking'' and bragged that we were the only people in
    the country doing this. My other ASAC, Jim Needles, merely
    said, ``Pete, you know that if you or I were running the case,
    it wouldn't be getting run this way.''
        This operation, which, in my opinion, endangered the
    American public, was orchestrated in conjunction with Assistant
    U.S. Attorney Emory Hurley, the same assistant U.S. attorney
    who prevented us from using some of the common and accepted law
    enforcement techniques utilized elsewhere in the United States.
    I have read documents that indicate that his boss, U.S.
    Attorney Dennis Burke, also agreed with the direction of this
    case.
        Allowing firearms to be trafficked to criminals is a
    dangerous and deadly strategy. The thought that the techniques
    used in the Fast and Furious investigation would result in
    ``taking a down a cartel,'' given the toothless nature of the
    straw-purchasing law and the lack of a strong firearms-
    trafficking statute, is, in my opinion, delusional.
        Based upon my conversations with agents who had assisted in
    this case, surveillance was often terminated on individuals far
    from the border, which means that, while the case agent
    believed that these weapons were destined for Mexico, the
    possibility exists that they were trafficked, with cartel
    drugs, to other points within the United States of America.
        As a career law enforcement officer who has had to
    investigate the deaths of police officers, children, and others
    at the hands of armed criminals, I was and continue to be
    horrified--truly horrified. I believe that these firearms will
    continue to turn up at crime scenes on both sides of the border
    for years to come.
        In closing, I want members of the committee and all
    Americans to know that this is not how ATF agents conduct
    business. I am very proud of some of the incredible work done
    by ATF agents around the country every day. ATF agents have
    given their lives in the performance of duty.
        On my last trip back to New York, sir, I had the privilege
    of being present for a homicide trial. In that same courthouse
    in the Southern District of New York, there were three other
    separate homicide trials going on, all from three separate ATF-
    initiated investigations. That is the type of work ATF agents
    do every day, and that is what I would like the committee to
    keep in mind as well.
        I thank you for your time. And, again, my condolences to
    the Terry family.
        [The prepared statement of Mr. Forcelli follows:]
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        [GRAPHIC] [TIFF OMITTED] 71077.092

        Chairman Issa. I thank you.
        I thank all of our witnesses.
        I will now recognize myself for the first round of
    questioning.
        Mrs. Terry, I understand the U.S. attorney in Arizona
    visited you in December. Can you tell us in your own words what
    he had to say?
        Mrs. Terry. Which attorney are you talking about?
        Chairman Issa. This is the U.S. attorney from Arizona that
    came to visit you in December?
        Mrs. Terry. Was that--yes, that was Mr. Burke.
        Chairman Issa. And what did he have to say to you?
        Mrs. Terry. He was just trying to explain to us exactly
    what happened in a roundabout way. We really never got anything
    out of the visit that he did have.
        Chairman Issa. Now, if he didn't tell you at that time that
    the firearms that killed your son came from this operation,
    when did you learn about Fast and Furious and its connection to
    your son's death?
        Mrs. Terry. Most of it I have heard is from the media. We
    haven't really got anything direct, phone calls or nothing,
    from anybody.
        Chairman Issa. Well, hopefully, today will bring you some
    better answers on that.
        Mr. Heyer, I understand recently you received a call from
    the U.S. attorney's office in Arizona. Could you please tell us
    the content of that call?
        Mr. Heyer. The U.S. Attorney Dennis Burke has tried to keep
    us advised on the prosecution of the individuals believed to
    have a hand in Brian's death. So I received a telephone call
    whenever an indictment was going to be made, and also some
    information about where the investigation was going with
    respect to Brian's killers.
        Chairman Issa. Did he ever comment about your testimony
    here today?
        Mr. Heyer. He did not.
        Chairman Issa. Okay.
        Mr. Dodson, just yesterday, the Justice Department said the
    following. And I will make a supposition for the record that it
    is untimely and unseemly for this kind of thing to come out.
    But I am going to ask you to answer in regard to something
    Justice put out in the New York Times. An unnamed law
    enforcement source said to the New York Times, ``Gun ownership
    was such an ingrained part of the culture in Arizona that it
    was difficult to tell straw purchasers from legal ones
    without''--blank, blank, blank.
        Did you have trouble discerning that? Was it so difficult
    because of the culture that, in fact, any of you didn't know
    who the straw purchasers were?
        Mr. Dodson. No, sir, not at all. I mean, first of all, I
    would question that unknown law enforcement source as to his
    background on these matters----
        Chairman Issa. Here we call it ``Washington spin.''
        Mr. Dodson. Yes, sir.
        Sir, I can tell you this. In my knowledge and experience,
    when I set ground in Phoenix, or when I got to Phoenix, the
    briefing that I got initially and the 40-some suspects that
    were identified right off the bat, or they already had
    identified, those cases were made against those individuals,
    most of them, almost that day, if not all of them.
        To identify a straw purchaser from a normal American
    citizen who just happens to reside in a State where gun culture
    is so prominent, you are--perhaps if a one-on-one scenario
    existed, or a one time. But to have an individual purchase
    hundreds of firearms over the course of an investigation while
    we are watching him, make no mistake, he was a straw purchaser
    or----
        Chairman Issa. So, I guess, Agent Casa, I think you would
    probably agree that when you see someone buy hundreds--dozens
    or hundreds and take them to a drop point, and even often more
    information, it is pretty obvious they are a straw purchaser;
    you have made your case under any kind of normal prosecution,
    wouldn't you?
        Mr. Casa. Yes, sir, that is correct.
        Chairman Issa. Mr. Heyer, you are a Secret Service agent.
    That probably qualifies you as much as anyone that could be in
    this room to understand a question I am going to ask you, but
    you are also a family member.
        To date, the straw purchasers that were part of the chain
    of weapons that led to the murder of your cousin, they haven't
    been charged with that crime. They have been charged with
    whatever it is called, buy and lie, basically signing a false
    affidavit that they were the actual buyer of a gun.
        Do you believe that it is reasonable to be including them
    in their connection to the murder of Brian Terry?
        Mr. Heyer. Congressman, again, I am here as strictly family
    today and not as a Secret Service agent.
        Chairman Issa. Well, then for Peter Forcelli, you have all
    mentioned about the prosecutions that you see, including in New
    York. You buy a gun, you knowingly sell it to a third party,
    you have lied about it, it leads to the murder. Isn't that how
    you get connected to that trial in addition to the trigger
    puller?
        Mr. Forcelli. Yes, sir. It would be a sequence of events
    that you would normally put together through interviews and
    other techniques.
        Chairman Issa. So it is pretty unusual to have a high-
    profile murder of a Border Patrol agent and you don't roll up
    everybody involved into the prosecution which is taking place
    practically today?
        Mr. Forcelli. In all fairness, sir, I don't know what steps
    the FBI has taken in their investigation because that
    information has not been relayed to me at any point.
        Chairman Issa. Well, Mrs. Terry, we are going to do
    everything we can to get full answers and full prosecution. We
    want whatever would be the greatest relief that we can give you
    to let you know that this won't happen again.
        Mrs. Terry. Thank you.
        Chairman Issa. Thank you.
        We now recognize the ranking member for his questions.
        Mr. Cummings. I want to thank all of you for being here
    today.
        And to the Terry family, we thank you for your sacrifice.
        To Mrs. Terry, you raised an angel. When the description
    was made by--when I listened to that poem, that poem said it
    all.
        And I want to say to the family, I understand your pain.
    And I promise you, we will not rest--and to the agents, we will
    not rest--we will not rest until every single person
    responsible for all of this, no matter where they are, are
    brought to justice.
        And you said it best, Mr. Heyer, in your statement, the
    last thing you said. You said, ``It is now up to all of us to
    put honor first and to remain always faithful in the quest for
    justice.'' And you are absolutely right. And I promise you, we
    will not fail you.
        To the ATF officers, I thank you. As I said earlier, this
    has to be very, very difficult. And I make a commitment to you,
    and it is what Senator Grassley said, and I want the word to go
    out, let it go forth, that we want absolutely no retaliation
    against you. You are simply standing up for what you believe
    in. You are simply carrying out your oath of office. You simply
    have been great Americans and continue to be, and we thank you.
    We thank you so very, very much. We thank you for your bravery;
    we thank you for what you are doing.
        One of the most troubling allegations we have heard during
    this investigation was that the ATF agents Group VII were
    ordered to terminate surveillance and monitoring of suspected
    straw purchasers without seizing the firearms.
        Special Agent Casa, in your written testimony you made this
    statement: ``On numerous occasions, the surveillance team
    followed straw purchasers to Phoenix-area firearms dealers and
    would observe the straw purchasers buy and then depart with
    numerous firearms in hand. On many of these occasions, the
    surveillance team would then follow the straw purchasers either
    to a residence, a public location, or until the surveillance
    team was spotted by the straw purchasers. But the end result
    was always the same: The surveillance was terminated.''
        So my question is pretty basic. Do you know why the
    surveillance was terminated? Do you think it was a resource
    problem, or was it a strategy type of thing?
        Mr. Casa. No, sir, we had plenty of resources. I believe it
    was a strategy. As I indicated later in my statement, I found
    out about the briefing papers. At the time this was going on,
    we had no idea why things were occurring. We were just told to
    fall in line and do what we were told.
        Mr. Cummings. And you stated that you raised those concerns
    with your group supervisor, was it Mr. Voth?
        Mr. Casa. Yes, sir, Mr. Dave Voth.
        Mr. Cummings. And, Special Agent Dodson, you participated
    in a transcribed interview with the committee, and your account
    is quite similar. Let me read what you said from the
    transcript. You said, ``Sometimes we would follow them back to
    their house, sometimes to, you know, a different house or a
    business or to meet another vehicle in a parking lot. And then
    we would have to come back to head to another FFL because one
    of the other suspects, they were buying 15 or 20 of his own.''
        Special Agent Dodson, again, I am trying to understand
    this. If you are following a suspected straw purchase and you
    start at the gun store and you follow it to a house, why
    wouldn't you keep following that gun?
        Mr. Dodson. Sir, that is the one question that I can't
    answer for you, is the why. It made no sense to us either. It
    is just what we were ordered to do, and every time we
    questioned that order, you know, there was punitive action
    against those of us that did so.
        As to why we would let them go or just follow them in, tuck
    them in bed at home and, you know, us leave for the night, I
    can't tell you the why, sir. I can't. And that is what I am
    hopeful that this committee can find out.
        Mr. Cummings. Well, we are going to find out.
        I understand there might be new suspected straw purchases
    happening back at the gun store, but if you keep leaving the
    guns you are following to start tracking new ones, you know,
    that doesn't seem to work. And I guess that is what all of you
    all are saying.
        Did you also raise those concerns with Mr. Voth, your
    supervisor, I guess he was?
        Mr. Dodson. Oh, yes, sir, many times.
        Mr. Cummings. Have either of you ever received a
    substantive explanation as to why this operation would
    voluntarily terminate surveillance of suspected weapons
    traffickers? Anybody?
        Mr. Dodson. Sir, no. Most of the time when asked or pressed
    for an answer to that question, it was relayed to me that they
    didn't have to explain anything to me. I was to do as I was
    told. Or in times where I questioned that even further, our
    boss would have an ASAC come down and we would have a meeting,
    and he would explain to us in his way of how he was not
    obligated to explain it any further to us and we needed to
    follow orders.
        Mr. Cummings. Well, I think we are missing a piece of the
    puzzle here, and I think we must do more. It sounds like both
    of you raised concerns with your supervisor. And I don't want
    to reach any conclusions yet on this because I think we need to
    gather more information. I think it makes sense to talk to the
    supervisor and figure out what his answer to these allegations
    might be.
        Thank you, Mr. Chairman. I yield back.
        Chairman Issa. Thank you. I am assuming that you now join
    me in ensuring that all of the other people above these
    gentlemen will be interviewed in a prompt fashion, including
    those here in Washington?
        Mr. Cummings. Mr. Chairman, absolutely no doubt about it.
    And, at the same time, I am glad you asked that question
    because we want to make sure, as I said, we want to make sure,
    in the words of Mr. Heyer, that everyone is brought to justice.
        Now, let me abundantly clear since you asked the question.
    I want to make sure that there is no person--I don't care who
    they are--whose trial is jeopardized, that is able to get away,
    to get off of charges. I don't care how it is connected with
    this, I don't want their trials jeopardized. As an officer of
    the court and one who has practiced criminal law for many
    years, I am very concerned about that.
        And so, I think that we can reach a balance. And I have
    urged the Justice Department to cooperate. They have expressed
    their concerns. But, again, as I said before, and I promise
    this family, I promise you, I will do everything in my power. I
    will not rest until we bring everybody to justice.
        Chairman Issa. I thank the gentleman.
        We now recognize the gentleman from Oklahoma, Mr. Lankford,
    for 5 minutes.
        Mr. Lankford. Thank you.
        And thank all of you for being here. This has to be a very
    difficult day, and not a day that you had ever hoped to be
    testifying in front of a congressional hearing, especially
    related to something like this. So we very much appreciate your
    time and for being here, as well.
        Special Agent Dodson, let me ask you a series of questions.
    And these will be for several agents. Give me your best guess--
    and it is going to be just a guess on this--how many weapons do
    we have in the United States or in Mexico that are out there
    that are results of Fast and Furious that we do not know where
    they are?
        Mr. Dodson. Well, sir, my best guess, estimate at that is--
    and remembering that Fast and Furious was one case from one
    group in one field division--is about 2,500 in total that we
    facilitated the sale of to these known straw purchasers. And I
    have heard numbers as many as 300 to 800 or so that we know to
    have been recovered. So, outstanding, you are looking in the
    ballpark of anywhere from 1,000 to 1,500, 1,800 guns still.
        Mr. Lankford. What is your best guess on how many of those
    are in Mexico and how many of those are in the United States?
        Mr. Dodson. I would say two to one, Mexico versus United
    States.
        Mr. Lankford. Okay. Were there any other mechanisms
    discussed to trace these weapons that you knew were being sold
    to straw purchasers other than just serial numbers? Any other
    way to be able to track them, trace them at all?
        Mr. Dodson. Yes, sir.
        Mr. Lankford. How successful do you think that was?
        Mr. Dodson. I can tell you that after a trip to RadioShack
    with ATF funds, I, myself, manufactured a GPS tracking device
    that would fit inside the handle of an AK-variant rifle. The
    problem with it was the limited battery life.
        There were also attempts made through our tech departments
    and other tech departments to have a GPS system wired into one
    AK-variant rifle.
        Mr. Lankford. And how was received by supervisors?
        Mr. Dodson. Well, actually, the one that went through our
    tech section was initiated by them----
        Mr. Lankford. Great.
        Mr. Dodson [continuing]. After my attempt to manufacture
    one didn't work out so well.
        The one that we got from our tech side did actually work.
    And, although it achieved its purpose, the last time I believe
    anyone knew its whereabouts was about 50 miles south of the
    U.S.-Mexican border.
        Mr. Lankford. Special Agent Casa, do you know of any other
    offices of ATF that are using this type of strategy?
        Mr. Casa. Not that I am aware of, no, sir.
        Mr. Lankford. Would you consider this a common practice
    that is being contemplated in any other area?
        Mr. Casa. No, sir. I definitely hope not. No, sir.
        Mr. Lankford. Okay.
        Let me follow up on a statement that you made that is a
    very, very serious statement. You made this statement in your
    opening statement: ``It is a common practice for supervisors to
    retaliate on special agents who do not toe the company line.''
        Mr. Casa. Yes, sir.
        Mr. Lankford. That is a pretty serious statement.
        Mr. Casa. It is commonplace within ATF, sir.
        Mr. Lankford. Is that unique to your area, or is that
    unique to multiple areas, do you think, of ATF?
        Mr. Casa. In my experience, sir, it is unique to multiple
    areas within ATF. I have known multiple--dozens of agents that
    have been--received punitive punishments, whether they were
    justified or not.
        Mr. Lankford. Okay.
        Mr. Forcelli----
        Mr. Forcelli. Yes, sir.
        Mr. Lankford [continuing]. Do we have a perfect storm here
    of a U.S. attorney who is unwilling to prosecute Federal gun
    laws and a group of supervisors in the ATF that are promoting a
    program to release weapons here? Is that just two errors here,
    or is it your sense there is something coordinated that is
    going on? And I understand that is a guess at this point.
        Mr. Forcelli. Sir, it is my belief that what we have here
    is actually a colossal failure in leadership from within ATF,
    within the chain of command involved in this case, within the
    U.S. attorney's office, and within DOJ as to the individuals
    who are aware of this strategy.
        To walk a single gun is, in my opinion, an idiotic move.
    More families will suffer, like the Terrys and like Mr.
    Cummings, at the hands of armed criminals. We weren't giving
    guns to people who were hunting bear. We were giving guns to
    people who were killing other humans.
        The assumption that all of these guns went to Mexico is
    apparently something that they believed in that group----
        Mr. Lankford. But your assumption is, this was coordinated
    among all those individuals, that this plan would happen and it
    was going to be allowed to happen?
        Mr. Forcelli. It would be allowed to happen, and we would
    trace guns into Mexico, be able to identify a cartel, and take
    them down.
        The problem that we have is that I know, based on what I
    heard from agents and what I heard over the radio, that
    surveillances would terminate often far from the border. Some
    of these guns could have been diverted with cartel drugs to New
    York, to Baltimore, to Oklahoma, to anywhere in the United
    States. This was a catastrophic disaster.
        Mr. Lankford. Thank you.
        With that, I yield back my time.
        Chairman Issa. I thank the gentleman.
        We now recognize the gentlelady from New York, Mrs.
    McCarthy--Maloney. I am sorry.
        Mrs. Maloney. Thank you, Mr. Chairman.
        Chairman Issa. You are both New York, but I know the
    difference.
        Mrs. Maloney. Right, right--and ranking member, for calling
    this important hearing.
        And I join my colleagues in expressing our condolences and
    support to the Terry family.
        And I thank all of the professionals in law enforcement for
    your work and your bravery. And I especially want to welcome
    Special Agent Forcelli since I used to have the honor of
    representing the beautiful Bronx where you served, and I
    appreciate your statements in support of the ATF in New York
    and their fine work.
        I would like to ask you, Special Agent Forcelli, about some
    of the specific statements in your testimony to try to get a
    better understanding of what evidence is necessary in order to
    get a conviction in these cases. And if I understand this
    correctly, there is no Federal statute that specifically
    prohibits straw purchases. Is that correct?
        Mr. Forcelli. No, ma'am. There is a statute, but the
    statute doesn't carry significant jail time.
        And, candidly, I mean, I had great success working with
    Preet Bharara and several administrations before his with the
    U.S. attorney's office in New York. And we used basic
    techniques. You arrest the people who were the bottom feeders,
    the lower people in an organization, and then you proffer them,
    you gather information. Utilize waivers of speedy presentment,
    where you have somebody go do a delivery in the street to catch
    the next guy in the chain. Have the straw buyer perhaps deliver
    the firearms to the trafficker and then arrest the trafficker.
        We didn't have those tools available to us in Arizona,
    because the U.S. attorney's office wouldn't allow us to utilize
    waivers of speedy presentment before a magistrate. Proffers
    almost never happened. The basic investigative techniques that
    I used with great success in the Southern District of New York,
    Eastern District of New York, and elsewhere weren't being
    deployed in the District of Arizona.
        Mrs. Maloney. Well, working with my staff, when we looked
    into it, straw purchases are typically charged under section
    922 and 924 of the Criminal Code, and these sections make it a
    crime to knowingly make a false statement. And, in this case,
    the false statement would be when the straw purchaser lies on a
    Form 4473 when he or she makes a straw purchase. This was the
    way that they went after straw purchases in other States.
        Are you aware of these two sections and knowingly making a
    false statement, are you aware of that particular----
        Mr. Forcelli. I am, ma'am. And, again, I will just state
    that, in many instances, these cases weren't prosecuted by the
    U.S. attorney's office----
        Mrs. Maloney. But I want to get back to the false
    statement. And what is the false statement they would make on
    such a form that they could use in prosecutions; are you aware?
        Mr. Forcelli. Well, the most blatant one is that there is a
    box that you check whether or not you are purchasing the
    firearm for yourself. A straw purchaser clearly is not. They
    are buying that gun merely to deliver it to another person.
        The other lies would be sometimes people put false
    addresses----
        Mrs. Maloney. And getting back to your statement on the
    prosecutions, border-State U.S. attorneys have complained that
    district court judges view these prosecutions as mere paper
    violations. And have you heard this criticism before?
        Mr. Forcelli. I have, and I agree with it. I think perhaps
    a mandatory minimum of a 1-year sentence might deter an
    individual from buying a gun. Some people view this as no more
    consequential than doing 65 in a 55 zone.
        Mrs. Maloney. Yeah. And the Justice Department----
        Chairman Issa. If the gentlelady will suspend, I want to
    caution the witnesses that the scope of your testimony here is
    limited and that it is not about proposed legislation and the
    like and, under our House rules, would not fall within the
    scope of this. So, anecdotally, you can have opinions, but
    ultimately it would not be considered valid testimony.
        Mr. Cummings. Point of order, Mr. Chairman.
        Chairman Issa. The gentleman will state his point of order.
        Mr. Cummings. Let me just--Officer Forcelli, in his
    testimony, has a statement, Mr. Chairman, that I read, where he
    says that these firearms are ending up on both sides of the
    border. And I think it is only fair that, since it is his
    statement, that she--and that is basically what she is pretty
    much going to, but----
        Chairman Issa. The gentlelady can ask any question she
    wants within the scope of the hearing. Under Rule XI, clause
    2(k)(8), it is the discretion of the committee as to the
    breadth of the testimony.
        Any question related to the operations or the failures of
    Fast and Furious or factual indications of what occurred in
    Arizona or throughout the system are within the scope of the
    hearing. Proposed legislation at a Federal level and whether or
    not they should be changed are outside the scope of not only
    this hearing but would not ordinarily fall under the
    jurisdiction of this committee.
        The gentlelady may continue----
        Mr. Cummings. Just a further point of order, Mr. Chairman.
        It is my understanding of the rules that you can object to
    the question, but you can't tell the witness what to testify
    to.
        Chairman Issa. Under----
        Mrs. Maloney. Well, reclaiming my time, I appreciate the
    chairman's statement.
        And I appreciate your statement earlier when you said you
    wanted full answers and full prosecution. And I think it is
    certainly within the scope of this hearing to understand why we
    are not getting a full prosecution. And the allegation that
    they call them paper excuses, as opposed to a valid, concrete
    way to react I think is a valid way to go forward.
        Chairman Issa. Will the gentlelady----
        Mrs. Maloney. I am supporting your statements.
        Chairman Issa. If the gentlelady would suspend for just a
    moment.
        The gentlelady's questions and whether or not the gentleman
    believes that law enforcement was doing its job or that the
    courts were properly enforcing and whether that may have led to
    actions is fully within the scope. Anything that these
    individuals witnessed in or around Fast and Furious is
    certainly within the scope.
        I only caution, we are not here to talk about proposed gun
    legislation. It would be outside the scope of this hearing.
        Mrs. Maloney. Well, I wasn't discussing that. I was trying
    to figure out why the Justice Department and the IG found that
    prosecutors often decline these gun cases. I want to know why
    they are declining them.
        And, to quote from the testimony, one of you said,
    ``because they believe it is difficult to obtain convictions on
    these violations and because they believe it is difficult to
    obtain paperwork from Mexico.''
        My question is, are these valid excuses not to bring these
    cases? I think that is a valid question to get to why we are
    not getting prosecutions in these cases. Are these valid
    excuses, to say they are paper excuses, not to bring it?
        Mr. Forcelli. I believe not, ma'am.
        And, again, to go after the mid-level and upper-level
    members of a cartel, you need to start, unless you have
    evidence on them immediately, with the people at the bottom of
    the food chain.
        When straw-buyer cases are dismissed because of excuses
    made up by the U.S. attorney's office, as opposed to when you
    have factual evidence that shows that person has committed a
    crime, then you can't prosecute that bottom feeder to move up
    to the next level.
        Mrs. Maloney. One of you, in your testimony, called these
    laws to prosecute ``toothless.'' And could you explain to me,
    why are existing straw-purchase laws toothless?
        Mr. Forcelli. My opinion, ma'am, is that, with these types
    of cases, for somebody to testify against members of a cartel,
    where the alternative is seeing a probation officer once a
    month, they are going to opt toward, you know, not cooperating
    with the law enforcement authorities.
        Mrs. Maloney. And what would help your interactions with
    the U.S. attorney's office? Mr. Casa, Mr. Forcelli, or others,
    what would help you be able to be part of getting convictions
    and bringing those to justice that are part of these straw
    purchases that led to the death of Mrs. Terry's son?
        Chairman Issa. The gentlelady's time has expired, but you
    certainly can answer that.
        Mr. Forcelli. Well, I believe, first and foremost, they
    probably need more resources at the U.S. attorney's office in
    Arizona. There are overwhelming numbers of gun crimes occurring
    there, and if they don't have the resources to prosecute them,
    then I would imagine that they would need some assistance in
    those regards.
        Chairman Issa. We now recognize the gentleman from Idaho,
    Mr. Labrador, for 5 minutes.
        Mr. Labrador. Thank you, Mr. Chairman.
        Terry family, thank you for being here. I will always
    remember the poem. And I think I am going to put this on my
    wall: ``I do not fear death, but I do fear the loss of my
    honor.'' I think that is something that hopefully every Member
    of Congress can somehow remember. I think sometimes we worry
    too much about death--and, in our case, death is, you know, the
    next election--and too many of us forget that what we should be
    worried about is our honor and the honor of this Nation.
        So, thank you, Mrs. Terry, for raising such a great son. I
    have five children, and I cannot even imagine what you are
    going through.
        When did you, Mrs. Terry, when did you first hear that--I
    think you said you first heard about the weapons being
    purchased through Operation Fast and Furious, you heard that
    through the media, or did you hear that from any of the
    agencies?
        Mrs. Terry. No. It was mostly on TV, the media, newspapers.
    I never really got a call about anything like that until it was
    brought out in the newspapers.
        Mr. Labrador. And how did you feel when you heard about
    that?
        Mrs. Terry. I was--just was flabbergasted. I just--I didn't
    believe it at first.
        Mr. Labrador. Did you have any questions? Did any questions
    come to your mind when you started learning that maybe there
    was something? Because I heard about this when I was first
    elected--I am a freshman here--and I was just first elected.
    And right after my election, I started hearing from people in
    my district about this. And we, in fact, were some of the first
    to call for a hearing here in Congress about this, in the
    House.
        And what went through your mind? What were some of the
    thoughts that you had?
        Mrs. Terry. Well, I did ask a lot about how it happened,
    when it happen, why it happened, but never got no answers
    because nobody wanted to say anything.
        Mr. Labrador. So did you address these questions with the
    Department of Justice or any members of the Attorney
    General's----
        Mrs. Terry. Oh, yes. Yes.
        Mr. Labrador. And no one has answered those questions?
        Mrs. Terry. We got a lot of different answers.
        Mr. Labrador. Okay. To whom did you speak, specifically? Do
    you remember?
        Mrs. Terry. Well, we have been to so many memorials and I
    have talked to so many people. But I talked to a lot of his
    BORTAC friends that were on the unit that was with him. And
    they were, like, on a gag order, so they couldn't tell us
    nothing. It was like they didn't even want to talk to us.
        Mr. Labrador. Are you satisfied with the answers you are
    getting?
        Mrs. Terry. No.
        Mr. Labrador. No.
        Any of the members of the family, are you satisfied with
    the answers you are getting? Mr. Heyer.
        Mr. Heyer. I think I can speak for the family, Congressman,
    that there is a level of frustration for the family.
        I want to make it clear that our number-one goal is to
    pursue the prosecution of all the killers of Brian. That is our
    number-one goal. And, you know, the U.S. attorney's office in
    Tucson and the FBI is working very hard to do that.
        But I also think that I can speak for the family--we have
    talked about this this morning--that there seems to be a
    separation, a distinct separation, between Brian's murder
    investigation and the ATF Operation Gunrunner, Fast and Furious
    Operation. There seems to be a hesitancy to connect the two. So
    that part is very frustrating.
        Mr. Labrador. Can you tell me, Special Agent Casa or any of
    the special agents--that is a great point. Why do you think
    there is this separation? Why are they making the separation
    between the murder of the agent and the Operation Gunrunner?
        Mr. Casa. Simply put, just to reduce their liability and
    our ATF's role in this murder. It started with the straw
    purchase that wasn't interdicted; it ends up in the murder of a
    law enforcement officer--by the sounds of it, a very honorable
    law enforcement officer.
        Mr. Labrador. Thank you.
        I have no further questions.
        Chairman Issa. Would the gentleman yield?
        Mr. Labrador. Absolutely.
        Chairman Issa. Well, following up on that, the two serial
    numbers that were used and found at the scene, to your
    knowledge, aren't those serial numbers not the first, the
    second, or the third purchases--meaning, there already was a
    case made against a potential defendant, and he could have been
    arrested and even turned as an informant, potentially, prior to
    the sale of those two weapons?
        Mr. Casa. My understanding is, yes.
        Chairman Issa. Thank you.
        We now recognize the gentleman from Massachusetts, Mr.
    Lynch.
        Mr. Lynch. Thank you, Mr. Chairman.
        First of all, Mrs. Terry and Mr. Heyer, my prayers and
    condolences go to your son, your cousin, and your family.
        Special Agent Forcelli, in your statement, you expressed
    extreme frustration with the U.S. attorney's office in Phoenix.
    You said that they gave dozens of firearms traffickers a pass.
    You also testified that they allowed criminals to walk free.
    And you indicated that they declined most of the cases--most of
    your cases. And this was at least one factor which led to the
    debacle and perhaps the necessity of Operation Fast and
    Furious. Is that correct?
        Mr. Forcelli. Yes, sir. I strongly believe that.
        Mr. Lynch. Those are very strong allegations, so I want to
    ask you about the specific cases that you cite.
        First, you talk about the 2007 case of Victor Varela, who
    trafficked, I think, .50-caliber rifles to the Mexican drug
    cartels, one of which was used to kill a Mexican military
    commander. The U.S. Marshal David Gonzalez said at the time,
    ``This case was made one of our highest priorities because of
    the nature of the crime.'' But you say that the assistant U.S.
    attorney in Phoenix wouldn't prosecute.
        Do you believe, in that case, that we had sufficient
    evidence----
        Mr. Forcelli. Absolutely.
        Mr. Lynch [continuing]. To move forward with the
    prosecution?
        Mr. Forcelli. Absolutely. In fact, sir, that case was
    prosecuted by the Arizona Attorney General's Office, where they
    had to utilize statutes that aren't normally utilized in gun
    cases. They had to charge them with fraud schemes for
    falsifying the Form 4473s.
        Mr. Hurley, the assistant U.S. attorney who declined the
    case, stated that, because the gun was in Mexico, the body of
    the crime was in Mexico, we have no case, and just outright
    declined prosecution for that reason.
        We had identified additional straw buyers in Mr. Varela's
    network. We had gotten cooperating statements from them. They
    also went to jail.
        This could have been a very good Federal case. But, again,
    the U.S. attorney's office declined it because, in their
    opinion, the gun being in Mexico meant that the evidence of the
    crime was in Mexico.
        Mr. Lynch. Do you know any other office or region that
    applies that type of standard to go forward with prosecutions?
        Mr. Forcelli. Sir, I was told this was a Ninth Circuit
    issue, but I have had discussions with prosecutors in Los
    Angeles, which is also in the Ninth Circuit, that say that they
    didn't carry it to that extreme.
        And what I will say for the record, sir, is, since then,
    since Mr. Hurley is no longer running the firearms unit--he has
    been replaced, or now answers to another supervisor--they have
    now amended that to say that if we can go down and physically
    examine the weapon or have one of our assets in Mexico examine
    the weapon, that they will now charge those crimes. But for 2
    years where I was in charge of the firearms-trafficking unit,
    if the gun went to Mexico, that case was dead.
        Mr. Lynch. Okay.
        You also testified regarding the Excalibur gun store case
    in 2008. You said the dealer in that case admitted that about a
    thousand firearms were trafficked to Mexico, and half a dozen
    of them were found around the dead body of cartel leader
    Beltran Leyva, who was killed by the Mexican Naval Infantry.Is
    that correct?
        Mr. Forcelli. Yes, sir.
        For the record, though, I would like to point out that that
    case was brought to trial by the Arizona Attorney General's
    Office. However, the case was dismissed by the judge.
        Mr. Lynch. Right.
        Mr. Forcelli. So that case was dismissed.
        What I will say in regards to that case is, I did, after
    that case was declined by the U.S. attorney's office, present
    that case to the Southern District of New York for prosecution,
    because they were doing a lot of international narcotics-
    trafficking case. And that office had told me, if we could have
    shown one wire transfer, one banking transaction through their
    district, they would have been interested in taking that case.
    Meanwhile, the State where all these crimes took place, they
    were readily willing to just dismiss prosecution efforts.
        Mr. Lynch. Right.
        Both The Washington Post and PBS ``Frontline'' support your
    version, I guess, and concluded that, ``If there were ever a
    good case against a set of rogue gun traffickers, the case
    against the owner of Excalibur gun store was it.''
        And I will read excerpts from The Washington Post here. It
    says, ``This was a case that seemingly had everything in its
    favor. In this case, the agents had tons of evidence--
    surveillance, recorded phone calls, confidential informants and
    undercover agents posing as straw buyers.''
        But this case was also denied, as you say, by the assistant
    U.S. attorney in Phoenix. Is that correct?
        Mr. Forcelli. Yes, sir. The same assistant U.S. attorney
    who was the prosecutor in the Fast and Furious investigation,
    as a matter of fact.
        Mr. Lynch. Okay. And then, in 2009 and 2010--I am running
    out of time--you also say the same assistant U.S. attorney
    declined dozens of other cases. Is that correct?
        Mr. Forcelli. After 2009, sir, my duties were changed to
    home invasion investigations, so I am not certain what happened
    with the firearms-trafficking investigation.
        Mr. Lynch. Okay. What is your assessment of why this
    specific U.S. attorney repeatedly refused to take the gun
    cases?
        Mr. Forcelli. Sir, I don't know. I couldn't give you a
    reason as to why.
        Mr. Lynch. Okay. Maybe we should have him in for
    questioning.
        Mr. Forcelli. That would be great.
        Mr. Lynch. All right.
        Mr. Chairman, I have run out of time. I yield----
        Chairman Issa. Would the gentleman like an additional 30
    seconds?
        Mr. Lynch. Please. Yeah, that would be great.
        Chairman Issa. Without objection.
        Mr. Lynch. Thank you.
        I just want to note that your testimony, which is very
    good--and, look, it takes a lot of courage to do what you
    gentlemen are doing--it goes back to 2007.
        Mr. Forcelli. It does.
        Mr. Lynch. So, you know, this isn't a political issue
    because, obviously, you know, we are talking about career
    prosecutors who have been there since the Bush administration.
    And, as you cite, going back to 2007, you are not alone in your
    assessment. We have heard other complaints from other
    witnesses.
        So I just want to thank you for your willingness to come
    forward and help the committee with its work.
        And I want to thank the chairman for the extra 30 seconds.
    Thank you.
        Mr. Forcelli. Thank you, sir.
        Chairman Issa. I thank the gentleman.
        We now recognize the gentleman from Utah, Mr. Chaffetz, for
    5 minutes.
        Mr. Chaffetz. Thank you.
        First, to the Terry family, thank you for your son's
    service, your relative's service. He is a hero. You know, we
    got a lot of people on the front line doing tough things. And
    there will be nights ahead--I just want you to know and
    express, given an opportunity, know how much we appreciate his
    service and will remember him.
        And to the agents who are brave enough to step forward and
    tell it like it is, we thank you. It takes a lot of bravery to
    step forward and do the right thing. I know you probably had
    sleepless nights and will have some others moving forward, but
    you are doing the right thing. And we want to thank you for
    your service and for your bravery in sharing your personal
    perspective in this situation.
        Mr. Dodson, let's start with you for a second. At what
    point did you come to where you just had to come forward, you
    had to actually say something? Because usually these things
    sort of build up or something big happens. Explain to me what
    happened, where you thought, ``Enough is enough.''
        Mr. Dodson. Do you mean outside of ATF, sir, or----
        Mr. Chaffetz. In this particular case. I mean, why did you
    get to this point where you are sharing this information?
        Mr. Dodson. Well, I questioned my supervisors almost
    immediately, once we realized--you know, once we had relocated
    to Phoenix and got briefed in and then actually started
    operationally, that we were allowing all these guns to go.
        Then, as the case agent and my supervisor and ultimately my
    chain of command had all informed me that I was wrong and they
    were right and this, you know, was a righteous operation, it
    wasn't until December 15, 2010, when I read what--we have a SIR
    report, a significant incident report, detailing ATF's
    preliminary investigation into the trace and weapons purchased
    by Jaime Avila.
        And after reading that and then speaking with my FBI
    counterparts and learning that they were unaware of all of the
    events surrounding the purchase and trace of those firearms is
    when I had to go outside of ATF. And I attempted to contact,
    originally, our chief counsel's office, our ethics section. I
    made several attempts to contact the OIG's office. And,
    ultimately, I was able to speak to someone at Senator
    Grassley's office.
        Mr. Chaffetz. Do you think that there is a conflict between
    the OIG, given that maybe this started as a result of a
    recommendation? Or do you see any sort of conflict that the
    investigator general has in this case?
        Mr. Dodson. Well, I can see a conflict between the office
    of the OIG, yes, sir. The actual individuals that are working
    the case, my interaction with them, since I have been
    interviewed by them, is that I think that they get it.
        However, those two offices, being what they are and how
    they are aligned, there is inherently a conflict of interest
    there. If, in fact, someone at DOJ authorized this, knows about
    it, is as well-versed in it as everyone at ATF, that thereby
    creates the conflict with OIG.
        Mr. Chaffetz. Give me an idea of the size and scope. I
    mean, we are talking about thousands of guns knowingly going
    south, so to speak. In your normal course of business, if you
    thought that there was a straw purchase happening, how many
    guns would kind of push you over the threshold to say, ``We
    better stop that?''
        Mr. Dodson. Well, sir, I can tell you this. Prior to my
    arriving in Phoenix in December 2009, my entire career, we have
    never walked a firearm. And, as a matter of fact, even if one
    had gotten away from us, if it was only a prop which had been
    mechanically engineered so that it could not effectively fire a
    round, even if that got away from us, no one went home until we
    got it back.
        Mr. Chaffetz. Even just one gun?
        Mr. Dodson. Yes, sir.
        Mr. Chaffetz. And, in this case, we have thousands of guns.
        Now, what was the goal here? I mean----
        Mr. Dodson. Sir, I can tell you what I was told. I was told
    that the goal was to ultimately target and bring an entire
    cartel to prosecution.
        Mr. Chaffetz. But how were they going to do that? I mean,
    the suspected cartels were in Mexico, were they not?
        Mr. Dodson. Yes, sir, they were. And I have no idea how
    they planned to do that by this operation or how it was
    designed to function.
        Mr. Chaffetz. So was it the goal to knowingly and
    intentionally allow these guns to go into Mexico?
        Mr. Dodson. Was that the ultimate goal? Not as explained to
    me. Was that part of, was that the rules in play to achieve the
    goal that they had explained? Yes. We were mandated, let these
    guns go.
        Make no mistake, there was not a time we were out there on
    surveillance where we didn't have the forethought that these
    were going to be recovered in crimes. The next time we became
    aware of these guns would be when they were recovered at their
    final crime. Not whatever crime they might have done. It was
    the last crime that they commit that they--not ``they'' commit,
    but the person who has them commits--that they are recovered
    in. There may be 9 or 10 that the cartels have perpetrated with
    those firearms prior to that date, but that recovery date is
    when we will learn about it.
        So, ultimately, what was the main goal, as explained to me,
    was to get a cartel. The mission, what we were doing, what we
    were ordered to do every day was watch these--the same guys buy
    the same guns from the same dealers who we told to make the
    sales, and then we would sit back and wait for the traces.
        And when they came through from places in Mexico where it
    was definitively related to cartels, they were giddy. They
    thought that that justified--that created their nexus from this
    straw purchaser to the cartel. However, there is not a rookie
    police officer in this country that can explain to you how we
    are going to make a case on them with that information.
        Mr. Chaffetz. My time has expired. I yield back.
        Chairman Issa. I thank the gentleman.
        We now yield 5 minutes to the gentleman from Virginia, Mr.
    Connolly.
        Mr. Connolly. Thank you, Mr. Chairman.
        And let me first join my colleagues in expressing my
    profound sympathy to the Terry family for your loss and the
    country's loss. And it maybe sounds hollow to say thank you for
    his service. We are in a terrible battle in the southwest of
    our country and on the border with Mexico and in northern
    Mexico. Sadly, he is another victim of that terrible battle,
    but his memory and his contribution are something that will
    long be remembered and appreciated. And our thoughts and
    prayers go out to you and the family.
        I want to thank our three agents for being here, for your
    courage and for your testimony. I want to respectfully suggest,
    however, that I think that--you know, we urged you to speak
    freely at some risk. And that means answering questions freely
    without interference from any other member of this committee.
    And we don't sensor content here. The hearing has a scope, but
    if you feel an answer to a question requires amplification, you
    don't need to be mindful of the scope. And an individual member
    of this committee has an individual right to ask questions and
    to solicit answers without censorship.
        So I want you to have that confidence, just as we began
    this hearing urging you to speak freely. So you can speak
    freely in answering questions, including questions put by this
    Member.
        Let me ask you, Special Agent Forcelli--I read your
    testimony about the U.S. attorney in Phoenix, and I want to
    explore with you just a little bit, to what do you attribute
    the seeming reluctance to prosecute aggressively obvious
    illegal behavior that has a direct impact on your mission and
    that of the U.S. attorney's office?
        Mr. Forcelli. Sir, I can't say for sure.
        And, again, I don't want to paint the entire U.S.
    attorney's office with a broad brush. We had a very successful
    program that took place two summers ago where we arrested 70
    home invaders, violent criminals who were doing drug robberies,
    and prosecuted them and went to trial.
        For some reason, the firearms unit, which was at first when
    I first arrived in Phoenix was run by Rachel Hernandez and then
    subsequently run by Emory Hurley, consistently had issues with
    prosecuting our cases.
        One example, we had an informant that they dismissed
    outright. This informant had provided truthful testimony, had
    provided accurate information, everything that met all the
    standards that we look for in law enforcement. They dismissed
    every case that this informant had anything to do with. When I
    questioned them as to why are we no longer using this
    informant, they said that his information was inaccurate and he
    lied.
        Well, I was upset, because I had such a good relationship
    with the prosecutors in New York, that my agents would bring a
    substandard product to the U.S. attorney's office, so I went
    back and questioned them and looked at that document. And that
    informant's information was dead-on.
        I then re-engaged Ms. Hernandez and asked why were not
    using this informant, and she stated, ``Well, he was moved with
    EWAP funds,'' Emergency Witness Assistance Program funds, ``and
    DOJ policy says we can't do that.'' Well, having worked with
    the Southern District of New York and having contacted main
    Justice, I found out that that wasn't true. The only disclosure
    would be, at trial, you may have to articulate that that
    informant was paid those funds.
        When I approached her again about this particular
    situation, because dozens of cases hung in the balance, she
    finally conceded, ``Well, he wore a lot of jewelry, he doesn't
    have jury appeal. My final answer is, no, we won't use him.''
        I know, I have used murderers, I have used robbers, I have
    used all sorts of people to put on the witness stand to make
    cases as part of cooperation agreements. Part of a lawyer's job
    is to prep a witness. If this guy wore too much gold chain or
    didn't have jury appeal, it is incumbent on the prosecutor to
    help get him ready for testimony.
        So I found it was either laziness or arrogance that really
    terminated many of our cases.
        Mr. Connolly. And when you compare that experience to your
    experience in New York, this was unusual?
        Mr. Forcelli. Sir, I can say that I worked at the U.S.
    attorney's office, mostly for the Southern District, through
    Mary Jo White's tenure there, through Dave Kelley, James Comey,
    even currently with Preet Bharara--consistently outstanding.
        I can tell you that in the U.S. attorney's office from
    Arizona--when I got there, Daniel Canales was acting because
    the U.S. attorney had been fired--it was bad doing gun cases.
    And it continued to be. It has improved slightly since this
    flare-up, but it has been consistently bad.
        Mr. Connolly. Thank you.
        One final question. I wish I had more time, but we talked
    about resources. There are 8,500 licensed gun dealers in the
    four southwestern States. You have 224 ATF agents assigned to
    Project Gunrunner. Do you really have the resources you need to
    do your job?
        Mr. Forcelli. It is amazing, sir, that you ask me that
    because I just had contact last week with a friend of mine who
    works in the 46th Precinct where I worked as a New York police
    officer. It is one square mile. There are 355 police officers
    assigned to the 46th Precinct--one square mile. I have less
    than 100 agents assigned to the entire State of Arizona that is
    114,006 square miles.
        So do we have the resources? No, we don't. We desperately
    need them. Does that justify us not stopping----
        Mr. Connolly. No, no.
        Mr. Forcelli. No.
        Mr. Connolly. Different issue.
        Mr. Connolly. Thank you, Special Agent.
        [The prepared statement of Hon. Gerald E. Connolly
    follows:]
    [GRAPHIC] [TIFF OMITTED] 71077.093

    [GRAPHIC] [TIFF OMITTED] 71077.094

        Chairman Issa. Thank you.
        We now go to the gentleman from South Carolina, Mr. Gowdy,
    for 5 minutes.
        Mr. Gowdy. Thank you, Mr. Chairman. Thank you for your
    leadership on this issue.
        And to the family of Agent Terry, let me say on behalf of
    the people from the upstate of South Carolina, we offer our
    condolences, and we thank you for the service and, ultimately,
    the sacrifice of your son, your brother, your friend.
        To ATF, I worked with ATF for 16 years, and I find this
    hearing to be bitterly disappointing. This is not reflective of
    the ATF agents that I worked with for 16 years.
        And this panel is perhaps not the best panel for me to
    express my displeasure, but, nonetheless, let me ask you this:
    When did ATF have either constructive or actual knowledge that
    guns were going to Mexico?
        Mr. Forcelli. Sir, it is my understanding that in 2009,
    when Operation Fast and Furious was initiated, they were not
    interdicting firearms and they had knowledge that those guns
    were being trafficked to Mexico.
        Mr. Gowdy. Now, when you say interdicting firearms, you
    mean something as simple as a traffic stop several miles away
    from where the purchase was made, pretextual if it need be, but
    a traffic stop so you don't blow your informant, that easily
    could have been done, right?
        Mr. Forcelli. Absolutely.
        In fact, let me point out something, sir. We say an
    ``informant.'' A lot of the information that came into ATF came
    in from gun dealers who didn't like the fact that they are
    portrayed as this nefarious, gray market. The gun dealers were
    our friends. They helped us make a lot of these cases. And we
    had some successful cases. This is an anomaly, this Fast and
    Furious investigation. But the problem is, then, by getting
    them mixed up in this thing and encouraging them to sell guns
    when they decided to stop did not help our reputation with the
    gun industry.
        The other thing is, if our job is to stem the flow of
    firearms into Mexico, and certain gun dealers realize there is
    a straw-purchasing problem and they are willing to--forgive me
    for using an analogy--turn off the faucets, well, we could have
    diverted our assets elsewhere and looked at other gun dealers
    where we thought the straw purchasers were going to. Instead,
    we just encouraged them to continue selling guns. It made no
    sense.
        Mr. Gowdy. But even for this investigation, as half-baked
    as it was, to ever have worked, you would have had to have
    extradited folks from Mexico back for prosecution in a lying-
    and-buying case with a statutory maximum of what, 10 years?
    What are the guidelines in a typical lying-and-buying case?
        Mr. Forcelli. Generally speaking, people with--well,
    because they don't have a criminal history, which is why they
    can fill out the form--they get probation. But, again, that is
    if they are prosecuted at all.
        Mr. Gowdy. They could have done car stops. They could have
    done search warrants. They already had a Title III up, from
    what I understand. Correct?
        Mr. Forcelli. Yes.
        Mr. Gowdy. All right. So, even if it had worked, I don't
    understand how it ever would have worked.
        Mr. Forcelli. Sir, let's say, for example, that we wouldn't
    get as far as to be able to extradite the heads of the cartel.
    Perhaps, by going out there, doing interdictions, we could have
    deterred some of these guns from being purchased. Second, had
    we been able to go out there and stop a straw buyer and then
    perhaps go do a controlled delivery, we would have made it up
    to the next level in the organization.
        Mr. Gowdy. You could have flipped them, though. You don't
    have to let the guns walk. Flip them.
        Mr. Forcelli. Absolutely. I agree.
        Mr. Gowdy. How does your U.S. attorney not do proffers?
        Mr. Forcelli. That shocks me, sir. They do them very
    sparingly. Seventy home-invasion defendants we arrested, as I
    pointed out earlier. We proffered one. We could have solved
    unsolved robberies. We could have solved unsolved homicides. We
    could have solved an untold number of crimes had we had access
    to those defendants.
        Mr. Gowdy. Now, this was an OCDETF case, right?
        Mr. Forcelli. Yes, sir.
        Mr. Gowdy. Fast and Furious was an OCDETF case.
        Mr. Forcelli. Yes, sir.
        Mr. Dodson. Yes, sir.
        Mr. Gowdy. What other Federal agencies were involved, and
    what complaints did they lodge?
        Mr. Dodson. Well, sir, I can tell you, from almost the
    genesis of the case, we had an agent with Immigration and
    Customs Enforcement embedded in Group VII acting on a co-case-
    agent status. So ICE was well-aware of it.
        Mr. Gowdy. Was the Bureau involved?
        Mr. Dodson. I am sorry?
        Mr. Gowdy. The Bureau, FBI?
        Mr. Dodson. You got to understand, ATF Group VII is the
    Phoenix Strike Force Group. The DOJ strike force consists of
    entities from DEA, FBI, ATF, and ICE.
        Mr. Gowdy. What I am trying get a sense of--and I have less
    than a minute--I want to know how many different law
    enforcement officers and agencies told the U.S. attorney's
    office, ``This is a dreadful idea.'' How many different people
    and agencies said, ``This is unprecedented, it is a dreadful
    law enforcement idea, and it needs to stop?'' How many people
    told Ms. MacAllister and Ms. English, ``This is a horrible
    idea?''
        Mr. Dodson. As for agencies that expressed that to the U.S.
    attorney's office, sir, none that I am aware of.
        As for individuals that expressed it to Ms. MacAllister:
    myself----
        Mr. Casa. Many.
        Mr. Dodson [continuing]. Special Agent Casa, Special Agent
    Alt, Special Agent Medina voiced his concern.
        Mr. Casa. So, countless detailees that came through.
        Mr. Dodson. Yes.
        Mr. Casa. Almost every person that came though that group,
    that saw what was going on----
        Mr. Dodson. Every agent from outside of the Phoenix Field
    Division, sir, as well as many in it. But, specifically, those
    that came in from the outside were appalled as soon as they
    learned.
        Mr. Casa. Shocked and appalled.
        Mr. Gowdy. I am out of time, but I would like to ask one
    more question.
        When the supervisors realized that guns were making it into
    Mexico, acknowledging the fact that we do not have much success
    extraditing people from Mexico for lying-and-buying cases, were
    the Mexico authorities warned, ``Hey, something bad has
    happened, and firearms are in your country because we turned an
    eye to it?''
        Mr. Forcelli. Sir, I can say, having had conversations with
    our staff in Mexico City--this is ATF personnel assigned to
    Mexico City--that they were not fully briefed on this. They
    were very upset about it. This is something that was contained
    within the ATF Group VII.
        Mr. Gowdy. So we are going to ask for extradition
    cooperation from a country that doesn't even know what we are
    doing, that doesn't even know that we are letting guns go into
    their country that murders their citizens as well as our
    agents.
        Mr. Dodson. No, sir. Because, actually, the way this case
    is designed, we don't even have a lying-and-buying charge on
    the individual that committed the crime in Mexico with these
    firearms. They are not the ones that lied on the form.
        Mr. Gowdy. You would have to have a conspiracy case,
    which--I am sorry. I am out of time.
        Mr. Dodson. We never took the steps to develop that
    conspiracy, sir.
        Mr. Gowdy. Thank you, Mr. Chairman.
        Chairman Issa. And I thank the gentleman.
        We now recognize the gentleman from Massachusetts, Mr.
    Tierney.
        Mr. Tierney. Thank you very much.
        And my condolences to the family, as well, and friends. And
    I am not going to be asking you any questions, but I don't want
    you to interpret that as being unmindful of your pain and your
    sacrifice on that. I hope you accept it as such.
        But I would like to talk to the three special agents on
    this a little bit and go back.
        First of all, I do suspect that the Mexican Government
    understands that there are guns coming from the United States
    into Mexico. I mean, Mexico's Ambassador, Arturo Sarukhan, has
    stated pretty clearly that he thinks guns from the United
    States have been feeding violence, and overwhelming firepower
    is being unleashed by drug traffickers. So I think they are
    quite aware of that.
        But before this Fast and Furious became the policy that we
    are all seriously questioning now, was it the Project
    Gunrunner, was that the policy of the government from 2006 to
    2009?
        Mr. Forcelli. Sir, if I may, Project Gunrunner was a
    funding source that led to staffing many groups along the
    southwest border, you know, offices with agents.
        Project Gunrunner was preceded by something that they
    referred to as ``Operation Southbound.'' And what that did was,
    we identified straw buyers through the cooperation of gun
    dealers or through reviewing documents of past firearms
    purchases, and then we would go out and do car stops and do
    interdictions. In many of those interdictions, there were no
    prosecutions, for the reasons I stated earlier. But the point
    was that we lawfully seized the weapons based on probable
    cause, and those weapons wouldn't hurt anybody.
        Now, there were plenty of times where, if a gun dealer was
    suspicious of a person and we would stop them and that person
    was a law-abiding citizen, they went on their way with their
    lawfully purchased firearm and our apology. But if they were
    criminals, those guns were in our custody whether they went to
    jail or not, and they never hurt a soul.
        Mr. Tierney. Were there any appreciable amount of weapons,
    do you think, getting through that system, still making it to
    Mexico?
        Mr. Forcelli. Oh, absolutely. And it is the nature of the
    straw purchasing. I mean, a straw purchaser is somebody who is
    legitimate. If the gun dealer isn't suspicious and he makes
    that sale, and then that person then hands it off to somebody
    who is going to bring it down to Mexico, we are going to have
    no way of knowing that until the gun is recovered in Mexico.
        Mr. Tierney. All right.
        So, in fact, you are familiar with the Iknadosian case?
        Mr. Forcelli. I was the supervisor of that investigation,
    sir.
        Mr. Tierney. Well, I assume you were unhappy with that
    result.
        Mr. Forcelli. Extremely.
        Mr. Tierney. And, in that case, didn't the judge make a
    determination that--essentially, he threw the case out after
    about 8 days of trial on the premise that there was no proof
    that the ultimate person that got that gun was a person not
    allowed or not lawfully in possession?
        Mr. Forcelli. Correct. What he was stating was that we
    couldn't prove that he was supplying prohibited persons. That
    wasn't the allegation or the nature of the case.
        And, again, that is why, after that happened, I tried to
    present this case to the U.S. attorney's office in New York,
    which is just incredible at doing international narcotics
    cases. And had we had one wire transfer or one banking
    transaction occur in that district, I am convinced we would
    have had a successful prosecution there.
        Mr. Tierney. Do you think there is any hesitation on
    Federal prosecutors--and I ask this of all of you agents
    because you have been so candid--any hesitation on the part of
    Federal prosecutors because they think, somehow, pursuing these
    cases is going interpreted as violating or looking to violate
    somebody's Second Amendment rights?
        Mr. Forcelli. No, sir. I honestly don't think so, from my
    perspective, having----
        Mr. Tierney. That is not what is causing the inertia on the
    part of the prosecutors?
        Mr. Forcelli. I can't say for sure, sir.
        Mr. Casa. I would have to agree with Agent Forcelli that,
    no.
        Mr. Tierney. So if a person goes into a store, a gun store,
    and buys two or three or four handguns, does Federal law
    require them to report that?
        Mr. Forcelli. Yes, sir.
        Mr. Tierney. Okay. And if I were a person who went into a
    store and I bought four or five long guns----
        Mr. Forcelli. No such requirement, sir.
        Mr. Tierney. What if I went in--and you are familiar with
    the Romanian AKs?
        Mr. Forcelli. Yes.
        Mr. Tierney. All right. And it is fair to say that a high
    amount or a large proportion of the guns that are going to
    Mexico constitute the AKs, the Romanian AKs?
        Mr. Forcelli. Absolutely.
        Mr. Tierney. All right. So they are coming from Romania to
    this country, they get doctored up and changed, and then they
    move on down to Mexico?
        Mr. Forcelli. Yes, sir.
        Mr. Tierney. All right. So if I went into a store and
    bought any number of those, the store owner doesn't have to
    report that?
        Mr. Forcelli. No.
        Mr. Tierney. All right. If it was reported to you, would
    that give you some indication that here is something you ought
    to investigate?
        Mr. Forcelli. Sir, it is my opinion, just like we monitor
    moneys wired to the Middle East and we monitor how much Sudafed
    somebody buys in a pharmacy nowadays because that is what is
    utilized to make methamphetamine, it would be similar to that.
    Not everybody who buys more than one gun is a criminal, but it
    would give us an indicator that, hey, why is this person buying
    seven AKs? Maybe that is somebody we want to speak to.
        Now we are not aware of those multiple sales unless one of
    two things happens. A is that we have a cooperative gun dealer
    who calls us and says, hey, something is not right here; or, B,
    that weapon is--one of those weapons is found at a crime scene
    and traced back to that individual. And then we go pull the
    paperwork manually from the gun dealer.
        Mr. Tierney. Is there any law enforcement reason or
    rationale that you can think of why we would not want to have
    that information reported? Multiple sales of long arms, like
    Romanian AKs or something?
        Mr. Forcelli. I can only give you my personal opinion, sir.
    It would be a good indicator for us, a good starting point,
    much like it is with handguns.
        Mr. Tierney. But no reasons you can think of why you
    wouldn't want to have it reported. It wouldn't interfere with
    law enforcement efforts if it was reported.
        Mr. Forcelli. In my opinion, it would help our efforts,
    sir.
        Mr. Tierney. Okay. Thank you.
        Chairman Issa. The gentleman's time has expired.
        The gentleman from Texas, Mr. Farenthold, is recognized for
    5 minutes.
        Mr. Farenthold. Thank you very much, Mr. Chairman.
        I, too, would like to express my condolences to the Terry
    family. The district I represent includes Brownsville, where
    the family of Special Agent Jaime Zapata reside, as well. And
    they are going through some pain similar to what you guys are
    going through, very possibly as a result of ill-conceived
    policies by the ATF.
        I did have a couple of questions for the gentlemen here
    from the agency. And we appreciate your courage in testifying
    and want to assure you that--I think I speak for the bulk of
    this committee--that we really appreciate your courage in
    coming out. It certainly would be a bad thing if there were to
    be any repercussions.
        My question to you is, in your testimony, you were talking
    about, you had followed the straw buyer from the gun store, and
    it would stop. Did you all ever go beyond the first handoff of
    that weapon, to trace them to where they were going?
        Mr. Dodson. Sir, not really, no. Many a times, what we
    would do is, we would have the information beforehand, where
    they would call the FFL and say, ``Hey, we are coming by to
    pick up 10 or 15 of these AK-variant rifles,'' at which time
    the FFL would notify the case agent and we would begin the
    surveillance. We would often go to the straw purchaser's house
    and catch him before he leaves there, catch him as he meets an
    individual, you know, at a carwash or a gas station----
        Mr. Farenthold. But you didn't follow that individual to
    move it up the chain.
        Mr. Dodson. No.
        Mr. Farenthold. So if you were out to make a case against
    people higher up in the chain, wouldn't the next logical step
    have been following the gun the next step?
        Mr. Dodson. That would be very logical, sir.
        After he purchased the firearms and delivered them to
    another parking lot, and Special Agent Casa and I took pictures
    of them taking them out of one vehicle and putting them in
    another, yet we had to follow the straw purchaser back to his
    house, while we knew the guns were headed the other way on the
    highway. I cannot tell you the logic behind that either.
        Mr. Farenthold. Did you have something to add?
        Mr. Casa. Yes, sir. We were given direction by either the
    case agent or the group supervisor--we were literally pulled
    off of surveillances. When we would make requests. After a
    straw-purchase exchange had taken place, we requested, hey,
    this is a good opportunity to seize the firearms from an
    unknown person, plus we get to identify that unknown person,
    plus we might be able to move up the chain. And we were told
    point-blank, time and time again, absolutely not, no.
        Mr. Farenthold. All right. All right.
        I apologize for going so fast. I have limited time.
        You say, at one time, you built a tracking device from
    stuff you bought at RadioShack, and then you had one, out of
    the thousands of weapons, you had one that the agency provided
    for you that ran out of battery. Is that correct?
        Mr. Dodson. To my knowledge, there was just the one, yes,
    sir.
        Mr. Farenthold. So if you were trying to track guns,
    wouldn't the logical way to do that be to embed some type of
    tracking device either in the gun or its packaging?
        Mr. Dodson. Sir, when the statement was made that we were
    trying to track these firearms, what that means is we were
    tracing them once they were recovered in the last crime they
    were utilized in.
        Mr. Farenthold. Right. But if you were trying to make a
    case that this is going up to the Mexican drug cartels and is
    involved in multiple murders and, you know, potentially
    bringing bigger charges against these straw men for being part
    of a conspiracy, you would want to see, you know, everybody
    involved in that conspiracy, wouldn't you?
        Mr. Dodson. Oh, most definitely, sir. And what I would have
    done, I would have landed on these straw purchasers, and,
    before long, I would have had that information for you.
        Mr. Farenthold. All right. So let me ask you this. The
    policy we had of just following them and then quitting, do you
    see any rationale behind that? Could you come up with any
    reason we were stopping when we were stopping? Any theory at
    all?
        Mr. Forcelli. Sir, I will say this. For years, when I first
    got to Phoenix, I was supervising firearms-trafficking
    investigations, and we utilized trackers, and we did what you
    just pointed out. We would make a car stop at the hand-to-hand
    exchange, or we would seize the weapon if it got to a
    reasonable point where we thought it might go to Mexico.
        To answer your question, I have sat down many times to try
    to figure out what the logic would be to let these firearms go
    to Mexico, and I can't think of a single logical reason why
    this strategy would work.
        Mr. Farenthold. And you are not aware of any cooperation
    with the Mexican authorities or any of our intelligence
    agencies that might be tracking these beyond Mexico or
    anything?
        Mr. Forcelli. I think if we were tracking them, we wouldn't
    see the tragic results we see when these guns get traced back
    from murder scenes.
        Mr. Farenthold. And were you doing anything to identify
    these weapons, other than recording the serial numbers? For
    instance, test-firing them and gathering ballistics information
    or anything else?
        Mr. Forcelli. Sir, no. The firearms were being sold and,
    like I said, in most instances taken out of the country. I know
    that once the Mexican Government takes possession of them, our
    assets in Mexico go examine them. And I am not exactly sure
    what----
        Mr. Farenthold. And, I mean, you work on the border. You
    realize Mexico takes bringing guns into their country pretty
    seriously. I, mean just taking a shotgun to Mexico to go bird
    hunting is an experience.
        Mr. Forcelli. Yes, sir.
        Mr. Farenthold. So this is something our friends, our
    allies, and our neighbors would be very concerned about, and we
    didn't bother to inform them.
        Mr. Forcelli. We did not.
        Mr. Farenthold. Thank you very much.
        Chairman Issa. I thank the gentleman.
        We now go to the gentleman from Pennsylvania, Mr. Kelly,
    for 5 minutes.
        Mr. Kelly. Thank you, Mr. Chairman.
        And I want to thank you, special agents, for appearing. I
    think like everybody on this panel, we admire your courage and
    your patriotism for doing that.
        But my questions really are to the Terry family. And, Mr.
    Heyer, I know how difficult it was for your opening statement.
    And I will tell you now that, as I am in the autumn of my life,
    being the father of four and the grandfather of five, I think
    the unintended consequences of poor policies and procedures and
    failed strategies--at some point, somebody has to be held
    accountable for these things.
        And as difficult as it may be for yourself and the Terry
    family, if the person responsible were in the room right now
    for Operation Fast and Furious, what might you want to say to
    them?
        And, please, I think it is so important for the public to
    understand the purpose of these hearings. While we are very
    upset with the policies, it is important that people understand
    that there is a loss of human life here. So it is more than
    just a strategy that has failed, it is more than a filled
    policy and procedure. It is the loss of someone which is so
    near and dear to you.
        So, your opportunity to do that. I would appreciate it.
        Mr. Heyer. Well, it is tough. Brian was an amazing kid, an
    amazingly brave kid that was willing to put his life on the
    line.
        If that person were in the room, obviously we would want
    him or her to accept responsibility.
        Right now, looking back at this operation, it appears that
    it has cost the life of our Brian. We hope and pray that it is
    not going to result in any additional lives of U.S. law
    enforcement. But I don't know if we can truly--if that is truly
    going to happen. Those guns are out there.
        So, beyond accepting responsibility for these decisions, we
    would be curious to hear, why did you feel that this was within
    that risk? You know, I have heard from the ATF agents here that
    even a mockup weapon normally would not have been allowed to
    walk during these operations. And, you know, an awful lot of
    weapons walked, and we would be curious to find out why.
        Mr. Kelly. Ms. Balogh or Ms. Terry, anything you have to
    add?
        Mrs. Terry. I don't know what I would say to them, but I
    would like to know what they would say to me. That is all I
    would say.
        Mr. Kelly. Well, I know it is difficult, and I don't want
    to put you through any of this. But I think it is incredibly
    important, because the fabric of your family has been
    irreparably torn; it can never be put back together again. And
    so the purpose of these hearings really is to make sure that
    nobody else has to go through the same things that you have
    gone through. So I appreciate you being here.
        And, with that, Mr. Chairman----
        Chairman Issa. Would the gentleman yield?
        Mr. Kelly. I will yield back.
        Chairman Issa. Would the gentleman yield to the chair?
        Mr. Kelly. Yes, sir.
        [The prepared statement of Hon. Mike Kelly follows:]
        [GRAPHIC] [TIFF OMITTED] 71077.095

        [GRAPHIC] [TIFF OMITTED] 71077.096

        Chairman Issa. Thank you.
        I am going to follow a line of questioning that I think I
    have been seeing develop throughout here with the four law
    enforcement experts.
        You have two points. You know, the old expression, you
    know, you connect the dots. The first point is the straw buyer.
    The last point is the scene of the crime. You have said, each
    of you special agents, that in this case, as soon as you got to
    the next point of connect the dots, you were generally sent the
    other direction. You were not allowed to go beyond that next
    point. You weren't even allowed to follow that next point even
    when they headed north with the weapons.
        Now, if an operation like Fast and Furious seems to have a
    pattern, a consistent pattern, that you are only looking for
    two points, the beginning and the end, it is not a criminal
    prosecution, it is not an effective one. Plus, of course, if
    you take the logic that you can't prosecute a straw purchaser
    if the gun is in Mexico, if you take that point, then that part
    of it was frivolous from the start, even though, today, every
    one of those straw purchasers has been charged, oddly enough,
    with the evidence that was available before that gun ever
    walked beyond the first step.
        So let me just ask a question for your supposition, but I
    think it is a very well-educated one. If you only look at the
    beginning and the end of the dot, isn't the only thing you have
    proven is that guns in America go to Mexico?
        Now, could that be a political decision? Could that be a
    decision that, basically, we just want to substantiate that
    guns in America go to Mexico--something we all knew, but would
    have considerable political impact as Mexico began complaining
    about these, and they could say, ``Well, yeah, we were even
    rolling up the straw purchasers.'' It wouldn't change the fact
    that Mexicans were dying at the bequest of the United States,
    but wouldn't it ultimately meet a political goal?
        Mr. Forcelli. I imagine, sir, that it is possible. In this
    instance, I think it is more just, as I said earlier, a case
    agent that had a bad idea, a group supervisor who failed to
    rein her in, an ASAC who failed to rein in--the chain of
    command, all the way up, failed.
        Chairman Issa. But you would agree that it doesn't meet any
    criminal goal of prosecuting, the way it was handled?
        Mr. Forcelli. No, because you can't show the chain of how
    those pieces of evidence went from point A to point B, which
    you would need to prove at a trial.
        Chairman Issa. I hope it was just a terrible mistake.
        Mr. Clay, you are recognized for 5 minutes.
        Mr. Clay. Mr. Chairman, at this time, I have no questions
    for this panel in the interests of----
        Chairman Issa. You yield to the ranking member then?
        Mr. Clay. I yield to Mr. Cummings.
        Mr. Cummings. Thank you very much.
        It seems to me that we do have a--there are some serious
    disconnects. And why that is, you know, I cannot imagine. And I
    want to say to you all, your testimony has been abundantly
    clear.
        But I want to, for a moment, go back to Mrs. Terry.
        Ms. Terry, you know, I often say--right now I am preparing
    to do a eulogy on Saturday. And one of the things that I
    thought about as I am sitting here is, I do believe that part
    of life is death, but, also, part of death is life.
        And what I mean by that is that, you know, we can't fully
    understand why somebody would leave us so young, particularly
    somebody like your son and your relative, who was so full of
    courage, in the fact that he was willing to basically die for
    his country. And we cannot always understand it. And I think we
    all struggle, we struggle with it, particularly when it is a
    young person.
        But I can say this, that I believe deep in my heart that,
    some kind of way, out of his death will come life. In other
    words, the mere fact that we are here right now, Mr. Heyer,
    talking about this, the mere fact that this was not something
    that was just shoved under the rug and just moving on, the mere
    fact that there are probably already changes being made to this
    program--and I think it was you that said it, that you wished
    you could say that this was the end of it, but there are guns
    still out there. But at least--and to the agents I say this
    too--at least we are now moving in a direction where hopefully
    we reverse this and save some lives.
        That is why I said, Ms. Terry, sometimes out of death comes
    life. And it is not--nothing, nothing, nothing, nothing can--I
    am not trying to--you know, nothing can bring a person back.
    But, you know--because I have wrestled with the question, I
    wrestle with it all the time, of, why do so many of our best
    die young?
        And so that is why I said to you before--Chairman Issa
    asked me a question a moment ago about cooperation with the
    Justice Department. And I wanted to make it clear that I fought
    all my adult life trying to take guns, illegal guns, out of
    hands of folks, period. It was you, Mr. Forcelli--and all of
    your testimony was absolutely brilliant. It was
    straightforward, no frill, just straight testimony. And that is
    what I appreciated so much about it.
        But what you said, I don't want us to lose sight of it. And
    even the chairman just talked about it, to a degree. These guns
    don't just end up in Mexico. They end up in the United States,
    too. And they are not just killing people--used to kill people
    in Mexico. It is happening everywhere in our streets.
        And some kind of way, some kind of way, and as I listened
    to Senator Grassley, he is right, we do need to leave the
    political piece at the door and try to figure out, how do we
    address this problem?
        We got to keep in mind, too, Mexico is right next-door. So,
    basically, in a sense, in a sense, if these guns are flowing to
    Mexico, basically what we are doing is turning a gun on
    ourselves, or guns on ourselves. And this case is a prime
    example of that.
        And so, you know, I just believe that we have to take this
    moment and make it bring life, bring life, out of this very
    horrific and terrible death.
        And, with that, I yield back.
        Chairman Issa. I thank the gentleman for his comments.
        We now go to the gentleman from Florida, Mr. Ross, for 5
    minutes.
        Mr. Ross. Thank you, Mr. Chairman.
        And to the Terry family, I cannot imagine the emotional
    roller coaster that you have gone through and what today's
    testimony does for you. But I can appreciate that you are here,
    and I am grateful for that.
        To our agents that are here, you know, this investigation,
    as you well know, relies intensely on your testimony, not only
    in whole but, quite frankly, in hope so that we find an answer
    at the result of this investigation to see that this never
    happens again.
        And to that end, I want to ask a couple of questions, and
    specifically to you, Mr. Casa, because I was here for your
    opening testimony and had to leave for some votes. But you
    mentioned that it was the rule, rather than the exception, I
    think, to have the surveillance without the interdiction or the
    arrests. Did I get the gist of it?
        Mr. Casa. For this investigation, yes, it was.
        Mr. Ross. And then you stated in your testimony, ``It has
    become common practice for ATF supervisors to retaliate against
    employees that do not blindly toe the company line, no matter
    what the consequences.''
        Can you describe what any of that retaliation may have
    been?
        Mr. Casa. I would just say, refer back to OIG
    investigations over the countless years: FLEOA attorneys that
    have represented ATF employees for all types of retaliation for
    whistleblowing; punitive actions, whether that agent or
    inspector deserved the punitive actions for----
        Mr. Ross. You mentioned that the email that you received,
    you felt that was threatening.
        Mr. Casa. Oh, yes.
        Mr. Ross. And were you personally threatened by MacAllister
    or English or anybody else?
        Mr. Casa. No. They are my equal, or, you know, they----
        Mr. Ross. Right.
        Mr. Casa. But my supervisor put in there, ``Hey, if you
    don't like what we are telling you to do, go work for Maricopa
    County Sheriff's Department.'' First of all, it was in horrible
    taste.
        Mr. Ross. Yeah, I agree.
        Mr. Casa. Second of all, because they are our brave men and
    women of law enforcement side-by-side with us in the fight
    against violent crime in the Phoenix area.
        Mr. Ross. What has happened to your supervisor since then?
        Mr. Casa. I have no idea.
        Mr. Ross. Were there any repercussions as a result of his
    actions?
        Mr. Casa. Not as of yet. My understanding----
        Mr. Ross. So he is still in the same position, his
    supervisory capacity?
        Mr. Casa. Yes, I still understand he is a group supervisor.
    I believe he is in Minneapolis-St. Paul, currently still a GS-
    14 group supervisor.
        Mr. Ross. Now, you mentioned that they would stop you from
    arresting straw purchasers and interdicting their weapons. Were
    there other occasions when your case agent told you to stand
    down and not make such arrests?
        Mr. Casa. I mean, in this investigation?
        Mr. Ross. Yes, in this investigation.
        Mr. Casa. Again, it was common. It was more than on one
    occasion. It was a few occasions.
        Mr. Ross. Was there one where you watched them come out
    with a bag of guns, I guess, and----
        Mr. Casa. Yes. On one specific occasion--I wish I had more
    time; I will try and be as brief as possible--we observed--and,
    in fact, I was with Special Agent Dodson, and we observed an
    individual do a straw purchase, I believe on that day it is 10
    FN pistols, which, by the way, they penetrate law enforcement
    vests. They are called ``cop killers.''
        Mr. Ross. And that had to be particularly painful.
        Mr. Casa. Yes.
        Mr. Ross. And you saw this happen and you were ordered to
    stand down?
        Mr. Casa. We followed it, we followed the straw purchaser.
    We saw him transfer the guns to an unknown individual--unknown.
    And I said, okay--since I was the shift supervisor, I called
    the case agent and said, we need to interdict these firearms.
        Mr. Ross. And who was the case agent? Was that----
        Mr. Casa. MacAllister.
        Mr. Ross. MacAllister. Okay.
        Mr. Casa. And I was told, no, stand down, do not interdict.
    I was given no explanation why, other than to keep on following
    the unknown individual with firearms.
        Well, he is street-savvy. He makes our--a 10-person
    surveillance, each car over and over again, to the point where
    he stops in the middle of a small subdivision in front of
    Special Agent Dodson and I. And he is a lot higher up in a
    jacked-up pickup truck; we are down here. And we know he has at
    least 10 FN 5.7-millimeter pistols.
        And then I say, we need to engage. I call back in.
    Unfortunately, the group supervisor, who should have been there
    during the operation, or the case agent, who should have been
    there during the operation, they were gone for the day. They
    left.
        Mr. Ross. And there was no way to get in touch with them?
        Mr. Casa. Well, I was told the point of contact at that
    point was a probationary employee named Tonya English, who
    wasn't even a tenured ATF special agent. And I had to take my
    instruction from her, who told me, no, fall back, just
    resurveil.
        Mr. Ross. That fallback, that resurveillance, isn't that
    contrary to what ATF policy should be?
        Mr. Casa. Yes.
        Mr. Ross. I mean, shouldn't the policy have been, go in and
    make the arrest or the interdiction?
        Mr. Casa. I am sorry to cut you off. Yes, sir, most
    definitely. Furthermore, it created a very serious officer
    safety issue.
        Mr. Ross. Yes.
        Mr. Casa. The guy knew he was being followed, but he didn't
    know by who. For all he knew, we could have been cartel members
    trying to rob him of those 10 guns, or we could have been law
    enforcement. We don't know what he thought. But it caused a
    very serious officer safety issue.
        Mr. Ross. So but for the grace of God, there could have
    been more than Brian Terry lost as a result of this.
        Mr. Casa. Yes, sir.
        Mr. Ross. Ms. Balogh, just briefly--I have just a couple of
    seconds--is there anything that you think that your brother
    would want this committee to know about his life and about his
    service?
        Ms. Balogh. Brian was about making a difference and
    justice. And I just feel that this country owes it to him,
    because he spent his whole life fighting for this country some
    way or another.
        Mr. Ross. I agree, and he is a hero.
        I yield back.
        Chairman Issa. I thank the gentleman.
        We now go to the gentleman from Arizona, Mr. Gosar, for 5
    minutes.
        Mr. Gosar. Mrs. Terry and the family, I am deeply sorry. As
    a father, I don't know--I can just feel that pain. And I hope
    what I am going to say next does not aggravate that in advance,
    okay?
        For the law enforcement folks, when you first heard about
    the shootings of Congressman Gabby Giffords, was there a level
    of anxiety from the ATF fearing that one of the weapons might
    trace back to the operations of Fast and Furious?
        Mr. Casa. Yes, sir.
        Mr. Forcelli. Yes, sir.
        Mr. Dodson. Yes, sir.
        Mr. Gosar. Where did this anxiety come from and from whom
    specifically?
        Mr. Forcelli. Sir, I received a phone call from my public
    information officer, who is a friend of mine, who said that
    there was concern from the chain of command that the gun was
    hopefully not a Fast and Furious gun.
        Mr. Casa. Sir, I would like to also add, every time there
    is a shooting, whether it was Mrs. Giffords or anybody, any
    time there is a shooting in the general Phoenix area or even
    in, you know, Arizona, we are fearful that it might be one of
    these firearms.
        Mr. Dodson. And this happened time and time again. When
    there was U.S. Embassy personnel killed in Juarez, Mexico, the
    fear spread through the division.
        Mr. Gosar. Well, there is a reason I am asking, because I
    am feeling like--I mean, I am a dentist. I didn't participate
    in the military. But I understand that there is a chain of
    command. And I feel like I am watching the movie ``A Few Good
    Men.''
        And, you know, this wasn't done--from what I am gathering,
    you know, we have talked about--Special Agent Forcelli, you
    were talking about trying to get a jurisdiction in the New York
    courts. We are talking about the drug cartels. So we are not
    talking about something really simple here.
        So I guess my point is, if an issue is this great,
    typically, before this one, if you have been involved in one,
    how far did it go up that people knew about something like
    that?
        Mr. Forcelli. Sir, I know I have had discussions with SAC
    William Newell, who is the special agent in charge--well,
    former special agent in charge of the Phoenix Field Division.
    The assistant special agent in charge who was involved in this
    case when it first started was George Gillett. He and I had
    discussions where he pretty much just rolled his eyes when you
    voiced opposition to this. David Voth and I hadn't conversed
    much. He is in a different building.
        But I know from the review of a briefing paper that went up
    that was prepared by either SAC Newell or vetted through SAC
    Newell by Mr. Gillett that this was briefed at the highest
    levels of ATF. I have heard that Mr. Melson, our director, was
    aware of it.
        And what I find most appalling, sir, is that nobody has
    stepped up and had a statement beyond the Phoenix Field
    Division. I mean, there were tragic errors made here, and
    nobody has shown the decency and leadership to step up and say,
    hey, we made a mistake and we shouldn't have done something
    wrong. That is what I find as appalling as anything else in
    this case, short of, of course, the tragedy that happened to
    the Terry family.
        Mr. Dodson. That is absolutely right, sir. No one in ATF
    involved in this, up to Acting Director Melson, has shown any
    significant leadership in this matter. And I can tell you, I
    know that our former group supervisor, Dave Voth, had to come
    to D.C. to brief our headquarters, DEA Special Operations
    Division in Chantilly, Virginia, and that he briefed EPIC on
    it. And, obviously, OCDETF was briefed because we secured the
    funding from OCDETF.
        I recall in March 2010, when Acting Director Melson came to
    the Phoenix Field Division, spoke about the case, he knew the
    case agent by name, the group supervisor by name, and, I
    believe, even some of the defendants or would-be defendants in
    the case.
        Mr. Gosar. Well, boy, this is going in the right way here.
    You know I am from Arizona.
        Mr. Casa. Yes, sir.
        Mr. Forcelli. Yes, sir.
        Mr. Gosar. You are currently aware, and have for some time,
    that Department of Justice has had lawsuits against Arizona.
    Were you aware of any biases within your scope at ATF or
    comments versus Arizona by the ATF or by the DOJ in regards to
    those?
        Mr. Forcelli. No, sir.
        Mr. Dodson. No, sir.
        Mr. Gosar. You are sure?
        Mr. Forcelli. I don't recall any.
        Mr. Gosar. It just seems like just this whole lax attitude,
    I mean, from jurisdiction, from timely and aggressive law
    enforcement that would create this. I am getting this opinion,
    because you said it, that you couldn't get a jurisdictional
    aspect of oversight in Arizona, and you took it to New York,
    did you not, sir?
        Mr. Forcelli. Yes, sir, I did.
        Mr. Gosar. Okay. So it seems like a continued dismissal of
    actually trumping charges. And we have a problem in Arizona.
    And, you know, we have seen a concerted effort that we have
    called out law enforcement on the border, I think it is
    specifically Sheriff Dever, as lying. I just see a lack of
    cooperation all the way across, and so does Arizona. And we see
    a very defunct cooperative type of format that is trying to be
    uniform in adjudicating these laws. And we see it--I can tell
    you from Arizona, we see a very organized, orchestrated plan--
    lack of a plan from the DOJ, particularly with Arizona.
        Mr. Forcelli. Well, it is interesting, sir. And what I will
    add is that, the one thing I will say emphatically is that I
    have had limited dealings with the Tucson office of the U.S.
    attorney's office. I have had extensive dealing with the
    Phoenix office. And, again, in the Phoenix office there are
    some good people, and I apologize that I have had to speak ill
    of that office. But there is a distinct difference in attitude
    between the Tucson and Phoenix offices.
        The U.S. attorney's office in Tucson seems to be more
    amenable to working on cases with ATF, amenable to finding
    justice than the U.S. attorney's office in Phoenix. And it is
    ironic, because the U.S. attorney, himself, and his immediate
    chain of command are based in Phoenix.
        That is all I can really add.
        Mr. Gosar. Thank you.
        [The prepared statement of Hon. Paul A. Gosar follows:]
        [GRAPHIC] [TIFF OMITTED] 71077.097

        [GRAPHIC] [TIFF OMITTED] 71077.098

        Chairman Issa. I thank the gentleman.
        We now recognized gentlelady from New York, Ms. Buerkle,
    for 5 minutes.
        Ms. Buerkle. Thank you, Mr. Chairman.
        I want to begin by saying to the mother of Brian Terry, Ms.
    Terry, I have six children, and my heart is broken for you
    because your life is irreparably changed. And I want you to
    know that what Mr. Heyer said about having someone step up and
    accept responsibility, that will be the charge of this
    committee, and that is what we will do for you because of the
    loss that you all have sustained. You have my deepest sympathy.
        To the agents, thank you. Thanks for your courage for being
    here today and for your forthrightness in standing up and doing
    the right thing. We appreciate that very much.
        I want to begin with Ms. Terry. If there is a question that
    you would like us to ask or find out, can you share that with
    us? Is there something that is nagging you and you would like
    the answer to?
        Mrs. Terry. Well, most of my questions and answers are done
    by my nephew Bob. And if I have anything to ask, I usually ask
    him and he gets me my right answers.
        Ms. Buerkle. Well, then I would ask Mr. Heyer, is there a
    question that you would like us to ask?
        Mr. Heyer. I think we would want to know if the dragnet
    that is set to find everyone involved in Brian's murder will be
    set deep enough and wide enough to encompass anyone involved in
    Operation Fast and Furious. If the guns used in Brian's murder
    were part of this operation, then we would want to know, will
    everyone in that operation that had to deal with those specific
    weapons be brought up on charges of facilitating the murder of
    Brian Terry?
        Ms. Buerkle. Thank you. We will ask that question on your
    behalf.
        There was a press conference held shortly after Agent
    Terry's murder, and during that press conference Special Agent
    William Newell vehemently denied that guns were walked.
        This question is for Mr. Forcelli, if you could. Were you
    at that press conference?
        Mr. Forcelli. No, ma'am, I was not, but I watched it on TV.
        Ms. Buerkle. Okay. And did you hear him, when he was asked
    regarding guns walking, did you hear his response to that?
        Mr. Forcelli. The ``Hell, no'' response?
        Ms. Buerkle. Yes, sir.
        Mr. Forcelli. I did, ma'am.
        Ms. Buerkle. Okay. And what was your reaction to that?
        Mr. Forcelli. I was appalled, because it was a blatant lie.
        Ms. Buerkle. He was aware that guns were being walked?
        Mr. Forcelli. Yes, ma'am. In fact, as I stated earlier,
    there was a briefing paper that was forwarded up to
    headquarters. Mr. Newell, if not the author, would have had his
    ASAC prepare it, and it would have been forwarded through Mr.
    Newell.
        And I can tell that you Mr. Newell, as recently as 2 months
    ago, was stating that the case agent in this case should be
    getting an award. He still thinks this is an outstanding
    investigation, and I find it personally appalling.
        Ms. Buerkle. My colleague Dr. Gosar brought up--he made an
    analogy between ``A Few Good Men'' and this situation and the
    reminder. But with ``A Few Good Men'' there was an order in
    place. This was a, ``This was what everyone followed. This was
    the policy.''
        But my sense is, and I would like to ask the three agents
    today, that what happened in this situation was not the
    ordinary course of business. And so, if you could each comment
    on that.
        Mr. Forcelli. Ma'am, I can tell you, as recently as 3 weeks
    ago we conducted an interdiction of a .50-caliber belt-fed
    rifle through a cooperative gun dealer. That individual showed
    up to pick up the rifle with cash, probably drug money. He was
    not a resident of the United States, but he had false ID. We
    had three trackers--well, two on the gun, one in the package.
    And we had air support, the whole nine yards.
        And once we got to a point where we realized we could not
    safely monitor that weapon, that individual was immediately
    stopped and that weapon seized and he was arrested. That is how
    we normally do business. And I can tell you, as a supervisor,
    no agents under my watch would have ever let a gun walk. I
    wouldn't have allowed it.
        Ms. Buerkle. Special Agent Casa, did you want to comment on
    that?
        Mr. Casa. Yes, ma'am. Thank you.
        I would have to back exactly what Pete said. I am working a
    number of investigations throughout what we are going through
    now. I am still juggling them with everything else. And I would
    never let one firearm walk.
        I work with--I am working a number of OCDETF cases with
    other agencies, and I have to assure them--and they know who I
    am--that we will not let one firearm walk. We will stop that
    firearm at all costs. Because one firearm on the street is one
    too many. That firearm could kill any one of us at this table.
        That is what I would like to add, ma'am. Thank you.
        Ms. Buerkle. Thank you.
        Special Agent Dodson.
        Mr. Dodson. Yes, ma'am. Prior to my involvement in Phoenix
    with the Fast and Furious investigation, in all of my ATF
    experience and my experience in local law enforcement, ma'am, I
    can tell you this, that we have never let a gun walk. I have
    never seen it authorized or allowed to let a gun walk. And if
    one even got away from us, like I stated earlier, nobody went
    home until we found it.
        Ms. Buerkle. Thank you all very much. Again, thank you for
    your service, for being here today.
        And to Brian's family, again, our deepest sympathy.
        I yield back.
        Chairman Issa. I thank the gentlelady.
        I thank our witnesses for their testimony. It is not a
    normal practice to have government witnesses along with a
    family or what are sometimes called civilians. But in this
    case, I thought it was appropriate that you all be there
    together. I appreciate all that you have done for us today to
    have us better understand the situation.
        And, Mrs. Terry, although I can never guarantee the
    outcome, about 2 years ago we were able to name a Border Patrol
    station after three fallen Border Patrol agents several decades
    after they were killed. I have instructed my staff to work with
    the Border Patrol to find a mutually acceptable-to-you-and-the-
    family location to name after Brian. And I will author that
    bill as soon as a location is determined by the family.
        You have my promise that we will do the other things that
    you asked for here today, that we will keep this from being
    political until we get to the full truth of everything
    surrounding this tragic incident that we know clearly could
    have been avoided.
        I thank you.
        And we will take a short recess before the next panel.
        [Recess.]
        Chairman Issa. The hearing will now come back to order.
        We will now recognize our third panel. Mr. Ronald Weich is
    Assistant Attorney General, U.S. Department of Justice.
        Pursuant to the rules, would you please rise and take the
    oath?
        [Witness sworn.]
        Chairman Issa. Let the record indicate the witness answered
    in the affirmative.
        I note that you sat patiently through all of the previous
    testimony. So not only do you understand the red-light/green-
    light, but you will be the final witness. And I appreciate your
    patience and your being here to hear everything that came
    before.
        You are now recognized.

      STATEMENT OF RONALD WEICH, ASSISTANT ATTORNEY GENERAL, U.S.
                         DEPARTMENT OF JUSTICE

        Mr. Weich. Thank you very much, Mr. Chairman. And I would
    ask that my full statement be included in the record.
        Chairman Issa. Without objection, so ordered.
        Mr. Weich. Mr. Chairman, Ranking Member Cummings, members
    of the committee, I am very pleased to be here today to discuss
    the Justice Department's continuing efforts to respond to the
    committee's subpoena concerning ongoing criminal investigations
    on the southwest border and pending indictments in the U.S.
    District Court for the District of Arizona.
        I want to say at the outset that the Department is fully
    committed to working with you in good faith to accommodate the
    committee's legitimate oversight interests. We hope the
    committee will similarly engage in good faith with the
    Department in a manner that recognizes the important
    confidentiality interests presented when congressional
    oversight involves open criminal investigations. It is
    difficult when the interests and principled exercise of the
    prerogatives of the legislative and executive branches come
    into potential conflict. The Constitution envisions that the
    branches will engage in a process of cooperation and
    accommodation to avoid such conflicts. And we look forward to
    engaging in that process with you.
        As the committee is aware, many of the subpoenaed documents
    concern an open criminal investigation conducted by the Bureau
    of Alcohol, Tobacco, and Firearms known as ``Operation Fast and
    Furious.'' Other subpoenaed documents concern the open
    investigation and pending prosecution regarding the shooting
    death of Agent Brian Terry.
        Let me just say here that the death of Agent Terry was a
    tragic loss, and the Justice Department extends its deepest
    sympathies to his family. They testified courageously here a
    moment ago. We were very pleased to hear on Monday of the
    committee's commitment not to compromise the investigation into
    Agent Terry's murder or the broader gun-trafficking
    investigation. And we are fully committed to bringing to
    justice those who are responsible for Agent Terry's death.
        The Department recognizes the important role of
    congressional oversight, including oversight of the
    Department's activities. It is the policy of the executive
    branch, at the instruction of the President, to comply with
    congressional requests for information to the fullest extent,
    consistent with the constitutional and statutory obligations of
    the executive branch.
        At the same time, attempts to conduct congressional
    oversight of ongoing criminal investigations are highly unusual
    and present serious issues. As the Department's Office of Legal
    Counsel under President Reagan explained in 1986, ``The policy
    of the executive branch throughout our Nation's history has
    generally been to decline to provide committees of Congress
    with access to, or copies of, open law enforcement files except
    in extraordinary circumstances.'' The policy is designed to
    fulfill the Department's obligations to preserve the
    independence, integrity, and effectiveness of law enforcement
    investigations and the criminal justice process generally.
        And I want to say, this policy is completely nonpartisan.
    It has been relied on by administrations of both parties for
    decades.
        So, in response to your subpoena, this department has been
    striving to reconcile the two principles by accommodating the
    committee's oversight interests while protecting our
    confidentiality interests. Striking this balance can take time
    and effort. It is not the case that the Department is refusing
    to comply with the committee's subpoena. In fact, we are
    working diligently to satisfy the committee's core oversight
    interests without compromising the important purposes
    underlying the Department's policy that I have described.
        The starting point for our approach is an agreement by the
    Department that this committee has a legitimate oversight
    interest in information shedding light on the genesis and
    strategy of the Fast and Furious operation. We have focused on
    identifying documents responsive to those needs.
        We have already made a good deal of information available.
    In total, the Department has physically produced more than 675
    pages of documents to the committee, made available more than
    900 additional pages for review. In addition, we have made one
    ATF official available for an interview with the committee
    staff, and we hope we will be able to schedule more interviews
    in the upcoming weeks. The committee has requested briefings on
    specific topics, and we have agreed to provide those.
        The Department has taken the extraordinary step of
    retaining an outside consultant, a contractor, at substantial
    cost, to assist us in building a data base of the emails of the
    19 individuals at ATF whom the committee has indicated a
    primary interest in. We have engaged in a search of great
    magnitude to ensure that we get the documents that you have
    asked for to the best of our ability.
        The individuals, the 19 selected user accounts that you
    have focused on, they contain over 724,000 emails and
    attachments. In addition, the Department has collected
    thousands of documents flagged to us by ATF as potentially
    responsive. Over two dozen lawyers at ATF and the Department
    are reviewing those documents, and we have been able to provide
    documents to the committee each of the last 3 working days--
    yesterday, Monday, and the Friday before.
        The Department will not be able to make available all of
    the documents encompassed by the subpoena because of the law
    enforcement confidentiality interests that I have already
    identified. We cannot provide certain core investigative and
    prosecutorial documents. But we will work with the committee to
    identify and make available documents responsive to your core
    request.
        Let me conclude by emphasizing that the Department
    recognizes that congressional oversight is an important part of
    our system of government. At the same time, congressional
    oversight that implicates ongoing congressional investigations
    present sensitivities not raised in ordinary cases. Despite the
    unique challenges posed by oversight of open criminal matters,
    we remain optimistic that the Department will be able to
    satisfy the committee's core oversight interests while
    safeguarding the integrity, independence, and effectiveness of
    the Department's ongoing criminal investigations.
        Thank you for inviting me to testify, and I would be
    pleased to answer your questions.
        [The prepared statement of Mr. Weich follows:]
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        [GRAPHIC] [TIFF OMITTED] 71077.107

        Chairman Issa. I certainly hope so.
        I would recognize myself.
        Sir, if you are going to count pages like this as
    discovery, you should be ashamed of yourself. The only thing
    that this says is, ``Internal use only. Not for dissemination
    outside the ATF.'' That is not discovery. That is saying that
    nothing within the document requested, under any circumstances,
    are we going to be shown.
        It doesn't take so long if you don't spend your life
    redacting. The pages go on like this forever. You have given us
    black paper instead of white paper. You might as well have
    given us a ream still in its original binder.
        How dare you make an opening statement--how dare you make
    an opening statement of cooperation. We have had to subpoena
    again and again. Your representatives of your organization, of
    the executive branch, have discouraged witnesses from coming
    forward. It has only been the courage of whistleblowers like
    the ones you saw here today that have caused us to have more
    documents on this case than you have ever suggested turning
    over.
        And how dare you talk about 900 pages, all of which were
    available on the Internet. Your first discovery that you ever
    turned over, you gave us already-available-on-a-Google-search
    documents only.
        So, sir, what executive privilege are you claiming?
    Sensitivity is not envisioned. On Monday we held a hearing
    here, and I hope you had plenty of people watching it. And if
    you didn't, get it on YouTube. Not one witness, not on direct
    or on cross, talked in terms of the kind of unique sensitivity.
    Instead, they gave us caselaw and cases involving Justice that
    say just the opposite of what you are saying.
        Sir, you heard from the family and you heard from the
    whistleblowers. They have concerns about whether you are
    charging everybody in Brian Terry's murder. And, yes, I am
    deeply concerned, and we promised to get to the bottom of it.
    And if somebody wants to call that political interference, so
    be it. You should be held to a standard of why everybody,
    including the people who lie, buy and lie, those weapons, why
    they are not being charged if there is any chance they can be
    properly linked to his murder.
        But let's move on. Understand, that is for the family. For
    this committee, we are investigating you, your organization.
    The executive branch above the Phoenix office is who we are
    investigating. We want to know what felony, stupid, bad
    judgment led to allowing this program at the highest levels.
        When you have the head of Alcohol, Tobacco, and Firearms on
    basically his computer screen watching these things, don't tell
    me you didn't know what it was doing. It appears to us on this
    side of the aisle, and I believe on the other side, that you
    thought this was a good idea.
        Today, are you prepared to tell us that this program was,
    in fact, necessary and a good idea? And are you prepared to
    tell us who authorized it, who was the greatest, highest-
    ranking person who authorized any part of it?
        Mr. Weich. Mr. Chairman, you have raised a number of
    issues. Let me try to----
        Chairman Issa. Do the last ones first. Who authorized this
    program that was so felony stupid that it got people killed?
        Mr. Weich. The Attorney General has said that he wants to
    get to the bottom of this. He has directed the Office of the
    Inspector General at the Justice Department to review this
    matter in order to answer questions like the ones----
        Chairman Issa. And if that is the case, then why are we any
    burden at all? Isn't every one of our requests consistent with
    what the inspector general and the Attorney General should be
    looking at in this case?
        Mr. Weich. I don't know for a fact that everything you have
    asked for is what they are looking at----
        Chairman Issa. I hope you came here to answer questions
    like that. We are asking for things related to the above-the-
    field level almost exclusively. Our questions are about, who
    authorized this? Why did it happen? Why did it continue?
        Our question to you today is--the President said he didn't
    authorize it. He said the Attorney General didn't authorize it.
    He didn't say he didn't know about it. He said he didn't
    authorize it.
        Who at Justice authorized this program?
        Mr. Weich. As I have said, Mr. Chairman, the Office of the
    Inspector General----
        Chairman Issa. Who at Justice--if you know, I ask you to
    answer, who do you know was involved in the authorization of
    this, today? Do you know?
        Mr. Weich. We----
        Chairman Issa. Do you know?
        Mr. Weich. Well, Mr. Chairman, if you will permit me to
    answer the question. We sent a letter to Chairman Smith, who
    asked a question like that. We pointed out that this operation,
    as with other law enforcement operations, originated in the
    ATF's Phoenix office----
        Chairman Issa. That is not authorization. Who authorized it
    at the highest level?
        Mr. Weich. Again, Mr. Chairman, please, if you will permit
    me----
        Chairman Issa. Do you know who authorized it at the highest
    level? And don't answer Phoenix or Tucson or any part of
    Arizona, if you please.
        Mr. Weich. Well, Mr. Chairman, it is difficult to answer
    your questions if you won't permit me to answer them.
        Chairman Issa. I want the answer to my question, which was,
    who here in Washington authorized it? We know who looked at it
    on video. We know who authorized it effectively, at least by
    acquiescence. Who authorized this at Justice?
        Mr. Weich. Mr. Chairman, I do not know the answer to that
    question. And the inspector general is reviewing the matter.
        Chairman Issa. Then we will have somebody back who does.
        The ranking member is recognized.
        Mr. Cummings. Mr. Weich, let me apologize for that. You
    don't deserve that. Perhaps somebody else in the Department
    does.
        What is your role? What is your job?
        Mr. Weich. I am the Assistant Attorney General for the
    Office of Legislative Affairs, Congressman.
        Mr. Cummings. And these are not decisions that you make,
    are they, the questions that he was just asking about, the
    chairman was just asking about?
        Mr. Weich. That is correct.
        Mr. Cummings. And, as I have said many times, there is a
    certain level of integrity that we must maintain in this
    committee. I see this committee as just lower than a court. And
    I know, and I have said it to the chairman and I will say it
    over and over again, you have to go home to your family; you
    have colleagues who are watching this. And for you to be
    hollered at and treated that way I just think is unfair. And
    so, on behalf of the committee, I apologize.
        Chairman Issa. Would you gentleman yield?
        Mr. Cummings. No, I will not yield. I am trying to talk to
    the witness. I didn't interrupt you.
        Chairman Issa. No, and you didn't--I didn't----
        Mr. Cummings. But I will yield----
        Chairman Issa [continuing]. Say things on behalf of the----
        Mr. Cummings. I will yield as long as I keep the time.
        Chairman Issa. Hold the time.
        Would the gentleman please note, you may apologize on
    behalf of something you say. I am not apologetic----
        Mr. Cummings. Fine.
        Chairman Issa [continuing]. And you may not apologize on
    behalf of the committee.
        Mr. Cummings. Thank you. I----
        Chairman Issa. The gentleman may resume.
        Mr. Cummings. Let me say this: I apologize. Because we are
    better than that. We are better than that. And I do hope that
    we bring the appropriate people who can answer those questions.
    And even when they come, they should not be treated that way.
        On April 13th, you wrote to the committee to explain the
    extreme sensitivity of some of the documents covered by your
    committee's subpoena of, you know, open law enforcement files.
    You explained that the subpoena, ``encompasses records that
    would identify individuals who are assisting in the
    investigation and sources and investigative techniques that
    have not yet been disclosed.''
        But this is not all of the records, right? And I assume
    that it is just a small subset of subpoenaed documents and that
    you can redact such sensitive information; isn't that correct?
        Mr. Weich. That is correct, Congressman, and that is what
    we are trying to do.
        Mr. Cummings. Now, I can understand the chairman being
    upset, because I would be upset--but I wouldn't treat you like
    that--about somebody submitting to me some blanks pages. Can
    you explain that to me?
        Mr. Weich. Well, one thing that I want to make clear,
    Congressman, is that the number of pages that I cited in my
    testimony as having been produced or made available does not
    include such pages. Where those pages are redacted, it is part
    of a document showing where there was law-enforcement-sensitive
    information that we were unable to provide. But that is not
    included in the total.
        Mr. Cummings. And what were the total pages that you
    submitted?
        Mr. Weich. I will get you the exact numbers.
        Mr. Cummings. Well, while your staff is assisting you on
    that, let me get going.
        Mr. Weich. I have it.
        Mr. Cummings. Okay.
        Mr. Weich. We have physically produced more than 675 pages
    of documents and made available more than 900 additional pages
    for review.
        And I should say, this production is ongoing. We have made
    documents available and physically produced documents in each
    of the last 3 business days, and I expect the document
    production to continue.
        Mr. Cummings. The purpose of our investigation is to
    understand what occurred and who is responsible. Do you think
    that you will be able to provide sufficient documents to answer
    those core questions without disclosing highly sensitive
    records?
        Mr. Weich. I am sorry, Congressman. Could you----
        Mr. Cummings. In other words, you said that there are some
    confidentiality issues. And I am trying to get to--and you said
    that this certain policy spans over various administrations; it
    wasn't just Democratic administrations or Republican
    administrations.
        I am just asking you, is there a way that we can get--what
    I have often said, and I have said it before the hearing that
    the chairman referred to the other day, I said, we need to do
    two things--we have two things going on here. We are trying to
    look to see how far this thing went up, but at the same time we
    have these criminal prosecutions. And I am saying, is there a
    way that we can resolve those issues? Is that within your
    purview?
        Mr. Weich. Yes, it is. And I believe that we can do so. We
    are doing that by providing documents, by briefing the
    committee, by making documents available, and by facilitating
    witness interviews.
        We share the committee's goal in getting to the bottom of
    these questions. And we are assisting the committee at the same
    time that the Department, itself, has a review by the Office of
    Inspector General.
        Mr. Cummings. Now, you further explained that it is the
    public release of this information that presents the most risk
    to ongoing criminal investigations and prosecutions. You
    stated, ``Disclosure of these types of information may present
    risks to individuals' safety in the violent environment of
    firearms-trafficking activities. Disclosure may also
    prematurely inform subjects and targets about our investigation
    in a manner that permits them to evade and obstruct our
    prosecutorial efforts.''
        Even if we are not so upset about--and I am always
    concerned about prosecutions--the fact that somebody's life
    might be in danger gives me great concern, because I see it,
    living where I live, almost every day.
        So tell me something, what is the--can you give me a
    response to that?
        Mr. Weich. Yes. Congressman, some of these documents
    identify cooperating witnesses, they identify confidential
    informants. They describe a strategy as to specific cases,
    ongoing cases, and revealing that strategy could inform
    potential targets of the investigation of law enforcement
    activities. And it seems unwise.
        You, yourself, Ranking Member Cummings, highlighted a
    number of ways in which the committee investigation has already
    inadvertently overstepped the line and, for example, made
    public a sealed document.
        So we are concerned about this. We really think that, if we
    work cooperatively, we can help the committee avoid such
    missteps, help satisfy the committee's oversight interest, and
    get to the bottom of these questions.
        Mr. Cummings. Thank you very much.
        Chairman Issa. The gentleman's time has expired.
        The gentleman from Oklahoma is recognized. Would you yield
    to me for 30 seconds?
        Mr. Lankford. Absolutely.
        Chairman Issa. Did you provide those documents you say were
    released--that were sealed? The documents you are saying were
    prematurely released, were they provided by you under any kind
    of request?
        Mr. Weich. You know, I am not certain. If you will permit
    me to consult with my staff, I will be able to answer that
    question.
        Chairman Issa. Okay. Go ahead.
        Mr. Weich. I have the answer, Mr. Chairman. And the answer
    is, no, those were not documents we provided. Those were
    documents that your investigators obtained and then made public
    in spite of the court order that they not be made public.
        Chairman Issa. So you are saying that if we get documents
    that we have no idea, because you are not providing documents,
    that we are responsible?
        Mr. Weich. Yes. Mr. Chairman, it seems to me that you
    should ask the Justice Department whether sensitive documents
    should be made public. That particular document related to a
    wiretap, which is always a sensitive law enforcement step. And
    if the committee would consult with us, we would help the
    committee avoid----
        Chairman Issa. If you had given us those documents with
    appropriate guidance, that obviously wouldn't have happened.
    You didn't do it, and you had plenty of time to do it.
        I yield back to the gentleman.
        Mr. Lankford. Thank you.
        As I try to follow through this whole day and try to
    process what has been going on--February the 4th, there is a
    letter from Senator Grassley, back and forth with you, stating,
    ``The allegation that ATF sanctioned or otherwise knowingly
    allowed the sale of assault weapons to straw purchasers who
    transported them to Mexico is false.''
        On May the 2nd, you wrote again to Senator Grassley,
    reiterating, ``It remains our understanding that ATF's
    Operation Fast and Furious did not knowingly permit straw
    buyers to take guns into Mexico.''
        Yet I just asked some agents about that, and their
    statement was they think about 1,500 weapons are still out
    there, and probably two to one of those are in Mexico.
        Would you like to change your statement at all on that, or
    have anything that you would want to shift on your previous
    statements from February or May?
        Mr. Weich. Thank you, Congressman.
        The statements that you referred to are--let me say this.
    Every time the Justice Department sends a letter to Congress,
    it is true to the best of our knowledge at the time that we
    send it.
        Those particular statements remain true, for the technical
    reason that the committee's report, issued last night,
    described. The straw purchasers don't take guns to Mexico. And,
    in any event, ATF doesn't sanction or approve of the transfer
    of weapons to Mexico. That is obviously a crime.
        Mr. Lankford. But ATF did permit those knowingly,
    understanding they were headed toward the border, and that was
    well-known, apparently, among the Phoenix office and, as we can
    tell, going up the food chain, that these purchases were not
    being purchased by someone out, as was stated, bear hunting.
    These were straw purchasers buying in large quantities and
    headed toward Mexico.
        So how can we make a statement, we are not sanctioning
    that, but we are also not interdicting, we are not trying to
    stop it either.
        Mr. Weich. Right. So, obviously, allegations from the ATF
    agents you have heard from today and from others have given
    rise to serious questions about how ATF conducted its
    operation. And that is why the Attorney General instituted an
    investigation, and it is why we are cooperating in this
    committee's investigation.
        Mr. Lankford. Was there any communication with leadership
    in Mexico, so that if these weapons showed up in Mexico, we
    were actually doing a law enforcement process here to make sure
    they were both aware that these guns might be headed that way
    or that we had a working relationship when arrests were made,
    we would cooperate with them dealing with these arrests?
        Mr. Weich. Congressman, from my position in the Office of
    Legislative Affairs, I don't have personal knowledge of the
    kind of communication. My understanding is that, in general,
    there are close ties between U.S. law enforcement and Mexican
    law enforcement, including on gun investigations.
        So, as a general matter, the answer to your question is
    ``yes.'' As to specific cases, I am not in a position to say.
        Mr. Lankford. So are you saying they were aware that this
    Fast and Furious was going on and that guns were headed in
    their direction and they were involved in that process? Or
    there is just, we know their phone numbers and we occasionally
    call each other? This specific program is what I am talking
    about.
        Mr. Weich. Congressman, I am not in a position to answer
    that question with specificity.
        Mr. Lankford. Do you know who might be a good person that
    we could contact to get that kind of specific information?
        Mr. Weich. The committee has already interviewed one ATF
    agent, and, as I said, we are prepared to make other agents
    available. And these include high-ranking ATF officials. I
    would think that those individuals can speak with specificity
    to the question that you are asking.
        Mr. Lankford. Terrific.
        What other office besides the Phoenix office was doing this
    type of program?
        Mr. Weich. Congressman, I am not in a position to answer. I
    don't know the answer to that question.
        Mr. Lankford. Okay.
        Do know how many offices that DOJ has a relationship with
    that were informed about this operation as it was ongoing that
    might be engaged, at least have a--not necessarily approval,
    but at least acknowledgment, this is going on, just be aware,
    the Phoenix office is tracking straw buyers and they are out
    there, there may be as many as 1,500 guns, just be aware of
    that? Do we know how many other offices or agencies were aware
    of that?
        Mr. Weich. Are you saying offices or agencies of the
    Justice Department?
        Mr. Lankford. Well, agencies within Justice, yeah, that it
    has a relationship with.
        Mr. Weich. I don't know. There is close communication among
    the various U.S. attorney's offices and the law enforcement
    components. There are, you know, crosscutting meetings and task
    forces and so forth, including OCDETF. But I can't speak with
    specificity as to this operation.
        Mr. Lankford. Okay. Thank you.
        I yield back.
        Chairman Issa. I thank the gentleman.
        The gentleman from Missouri, Mr. Clay.
        Mr. Clay. Thank you, Mr. Chairman.
        And, Mr. Weich, from what I can see, the Department of
    Justice has worked hard to comply with the committee's very
    large document request. Not only have you gone to considerable
    lengths and cost, you have worked with majority committee staff
    to prioritize documents of great interest. You have briefed the
    committee not only on your ongoing processing of documents but
    on the case itself. On top of delivering many documents, you
    have made the most sensitive documents available for review by
    committee staff in ways that protect the documents' integrity.
        It seems to me that the Department is cooperating with the
    committee's extraordinary request. And I say ``extraordinary''
    because not only is the scope of the request very large but
    because of its timing--during ongoing criminal investigations
    as well as an ongoing IG investigation.
        Flashing back to when the committee was investigating
    Blackwater during the previous administration, a member of this
    committee, now in the majority, said that, ``We are supposed to
    allow the administration to do its investigation, and then we
    do oversight.''
        Now, I believe we have a legitimate interest in conducting
    oversight of the administration, but we should not jeopardize
    ongoing criminal cases or IG investigations just because a
    different party now holds the White House.
        Mr. Weich, in your statement, you explain that the
    Department has made certain documents available to committee
    staff for their review, but without providing copies. This is
    because the documents contain sensitive law enforcement
    material, and the Department needs to prevent their public
    disclosure.
        Mr. Weich. That is absolutely right, yes.
        Mr. Clay. And is this a common practice?
        Mr. Weich. Yes, it is a very common practice, as I detail
    in my written statement. For many years, the Department has
    used this process of making documents available. In order to
    maximize the number of documents that a committee can have
    access to, chairmen for many years have accepted this practice.
        And we do it because the rules of the House do not easily
    permit a committee to keep documents confidential. And, indeed,
    this committee has declined to provide any such assurances. So
    this is what we do. We make documents available physically that
    we are prepared to see be made public, and those that are not
    we make available to the committee investigators.
        Mr. Clay. And it is obvious that it is very disturbing to
    you and the Department, to the fact that, despite your
    procedures and clear warnings, the majority and Senator
    Grassley have inappropriately released sensitive documents?
        Mr. Weich. Let me say this, Congressman. I have, as the
    chairman noted, I have been here all morning, and I listened to
    Senator Grassley as well as to the Terry family and to the ATF
    agents who testified. The common view of all of the witnesses
    and the members of the committee is that it is vital that these
    prosecutions, most notably the prosecution of Agent Terry's
    alleged killers, be successful, that we not do anything to harm
    those prosecutions.
        Our effort to preserve confidentiality of certain law-
    enforcement-sensitive documents is in furtherance of that goal.
        Mr. Clay. And you wrote on Monday that you heard, during
    the hearing on Monday, that the committee is committed to not
    compromising the murder investigation or the broader gun-
    trafficking investigation through its oversight activities.
        Given what we found out about improper disclosures and
    improper contact with witnesses and the way that these hearings
    have been structured and conducted, I am not sure I agree with
    your assessment. I think that the majority's actions have come
    very close to compromising the investigations and prosecution,
    if they already have not done so.
        Do you still believe in the majority's commitment to not
    compromise these investigations?
        Mr. Weich. Congressman Clay, we want to work with the
    committee. We have an ongoing relationship with the committee
    staff. I think it is important for us to flag these warnings
    and maintain appropriate boundaries. But we share the
    committee's interest in getting to the bottom of these
    allegations, and so we will work with the committee.
        Mr. Clay. I thank the witness.
        Mr. Chairman, I yield back.
        Chairman Issa. I thank the gentleman.
        We now recognize the gentleman from Utah, Mr. Chaffetz.
        Mr. Chaffetz. When did you first talk to Attorney General
    Holder about this issue?
        Mr. Weich. As best as I can recall, it came up in
    preparation for his oversight hearings in May. He was asked
    about it, I think, by Chairman Issa----
        Mr. Chaffetz. Do you still hold tight to the--so you are
    suggesting that the letters that you sent on February 4, 2011,
    to Senator Grassley and, again, another letter on May 2, 2011,
    to Senator Grassley, that the content of those two letters is
    complete and accurate, as best you know?
        Mr. Weich. Congressman, I have said----
        Mr. Chaffetz. That is a ``yes'' or ``no'' question. Is it
    complete and accurate?
        Mr. Weich. Congressman----
        Mr. Chaffetz. ``Yes'' or ``no?''
        Mr. Weich. Well, respectfully, that is not susceptible to a
    ``yes'' or ``no'' answer.
        Mr. Chaffetz. Go ahead.
        Mr. Weich. Thank you.
        As the committee's report pointed out, there is a technical
    explanation for why the allegation that ATF sanctioned the sale
    of guns to straw purchasers who then transported them to Mexico
    is not an accurate statement, and so we said that that was
    false.
        However, serious allegations have come to light, including
    the testimony of the agents today, that cause Attorney General
    Holder to want there to be an independent review of this
    matter, and he has initiated that review.
        So we are not clinging to the statements in those letters.
    We are saying----
        Mr. Chaffetz. So if I said that I think somebody knowingly
    and willfully actually misled and lied to Congress, would I be
    off-base?
        Mr. Weich. Respectfully, Congressman, you would be, in that
    we make every effort to provide truthful information to
    Congress. I know that is something that I take very seriously--
    --
        Mr. Chaffetz. I would like to highlight--on January 8th--
    remember, these letters came out February 4th and May 2nd. But
    on January 8th--and I will quote from this internal document
    here from the Phoenix Field Division that indicated, on page 4,
    ``Currently, our strategy is to allow the transfer of firearms
    to continue to take place, albeit at a much slower pace, in
    order to further the investigation and allow for the
    identification of co-conspirators who would continue to operate
    and illegally traffic firearms to Mexican drug-trafficking
    organizations,'' and it goes on there.
        The administration knew in January before these letters
    came out that it was on purpose. It would continue to operate
    and illegally traffic firearms to Mexico.
        How can that stand? And how can you and the Department of
    Justice and people who take responsibility for this allow the
    lies to continue to come to Congress? Why did this Obama
    administration purposely allow the illegal transfer of more
    than 2,000 weapons that they knew, according to this memo, were
    going to go to Mexico?
        Mr. Weich. Congressman, you have asked questions that the
    Office of the Inspector General is looking at, that this
    committee is looking at, and we----
        Mr. Chaffetz. I want answers from you. That is why you are
    here. You have this document. You know that this is true.
        This memo goes on to say--and, again, in January: ``To
    date, there have been five notable seizure events connected
    with the group. Approximately 53 firearms originally purchased
    by this group have been recovered. Three of these seizures have
    been in the country of Mexico.''
        We knew that these were going south. And yet, in your
    letter, you state, ``It remains our understanding that ATF's
    Operation Fast and Furious did not knowingly permit straw-
    purchase buyers to take guns into Mexico.'' That is patently
    and totally false. How do you do that?
        When this comes out in January and again in May, you write
    and you tell this Congress that they did not knowingly permit
    straw purchasers to take guns into Mexico, in total
    contradiction of the memo of January 8th. How does that happen?
        Mr. Weich. Congressman, I have explained to you that we do
    our best to provide the information to Congress as we know it.
    As allegations have come to light, we have initiated an
    investigation and are cooperating with this committee's
    investigation.
        Mr. Chaffetz. Is Fast and Furious still ongoing?
        Mr. Weich. I don't believe so, Congressman. I am----
        Mr. Chaffetz. At what time did the Attorney General--did he
    order that it be taken down? Did we stop doing it? At what
    point did they actually say, all right, enough is enough?
        Mr. Weich. The Attorney General made very clear, as this
    matter came to light, that guns should never be walked to
    Mexico----
        Mr. Chaffetz. I know. I want to know when the Attorney
    General actually got engaged in this. Why didn't he know about
    it? When did he know about it? Or was he just oblivious to it?
        Mr. Weich. No, Congressman. He answered Chairman Issa's
    question on the House Judiciary Committee. The question was,
    when----
        Mr. Chaffetz. But I questioned him, also, on the House
    Judiciary Committee, if you remember. You were sitting in the
    row right behind him.
        Mr. Weich. I was.
        Mr. Chaffetz. And he said he didn't know when he first knew
    about it.
        So I am trying to figure out, when did he know about it?
    And then what did he do about it?
        Mr. Weich. He told Congressman Issa that he first learned
    about it several weeks before the hearing in connection with a
    press report.
        Mr. Chaffetz. And what I don't understand is, when you go
    back and look at the record, President Obama knew about it back
    in March. If the President knew about it, why didn't the
    Attorney General know about it? And why are you issuing a memo
    in May, when the President of the United States, in an
    interview with, I believe, Univision, is saying we know that
    there were some mistakes made? How does that happen?
        The President makes this comment, and then, still, months
    later, you have the gall to issue a memo to this Congress
    saying, that is just false, it is not true.
        That does not add up, and that is what this investigation
    is going to continue to pursue.
        I yield back.
        Chairman Issa. I thank the gentleman.
        If I may grant myself time for a colloquy because the
    gentleman does seem to be rather upset.
        I have read the statement. And if you were to parse words
    and determine the meaning of ``is,'' then you probably could
    say that, because the straw purchasers, the original buyers,
    did not take them to Mexico but, rather, transferred them to
    intermediaries, that, in fact, they did not knowingly take them
    into Mexico. I would not call it to whole truth, but I
    certainly understand why if someone is trying to deceive and
    mislead, that they could, in fact, write a letter like that and
    think that they technically didn't lie, and they would be
    correct.
        With that, we recognize next--oh, you haven't done yours?
        We recognize the gentleman from South Carolina, Mr. Gowdy.
        Mr. Gowdy. Thank you, Mr. Chairman.
        Sir, I know that you were here this morning while the
    members of the committee were--and I will say this with all the
    civility that I can muster. I think it is bitterly ironic that
    you would refer to committee missteps before you referred to
    ATF or DOJ missteps. In response to questioning from Mr. Issa,
    you used the phrase ``committee missteps.'' I think the purpose
    of this hearing is not so much our missteps, real or perceived,
    but the missteps of ATF and DOJ.
        So let me start by asking: When did anyone at DOJ know that
    firearms, in connection with this investigation, were going to
    Mexico?
        Mr. Weich. Congressman, that is not a question that I am
    equipped to answer. As I have said, the inspector general is
    looking at it, and we are cooperating in this committee's
    investigation.
        Mr. Gowdy. Well----
        Mr. Weich. And may I just say, Congressman, I didn't start
    out my testimony by talking about committee missteps. I didn't
    talk about it in my opening statement. I----
        Mr. Gowdy. No, sir, you did not. But it is bitterly ironic
    that the first criticism you would have or the first use of the
    word ``overstep'' would be of this committee and not of ATF and
    not of the U.S. attorney's office in Arizona.
        And I, frankly, am shocked at the relationship between ATF
    and that particular U.S. attorney's office. It is untenable and
    unworkable. And I would hope that someone at DOJ would ask some
    questions of the U.S. attorney's office in Arizona. I cannot
    imagine that kind of working relationship, where proffers are
    not allowed and subpoenas take 6 weeks to be approved. And I
    would be hopeful that you would ask that.
        So, you do not know when DOJ knew that firearms were going
    to Mexico?
        Mr. Weich. No, sir, I personally do not.
        Mr. Gowdy. All right. What is DOJ's policy on guns walking?
        Mr. Weich. The Attorney General has made very clear that
    guns cannot walk to Mexico. That is to say, it is a, per se,
    violation of law for guns to be transported across the border
    to Mexico.
        Mr. Gowdy. What is your definition of ``walking?''
        Mr. Weich. That, as the committee's report made clear, is
    the subject of much discussion within ATF. And----
        Mr. Gowdy. I am asking about DOJ.
        Mr. Weich. I am afraid I am not in a position to answer
    that question. I will say that it is----
        Mr. Gowdy. But you would agree that me physically handing
    someone who is a prohibited person a gun, that cannot be the
    only definition of ``walking?'' Having knowledge that a gun is
    leaving your area of surveillance or jurisdiction is
    ``walking,'' correct?
        Mr. Weich. I can't define ``walking.'' What I can say,
    Congressman, is that it is--this is a challenging enforcement
    environment, as I think you know as a former Federal
    prosecutor----
        Mr. Gowdy. I do. But I also have to tell you as a former
    Federal prosecutor, this is unprecedented. I have never heard--
    would you ever allow or sanction controlled substances--if it
    were controlled substances and not firearms, would you have
    ever allowed or sanctioned or permitted them to walk?
        Mr. Weich. First of all, there is a big difference. Drugs
    are per se illegal, and guns are not. The sale of a firearm or
    multiple firearms to an individual who is not a prohibited
    person is not illegal, of course.
        Mr. Gowdy. I am aware of that. Would you have allowed
    controlled substances to skip surveillance and go to Mexico?
        Mr. Weich. That is a question that is well beyond my area
    of responsibility or expertise. I will note that, of course,
    there are controlled buys in narcotics cases in order to pursue
    a drug conspiracy and pursue the highest levels of a drug
    conspiracy. I know that from my personal experience as a
    prosecutor.
        Mr. Gowdy. Who can we ask, who can we invite before this
    committee that can tell us definitively when the Department of
    Justice knew that guns were going into Mexico? Who would you
    invite us to invite?
        Mr. Weich. I think you are pursuing the right track, if I
    could be so presumptuous. You are obtaining documents, you are
    interviewing witnesses. You interviewed Agent Newell, who is
    one of the individuals mentioned in the testimony today as
    having been very involved in this. There are other agents and
    ATF officials who we are ready to provide for interviews----
        Mr. Gowdy. What about the U.S. attorney in Arizona? When
    did the U.S. attorney know that guns that were part of this--
    this was an OCDETF investigation, so it is impossible to argue
    the U.S. attorney's office wasn't part and parcel to it.
        When did the U.S. attorney in Arizona know that firearms
    were leaving the United States and going to Mexico?
        Mr. Weich. I don't know the answer to that question,
    Congressman Gowdy.
        But could I just say, I know Dennis Burke, the U.S.
    attorney there. He is a very hardworking, dedicated public
    servant. And what obviously happened here is there was a
    serious, profound disagreement about strategy. But the common
    goal of the U.S. attorney's office and all of the ATF agents is
    to interdict guns, to stop the gun trafficking to Mexico. So
    Mr. Burke, I am sure, was dedicated to that purpose.
        Mr. Gowdy. Sir, with respect, given the fact that you know
    Mr. Burke and I do not, would you share with him what was said
    this morning about the dissatisfaction with Federal law
    enforcement in Arizona and the relationship that they have with
    the U.S. attorney's office?
        Mr. Weich. Yes.
        Mr. Gowdy. Because that has not been my experience,
    certainly not in South Carolina and not in other jurisdictions.
    The level of animosity and the fighting between law enforcement
    and Federal prosecutors over something as simple as a proffer--
    are you aware of any U.S. attorney's office that doesn't engage
    or allow the use of proffers?
        Mr. Weich. It is obviously a common technique.
        Mr. Gowdy. Of course it is. There is no way to build a
    historical case without proffers.
        Since you know Mr. Burke and I do not, would you ask him to
    do what we can to repair his relationship with law enforcement?
    Because it appears to be fractured, from this vantage point.
        Mr. Weich. I would be happy to talk to him, but I am sure
    he is monitoring this hearing closely.
        Mr. Gowdy. Thank you.
        Chairman Issa. I thank the gentleman.
        We recognize the gentleman from Massachusetts, Mr. Lynch,
    for 5 minutes.
        Mr. Lynch. Thank you, Mr. Chairman.
        Just briefly, following up on that point, it would seem
    that the approach of at least the assistant U.S. attorney down
    there was to require corpus delicti, the body of the crime, to
    actually have the guns in order to proceed with the
    prosecution. If that is the case, I believe it is an improper
    application of the law.
        And since this committee is involved in overseeing that our
    laws, once passed by Congress, are indeed enforced, it would
    serve us all, I think, if we review that, the application of
    the law, if that indeed is the approach of the office down
    there.
        Mr. Weich. Congressman Lynch, if I may, one thing that has
    been brought to my attention is that the U.S. attorney's office
    has brought cases involving large numbers of guns--straw
    purchasers, individuals alleged to have trafficked guns without
    a license--and that those prosecutions have sometimes resulted
    in hung juries or directed verdicts of acquittal because of the
    high standard of proof, especially in the Ninth Circuit.
        So there may be something for Congress to look at in its
    legislative arena, as well.
        Mr. Lynch. Okay.
        With that, I will yield the balance of my time to the
    gentleman from Maryland, Mr. Cummings.
        Mr. Cummings. Thank you very much.
        Mr. Chairman, I want to submit our letter for the record
    requesting the minority day of hearings. It is dated June 15th,
    today.
        Chairman Issa. Thank you. I am in receipt of your request.
        Mr. Cummings. Well, I am asking that it be admitted into
    the record, Mr. Chairman. It is signed by the members of the--
    --
        Chairman Issa. Certainly. Without objection, so ordered.
        Mr. Cummings. Thank you very much.
        [The information referred to follows:]
        [GRAPHIC] [TIFF OMITTED] 71077.108

        [GRAPHIC] [TIFF OMITTED] 71077.109

        Mr. Cummings. I want to say this to you, Mr. Weich. I am
    sitting here and listening to all of this, and I want you to
    take a message back.
        Some kind of way, we have to establish--you know, the
    majority has some concerns, and I think many of them probably
    quite legitimate. And there has to be a balance here.
        I am always concerned about people possibly dying as a
    result of something we might do in this committee. I am
    concerned about murderers getting off. I have spent a
    phenomenal amount of time trying to protect witnesses. I have
    submitted legislation that has been held up on the Senate side
    by the other side trying to protect witnesses. I believe in
    ultimate cooperation between law enforcement and the public. I
    have a record of it for years. You know why? Because I go to
    the funerals, I see the deaths, I hear the cries, and I
    experience the pain.
        And some kind of way, we have to make sure that we strike
    the balance that I was just talking about. And I am not sure, I
    am just not sure, whether that balance has been struck the way
    it ought to be.
        This committee has a job to do. The Justice Department has
    a job to do. And some kind of way, we have to find a way, as
    the adults in all of this, to make that happen and make it
    work.
        And I am very serious about that. You know, life is short.
    And I tell my staff that every day I look in the mirror and I
    face my own mortality. And the question is, how can I be most
    effective and efficient? And when we do this ring-around-the-
    rosy stuff, what happens is that none of us are effective.
        And you heard me make a commitment to that lady, Ms. Terry,
    I shall not rest until everybody involved in this process--and
    I mean that--I shall not rest until all of that is addressed.
        Now, the chairman said something that was very interesting.
    He, a moment ago, spoke about all of this transparency and we
    need to read the whole document, and I appreciate that. But the
    one thing he did not say about this memo on January 5th, he
    didn't read this piece. You remember, Mr. Chaffetz mentioned
    this memo. So they read a piece of the memo, but they didn't
    read all of it.
        And let me just read this line so that the record will be
    clear. This is on January 5, 2010. It says, ``Investigative and
    prosecution strategies were discussed, and a determination was
    made that there was minimal evidence at this time to support
    any type of prosecution.''
        I just wanted to finish that, because I think it is
    important, particularly in the light of the chairman saying
    that we needed to have the whole statement.
        And, with that, I will yield back.
        Chairman Issa. I thank the gentleman.
        We now go to the gentlelady from New York, Ms. Buerkle.
        Ms. Buerkle. Thank you, Mr. Chairman.
        And thank you, Mr. Weich, for being here today.
        I have a couple questions. You keep alluding to the inquiry
    and the investigation that the IG is going to conduct at the
    request of----
        Mr. Weich. That office is currently conducting that
    investigation.
        Ms. Buerkle. Okay. All right. So are you concerned that
    their investigation is going to conflict or interfere with
    DOJ's investigation?
        Mr. Weich. Oh, you mean the criminal investigation?
        Ms. Buerkle. Yes, the IG----
        Mr. Weich. The inspector general has a good deal of
    experience in avoiding those kinds of conflicts. And, of
    course, their work is strictly confidential. Any report that
    they would issue publicly would be carefully vetted to avoid
    those kinds of concerns.
        Ms. Buerkle. And so, you are not concerned that that will
    interfere with the DOJ's investigation, just to be clear?
        Mr. Weich. We are not concerned.
        Ms. Buerkle. Okay. Then why are you concerned with this
    investigation? That is continually what we hear; ``Well, there
    is an ongoing investigation.'' And so we feel we are not
    getting the answers we need, because you are concerned about
    compromising this other investigation.
        So I would like you to differentiate for this committee.
        Mr. Weich. Sure.
        Well, first of all, Congresswoman, we are not saying that
    this committee should not investigate. To the contrary, we
    recognize the legitimate oversight interest, and we are
    cooperating with the committee as it pursues this. So we are
    not in any way saying, don't do this.
        Ms. Buerkle. But if I could interrupt for a minute, there
    is a de facto--if you don't provide what is being asked or you
    provide what we see here, all those redacted sheets, whether or
    not you agree we have legitimate oversight, the fact that you
    are not complying with our request is a de facto, well, you are
    not going to comply.
        Mr. Weich. We have provided almost 2,000 documents in
    different forms.
        The redacted documents that the chairman showed, it is a
    little bit of a red herring, I say with respect, because those
    were multi-subject documents, I am informed. And where the
    subject wasn't the subject, you know, that portion of the memo
    wasn't responsive to the subpoena, it was blacked out because
    we are obviously not producing nonresponsive material.
        We are not redacting heavily the material that the
    committee is seeking and that is within its core oversight
    arena.
        Ms. Buerkle. Well, with all due respect, I think this
    committee would disagree with your assessment. We feel like we
    have been stonewalled and we have not gotten the information
    that we have requested from DOJ. But I don't want to take up
    all my time on that line of questioning.
        You sat here this morning during the second panel with the
    three special agents. Did you hear them say that this was the
    first time, and perhaps the only time, they had seen such an
    operation as this one exist?
        Mr. Weich. I did hear them say that.
        Ms. Buerkle. Okay. And is that of any concern to you, that,
    out of nowhere, there is this Fast and Furious program that
    results in the death of Brian Terry?
        Mr. Weich. It is obviously--some of the testimony that was
    provided today is of great concern to the Justice Department.
    And that is why we are investigating it through the Office of
    the Inspector General and cooperating with this committee's
    investigation.
        Ms. Buerkle. Is this the first time you have heard any of
    that testimony?
        Mr. Weich. I have been generally aware of it. In my role as
    the head of the Office of Legislative Affairs, I have obviously
    been aware of this for a number of months.
        Ms. Buerkle. And when you say you are generally aware, what
    does that mean?
        Mr. Weich. I have been involved in producing responses to
    letters. I have been in discussions about how to comply with
    the committee's subpoena. So I have been aware.
        I must say, I was very pleased to be here today to hear
    personally all of the testimony that was provided.
        Ms. Buerkle. And before I get on to my last question, did
    you hear the issue they raised regarding retaliation?
        Mr. Weich. I did. And I thank you, Congresswoman. I want to
    assure the committee--I think a number of Members raised this--
    that the Department of Justice will not, would never, retaliate
    against whistleblowers.
        Ms. Buerkle. Last, I asked the family of Brian Terry, if
    they had the ability to ask a question, what they would like to
    know. So I am going to read the question that Mr. Heyer gave us
    to ask you, and I would like you, to the best of your ability,
    to answer this question.
        ``I think that we would want to know if the dragnet that is
    set to find everyone involved in Brian's murder will be set
    deep enough and wide enough to encompass anyone involved in
    Operation Fast and Furious.''
        Mr. Weich. The answer to that question is unequivocally
    ``yes.'' There is a firm commitment in the Department of
    Justice to bring everyone responsible for Agent Terry's death
    to justice.
        Ms. Buerkle. And the second part of his question: ``If the
    guns used in Brian's murder were a part of this operation, then
    we would want to know, will everyone in the operation that had
    to deal with those specific weapons be brought up on charges of
    facilitating the murder of Brian Terry?''
        Mr. Weich. Obviously, the whole purpose of the
    investigations that are ongoing, both in the Office of the
    Inspector General and here, is to ensure that there is
    accountability for the decisions that have been made, and, most
    importantly, to improve, to strengthen our law enforcement
    efforts. If there were flawed strategies, if there was an
    insufficient surveillance of weapons, obviously that is
    something that the Justice Department wants to rectify.
        Ms. Buerkle. Thank you.
        I yield back, Mr. Chairman.
        Chairman Issa. I thank the gentlelady.
        We now recognize the gentleman from Texas, Mr. Farenthold,
    for 5 minutes.
        Mr. Farenthold. Thank you, Mr. Chairman.
        I assume you all are investigating various crimes that were
    associated with these guns. Aside from the tragic murder of
    Agent Terry, are there any other American law enforcement
    officers or citizens who have died as a result of this program?
        Mr. Weich. Congressman, I can't accept the premise of the
    question. I don't know that any particular murder can be
    attributed to this program. I think that assumes a lot of
    facts, and I am just not equipped to deal with that. So I can't
    answer the question because I can't accept the premise.
        Mr. Farenthold. All right. Let's talk about--you heard the
    testimony this morning of the agents this morning saying that
    there was some sort of strategy, that we would allow these guns
    to move up the chain of command with the rather nebulous goal
    of snaring a drug cartel.
        Are you aware, is this the strategy? And if so, can you
    tell me on any rational basis how the means that we used
    justified the ends, when we quit following the guns as soon as
    they changed hands the first time? There was no cooperation
    with the Mexican authorities, and it just seems like once they
    did the first hop, we just went away.
        Mr. Weich. Congressman, one thing I heard loud and clear
    from the ATF testimony today, from those agents, was that the
    people with whom they disagreed on the strategic questions told
    them and believed that they were engaged in a strategy to
    topple a significant transnational gun-trafficking operation.
        If the strategy was flawed, then individuals should be held
    to account and the strategies should be improved. But I did
    hear that everybody had the goal of stopping illegal gun
    trafficking to Mexico.
        Mr. Farenthold. To me, it seems like the next step is you
    follow the guns all the way. The actions that appear to have
    been taken don't seem to have any relationship to the strategy
    at all. But I have a couple other questions, so we are going to
    leave that.
        You have been reluctant to provide information and answer
    questions, continually citing ongoing criminal investigations
    and not wanting criminals to go free or jeopardize these
    investigations. But my understanding--and I am a lawyer--my
    understanding of our justice system is that the defendant is
    entitled to all exculpatory evidence. So if we have something
    that will help the defense, we are obliged to turn it over.
        So it seems like you ought to go ahead and turn it over to
    us so we can finish our investigation and meet your legal
    obligation to any defendants in this case for full disclosure.
        Mr. Weich. Congressman, we are certainly going to meet our
    constitutional obligations to the defendants.
        I would note that when the committee interviews potential
    trial witnesses, you are creating material that wouldn't
    otherwise exist that may be used to impeach witnesses at trial.
        Mr. Farenthold. I mean, we are after the truth. And
    regardless of whether it comes out in front of this committee
    or comes out in front of a trial shouldn't matter.
        Let me go on. You also say that there are some concerns
    with releasing information to us that would jeopardize other
    investigations and other strategies and programs.Is that
    correct?
        Mr. Weich. Yes.
        Mr. Farenthold. Would you be willing to provide a briefing
    to all or some of this committee on a classified basis about
    that?
        I think you have sensed a lot of anger--I would go so far
    as to say anger--from this committee that our government is
    engaged in what we perceive to be a reckless operation. Even if
    in a classified manner you could assure us you guys aren't so
    far off the reservation that there is a problem, I think it
    would go a long way to stemming some of the, for lack of a
    better word, adversarial conversations that are going on here.
        Mr. Weich. I hear you, Congressman. First of all, we would
    be pleased to brief the committee. We have briefed the
    committee and will continue to do so.
        It should not be adversarial. I want to emphasize this. We
    share the committee's concern about the matters that you heard
    about this morning. We are not adversarial to you in this. We
    are trying to get to the bottom of this, ourselves.
        Mr. Farenthold. And I will yield my remaining 30 seconds to
    the chair.
        Chairman Issa. I thank the gentleman.
        You made a statement in that letter that you signed on the
    4th that said, ``ATF makes every effort to interdict weapons
    that have been purchased illegally and prevent their
    transportation to Mexico.''
        Who prepared that line in your letter?
        Mr. Weich. Chairman Issa, the----
        Chairman Issa. You signed it. Who prepared it? Was it you?
        Mr. Weich. These letters are the product of the Justice
    Department----
        Chairman Issa. So your signature on that letter doesn't
    mean that you know it to be true; is that correct?
        Mr. Weich. I take ultimate responsibility----
        Chairman Issa. Okay. Isn't that statement false now, with
    what you know?
        Mr. Weich. Obviously, there have been allegations that call
    into serious question that particular----
        Chairman Issa. Weren't there documents that now have been
    provided and made public that let you know that that statement
    was false?
        Mr. Weich. And that is why you are investigating, and that
    is why we are investigating.
        Chairman Issa. I will just take your agreement that those
    documents indicate that that statement that you signed that
    someone prepared for signature were false.
        Mr. Weich. Congressman, I am not prepared to say that at
    this time. Everything that we say is true to the best of our
    knowledge at the time we say it. As more facts come out,
    obviously our understanding of the situation is enhanced.
        Chairman Issa. Just for the record, we will be posting
    online the 20-some pages that were made available, since, out
    of the 20-some pages, the only thing that is not redacted,
    other than ``internal use only'' statements, is, ``Kevin
    Simpson, Acting Division Operations Officer, U.S. Department of
    Justice, ATF, 201 East Washington Street, Suite 940, Phoenix,
    Arizona,'' and the ZIP. The phone numbers are redacted. That is
    100 percent of what you call ``discovery.''
        Would the ranking member like a second round?
        Mr. Cummings. I just have one question.
        Chairman Issa. The gentleman is recognized.
        Mr. Cummings. It is just following up on what you just were
    talking about.
        Let me ask you this, Mr. Weich. Again, I want to go back to
    trying to be effective and efficient. Again, I am tired of--
    when we are put in a position of where we are wasting time. You
    know, we may be dead next week. So I am just being very frank
    with you: I am tired. I don't want to waste time. Life is
    short.
        This is the question: If you got assurances, if the
    Department got assurances that we would not be disclosing
    documents that are extremely sensitive and agrees to, you know,
    try to make sure that--and we would commit to working out
    accommodations where we could go through--I mean, you submit
    the documents, we go through them, making sure that--and we
    sort of go through them together, come up with some type--would
    you be willing to come up with some kind of schedule whereby we
    can get what we want, you can be assured that we are not doing
    something that interferes with the kinds of things that you
    just talked about?
        Mr. Weich. We will work with you, Congressman. We strongly
    favor that kind of cooperative accommodation process. It is
    traditional. And, in this instance, where we recognize the
    committee's legitimate oversight needs, we want to lean into
    that process and do as much as we can to provide information to
    the committee.
        Mr. Cummings. Well, would you all be willing to commit to a
    schedule, a document-production schedule?
        See, this is what I am getting to. We can do this all day.
    And a new Congress will be in. And that is why I am talking the
    way I am talking. We have to get stuff done. And I can't--we
    cannot keep our commitment to Ms. Terry by doing this back-and-
    forth thing. It is a waste of time, it is a waste of effort,
    and life is short.
        Mr. Weich. I hear you, Congressman.
        Mr. Cummings. So I am trying to get you to--I am trying to
    help you help us----
        Mr. Weich. I understand.
        Mr. Cummings [continuing]. And, hopefully, help yourself at
    the same time. So, I mean, if we can work something out, can we
    move past this?
        Mr. Weich. Yeah. We----
        Mr. Cummings. Because, obviously, the majority feels like
    we are not moving fast enough, and I can understand that--that
    you are not moving fast enough. I know you have all kinds of--I
    think you said you had something like 700,000 pages or
    something like that.
        Mr. Weich. More than that.
        Mr. Cummings. Okay. What would you suggest? Let me put it
    another way. What kind of arrangements would you suggest so
    that we don't keep running into this wall?
        Mr. Weich. I don't think we have hit a wall. I don't think
    we are at an impasse. I think we are now on track. Obviously,
    it may have been a bumpy start. But we have produced documents
    in each of the last 3 working days. We made a witness available
    for an interview, and we have a list of others we are ready to
    facilitate interviews of.
        We are doing what I think you are asking, Congressman,
    which is trying to accommodate the committee's needs,
    consistent with our confidentiality interests.
        Mr. Cummings. Well, would you, after this, try to sit down
    with us and try to see if we can't--I mean, it is up to the
    chairman; he is the chairman of the committee--but see if we
    can work out something where we can get documents and set up a
    schedule so we can get these documents faster? The last 3 days
    is wonderful, but I think we need to try to see if we can move
    the process along a little bit.
        Mr. Weich. I would be pleased to do that. I would welcome
    that. One thing I would say is, we have devoted substantial
    resources, attorneys, full-time to review these documents. We
    have hired a contractor to help us put these in a form that
    they can be efficiently reviewed. So we are rolling here.
        Mr. Cummings. You know, one of the problems here is
    something that I talk about a lot--and I would recommend this
    book to you. It is called ``The Speed of Trust'' by Covey. And
    he just talks about, when people don't trust each other, it
    slows down everything. When they trust each other, it speeds it
    up.
        And I think maybe we need to--I know you all are worried
    about documents being released. It seems like we are worried
    about not getting all of the documents timely. Sometimes we
    have to break through that so that we can do the work of the
    American people.
        And, with that, I yield back.
        Chairman Issa. I thank the gentleman.
        And I will close more patiently than I opened.
        Would you agree to voluntarily provide a list of DOJ and/or
    other personnel that prepared or participated in the preparing
    of the February 4th letter that we have had so much discussion
    about?
        Mr. Weich. Congressman, I am not prepared to make that
    commitment at this time. These letters are the product of
    substantial deliberation within the executive branch. As I
    said----
        Chairman Issa. Would you agree to make available a list of
    personnel who worked on and may have in some way been
    responsible specifically for the misstatement in the letter
    that says ATF makes every effort to interdict weapons that have
    been purchased illegally and prevent the transportation to
    Mexico?
        Mr. Weich. I am not prepared to make that commitment at
    this time. What I am prepared to commit to is an ongoing effort
    to help the committee get to the underlying questions here
    about ATF's law enforcement activities.
        Chairman Issa. Now, just for the record, your job, the
    reason you are paid and basically have the title you have is to
    answer Congress' questions.
        Mr. Weich. That is a big part of my job.
        Chairman Issa. Roughly 5 months ago, Senator Grassley was
    told by your office in writing that he wasn't going to get
    answers because he wasn't a chairman. You are aware of that,
    right?
        Mr. Weich. I am. I mean, that is not an accurate statement.
    I mean, if I may, respectfully----
        Chairman Issa. Or, more specifically, that----
        Mr. Weich [continuing]. Mr. Chairman. It is not that he
    won't get answers----
        Chairman Issa [continuing]. Chairman Leahy would have to
    request them.
        Mr. Weich. We have answered Senator Grassley's letters. We
    have great respect for Senator Grassley, with whom the
    Department has worked on many projects over the years quite
    productively.
        As to oversight, it is the long-time position of the
    executive branch, through administrations of both parties, that
    the Congress, each house of Congress, speaks through its
    committees as to oversight. And so, you are exercising the
    power of the House. No Senate chairman has made a parallel
    request.
        Chairman Issa. And I am well aware that for 2 years of this
    administration, there were no Republicans able to make those
    requests and have them granted, and the requests generally were
    not made at all. That is, in fact, the position of the majority
    here, is that there wasn't valid oversight for those 2 years.
        It is my personal position--and I will go on the record
    today, since people were kind enough to read things from the
    past--that we need to have legitimate minority rights and that,
    at some future time in Congress and each time the rules are
    produced, I am going to try to have a party of the opposite
    party of the President, even if they are the minority, have
    rights. Because I think it is wrong that, in fact, the majority
    ultimately often finds itself asked and encouraged to protect
    the administration.
        I was here for the Bush administration. I was more junior,
    but I certainly saw people in your position constantly cajoling
    us to protect the President. I don't approve of it. I now
    appreciate just how wrong that was.
        Having said that, I will, on behalf of the committee,
    suggest something that you may take back to DOJ. If you are
    willing to do in-camera review 100 percent unredacted--I
    repeat, 100 percent unredacted--and please don't say it is
    unacceptable because it is obviously above your pay grade--you
    prepare, we come over--``we'' being the staff--they look at the
    unredacted material. To the extent that we can agree on mutual
    redactions, then the materials are sent over. To the extent
    that we disagree, then we can talk in terms of documents that
    have been seen but are not available, are not releasable, do
    not fall within your concerns.
        Because I share your concerns, that our rules are such
    that, once something comes over here, with the exception of the
    Select Intelligence Committee, it becomes much more problematic
    as far as release. I want to get around that. I want to work
    with Justice on it.
        I cannot, from this side of the dais, accept any
    responsibility for documents that are leaked by third parties
    who get them. And I cannot enter into a negotiation where you
    tell us you are going to redact what we got around you while
    you don't even let us see unredacted versions in-camera. There
    has never been a time in which I was more animated than when my
    staff came back from that breakthrough meeting to find out that
    they had mostly black pages as your response in-camera.
        So please take back, on behalf of this Member and I hope
    the minority, that we should be trusted to send over career
    professional staff to look at unredacted documents,
    understanding we are not taking them with us, until or unless
    there is an agreement to how they would be appropriately
    redacted.
        That is an extension I am putting on the record. Until that
    occurs, we will continue to expect discovery and we will
    continue to object to getting virtually all black pages.
        With that, I think the ranking member has a question.
        Mr. Cummings. Would the gentleman yield just for a second?
        Chairman Issa. Of course.
        Mr. Cummings. I am assuming that the message that you are
    sending to higher-ups, that would include both sides, staff
    from both sides----
        Chairman Issa. That is exactly the intention.
        Mr. Cummings [continuing]. Simultaneously----
        Chairman Issa. It is a simultaneous----
        Mr. Cummings. Okay.
        Chairman Issa. Our policies--and for those who may want to
    be aware of it--our policies are that, in fact, anything that
    is received as a document production is received to both sides.
        As you know, Mr. Weich, normally we ask you to send copies
    to both sides simultaneously. In the case of an in-camera, we
    would expect that staff would be detailed from both sides to go
    over and review it.
        But we will only come back for in-camera review if, in
    fact--and we will send cleared personnel, you know, pre-agreed
    to from both sides, if that becomes an issue. But we have to
    look at the source material, if an in-camera review will be
    appropriate. No judge is going to look at redacted material as
    in-camera. Certainly, you wouldn't expect us to see a part of a
    document that does us very little good and then say, ``Well,
    yes, we had production.''
        Mr. Weich. Well, Mr. Chairman, I appreciate your
    recognition that I can't, sort of, negotiate this kind of thing
    at the witness table. But I can assure you that we will work
    with you on these kind of process concerns. That is the mode
    that we are in, trying to help the committee address its
    oversight needs.
        Chairman Issa. We look forward to that.
        This has been difficult. I will go again, last, on the
    record that we believe that there has been some breakthrough in
    the last week or so. We are thankful for the breakthrough. It
    has been a while in coming. But, hopefully, it is the last time
    that we will have a logjam with that.
        And, with that, this hearing stands adjourned.
        [Whereupon, at 2:08 p.m., the committee was adjourned.]