[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




                  U.S. GOVERNMENT PRINTING OFFICE
71-077                    WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001




              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:]
[GRAPHIC] [TIFF OMITTED] 71077.005

[GRAPHIC] [TIFF OMITTED] 71077.006

[GRAPHIC] [TIFF OMITTED] 71077.007

[GRAPHIC] [TIFF OMITTED] 71077.008

[GRAPHIC] [TIFF OMITTED] 71077.009

[GRAPHIC] [TIFF OMITTED] 71077.010

[GRAPHIC] [TIFF OMITTED] 71077.011

[GRAPHIC] [TIFF OMITTED] 71077.012

[GRAPHIC] [TIFF OMITTED] 71077.013

[GRAPHIC] [TIFF OMITTED] 71077.014

[GRAPHIC] [TIFF OMITTED] 71077.015

[GRAPHIC] [TIFF OMITTED] 71077.016

[GRAPHIC] [TIFF OMITTED] 71077.017

[GRAPHIC] [TIFF OMITTED] 71077.018

[GRAPHIC] [TIFF OMITTED] 71077.019

[GRAPHIC] [TIFF OMITTED] 71077.020

[GRAPHIC] [TIFF OMITTED] 71077.021

[GRAPHIC] [TIFF OMITTED] 71077.022

[GRAPHIC] [TIFF OMITTED] 71077.023

[GRAPHIC] [TIFF OMITTED] 71077.024

[GRAPHIC] [TIFF OMITTED] 71077.025

[GRAPHIC] [TIFF OMITTED] 71077.026

[GRAPHIC] [TIFF OMITTED] 71077.027

[GRAPHIC] [TIFF OMITTED] 71077.028

[GRAPHIC] [TIFF OMITTED] 71077.029

[GRAPHIC] [TIFF OMITTED] 71077.030

[GRAPHIC] [TIFF OMITTED] 71077.031

[GRAPHIC] [TIFF OMITTED] 71077.032

[GRAPHIC] [TIFF OMITTED] 71077.033

[GRAPHIC] [TIFF OMITTED] 71077.034

[GRAPHIC] [TIFF OMITTED] 71077.035

[GRAPHIC] [TIFF OMITTED] 71077.036

[GRAPHIC] [TIFF OMITTED] 71077.037

[GRAPHIC] [TIFF OMITTED] 71077.038

[GRAPHIC] [TIFF OMITTED] 71077.039

[GRAPHIC] [TIFF OMITTED] 71077.040

[GRAPHIC] [TIFF OMITTED] 71077.041

[GRAPHIC] [TIFF OMITTED] 71077.042

[GRAPHIC] [TIFF OMITTED] 71077.043

[GRAPHIC] [TIFF OMITTED] 71077.044

[GRAPHIC] [TIFF OMITTED] 71077.045

[GRAPHIC] [TIFF OMITTED] 71077.046

[GRAPHIC] [TIFF OMITTED] 71077.047

[GRAPHIC] [TIFF OMITTED] 71077.048

[GRAPHIC] [TIFF OMITTED] 71077.049

[GRAPHIC] [TIFF OMITTED] 71077.050

[GRAPHIC] [TIFF OMITTED] 71077.051

[GRAPHIC] [TIFF OMITTED] 71077.052

[GRAPHIC] [TIFF OMITTED] 71077.053

[GRAPHIC] [TIFF OMITTED] 71077.054

[GRAPHIC] [TIFF OMITTED] 71077.055

[GRAPHIC] [TIFF OMITTED] 71077.056

[GRAPHIC] [TIFF OMITTED] 71077.057

[GRAPHIC] [TIFF OMITTED] 71077.058

[GRAPHIC] [TIFF OMITTED] 71077.059

[GRAPHIC] [TIFF OMITTED] 71077.060

[GRAPHIC] [TIFF OMITTED] 71077.061

[GRAPHIC] [TIFF OMITTED] 71077.062

[GRAPHIC] [TIFF OMITTED] 71077.063

[GRAPHIC] [TIFF OMITTED] 71077.064

[GRAPHIC] [TIFF OMITTED] 71077.065

[GRAPHIC] [TIFF OMITTED] 71077.066

[GRAPHIC] [TIFF OMITTED] 71077.067

[GRAPHIC] [TIFF OMITTED] 71077.068

[GRAPHIC] [TIFF OMITTED] 71077.069

[GRAPHIC] [TIFF OMITTED] 71077.070

[GRAPHIC] [TIFF OMITTED] 71077.071

[GRAPHIC] [TIFF OMITTED] 71077.072

[GRAPHIC] [TIFF OMITTED] 71077.073

[GRAPHIC] [TIFF OMITTED] 71077.074

[GRAPHIC] [TIFF OMITTED] 71077.075

[GRAPHIC] [TIFF OMITTED] 71077.076

    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:]
    [GRAPHIC] [TIFF OMITTED] 71077.077
    
    [GRAPHIC] [TIFF OMITTED] 71077.078
    
    [GRAPHIC] [TIFF OMITTED] 71077.079
    
    [GRAPHIC] [TIFF OMITTED] 71077.080
    
    [GRAPHIC] [TIFF OMITTED] 71077.081
    
    [GRAPHIC] [TIFF OMITTED] 71077.082
    
    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:]
    [GRAPHIC] [TIFF OMITTED] 71077.083
    
    [GRAPHIC] [TIFF OMITTED] 71077.084
    
    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:]
    [GRAPHIC] [TIFF OMITTED] 71077.085
    
    [GRAPHIC] [TIFF OMITTED] 71077.086
    
    [GRAPHIC] [TIFF OMITTED] 71077.087
    
    [GRAPHIC] [TIFF OMITTED] 71077.088
    
    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:]
    [GRAPHIC] [TIFF OMITTED] 71077.089
    
    [GRAPHIC] [TIFF OMITTED] 71077.090
    
    [GRAPHIC] [TIFF OMITTED] 71077.091
    
    [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:]
    [GRAPHIC] [TIFF OMITTED] 71077.100
    
    [GRAPHIC] [TIFF OMITTED] 71077.101
    
    [GRAPHIC] [TIFF OMITTED] 71077.102
    
    [GRAPHIC] [TIFF OMITTED] 71077.103
    
    [GRAPHIC] [TIFF OMITTED] 71077.104
    
    [GRAPHIC] [TIFF OMITTED] 71077.105
    
    [GRAPHIC] [TIFF OMITTED] 71077.106
    
    [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.]

                                 
