[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
IG REPORT: THE DEPARTMENT OF JUSTICE'S OFFICE OF THE INSPECTOR GENERAL
EXAMINES THE FAILURES OF OPERATION FAST AND FURIOUS
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2012
__________
Serial No. 112-186
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania
VACANCY
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 September 20, 2012............................... 1
WITNESSES
Mr. Michael E. Horowitz
Oral Statement............................................... 6
Written Statement............................................ 8
APPENDIX
The Honorable Darrell Issa, Chairman, Hearing Preview Statement.. 72
The Honorable Elijah E. Cummings, a Member of Congress from the
State of Maryland, Opening Statement........................... 74
Emails on ATF GunRunner.......................................... 76
Revised Grassley letter.......................................... 78
Reponse letter from Michael E. Horowitz.......................... 79
IG REPORT: THE DEPARTMENT OF JUSTICE'S OFFICE OF THE INSPECTOR GENERAL
EXAMINES THE FAILURES OF OPERATION FAST AND FURIOUS
----------
Thursday, September 20, 2012,
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:36 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Burton, Platts, Chaffetz,
Walberg, Lankford, Amash, Gosar, Labrador, Meehan, DesJarlais,
Gowdy, Ross, Farenthold, Kelly, Cummings, Towns, Maloney,
Norton, Kucinich, Clay, Lynch, Connolly, Quigley, Davis,
Braley, and Murphy.
Also Present: Representatives Adams and Barber.
Staff Present: Ali Ahmad, Majority Communications Advisor;
Robert Borden, Majority General Counsel; Molly Boyl, Majority
Parliamentarian; Lawrence J. Brady, Majority Staff Director;
Sharon Casey, Majority Senior Assistant Clerk; Steve Castor,
Majority Chief Counsel, Investigations; John Cuaderes, Majority
Deputy Staff Director; Carlton Davis, Majority Counsel; Jessica
L. Donlon, Majority Counsel; Kate Dunbar, Majority Legislative
Assistant; Linda Good, Majority Chief Clerk; Christopher Hixon,
Majority Deputy Chief Counsel, Oversight; Henry J. Kerner,
Majority Senior Counsel for Investigations; Beverly Britton
Fraser, Minority Counsel; Kevin Corbin, Minority Deputy Clerk;
Ashley Etienne, Minority Director of Communications; Susanne
Sachsman Grooms, Minority Chief Counsel; Devon Hill, Minority
Staff Assistant; Carla Hultberg, Minority Chief Clerk; Adam
Koshkin, Minority Staff Assistant; Una Lee, Minority Counsel;
Dave Rapallo, Minority Staff Director; Donald Sherman, Minority
Counsel; and Carlos Uriarte, Minority Counsel.
Chairman Issa. The Committee will come to order.
The Oversight Committee exists 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. It is our job to work tirelessly in partnership
with citizen watchdogs to deliver the facts to the American
people and bring genuine reform to the Federal bureaucracy.
This is our mission.
Today we are dealing with exactly that kind of a situation.
The IG's report, issued yesterday, began with watchdogs and
whistleblowers making us aware of a fatally flawed operation
known as Fast and Furious.
Before I begin with my opening statement in earnest, I want
to first take time to thank Mr. Horowitz. On behalf of the
Committee on Oversight and Government Reform, I want to
congratulate him on, in fact, delivering an extremely
comprehensive, strong, and independent report.
Mr. Horowitz is not new to the Department, but he is new to
this job, and, as inspector general, a Senate-confirmed
nomination of March 29th; and when you were sworn in on August
16th we all asked the question can you pick up and do this kind
of a job on such a monumental task that had already languished
for a period of time before your entrance. Yesterday you proved
to both sides of the aisle that you could, and I want to
personally thank you.
I note that, in fact, IGs serve a purpose that, in fact, we
do not get and have not gotten from any administration. If not
for the 74 IGs and the 12,000 men and women that work for them,
the level of transparency, accountability over waste, fraud,
abuse of power, abuse of discretion, and the like would not be
possible. This Committee, more than any other in the Congress,
relies on their work, and yesterday we were not disappointed.
The 471-page report released yesterday is a huge step
forward toward restoring the public faith in the Department of
Justice. I was impressed with the professionalism and
thoroughness and scope of the report. I know, having been, only
the day before, with Brian Terry's family in Arizona, where we
dedicated the Border Patrol station he worked out of before his
untimely murder in 2010, that they too undoubtedly were
impressed that a great deal of the closure they wanted by
responsible parties at all levels was met yesterday.
The conclusions after 19 months of hard work, of course,
are greater than some would want and fall short of what others
would want. They cannot, by definition, bring complete closure
because even the IG, in his report, still has some questions.
There were some individuals and some documents that are not yet
available. But like any document, you have to, at some point,
cut it off, come as you are and bring what you have. I think
this was the appropriate time. I am particularly pleased that
we waited an additional week to allow for materials that
otherwise might not have been in the report.
This Committee has had a difficult relationship with
Justice, much of it because the attorney general, no matter how
many times we asked, no matter how many times we subpoenaed, no
matter how many meetings our staff had, were unable to get a
level of cooperation necessary even to the information that the
IG received. I hope in the next Congress, whoever sits in my
chair will face an administration that understands that
openness to Congress, openness to the Freedom of Information
Act, and particularly openness to the inspector general's
offices is critical if the American people are to have
confidence in their government.
Much of what is in the report, but not the main subject of
the report, has to do with the February 4th, 2011, letter in
which, admittedly now, Justice Department falsely stated that
in Operation Fast and Furious guns did not walk. As I have
often said since that time, the only way that statement could
be true is if you believed, for guns to walk, they had to have
legs.
Operation Fast and Furious is a poster child for what you
don't do with deadly weapons. You don't lose track of them. You
don't allow more and more and more of them to go while, in
fact, you're already seeing the effects of those weapons
killing people in Mexico. And let's make no mistake, weapons
had already been found at deadly scenes of crimes in Mexico
before Fast and Furious shut down. Only the tragic loss of
Brian A. Terry brought an end to Fast and Furious.
Although this report will not bring a complete end to the
need for us to work with Justice to bring genuine reform to
their process, it goes a long way towards that. I will
particularly note that I am pleased that in some cases the
executive privilege, invalidly claimed by the President of the
United States, was not asserted in this discovery. Some
materials contained in this report do help us because they are
in fact many of the items that we wish we had received, in some
cases were told we received, but in fact we later found were
provided to the IG and not to us.
The conclusions in any report by an IG are in fact
respectful and less than conclusions as to what management must
do. But already since yesterday two top individuals whose time
to resign had come, 14, 16, 18, 19 months ago, resigned. We
expect that all 14 would find a way to find appropriate new
occupations, ones in which their poor judgment, or lack of
dedication, or unwillingness to actually read documents they
were required to read would not be held accountable.
There is no place in our government for people who, under
statute, are required to do something and then say I didn't do
it, but I didn't need to do it because somebody else did it
below me. That is exactly why Congress puts in place a number
of safeguards at what level things such as wiretaps can be
authorized.
For the American people who know that ultimately a wiretap
application is trusted by a judge, in most cases, who grants
it, the only protection for the American people is in fact
knowing that there are safeguards in the application; that an
agent or an individual simply can't tap your phone by running
up an application. The very safeguards that failed in Fast and
Furious to know what was already known and that wiretaps would
tell you in no uncertain terms that guns were walking, that
same lack of safeguards could also cause anyone to see their
phone tapped when in fact it should not be under the law.
So I look at the protections not granted to safeguard
against a fatally flawed tactic like Fast and Furious, but I
look at it to know, as the IG noted in his report, that there
need to be material changes in controls in how wiretap
applications go through a process for approval.
Now, over the next several hours we will hear an awful lot
from our witness, and I rely on our questions to be germane to
our witness's 471-page report. I believe that, in fact, given
an opportunity to have fair question and answer, we will
understand, first of all, why Jason Weinstein resigned
yesterday, why Kenneth Melson retired yesterday, and why there
is much work to be done to reform the Department of Justice and
the Alcohol, Tobacco, and Firearms Agency in order for the
American people and, I might note, the people of Mexico to have
confidence in this Government.
Lastly, nothing in this report vindicates anyone. If you
touched, looked, could have touched, could have looked, could
have asked for information that could have caused you to
intervene, to complain, to worry, to talk to people and you
didn't, and you are in our Government, or even if you aren't in
our Government but were aware of it, you fell short of your
responsibility. We all have a responsibility to protect against
firearms ending up in the hands of dangerous criminals.
With that I want to thank, again, our IG for being here
today, and I yield to Mr. Cummings for his opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman, and I
thank you for calling this hearing.
Let me welcome our witness, Mr. Horowitz, and to thank you
and your staff, everybody from the clerk to you. I want to make
it very, very clear I join the Chairman in expressing our
appreciation. It is a thorough report. Your staff has done an
outstanding job. I know that they missed a lot of vacation days
and missed time with their families, but I want them to
understand that we truly, truly appreciate not only their work,
but the excellent way in which they did it, and I hope they are
listening, and thank you again.
Your office has worked for more than a year and a half on
this investigation. They reviewed more than 100,000 pages of
documents and interviewed 130 witnesses in compiling this very
comprehensive report. They did it under the microscope of a
highly politicized environment in which public accusations were
sometimes made before the search for evidence even began. It
was a difficult task, but he and you and your office did an
admirable job and, again, we thank you.
In my opinion, one of the most important things we can do
here today is recognize the service of Border Patrol Agent
Brian Terry, who gave his life for his Country. Although it
cannot truly offer any solace to his family, I hope this report
provides at least some of the answers they have been searching
for since Agent Terry's murder.
Let me next commend Chairman Issa. We have had many
disagreements about how this investigation should proceed, but
the fact is that the Committee uncovered a severe problem that
was festering since 2006 in the Phoenix office of ATF and the
U.S. Attorney's Office in Arizona that allowed criminals in
Mexico and the United States to obtain hundreds of guns. This
Committee played an important role in exposing and halting
these flawed operations.
I also want to commend the attorney general. I have lost
count of how many times he has testified on this issue, but he
has remained evenhanded, respectful, and always true to the
daunting and critical mission of the department he leads. He
requested this IG investigation and he has already put numerous
reforms in place.
To that end, I note that the Administration did not assert
executive privilege over any part of the inspector general's
report over any of the documents relied on by the inspector
general. In fact, the Department went a step further:
yesterday, it sent to this Committee more than 300 pages of
additional documents that were withheld previously.
I think this is a positive development. I have always
believed, and I continue to believe, that the Committee and the
Department can resolve any lingering issues without further
conflict. With this action by the Department, I urge the
Committee to reconsider its position and settle the remnants of
this dispute without resorting to unnecessary and costly
litigation that nobody in this Country wants.
With that, let me turn to the report in order to highlight
several key points and raise some very specific questions.
There can no longer be any doubt that gun-walking began
under the Bush Administration. The IG report goes into great
detail about Operation Wide Receiver and it finds that ATF
agents simply let guns walk. It also finds that wiretap
affidavits in Operation Wide Receiver contained just as much
detail as those in Fast and Furious. The IG report concludes,
``These tactics were used by ATF more than three years before
Operation Fast and Furious was initiated.''
There can also no longer be any doubt that gun-walking was
never authorized or approved by the attorney general or senior
Department officials, especially as some sort of top-down
scheme or conspiracy against the Second Amendment. The IG
report found that gun-walking ``was primarily the result of
tactical and strategic decisions by agents and prosecutors.''
As the IG says in his written testimony for today's
hearing, ATF and the U.S. Attorney's Office in Arizona ``share
equal responsibility for the strategic and operational failures
in Operations Wide Receiver and Fast and Furious.''
With these points in mind, I have two broad questions, Mr.
Horowitz, which I hope you will address. First, how could this
tactic have been used for so long, over the course of five
years and two administrations, without the ATF field office in
Phoenix or the U.S. Attorney's Office in Arizona stepping in to
halt it? What allowed it to go on for so long unchecked?
Second, what should we do now to ensure that this never
ever happens again? I know the IG has made his recommendations,
and I have also made my own. Which of these recommendations
have ATF and the Department already implemented? Which should
be prioritized? And which may require legislation?
Again, Mr. Horowitz, I thank you again, and your staff, for
an excellent job.
With that, Mr. Chairman, I yield back.
Chairman Issa. I thank the gentleman.
I now ask unanimous consent that the gentleman from
Arizona, Mr. Barber, be allowed to participate in today's
hearing. Without objection, so ordered.
I also would reserve the right to waive additional members
in, as they arrive. Pursuant to our rules, members sitting on
the dais will be recognized only after all other individuals on
their side of the aisle have previously been recognized on a
back-and-forth basis.
With that, I also would like to thank Mr. Barber for making
the effort to be there for the Brian Terry naming and for
representing that area of Arizona that I think is so affected
by Fast and Furious.
Pursuant to the rules, all witnesses before this Committee
will be sworn, so I would ask that our witness please rise to
take the oath. Please raise your right hand.
Do you solemnly swear that the testimony you are about to
give will be the truth, the whole truth, and nothing but the
truth?
[Witness responds in the affirmative.]
Chairman Issa. With that, the record will recognize that
Mr. Horowitz answered in the affirmative.
General, we normally talk a lot about the five minutes.
Take the time you need to give us your opening, recognizing
that it will be a long day of additional opportunities for you
to answer questions not in your opening. With that, the
gentleman is recognized.
STATEMENT OF THE HONORABLE MICHAEL E. HOROWITZ
Mr. Horowitz. Thank you, Mr. Chairman. I ask that my full
statement be made a part of the record.
Chairman Issa. Without objection, so ordered.
Mr. Horowitz. And I have pared that down somewhat, so that
I don't go on for 20 or 30 minutes, and I will try to stick to
the five minutes, certainly.
Good morning, and thank you to the members of the Committee
for inviting me to testify today about our report, a report
that we released yesterday which details a pattern of serious
failures in both ATF's and the U.S. Attorney's Office's
handling of the investigations in Fast and Furious and Wide
Receiver, and the Justice Department's response to
congressional inquiries about those flawed operations.
This is my first opportunity to testify before the Congress
since I was sworn in five months ago, and it is an honor to be
here today.
During the confirmation process, I made a commitment to the
Congress and to the American people that I would continue the
strong tradition of my office for independence,
nonpartisanship, impartiality, and fairness. Those are the
standards that I and my office applied in conducting this
review and in preparing this report.
As in all of our work, we abided by one bedrock principle:
to follow the facts and the evidence wherever they led. And as
indicated previously, this report could not have been done
without the extraordinary dedication of the staff and the
employees in my office; they worked long nights, weekends,
through vacations, and I couldn't thank them enough, and I
appreciate the Committee's thanking them for their hard work.
As indicated, we reviewed over 100,000 pages of documents
here. We interviewed over 130 witnesses, many on multiple
occasions. The witnesses we interviewed served at all levels of
the Department, from the current and the former attorneys
general to the line agents in Arizona who handled the
investigations. Very few witnesses refused our request to be
interviewed, and where they did refuse we noted those in the
report. The Justice Department provided us with access to the
documents we requested, including documents from post-February
4th concerning the Department's response to the congressional
inquiries.
We operated with complete and total independence in our
search for the truth, and the decision about what to cover in
this report and the conclusions that we reached were made by us
and our office, and by no one else.
I am pleased that we have been able to put forward to the
Congress and to the American people a full and complete
recitation of the facts that we found and the conclusions that
we reached, with minimal redactions by the Department to our
report. The Administration made no redactions for executive
privilege, even though our report evaluates in detail and
reaches conclusions about the Department's post-February 4th
actions in responding to Congress.
Additionally, at our request, the Department has agreed to
seek court authorization to un-redact as much of the wiretap
information that we included in this report as possible. If the
court agrees to the Department's request, we will shortly issue
a revised version of the report with that material un-redacted.
The investigation that became known as Operation Fast and
Furious began on October 31, 2009. By the time the indictment
was announced on January 25th, 2011, over a year later, ATF
agents had identified more than 40 people connected to a
trafficking conspiracy that was responsible for purchasing over
2,000 firearms for approximately $1.5 million in cash. Yet, ATF
agents seized only about 100 of those firearms that had been
purchased.
Numerous firearms that had been bought by straw purchasers
were recovered by law enforcement officials at crime scenes in
Mexico and in the United States. One such recovery occurred on
December 14th, 2010, in connection with the tragic shooting
death of a federal law enforcement agent, U.S. Customs and
Border Protection Agent Brian Terry. Shortly thereafter, the
flaws in Operation Fast and Furious became known as a result of
the willingness of a few ATF agents to come forward and tell
what they knew about it, and as a result of the conduct of the
investigation by the Congress.
On February 28th, the attorney general requested my office
to conduct a review of Operation Fast and Furious, and we
agreed to do so. During the course of your review, we received
information about other ATF firearm trafficking investigations
that raised serious questions about how they were conducted.
Our report reviews one of them, Operation Wide Receiver.
We conducted that both Operation Wide Receiver and
Operation Fast and Furious were seriously flawed and supervised
irresponsibly by ATF's Phoenix Field Division, by the U.S.
Attorney's Office, and by the ATF Headquarters, most
significantly in their failure to adequately consider the risk
to the public safety in the United State and Mexico.
Both investigations sought to identify the higher reaches
of firearms trafficking networks by deferring any overt law
enforcement action against the individual straw purchasers,
such as making arrests or seizing firearms, even when there was
sufficient evidence to do so.
The risk to the public's safety was immediately evident in
both investigations. Almost from the outset of each case, ATF
agents learned that the purchases were being financed by
violent Mexican drug trafficking organizations and that
firearms were destined for Mexico. Yet, in Operation Fast and
Furious, we found that no one responsible for the case, either
at the Phoenix Field Division or at ATF's Headquarters or in
the U.S. Attorney's Office, raised a serious question or
concern about the government not taking earlier measures to
disrupt a firearm trafficking operation that continued to
purchase firearms with impunity for many months.
We also did not find any persuasive evidence that
supervisors in Phoenix, at the U.S. Attorney's Office, or at
ATF Headquarters raised serious questions or concerns about the
risks to the public safety posed by the continuing firearm
purchases or by the delay in arresting individuals who were
engaged in the trafficking activity. This failure, we found,
reflected a significant lack of oversight and urgency by both
ATF and the U.S. Attorney's Office, and a disregard by both for
the safety of individuals in the United States and in Mexico.
Our review revealed a series of misguided strategies,
tactics, errors in judgments, and management failures that
permeated ATF headquarters and the Phoenix Field Division, as
well as the U.S. Attorney's Office and the headquarters of the
Department of Justice. In the course of our review, we
identified individuals ranging from line agents and prosecutors
in Arizona, to senior ATF officials in Washington, D.C. who
bore a share of responsibility for ATF's knowing failures in
both of these operations to interdict firearms illegally
destined for Mexico and for pursuing this risky strategy
without adequately taking into account the significant danger
to public safety that it created. We also found failures by
Department officials related to these matters, including
failing to respond accurately to a congressional inquiry about
them.
Based on our findings, we made six recommendations designed
to increase the Department's involvement in and oversight of
ATF's operations, to improve coordination among the
Department's law enforcement components, and to enhance the
Department's wiretap application review and authorization
process. The inspector general's office intends to closely
monitor the Department's progress in implementing these
recommendations.
Finally, we recommended that the Department review the
conduct and performance of the Department personnel that are
referenced in the report and determine whether discipline or
other administrative action with regard to each of them is
appropriate.
Thank you again for the opportunity to be here, and I look
forward to answering any questions that the Committee may have.
[Prepared statement of Mr. Horowitz follows:]
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Chairman Issa. Thank you, Mr. Horowitz.
I will now recognize myself for a few questions.
You were given a great deal of access in order to do this,
over 100,000 pages. Would you characterize--I realize you
didn't look at every page every day, but would you characterize
were all 100,000 pages ones that you would have made available
to this Committee were you deciding to have us see those
documents? As you know, we received less than 8,000 pages.
Mr. Horowitz. Well, as we went through, personally, I
didn't obviously go through myself the 100,000-plus pages.
Chairman Issa. I will ask it in reverse, maybe; it is
probably better. Do you know of pages that you saw that
Congress should, for good cause, be denied?
Mr. Horowitz. Every document we asked for and reviewed and
cited in this report we found to be relevant and important. In
fact, we don't cite in this report every single relevant
document; we obviously had to pick and choose. So certainly
what we have seen and we asked for and saw we determined was
relevant.
Chairman Issa. So it would be fair to say the documents
from post-February 4th which you evaluated, saw, and helped you
prepare this report in which executive privilege was not
claimed, were relevant, you used them, and they should have
been provided to Congress in the ordinary course. They are
being provided indirectly at this time.
Mr. Horowitz. We certainly found they were relevant, which
is why we insisted on reporting on them, Mr. Chairman.
Chairman Issa. Now, there were a number of people you
didn't get to speak to. I will note, I guess, Mr. Cunningham
spoke to you and then later would not speak to you. Mr.
Horowitz, can you tell us a little bit about your efforts to
try to interview Kevin O'Reilly, a member of the National
Security Team?
Mr. Horowitz. We reached out to his lawyer, requested an
interview. We have no basis to compel interviews from
individuals who are outside the Department of Justice. He does
not work in the Department of Justice, so we had to ask for a
voluntary interview. His lawyer told us he would not appear
voluntarily.
Chairman Issa. Would it surprise you that he has been in
Afghanistan and we have been denied even the ability to serve a
subpoena on him?
Mr. Horowitz. I was not aware of where he was, but I was
told by his lawyer----
Chairman Issa. I am sorry, Iraq. Sorry.
Mr. Horowitz. As I said, I don't recall knowing, myself,
where he was, but we were told by his counsel he would not
appear voluntarily.
Chairman Issa. Okay. Also, there was a full-time employee
of the Department of Homeland Security. Would you explain to us
your efforts to interview that individual?
Mr. Horowitz. Yes. There was an agent from Department of
Homeland Security that was assigned to the operation. As part
of our effort to be thorough and interview all people who might
have relevant information, we reached out. He, again, is
outside the Department of Justice, so he declined our voluntary
request to be interviewed by us. We sought, through the
Department of Homeland Security, to speak to him and we
understood that, absent being compelled and given immunity,
that he would not speak voluntarily, and that was request was
declined, is my understanding.
Chairman Issa. Now, pursuant, and this is outside, I
admonished everyone to stay on to this, but I think for this
particular case I want to go outside the scope of this
somewhat. We are the Committee that will oversee a change in
the IG Act, if there is one. In your opinion, if the IG Act had
created a mechanism for you to fully vet these requests, even
if these were individuals outside of your particular narrow
agency, is that something you believe would be helpful,
speaking as an IG, for future investigations?
Mr. Horowitz. Certainly, we would have used whatever
authorities we had to seek testimony from individuals, as we
were able to do internally within the Justice Department. So
having expanded authority would have certainly allowed us to
take additional actions here.
Chairman Issa. Were you ever made aware why Secretary
Napolitano, Department of Homeland Security, was unwilling to
have an individual who worked in an OCDETF of such a fatally
flawed event, one that killed one of her charges, one of the
border patrol that falls under her cabinet position, why she
wouldn't insist that that individual speak to you in this
investigation?
Mr. Horowitz. I don't know, personally, that information,
Mr. Chairman.
Chairman Issa. Okay. Now, one of the two last areas, it has
been said by many, mostly on the other side of the aisle, that
there is nothing in these wiretap applications that would have
caused senior officials to see any red flags as to the reckless
tactics.
Now, realizing these documents are not unsealed, would you
characterize for us whether you would say, as your report does,
and I quote, and I will read this, but I would like you to
elaborate, ``among the report's other conclusions, your
findings that wiretap applications approved by senior officials
did contain red flags about reckless tactics who should have
acted on this information.'' And it goes on.
That line, are we to conclude that, in fact, if you read
one or more of these 14 wiretap applications, you should have
known that guns were walking?
Mr. Horowitz. Yes. As we said in the report, and I also,
myself, reviewed the 14 applications, believe that if you were
focused and looking at the question of gun-walking, you would
read these affidavits and see many red flags, in our view.
Chairman Issa. Okay, I ask unanimous consent for just one
more question. Without objection.
In your report there was an area that I focused on a little
bit where it implied that Lanny Breuer did not respond or did
not acknowledge the February 4th letter. Isn't it true that
Lanny Breuer, in fact, answered good job as at least an answer
to the February 4th letter, acknowledging that he had received
it and obviously made that comment?
Mr. Horowitz. That is correct.
Chairman Issa. And on that day, on February 4th, wasn't he
in fact on his way to Mexico City to sell the Mexican
government on what was effectively a gun-walking program
coordinated with them?
Mr. Horowitz. Well, my understanding is he was actually in
Mexico and my understanding was that he had raised the
possibility of some program involving cross-border cooperation
about gun trafficking activity, but, frankly, I don't have more
knowledge than that at this point.
Chairman Issa. Thank you.
Recognize the Ranking Member for his questions.
Mr. Cummings. Thank you very much.
Mr. Horowitz, I want to walk through some quick points with
you and then ask you to respond in more detail to some broader
questions. You examined Operation Wide Receiver, which was
during the Bush Administration, and Operation Fast and Furious,
which was during this Administration, is that correct?
Mr. Horowitz. Correct. We looked at both of those matters.
Mr. Cummings. In your report you found that gun-walking
occurred in both operations, is that right?
Mr. Horowitz. That is correct.
Mr. Cummings. We are not talking only about a botched
coordination efforts with Mexico; we are talking about ATF
agents stopping surveillance in the United States and letting
guns walk in both operations, is that correct?
Mr. Horowitz. Correct.
Mr. Cummings. In fact, your report said this, ``Operation
Wide Receiver was noteworthy because it informed our
understanding of how these tactics were used by ATF more than
three years before Operation Fast and Furious was initiated.''
Is that what your report said?
Mr. Horowitz. That is.
Mr. Cummings. Now, you also found that neither Attorney
General Mukasey nor Attorney General Holder authorized or
approved gun-walking, is that right?
Mr. Horowitz. That is correct, although I would note
Attorney General Mukasey was sworn in after the completion of
Operation Wide Receiver's investigative portion of the
activity.
Mr. Cummings. You also found that there were wiretap
applications in both operations and that the wiretap
applications in Wide Receiver included the same kinds of
potential red flags you found in Fast and Furious affidavits,
is that correct?
Mr. Horowitz. We found red flags existing in Wide Receiver
as well.
Mr. Cummings. But deputy assistant attorney generals from
both administrations did not routinely read these affidavits,
according to your report. You interviewed officials from both
administrations and they told you their normal practice was to
read only summary memos, is that correct?
Mr. Horowitz. We interviewed three of the five deputy AGs
who reviewed the 14 wiretaps, and all of the three that we
interviewed.
Mr. Cummings. I understand. I want you to just tell us what
happened.
Mr. Horowitz. I don't want to suggest that all three
indicated that they did not routinely read the affidavits when
they came to them.
Mr. Cummings. I want to make it clear that I believe that
we need to, if there is reform, and I think your assistants
mentioned this yesterday, and I am sure the Chairman would
agree with me, we need to make sure folks read the affidavits.
Would you agree?
Mr. Horowitz. I agree and I actually formerly was a deputy
AG in the Criminal Division, so I have 12 years out of date,
but I remember reviewing them.
Mr. Cummings. Now, for both operations you also found that
gun-walking was not ordered from the top but, instead, was
``primarily the result of tactical and strategic decisions by
the agents and prosecutors.'' Is that right?
Mr. Horowitz. That is right.
Mr. Cummings. You said in your testimony that the ATF and
U.S. Attorney's Office in Arizona ``share equal responsibility
for strategic and operational failures in Operations Wide
Receiver and Fast and Furious.''
So here are my questions, and I think these questions will
go to the heart of the reform that I hope that we will be able
to get underway.
How could these tactics have continued in Phoenix over a
span of five years and two administrations without being
stopped either by ATF or the U.S. Attorney's Office in Arizona?
My second question is how should it have worked? And if an
ATF agent came to his superiors in Phoenix with this kind of
plan today, how should it be examined and vetted now?
Mr. Horowitz. Well, as to the first question, I think there
were serious lack of controls in place in both the U.S.
Attorney's Office and ATF operation, primarily ATF because they
are the law enforcement agency that needs approval. We
highlighted one of them as an example. Even though ATF, for
eight years, has been in the Department of Justice, the
attorney general guidelines for use of undercover operations
were never amended to cover ATF.
So there were a series of failures in the controls. We have
made significant recommendations in that area. The Department
and ATF have put in place additional tools and controls
already, but there has to be a serious review in vetting of
operations like this that impact not only the number of guns in
the communities that are impacted by these, but that involve a
foreign operation involving guns going to a foreign country.
That wasn't there at the time. So there needs to be a serious
look at that.
And how to prevent that going forward is watching carefully
to make sure, in fact, the reforms we are all talking about
aren't lost once the headlines of the report go away; that
there is oversight, follow-up by the Inspector General's Office
and I am sure by the Congress in this regard.
Mr. Cummings. Just one last question. It seems as if Mr.
Melson, who was heading ATF, seems like, from reading the
report, seems like he may have fallen asleep at the switch. I
mean, from what you saw--again, this is the head of ATF.
Mr. Horowitz. Right.
Mr. Cummings. Can you tell us about what your report says
about that?
Mr. Horowitz. Yes. We found, in Operation Fast and Furious,
that there was significant information coming to ATF
Headquarters. In fact, by March of 2010, the deputy director of
ATF, who was an experienced agent and had served in the ATF for
a considerable period of time, for the first time in his career
asked for an exit strategy because of his concern about what he
had seen. He asked for it, it didn't come to headquarters for
six weeks, and it wasn't reviewed by the deputy director until
almost a year later, after the shooting of Agent Terry and
after the indictment occurred.
The fact that the deputy director could see the need for an
exit strategy in March of 2010 and not receive it and review it
until 2011 I think speaks volumes about what happened here in
terms of failures of oversight.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Issa. I thank the gentleman.
With that, we recognize the distinguished--oh, with that, I
ask unanimous consent the gentlelady from Florida, Mrs. Adams,
be allowed to participate in today's hearing. Without
objection, so ordered.
With that, we now go to the gentleman from Utah, Mr.
Chaffetz.
Mr. Chaffetz. Thank you, Mr. Chairman. I appreciate your
tenacity in continuing to go after this. We have a dead Border
Patrol agent, nearly 2,000 AK-47s released, hundreds of dead
Mexicans, a Mexican helicopter shot down at one point, a dead
Border Patrol agent, hundreds of guns that are still
unaccounted for, untold number of crimes that have been
committed with these guns, and an attorney general whose best
guess and best argument is a plea of ignorance. So I think Mr.
Cummings, the Ranking Member, asked the most salient question:
How does this go on for so long without somebody saying
something is wrong here?
I have a fundamental problem and challenge with the fact
that the acting ATF director, Mr. Melson, is in that position
for two years and met with the attorney general one time. One
time. That is inexcusable in my book.
I also think what happened, part of the conclusion, I
think, validates what we have been concerned about for so long,
that the adults in the room, the head of the Criminal Division,
is supposed to be Lanny Breuer, but Lanny Breuer, having been
briefed on what happened previously, knew about gun-walking,
knew about these straw purchases, and said nothing about it. He
didn't issue a new edict that says we are not going to do this
anymore. In fact, you would be led to believe that by just
allowing it to continue on, no new directive, that he was
actually endorsing this. That is what I take from it.
I think this is a wonderful report. I appreciate the
thoroughness. I think you are a professional and did a great
job. I think you were a little soft on Lanny Breuer. To
suggest, as you did, on page 314, moreover, Breuer did not
supervise Operation Fast and Furious and did not authorize any
activities in the investigation I think is, I would disagree
with that statement.
Jason Weinstein reported to Lanny Breuer, and as this
report clearly highlights, Jason Weinstein is being made as the
key person that was probably most responsible here.
I would also point out to my colleagues that on February
4th, 2011, of all the days, the day that we are issued,
specific to Senator Grassley, a letter that was totally false
about ATF's activities. By the way, this letter doesn't even
mention Fast and Furious, it says that these guns were allowed
to walk, that ATF does not allow guns to walk, any way, shape
or form. I would point to the February 4th memorandum about the
Assistant Attorney General Breuer going to Mexico.
As a synopsis to that, in Mexico, he proposed to the
Mexican government, Assistant Attorney General Breuer suggested
allowing straw purchases cross into Mexico. We have in black
and white a document suggesting that he is not only approving
of these types of activities, he is advocating for these types
of activities.
So to answer Mr. Cummings' question, it is crystal clear;
the head of the Criminal Division was down there pitching the
Mexican government that we ought to be doing more of this. That
is why it continued, because the person in charge was
advocating for it. He knew about it previously. And when he did
hear about it, he did nothing about it.
In fact, when that letter, on February 4th, goes out the
door, he had seen it and he said nothing about it. And then
what is worse is, after the letter goes out, everybody at the
Department of Justice knows that it is wrong; it takes 10
months for them to fess up on it. In fact, they issue another
letter, in May, again compounding the problem, hiding from the
American people and this Congress the truth.
Mr. Chairman, I would also highlight what is said on page
277 by the inspector general: We found that the affidavits
described, we are talking about the wiretap applications. We
found that the affidavits described specific incidents that
would suggest to a prosecutor who was focused on the question
of investigative tactics that the ATF was employing a strategy
of not interdicting weapons or arresting known straw
purchasers.
Nevertheless, June 7th, 2012, the attorney general
testifying in the Judiciary Committee, in response to
Congressman Quayle, I have looked at these affidavits, I have
looked at the summaries; there is nothing in those affidavits,
as I reviewed them, that indicates that gun-walking was
allowed, a direct contradiction and very different from what
the inspector general looked at. I appreciate you seeking the
unsealing of these documents so that we can all see them.
Mr. Chairman, I am also concerned that there was a culture
and environment where people were either afraid or not willing
or didn't want to share with the attorney general key
information specific to what we were doing with Mexico, and
what I would highlight, and I am running out of time here, the
culture and the environment was not conducive to have the truth
surface.
It is shocking and troubling to me that we did not, that
the Department of Justice never communicated to the senior
people at Homeland Security, where one of their agents was
dead, and still hasn't, to this day, I have questioned them.
The secretary of Homeland Security didn't ask the attorney
general what was going on, nor did we ever communicate with the
Secretary of the State Department so that she could deal with
this situation.
We pour thousands of weapons into Mexico and we never
bothered to tell the Secretary of the State? Isn't that her
job, role and responsibility? That is one of the things I think
we also have to look at because that is one of the compounding
problems that happened along this way, even after we knew all
these facts, and still to this day I don't think the Department
of Justice ever solved.
Chairman Issa. Would the inspector general want to answer
any implied question there?
Mr. Horowitz. No.
Chairman Issa. Okay, with that we recognize the gentlelady
from New York, Mrs. Maloney, for five minutes.
Mrs. Maloney. First of all, I would like to welcome the IG
and note that he is from the great State of New York. We are
very proud of you even though you are now a Washingtonian, and
congratulations on your public service. We appreciate very much
your report.
First of all, on guns. If you were so concerned about guns
on the border, then my colleagues could have supported the
bills that we put forward, the Democrats, really for gun
safety. So, in my opinion, you are not serious. If you were
worried about guns at the border, then let's make it a federal
crime to traffic guns. Let's make it a crime to forestall vast
sales of these guns. Let's ban assault weapons that aren't used
to do anything but kill people. They don't kill animals, they
just kill people. There are a number of things that we could do
right now that would get the guns off of the border.
And the Mexican government supports it. They have asked us
to do so. When we came forward with our bills, we got a letter
from the president of Mexico saying this is wonderful; that
will help guns on the border.
But I would like to do what the Chairman wanted, which is
to focus on this excellent report that Mr. Horowitz came out
with, and I would like to refer that in December of 2011 our
attorney general explained to the House Judiciary Committee
that gun-walking and Operation Fast and Furious, I like to call
it Vast and Curious, originated with the local Phoenix office
of the ATF and the U.S. attorney, and that it was not the
result of any strategy or directive from main Justice.
And he said, in May, ``I mean, the notion that people in
Washington, the leadership of the Department approved the use
of those tactics in Fast and Furious is simply incorrect. This
was not a top-to-bottom operation; this was a regional
operation that was controlled by ATF and by the U.S. Attorney's
Office in Phoenix.''
Mr. Horowitz, your report reaches a similar conclusion,
pointing back to the genesis of these tactics by the field
agents and prosecutors in Phoenix, and this is what your report
says about Operation Wide Receiver: ``In sum, the evidence
demonstrated that the decision to not interdict the firearms,
despite having probable cause to do so, was a decision made by
the ATF Phoenix Field Division and was intended to advance
ATF's broader goal of identifying additional participants in
the conspiracy.''
So my question to you, Mr. Horowitz is, and I believe it is
the main question that we have had as a Committee, is how is it
that these tactics started? What went wrong? Can you explain
what you found in your investigation that would explain how
these tactics first started being used in Operation Wide
Receiver?
Mr. Horowitz. In Operation Wide Receiver, what appears to
have occurred is that information came to the agents in the
Tucson Office of the Phoenix Field Division and they made a
conscious decision to not take any action to stop the
trafficking with the straw purchasers because they wanted to
follow the guns and figure out to whom they were ultimately
going. And that was a decision made early on in the
investigation, almost at the outset, and it was done with the
acquiescence and approval of the U.S. Attorney's Office. So
that is why we found that there was a failure by both offices.
Mrs. Maloney. And that was the office in Phoenix, right?
Mr. Horowitz. Correct, U.S. Attorney's Office for Arizona,
for the District of Arizona.
Mrs. Maloney. Okay. What about the Operation Fast and
Furious? Did the agents have bad motives or did they just fail
to consider the public risk involved? What were they thinking?
Mr. Horowitz. They did not have bad motives as far as we
found. What we heard from the agents was they had made a
conscious decision that the long-term effort, that having a
long-term investigative strategy that dismantled a large
organization was the greater good that they were undertaking;
to dismantle the organization, stop the trafficking, and that
that was what they believed was in the best interest of the
public safety.
As we found, that was an incorrect calculation. Law
enforcement's primary objective is to protect the public. You
can't take action to let guns walk that will harm people for
the greater good.
Mrs. Maloney. What can we do to make sure that this does
not happen again?
Mr. Horowitz. Well, I think, first and foremost, there
needs to be the serious reform and controls we have outlined at
ATF. There has to be an internal change in how cases are
managed there. There needs to be supervision; there needs to be
oversight, and thoughts about investigations like this need to
be carefully reviewed at the highest levels of the organization
at the outset, not deferred to to the line agent or to their
line supervisors. That, to me, is the first and most important
effort.
Mrs. Maloney. So you would say that that is the most
important reform that you think the Department could take?
Mr. Horowitz. Initially. I think that is a step that is
apparent that has to happen. I think there are many other
reforms that we have outlined, including, for example, making
sure that, at the Department of Justice, in the Criminal
Division, deputy AGs are reviewing the wiretap applications
when they get them. That is another reform we have put forward.
There needs to be clear policies in place within ATF as to what
is allowed and what isn't allowed, so that it is not just
reviewing and vetting; it is a clear line as to what is or is
not permitted.
Chairman Issa. I thank the gentlelady.
We now recognize the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Inspector General, when I met with you several weeks
ago, I left that meeting cautiously optimistic that we would
receive a thorough, balanced report, and my optimism was
rewarded because of you and your staff. I also shared, in no
small part, I am sure, because of your exemplary service in the
Southern District of New York and with the Department of
Justice. Your career as a prosecutor gave me that cautious
optimism. And I shared with you this was never about politics
to me. I don't care which party is in power. It was about a
dead Border Patrol agent and holding the institutions of
government responsible for what they have done.
And I think it is wonderful, at one level, that we have an
independent entity like you to investigate. I just naively
thought that is what the Department of Justice was. I naively
thought the attorney general, as the top law enforcement
official in the Department of Justice, was that independent
entity that we could trust. And whether it is the letters in
March and February of 2011, whether it is testimony that has
been delivered to committees of Congress, sadly, the Department
of Justice was not vindicated, despite some of the headlines
this morning.
Wiretap applications. I specifically asked the attorney
general are you sure that someone reading these wiretap
applications and the summaries would not be left with the
conclusion that gun-walking was a tactic that was used? And he
said yes, he was sure. And your report debunks that. You used
to read wiretap applications, correct?
Mr. Horowitz. Correct.
Mr. Gowdy. And your conclusion, with that background, is
that a reasonably prudent person reading these applications and
summaries would have been on notice way back when that the
tactic of gun-walking was being used, is that correct?
Mr. Horowitz. Yes. For someone who is watching it, looking
for it in that context of gun-walking, I agree that they would
have seen those red flags.
Mr. Gowdy. That was a startling conclusion that you
reached. Another starting fact, I don't want to say it is a
conclusion, but a fact that you included in your report, and
you correct me if I am mischaracterizing what you wrote, but
the attorney general, even today, does not believe that a dead
Border Patrol agent from an agency that he doesn't supervise,
who was killed by a weapon as part of an investigation of an
agency he does supervise is something that should be brought to
his attention. Does your report not include a paragraph that
even today the attorney general is not sure that this fact
pattern should have been brought to his attention?
Mr. Horowitz. As we included in the report, the attorney
general told us that it would not necessarily be something he
would be expected to be notified of. And we are talking about
not the death, because he was notified about the death, but
about the fact that two firearms were found at the scene that
were connected to Operation Fast and Furious.
Mr. Gowdy. Right. But, inspector general, you were a
prosecutor, I was a prosecutor, others up here have been
prosecutors. When you have a dead law enforcement officer, the
next words out of your mouth are I want to know everything
there possibly is to know about how this happened. I don't just
want to know what the autopsy says; I want to know how we got
to this point, which does speak to management, and it does
speak to a duty to supervise; not just a commonsensical duty.
I want to ask you specifically about the code of
professional responsibility. Is there a duty to supervise, for
supervisory attorneys to supervise the work of those underneath
him? Not a common law or a commonsensical obligation, but is
there a code of professional responsibility obligation to
supervise?
Mr. Horowitz. I am not sure I could speak directly to the
code of professional responsibility in that regard because we
were looking at obviously whether there was supervisory
failures. We clearly found there was an obligation as part of
the performance responsibilities of the agents and the
prosecutors to supervise, and the failure to do that was a
serious management failure, in our estimation, in our view.
Mr. Gowdy. All right, there are two letters, one in
February and one in May, both of which were demonstrably false.
You can argue that they were calculated to mislead, but there
can be no argument that they were false. They were signed by
Ronald Weich, but I guess the largest exception I take to your
report is the same one that Mr. Chaffetz had.
Lanny Breuer was the criminal chief. Lanny Breuer was
responsible, at some level, for the approval of the wiretap
applications. Lanny Breuer forwarded this February 4th letter,
which was demonstrably false, to a home computer, and you don't
have to be a real good prosecutor to deduce that you forward
something to a home computer because you are going to read it.
I can't think of any other reason to forward a letter other
than to read it, unless you are a historian or an archivist,
and I don't think he is either one of those. And then he
confirms our suspicions by writing, good job.
So given the duty to supervise, given the false letters,
given the failure to connect the dots, as he said and you
concluded, I can't imagine a headline that reads, passengers
charged with speeding, driver exonerated. I can't imagine that
headline. But, yet, we have DOJ people that were under Lanny
Breuer who are either resigning or being disciplined. How does
he escape discipline?
Mr. Horowitz. As our report outlines, we found that Mr.
Breuer, back in April 2010, knew about, learned about the gun-
walking tactics in Wide Receiver, and, as we outlined in the
report, it was a failure by him to alert the deputy or the
attorney general to that, because ATF reports to the deputy,
not to him. So it was incumbent upon him, in our view, to
report it to the deputy and the attorney general.
And, again, when the letter came in from Senator Grassley
nine months later or so, in January 2011, we believed, as he
ultimately testified, that he should have alerted the
Department to that. Those were two findings we made.
As to what the discipline or decision is as to discipline
or administrative or other conduct or other related failures,
that is really a decision ultimately under our system to the
attorney general. I have authority to investigate, make the
findings, which I did, and then it is up to the attorney
general to decide what, if any, discipline to impose.
Chairman Issa. I thank the gentleman.
We now go to the gentlelady from the District of Columbia,
Ms. Norton, for five minutes.
Ms. Norton. Thank you, Mr. Chairman.
And I especially thank you, Mr. Horowitz, for a very
thorough job where you had to dig into a lot of weeds. And I do
appreciate the way you connected the dots and drew the lines so
that we understood where the responsibility went. My line of
questions really go to why this investigation has gone on for
so long and why the public was concerned about it.
The face of this investigation, the poster boy, as it were,
has been the attorney general of the United States, and the
Committee has had hearings where over and over again it was
alleged that the gun-walking was known at the highest levels,
even by the attorney general, and that this was an approved
plan, approved by, to quote from a recent record, at the
highest levels of the Obama appointees.
Now, I think it is only fair, when the attorney general,
over and over again, has been the face of this investigation,
the one held responsible for the gun-walking, to put on the
record what you have found with respect to the attorney general
of the United States. Now, you have indicated that you received
cooperation from the highest levels of the Justice Department
in doing your investigation.
Mr. Horowitz. Yes. We received the documents that we asked
for and, as indicated, other than the handful of individuals
who refused to speak with us, we generally were able to speak
with everybody we wanted to.
Ms. Norton. Did you speak with the attorney general of the
United States?
Mr. Horowitz. We did.
Ms. Norton. You did not?
Mr. Horowitz. We did.
Ms. Norton. You did. May I ask you did you find any
evidence that Attorney General Holder approved of the gun-
walking tactics that have been under investigation by this
Committee?
Mr. Horowitz. As we outlined in the report, we found no
evidence that the attorney general was aware, in 2010, before
Senator Grassley's letter, of Operation Fast and Furious and
the tactics that were associated with it.
Ms. Norton. So the attorney general cold not have approved
because he did not even know about the gun-walking tactics
before 2010.
Mr. Horowitz. We found no evidence that he had been told in
2010.
Ms. Norton. Now, let's go to other high levels of the
Justice Department. Did you find any evidence that the acting
deputy, Gary Grindler, knew or authorized gun-walking?
Mr. Horowitz. We found that the acting deputy attorney
general was briefed about Operation Fast and Furious in March
of 2010, but we concluded, after looking at what that briefing
involved, which was item 4 of a 7 item agenda in a 45-minute
briefing, that it wasn't a sufficient briefing to put him on
notice, directly and expressly, that gun-walking had occurred.
It did, we thought, it was sufficient to trigger questions,
but not sufficient to put him on notice. And we were
particularly troubled by the fact that he was never briefed
again by ATF, when, within two weeks after that briefing, the
deputy director had asked for the exit strategy that I
referenced earlier; that no one went back to him to tell him
that information.
Ms. Norton. So this controversy centered in the U.S.
Attorney's Office and at the ATF. Your last answer, does that
mean that you think they deliberately tried to keep the acting
deputy attorney general from knowing about the parts of Fast
and Furious that perhaps were most controversial?
Mr. Horowitz. We didn't find any evidence of
deliberateness. Again, this is a situation where the deputy
director of ATF had asked for an exit strategy in March and
never looked at it until 2011. So it would be hard to explain
what was going on or what people were thinking given that level
of failure of oversight.
Ms. Norton. Mr. Horowitz, to your knowledge, is anyone at
the Justice Department looking into perhaps the most important
new tool the attorney general, the U.S. attorney could have, a
tool that might have been useful to the U.S. attorney in
dealing with the gun-walking, or are we left, at the end of
this investigation, with gun-walking and whatever else anybody
can think of to do something about it?
Is there any work going on in the Justice Department, as a
result of your investigation, to give ATF or the U.S. attorney,
Arizona here, the kinds of tools that would in fact mean that
nobody would even think about a surreptitious way to get at
guns like gun-walking and Fast and Furious?
Mr. Horowitz. What I have been told about the Department's
response to this is, as we have highlighted in the report, are
the reforms that are needed within ATF, within the Justice
Department's review of wiretaps, within its law enforcement
operations generally. Beyond that, I haven't been informed of
any additional steps the Department has taken.
Chairman Issa. I thank the gentlelady.
We now go to the gentleman from Arizona, Mr. Gosar. And I
would ask if you would yield for 15 seconds.
Mr. Gosar. I will.
Chairman Issa. Following up on the previous two democratic
questions, isn't it true that the then chief of staff, when
asked if the DAG knew, the deputy attorney general knew, then
the attorney general should have been briefed related to what
they knew about Fast and Furious and obviously the question of
whether Fast and Furious weapons were found at the scene of
Brian Terry's murder?
Mr. Horowitz. That is correct, and also that is what we
found in our report.
Chairman Issa. Thank you.
Mr. Gosar.
Mr. Gosar. Thank you, Mr. Horowitz. Thank you. As my
previous colleague had said that I grilled you when you came to
talk to me, and thank you very, very much for instilling some
trust.
In your discovery with witnesses, paperwork, did anyone
within your findings, within the DOJ system, raise questions
about the truthfulness and possible misleading testimony that
was being presented by the attorney general in his testimony to
Congress?
Mr. Horowitz. No one indicated that in their interviews
with----
Mr. Gosar. Did you directly ask the question?
Mr. Horowitz. I would have to go back, frankly, and look at
the transcripts.
Mr. Gosar. We would like you to ask that question. Okay?
In detailing up with Lanny Breuer, it is my understanding
that Lanny, or Mr. Breuer, and Wide Receiver closed in 2007, if
I am not mistaken.
Mr. Horowitz. The investigative activity ended in 2007.
Mr. Gosar. Right. So we should know something about it. So
Mr. Breuer sent members from the Criminal Division to review
the auspices and directives of Operation Wide Receiver, true?
Mr. Horowitz. Correct.
Mr. Gosar. Isn't this like having a prior? I am a dentist,
but this is like even worse than what Operation Wide Receiver
would have been, because you know the outcomes here and you are
still permitting it to go. And if I am not mistaken, that is in
March of 2010, right?
Mr. Horowitz. March and April. I believe it is April of
2010 that the meeting occurs where Mr. Breuer is informed that
there is going to be a meeting and his deputy goes to that
meeting to discuss gun-walking and Wide Receiver.
Mr. Gosar. And that is with Mr. Voth, right?
Mr. Horowitz. That is with Mr. Hoover, the deputy director.
Mr. Gosar. Then it gets better.
Mr. Horowitz. And the deputy assistant director, McMahon.
Mr. Gosar. So then it gets even better, because if I am not
mistaken, Mr. Voth comes to Washington, D.C. and does a
presentation on March of 2010, March 5th, if I am not mistaken.
I think Joe Cooley was at that presentation, right, at the
direction of Mr. Breuer?
Mr. Horowitz. On the March 5th presentation, that is
correct.
Mr. Gosar. So all these pieces are pointing to Mr. Breuer,
that he knows about this early on. I have a problem with this,
with Mr. Breuer, because he is directly in the line of fire,
from what I am seeing here; and we have problems. Because not
only does he go to send somebody back to Arizona, and listens
to Mr. Voth's presentation and almost gets the thumbs up, no
caution flags at all. And just like the wiretaps, these are
alarming discoveries.
Mr. Horowitz. It is clear that Mr. Breuer was aware, in
April 2010, about the gun-walking and Wide Receiver, which is
why we were troubled by his decision to not tell the deputy
attorney general or the attorney general about it, because they
have authority over ATF; he does not. So that is why we found
he should have done that.
Mr. Gosar. It seems to me, but it is very alarming, because
I think the scrutiny on Fast and Furious is much higher than
what Wide Receiver is. They are both egregious, don't get me
wrong, but this is, to me, you already know the results and
then you are making the results even worse.
Mr. Horowitz. Well, and that is why we were troubled when
the information came to the Department from Senator Grassley,
in January of 2011, that those dots weren't connected by Mr.
Breuer and by his deputy, Mr. Weinstein.
Mr. Gosar. Okay. The day after Brian Terry was killed, the
attorney general actually emailed three people asking for
details, did he not?
Mr. Horowitz. That is correct. I believe it was the day
after, but I remember----
Mr. Gosar. This includes Gary Grindler, Monty Wilkinson who
failed to inform the attorney general in connection with the
Brian Terry murder with weapons from Fast and Furious, true?
Mr. Horowitz. That is correct, the failure to notify him
about the connection between the two guns found at the scene,
that they had been bought 11 months earlier by a subject that
had been identified in fast and furious.
Mr. Gosar. Now, going back to my colleague from South
Carolina, you know, when a law officer is murdered, there is a
lot of raised tensions and a lot of questions being asked. We
have a whole scenario of things that occurred here. I mean, the
questions should have been asked and we should have had a
better outcome. But there was another incident in Arizona, late
January, my understanding with even Congressman Giffords, is
questions were abounding was one of these guns being used, was
that not?
Mr. Horowitz. I believe so.
Mr. Gosar. So we should have known. I mean, the attorney
general's testimony, to me, seems flawed. We would have been
asking and should have known much earlier about these questions
about Fast and Furious based upon the inquisition of the
witnesses to these crimes and the nature of these crimes and
the audacity of these crimes, particularly to higher members
like Congress, right?
Mr. Horowitz. Well, as I indicated in the report, we
certainly believed that when that information about the guns
connected to the shooting scene of a law enforcement agent,
that that kind of information needs to go to the attorney
general of the United States.
Mr. Gosar. So it was covered up.
Mr. Horowitz. Well, I don't know whether it was covered up
or not, but it was not told to him.
Mr. Gosar. Okay.
Thank you, Mr. Chairman.
Chairman Issa. I thank the gentleman.
We now go to the gentleman from Massachusetts, Mr. Lynch,
for five minutes.
Mr. Lynch. Thank you, Mr. Chairman.
I thank the witness for a very, very thorough report,
extremely thorough. Churchill might say that this report
defends itself against the risk of being read by its very
length.
[Laughter.]
Mr. Lynch. However, I am working my way through it. Started
with the conclusions and going through it in great detail. But
you do address a lot of the questions that we have raised here
in five or more hearings.
I do want to ask you one point, though, about vindication.
Some are saying people are vindicated; some people are not. But
in prior hearings the accusations were against the attorney
general, and Attorney General Holder had come before the
Committee several times, also over in the Senate, and the
accusation was that he knew, he knew about this operation, he
ran it, and the blame lies with him.
Now, I read your report and it says that there was no
evidence, no evidence that he knew. You do, I think accurately,
pinpoint some people who were ultimately responsible. You name
them. You identify the flaws in their thinking, their misguided
strategies, their misguided tactics, and how they made mistakes
during this whole process, and it was a terrible and tragic
mistake. You are also highly critical of some others.
And, in fairness, there were cross-allegations against
Attorney General Mukasey as well, that he knew more about Wide
Receiver when he was in office as attorney general. Yet, after
this very thorough analysis, you say there was no evidence that
either Attorney General Holder or Attorney General Mukasey knew
of those operations.
So I am asking you do you believe that this report
vindicates Attorney General Holder and, fair enough, Attorney
General Mukasey, given their lack of information about what was
going on?
Mr. Horowitz. I think the report speaks to what we found
and didn't find in our conclusions, and I will stand by the
very lengthy, I agree with you, report, and not trying to re-
characterize or characterize it today, myself.
Mr. Lynch. Okay.
Chairman Issa. Would the gentleman yield? Perhaps I can
assist.
Mr. Lynch. Sure.
Chairman Issa. I think from the Chair's standpoint, I think
your point is extremely good, that nowhere in this report did
we find specific incrimination of they knew, either one of
these attorneys general; and I think that is an important point
and it is one that I think, for the record, the Committee
should be aware of, is that I don't think anyone should have
assumed that they knew.
We certainly would all wish that any attorney general would
ask to know more and would have known more, and I think the
inspector general's report does cast blame for high-ranking
people not asking more questions. But I agree with the
gentleman that neither attorney general was found to know it.
Mr. Lynch. Right. Reclaiming my time.
Chairman Issa. We stopped the clock for that question, by
the way.
Mr. Lynch. I appreciate that. Thank you. Thank you for that
courtesy.
Look, this is a big agency; we have thousands of employees.
We have, at least the report indicates and identifies, an
assistant deputy attorney general in one division who failed to
report, failed to inform his superior. So the implication is
that the U.S. attorney general should know what every single
assistant deputy attorney general knows and fails to report.
I didn't vote for him, but this Congress has just held the
attorney general in contempt, the House did, and I just think
based on this report, the suggestion by many, and some in this
Committee, was that the attorney general was withholding
information to protect himself because he was involved, and
this report, this very thorough, very professional, very well
done report, impartial, very objective, based on the facts,
based on documents not available to this Committee, based on
interview of 130 witnesses, many not available to this
Committee, interviewed multiple times, have concluded that that
was wrong. That was wrong. This attorney general, while not
perfect, was not guilty of the things that people on this
Committee and others in the press accused him of, and that is
secondary. That is secondary.
Final responsibility here----
Chairman Issa. The gentleman's time has expired. Could you
get to primary?
Mr. Lynch. The primary is the changes that have been made
at ATF, because ultimately the primary objective here was to
pay respect to Brian Terry's service to this Country and to his
family. So can you tell me whether the reforms to ATF that
would prevent another agent who puts on the uniform for this
Country and serves this Country could be protected now because
of the changes that have been adopted by the ATF so that
something like this doesn't happen to another American in
service of his Country on the Customs and Border Patrol?
Chairman Issa. The gentleman's time has expired, but please
answer.
Mr. Horowitz. ATF steps, as we indicated, are important
first steps. We thought there needed to be additional steps
taken, and we recommended those and we will follow up to make
sure those are put in place.
Chairman Issa. Thank you. And the gentleman's other
question about people informing or should have informed the
attorney general or the other up, I think he would like to have
an answer to, the up chain failure.
Mr. Horowitz. And we found, as we outlined in the report,
we struggled to understand how an operation of this size, of
this importance, that impacted another country like it did,
could not have been briefed up to the attorney general of the
United States. It should have been, in our view. It was that
kind of a case.
Mr. Lynch. Okay.
I thank you for the indulgence.
Chairman Issa. Thank you.
Mr. Lynch. Thank you.
Chairman Issa. Of course.
We now go to the gentleman from Pennsylvania, Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
And thank you, Mr. Horowitz, for your continuing good work
on behalf of the Department of Justice and certainly the United
States of America. You couldn't have teed off my questioning
any better than asking about the failure to report this up the
chain.
I am going back to an April 12th. This is an email that
comes from Deputy Attorney General Weinstein and it is with
respect to a prosecution memo that he gets on Operation Wide
Receiver, and these are his words: ``I am stunned. Based on
what we have had to do to make sure that not even a single
operable weapon walked in undercover operations I have been
involved in planning, I think we need to make sure we go over
these issues with our front office. We owe it to ATF
Headquarters to preview these issues before anything gets
filed.''
So let me ask a predicate question. With complete knowledge
that guns had been walked, that there were implications that
had been crimes committed in Mexico based on a prior activity,
did you ever ask why they continued to prosecute that case and
send agents that actually re-invigorated that investigation and
prosecution on the prior bad act?
Mr. Horowitz. I would have to go back and check the
transcript on exactly what was asked and what was answered, and
I am happy to do that. I do think it is evident from the email
traffic that we looked at, which was a belief that this was a
good case, there were people that they had evidence on, but
that there would be the possibility of embarrassing the agency
by press stories about the gun watch----
Mr. Meehan. We are more worried about embarrassing agencies
than we are about the public safety and issues of that nature.
Mr. Horowitz. From our standpoint, that appeared to be the
outcome of that meeting that happened just two weeks later,
which was about managing what the public's reaction might be to
learning about gun-walking.
Mr. Meehan. What I find about this statement is in his own
words the degree to which Mr. Weinstein believes that there is
a responsibility to inquire with regard to an investigation.
So now let's move forward a little bit to the next matter,
in which he is now in charge of the oversight of the Fast and
Furious. And there are certainly communications that take place
with regard to certain higher level individuals who are engaged
in the review of information and others. What responsibilities
did he have at that point in time to inquire as to the
activities that may have taken place during Fast and Furious,
appreciating that by his own language he had already
understood, first, that the ATF had already engaged in this
kind of activity improperly and, second, his own articulation
that even a single gun being walked was a violation of what he
considered to be his sense of a properly run case, and, third,
his own desire to assure that inquiries were made?
Mr. Horowitz. Well, what occurred is in that late April
into May time period, in connection with or immediately after
the discussion he had about Wide Receiver and the gun-walking
in Wide Receiver, he learned information about Fast and
Furious. Perhaps not gun-walking was going on, but he learned
information about the case sufficient enough to write an email
to the head of the internal office at the Justice Department
that handles wiretaps, to refer to it as the most or one of the
most important cases involving the U.S.-Mexico trafficking
activity. And he did that in the context of trying to ensure
the wiretap applications were being reviewed promptly.
He then, two weeks later, had one of those wiretap
applications land on his desk for approval. He indicated to us
he never read it; he only read the cover memo. As we indicate
in our report, we thought there was sufficient evidence and
information even in the cover memo to warrant him to inquire
into that affidavit.
Mr. Meehan. I thank you for your language, because this is
his language. This is perhaps the most significant Mexico-
related firearms trafficking investigation ATF has going. So he
knew not only that, but the importance and the significance of
it. Where is the duty to inquire with regard to you have
notice. Now, we know as attorneys, under the tort law, people
are being sued all over the United States because they had
prior notice of a condition, failed to act, and now they are
being responsible because subsequent somebody else has been
harmed.
I have already identified the standards that this
particular individual had, and we know he has explicit
information about prior activities of this sort. We know that
there is information that is contained within, according to
your report, the affidavits of probable cause that he is
responsible for reviewing, maybe not in complete, but the
failure to inquire and the communications that take place
between he and Breuer and one more in which there is this,
well, I judged from his, effectively, demeanor that he
understood, when he was talking to the ATF. Where is the duty
to inquire that would have led to a clear articulation of what
was going on with Operation Fast and Furious?
Mr. Horowitz. And that, I think, is a very important
question and precisely the reason why we have the
recommendation in the report about deputy AAGs needing to
review the affidavits. They are not looking at it just as
robotic lawyers to check a box about is this statutory purpose
met, is another statutory purpose met. Deputy AAGs are SES,
members of the SES; they are involved in policy issues. They
have an appreciation, or should have an appreciation of broader
issues. And if they notice a problem, their obligation, I
believe, as a deputy AG, is to then ask follow-up questions.
Mr. Meehan. Mr. Horowitz, you get the ability--I am running
out of time. You get the ability to be--and I think you did
well here. You are judge, jury, fact-finder, and writer of the
opinion, so you are able to classify things in a variety of
different ways. Is it your opinion that Mr. Weinstein should
have specifically and unambiguously questioned whether there
were improper tactics on Fast and Furious that mirrored those
that had taken place in the prior operation?
Mr. Horowitz. We found there was sufficient information in
the cover memo he saw to either ask questions or to go into the
affidavit and read it, which would have triggered, in our view,
more red flags.
Chairman Issa. I thank the gentleman. I thank you for that
line of questioning.
We now go to the gentleman from Illinois, Mr. Quigley, for
five minutes.
Mr. Quigley. Thank you, Mr. Chairman.
Thank you for your work. We appreciate all your staff and
the extraordinary amount of work that took place here.
You were talking a little bit about the wiretap analysis.
Is it your sense, in talking to them, they thought this was
because of the sheer volume that junior level people were only
reading the summaries of these wiretap applications?
Mr. Horowitz. That is what we had heard, which is the sheer
volume of wiretap applications that came before deputy AAGs,
with all the other items they needed to deal with, that they
could rely on the memos from their subordinates, which we are
not taking issue with the thoroughness of the memos that they
received, but that was what we had heard.
Mr. Quigley. But the memos, the summaries weren't--were the
summaries enough to create red flags, in your mind, or the
actual wiretap applications, the full body?
Mr. Horowitz. Well, in our view, the summary memo that was
received by Mr. Weinstein, given what had just occurred within
the prior few weeks regarding Wide Receiver, were sufficient,
in our view, to trigger him to inquire further.
Mr. Quigley. But going back to your point of avoiding this
in the future, which is what we should really be about, unless
there is something like you just described that triggers a more
thorough analysis, how do you get through the volume that we
talk about here in all these cases, and many more instances
across the Country and other scenarios that you can only
imagine? What is it you have to do, take a random number of a
particular type and do a more thorough analysis to see if there
is something more significant there?
Mr. Horowitz. I think, in our view, in each instance the
Congress has authorized what is a very intrusive law
enforcement technique, electronically wiretapping an
individual's phone or other personal device. Congress put very
tight strictures on that. That is a Fourth Amendment right that
is being invaded.
In our view, in each instance, a deputy assistant attorney
general, which is the person to whom the statute Congress has
given authority to authorize that intrusion, should look at
each affidavit in a manner sufficient to allow them to perform
a personal judgment on whether they are comfortable that that
application, that affidavit meets the statutory criteria. We
recognize that the level of scrutiny they give to the affidavit
can well be informed by what they read in the memo their staff
has provided to them, but that they can't and shouldn't just
rely on that staff memo.
Mr. Quigley. But again, back to your own experience, the
sheer volume alone, is the staffing sufficient?
Mr. Horowitz. Certainly, there can always be more staffing,
and the volume has grown since I was in the Criminal Division
12 years ago, so I understand why there may be a need for more
resources. But I think, regardless of whether there is a need
for more resources, in our view, this is such a significant
event that is being authorized that this deserves the highest
priorities.
Mr. Quigley. Let me skip to another point. In your
analysis, what is your estimate of the total number of guns
that were walked under both administrations?
Mr. Horowitz. As we put in the report, rough estimate in
Fast and Furious was about 2,000; rough estimate in Wide
Receiver was about 400. That is total guns. There were about
100 firearms in each case that were interdicted by ATF.
Mr. Quigley. But now analyzing this as much as you did, and
analyzing what Agent Forselli said, that straw purchasers are
punished about like a moving violation, when he testified
before this Committee, your best guess, in reviewing these
applications, on the number of guns that are transported
through straw purchases?
Mr. Horowitz. I am sorry, the number of guns----
Mr. Quigley. That go to Mexico due to straw purchases.
Mr. Horowitz. Well, we did a report in Project Gunrunner a
couple years ago that outlined the significant flow of firearm
trafficking, so there is a substantial flow of firearms.
Mr. Quigley. But your guess in numbers annually, thousands
and thousands and thousands?
Mr. Horowitz. As I sit here, I am sorry, I don't have that.
Mr. Quigley. But best guesses are--and this is a tragedy,
and that is what we are about. But if the concern is, as the
Chairman said earlier, to keep guns out of the hands of
dangerous criminals, this issue isn't going to stop today,
because straw purchases are happening today. And as the agent
who testified in front of this Committee said, they are not
punished any more than doing 65 in a 50.
I know, because of your hard work, you appreciate this, but
it cannot be lost upon you, sir, that the fact is we haven't
solved this problem if thousands, the numbers dwarfing what
happened in this tragedy, are still taking place.
Mr. Horowitz. Clearly, as we outlined in our previous
report, in Project Gunrunner, there is a need to take serious
action, law enforcement action to address this problem.
Mr. Quigley. Thank you.
Chairman Issa. I thank the gentleman.
I only ask you to maybe correct your statement about one
thing. You used the word interdicted. Do you mean recovered or
interdicted, when you said 100 weapons in each?
Mr. Horowitz. I am sorry. I am limiting that to ATF
interdiction of 100 out of 2,000----
Chairman Issa. Were recovered or covered?
Mr. Horowitz. I am sorry, 100 interdicted or stopped by
ATF. Many additional recovered at crime scenes or in other
locations. But only 100 in total of the 2,000.
Chairman Issa. And just because I think the gentleman's
point was very good, when you are using that term, it is a term
where they lost control, but then regained control.
Mr. Horowitz. In some instances that is the case. It is
hard to generalize on the 100 because there were several
different events that occurred as to how they got them, some of
which I actually can't even talk about because it is still
under----
Chairman Issa. I appreciate that. I just think that this
Committee has spent an inordinate amount of time, as has the
Judiciary, in trying to define what gun-walking is. If you grab
them before they lose your control, we generally believe that
is not gun-walking. And if you deliberately allow it to leave
your control, that is gun-walking.
Mr. Horowitz. And the definition we operated under
generally was you have an opportunity to interdict and a legal
basis to do so, and you don't.
Chairman Issa. A great standard, and it should be the
standard. I thank the gentleman.
We now go to the former chairman of the full Committee, the
gentleman from Indiana, Mr. Burton.
Mr. Burton. Thank you, Mr. Chairman.
On page 455 of your report you refer to Lanny Breuer
failing to report the gun-walking to the deputy attorney
general and you say, we believe Breuer should have promptly
informed the deputy attorney general or the attorney general
about the matter in April 2010, and he failed to do so.
The question I have is the public relations office over
there, I guess the lady's name is Tracy Schmaler, on June the
5th she said, the Committee also knows full well that Assistant
Attorney General Lanny Breuer did not review the wiretap
applications in Fast and Furious. That does not stop the
Committee, however, from falsely asserting that Breuer was
responsible for authorizing them.
There is a real inconsistency there. And the last part of
my question is I understand that there is a Media Matters. I am
sure you are familiar with what that is. This Ms. Schmaler
evidently sent an email to them about somebody that ought to be
investigated or ought to get a little pressure put on them. Are
you familiar with any of that?
Mr. Horowitz. I have read the reports and I have seen them.
I have not looked at it, Congressman, beyond that at this
point.
Mr. Burton. So that was not involved at all in your--the
reason I ask is if this kind of an email was sent for, I guess,
Justin Phillips, were any other emails sent to Media Matters
about the Chairman or members of this Committee who were
conducting the investigation? Because she was pretty vocal and
vociferous when she said, on June 5th, the Committee also knows
full well that Assistant Attorney General Lanny Breuer did not
review the wiretap applications in Fast and Furious. And then
she went on to say, that does not stop the Committee, however,
from falsely asserting Breuer was responsible for authorizing
them.
If this example of going to Media Matters about this Mr.
Phillips is a way that they normally do things over there in
the public relations department, I was concerned that maybe
they were trying to do that to the members of this Committee
that were working so hard on the investigation or possibly the
Chairman. But you have no knowledge of that?
Mr. Horowitz. I don't know about the interaction between
Office of Public Affairs and Media Matters other than what I
have read in the press in the last few days about it.
Mr. Burton. Okay. Thank you very much.
I will yield to the Chairman.
Chairman Issa. I thank the gentleman.
Speaking of retaliation against the Administration's
enemies or the attorney generals, if in fact federal funds are
used in order to dissuade members of Congress or members of the
Judiciary Branch, that would be a violation of law, wouldn't
it? You are not allowed to use federal funds to essentially try
to attack your political opponents. That is kind of a no-no,
isn't it?
Mr. Horowitz. That is my understanding.
Chairman Issa. IG 101.
Well, to that extent, I would like to talk to you about the
whistleblowers. As you said in your opening statement, and I
think both sides of the aisle have called them courageous, your
report does not spend much time discussing whistleblowers who
exposed Fast and Furious, although you do mention it. Have you
been able to determine whether the whistleblowers have in fact
been dealt with fairly and protected under the Whistleblowers
Act?
Mr. Horowitz. That is a matter, as we indicate in the
report, we are still finalizing and reviewing, and I agree, Mr.
Chairman, the efforts of the ATF agents in this case to come
forward and acknowledge what was not public--and having done
law enforcement cases in the Southern District of New York, it
takes a lot of courage to come forward, if you are in a law
enforcement agency, and explain what the agency has done wrong.
Chairman Issa. And in your report would you feel that you
have vindicated the whistleblowers? In other words, initially,
when Dobson and others came forward, they were accused of, in
fact, false allegations, etcetera. Would you say that at the
end of your investigation, those 471 pages, as succinct as it
is, pretty well does a job of vindicating their concerns that
they raised publicly?
Mr. Horowitz. It certainly, from my standpoint, and there
were a lot of people who came forward, so let me just say----
Chairman Issa. Right. I realize it is a broad group now.
Mr. Horowitz. The folks who came forward, the agents who
came forward and said guns were being walked and they could
have had an implication in Agent Terry's death is what some of
the earliest information was on the Internet, and more publicly
beyond that, I think it is pretty clear that that is what
happened here, is that guns were walked in quite a substantial
way.
Chairman Issa. Now, notwithstanding the fact that Brian
Terry had to be gunned down for them to come forward in ever
increasing numbers, wasn't this an example of exactly why
whistleblowers are to be protected and why whistleblowers
should be encouraged to come forward sooner, rather than later?
And I want to particularly mention ones who are not looking for
a qui tam case, but, in fact, are truly just trying to get
something bad stopped.
Mr. Horowitz. I agree. I think this is an example of the
importance of employees in all parts of the government, in this
case law enforcement, to come forward if they have information
and be comfortable doing that. And that is one of the reasons,
as you know, I have put in place a whistleblower ombudsman
position in my office, because of this and other events that I
have seen that people need to be comfortable to come forward
and talk, and we need to do a good job of following up on their
concerns.
Chairman Issa. Well, I want to thank you and I want to
particularly thank you for the fact that more whistleblowers go
to IGs. IGs run down more of these problems, by far, than
Congress ever does, so we often get noted when whistleblowers
come to us, but most of the cases that we see come through your
offices when whistleblowers have come within the agency.
With that, I would note that one of the UCs that will be on
the floor today will in fact be a whistleblower reform, so
there couldn't be a better time to remind the members of
Congress that we depend on whistleblowers and we need to
protect them.
With that, I am pleased to go to the gentleman from
Illinois, Mr. Davis.
Mr. Davis. Thank you very much, Mr. Chairman.
And thank you, Mr. Inspector General. I want to thank you
for your very informative and clarifying information. I think
what you have delineated gives the average citizen a great deal
of confidence that what they are hearing is what has actually
happened. I know that Lanny Breuer, the head of the Criminal
Division at the Department of Justice has been severely
criticized by some members of Congress for what they considered
to be his actions here. Senator Grassley has called for his
resignation, the Chairman of this Committee has said Mr. Breuer
``clearly had culpability,'' and Mr. Chaffetz even said that
Mr. Breuer started this up in 2009.
So I want to ask you a few questions to see if we can't
really clarify and understand what Mr. Breuer's role in these
two programs. One, Mr. Horowitz, did you find that Assistant
Attorney General Breuer authorized or directed gun-walking in
either Operation Fast and Furious or Wide Receiver?
Mr. Horowitz. We did not.
Mr. Davis. Did you find that Mr. Breuer review or approved
the wiretap applications in either operation?
Mr. Horowitz. No. In each of the 14 instances it was a
deputy assistant attorney general who authorized the
applications.
Mr. Davis. Did you find any evidence that Mr. Breuer was
aware that gun-walking occurred in Operation Fast and Furious
before the information became public?
Mr. Horowitz. Prior to Senator Grassley's letter, we did
not find information that he was aware of gun-walking in
Operation Fast and Furious; it was only with regard to Wide
Receiver that we were aware of that information.
Mr. Davis. In April 2010, Mr. Breuer did learn about the
gun-walking tactics that had been used during the Bush
Administration in Operation Wide Receiver, but only after the
operation had been completed. So, Mr. Horowitz, what did Mr.
Breuer do when he learned that gun-walking occurred in
Operation Wide Receiver?
Mr. Horowitz. What we were told by Mr. Breuer and Mr.
Weinstein, and perhaps others that we interviewed, was that
there would be a meeting with ATF and at that meeting ATF would
be told that the gun-walking tactics were unacceptable. We
found that there was no, however, admonishing at the meeting.
Mr. Breuer was not at that meeting, but we found that there was
no, in fact, admonishing of ATF for that conduct.
Mr. Davis. What additional steps, if there were any, do you
think Mr. Breuer should have taken when he learned that gun-
walking occurred in Operation Wide Receiver?
Mr. Horowitz. Well, as indicated, one of the things we
sought out to do here was address the facts that we found and
not go beyond those, and in this case we found he knew about
Wide Receiver in April of 2010. He did not have direct
authority over ATF, it was the deputy attorney general and the
attorney general who had authority. Those tactics were
unacceptable and he should have told the two people, one or
both of the people, who could have taken action to stop or to
correct what was happening.
Mr. Davis. Mr. Breuer testified publicly before Congress,
has acknowledged and apologized for his oversight, and
explained that he regretted the fact that he did not raise
concerns about Operation Wide Receiver with other senior
leaders at the Department of Justice. Chairman Issa has also
alleged that Mr. Breuer was actively advocating gun-walking to
the Mexican government.
As evidence for this claim, Chairman Issa points to notes
from a meeting with senior officials for the Mexican government
on February 2nd, 2011, that stated that Mr. Breuer discussed
controlled deliveries. Here is what the note said: ``Mr. Breuer
suggested allowing straw purchasers to cross into Mexico so the
Mexican federal police force can arrest the Mexican, attorney
general's office can prosecute and convict. Such coordinated
operation between the United States and Mexico may send a
strong message to armed traffickers.''
Chairman Issa. I would ask unanimous consent the gentleman
have an additional minute. Without objection.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Horowitz, in your report you draw a sharp distinction
between gun-walking and controlled deliveries. Do you consider
advocating for coordinated operations with Mexico to be the
same as advocating for gun-walking?
Mr. Horowitz. We found, as you noted in our report, that
controlled deliveries are different from gun-walking, and we
would draw a distinction between the two, and a distinction was
drawn between the two for us by a number of witnesses.
Mr. Davis. I thank you very much for your testimony.
Chairman Issa. Would the gentleman yield?
Mr. Davis. Yes.
Chairman Issa. Isn't it true that Wide Receiver, as an
intent stated, was a controlled delivery? The actual gun-
walking that occurred was when agents abandoned their watch of
the weapons for any number of reasons, including they had been
there for hours, they were tired, they went home. But the
actual program that Assistant Attorney General Breuer was
advocating, in fact, reads right on what was Wide Receiver.
Mr. Horowitz. And in Wide Receiver there first was a
failure to interdict, then there was this effort of controlled
deliveries, then there was a failure again. And the controlled
deliveries that, as I understand it, and we did not investigate
this further, that Mr. Breuer had talked about in February of
2011 was an effort to do coordinated interdiction with Mexican
authorities. That was stopped by the deputy attorney general's
order a few weeks later.
Chairman Issa. But, in fact, if he had succeeded and they
had gone to do it, they would have been essentially repeating a
history of something that had failed, the transborder crossing
interdiction.
Mr. Horowitz. Right. Well, they clearly failed in Wide
Receiver, and I guess, as with all things, the devil is in the
details as to how the plan of action would be. So I am hesitant
to speculate as to what the outcome would be, but that was the
idea in Wide Receiver, was to try and do an effective
controlled delivery, which never happened.
Chairman Issa. Thank you.
I thank the gentleman for yielding.
We now go to the gentleman from Florida, Mr. Labrador, who
is not from Florida, but from Idaho.
Mr. Labrador. Or wherever I am from, right?
Chairman Issa. Well, we could go on and on, but you are
just lucky Ross was out of the room. The gentleman is
recognized.
Mr. Labrador. Good morning. Thanks for being here. And I
thank you for your report. I think it is very thorough. You
know, this morning and yesterday we have heard a lot of media
reports about how this is a vindication for Mr. Holder, and you
have already said that you are not going to go there, you are
just going to let the report speak for itself. But I find it
fascinating that the only way some of the people here and in
the media are saying that this is a vindication for Mr. Holder
is by creating a strawman argument.
They are saying that what this Committee was investigating
was whether Mr. Holder knew or participated in Fast and Furious
from the beginning. That is a strawman argument. We didn't know
what Mr. Holder knew. And why didn't we know? Because he came
to Congress on several occasions and he misled Congress.
Whether it was intentional or whether it was unintentional, the
facts in your report show that he, on several occasions, didn't
tell the truth to Congress, isn't that true?
Mr. Horowitz. We don't draw a conclusion as to his
testimony to Congress; I think that, obviously, is for the
members----
Mr. Labrador. But in the letters that were sent from the
Attorney General's Office twice, right, memos, the statements
in those memos were either misleading or false, isn't that
correct?
Mr. Horowitz. We didn't look at that as part of our review,
Congressman, so I am not in the position today to speak to the
representations to Congress in those letters.
Mr. Labrador. No, in the memos that were sent. The letters
you have are on, he stated on May 3rd Holder testified, well,
you didn't look at the statements, but he did give two memos to
Congress through his office. There were two specific memos that
were given to Congress that had to be retracted, isn't that
correct?
Mr. Horowitz. I am not aware of that, Congressman. Again,
we didn't question the Department about what they did or didn't
provide to Congress.
Mr. Labrador. Okay.
Chairman Issa. Would the gentleman yield for just a second?
Mr. Labrador. Yes.
Chairman Issa. Yesterday, in the briefing, you might want
to check with your own staff, we were talking about the
February 4th, which was later corrected, and the May 2nd, I
believe.
Mr. Horowitz. Okay.
Chairman Issa. Those two you do have an opinion on.
Mr. Horowitz. Yes. I am sorry. The reference to memo, I was
confused.
Chairman Issa. I know. I apologize. We will call them
letters.
Mr. Labrador. Yes, letters. So let's call them letters.
Mr. Horowitz. Yes. I am sorry about that.
Mr. Labrador. You are aware of the two letters, correct?
Mr. Horowitz. Correct.
Mr. Labrador. The February 4th and the May 2nd letter.
Mr. Horowitz. Correct.
Mr. Labrador. And those had to be retracted.
Mr. Horowitz. The February 4th letter was retracted. I
think, as the Committee's own report indicated, as to the May
2nd letter, there is an argument that it is literally true, but
that is what in part troubled us, as we wrote.
Mr. Labrador. And you wrote in your report that that
troubled you.
Mr. Horowitz. Right.
Mr. Labrador. Because it was literally true. I don't know
if you used the word misleading, but it could mislead.
So let me just ask you a simple question, and really
quickly tell me how much time, how many people do you have on
your staff working on this report?
Mr. Horowitz. I don't know the number precisely because so
many people had worked on it for 18 months.
Mr. Labrador. Approximately.
Mr. Horowitz. It was, I am guessing, north of 20, but it
would be a pure guess.
Mr. Labrador. And how many man-hours do you think were
spent on this report?
Mr. Horowitz. The good news is I wasn't here for the first
13 months, so I can't tell you. The last five months I can tell
you there were a lot of man-hours. I actually don't know the
exact number.
Mr. Labrador. And as we just heard from Mr. Lynch, your
report is so long that it may encourage some people not to read
it. We have over 451 pages in your report. Do you think your
time spent on this report, your time spent investigating this
would have been necessary had the Department of Justice
provided this Congress the same information that they provided
to you in your investigation?
Mr. Horowitz. That would be hard to speculate on. I will
say this. Regardless of what had happened along the way, I
think the facts of Wide Receiver and Fast and Furious, the work
we did was important to bring out and address. The agents
brought forward very significant information before the letter
writing that occurred that you have referenced. So I think we
probably would have spent a lot of hours on it; our time might
have been different. Obviously, chapter 6 in our report would
have changed.
Mr. Labrador. And in your investigation, you said you were
a deputy attorney general before. In your time you are always
asking the question what does somebody know about an
investigation; what does somebody know about what you are
investigating; all we were trying to get to was the bottom line
of what the attorney general knew, what his department knew,
and we spent countless hours here trying to figure that out.
And in your report it says that they should have done a
better job. I just find it fascinating that people are trying
to exonerate anybody of any wrongdoing, when clearly there has
been blissful ignorance, there has been blissful avoidance of
the truth. And I just think it is time for us to get to the
bottom line of what happened here.
I really thank you for your report. I thank you for your
time. And I thank you for doing the job that we asked you to
do.
Chairman Issa. I thank the gentleman.
We now go to the gentleman from Arizona, Mr. Barber.
Mr. Barber. Thank you, Mr. Chairman, for allowing me to sit
in on this hearing. And I also want to thank you for coming to
Arizona this week, when we gathered to honor Brian and to have
a Border Patrol station named for him. This young man
sacrificed the ultimate sacrifice for our Country, and your
presence there, I think, gave the family a sense that the
Congress was concerned and was trying to do their best to find
answers to the questions that they have.
I have talked with the family, and when I met with them
this week, they had one question and one request from us. They
asked that we make sure that they get the information that they
have been waiting for, that has been on their minds and in
their hearts for 21 months. To me, it is outrageous that they
haven't gotten answers sooner. They want to know what happened
to Brian; why were guns that were allowed to go into Mexico
with the full knowledge of personnel in the Federal Government
and that ultimately ended up at the scene of his murder in Rio
Rico, Arizona. They want to know who made the decision to
launch Fast and Furious. They want to know who should be held
accountable for these decisions and what consequences they will
face.
Mr. Horowitz, I want to thank you and your staff for what
is obviously a tremendous amount of work in preparing this
report. It is, in my view, a report that has tremendous
credibility and objectivity. And I think, finally, the Terry
family is beginning, but just beginning, to get the answers
they deserve that are long overdue, but I don't believe they
have yet received the answers to all of their questions, and I
would like to address those in just a moment.
Agent Terry, as we know, made the ultimate sacrifice for
his Country. Nothing we can do will bring him back, but he and
his family deserve to know what happened and who was
responsible. Your findings prove that serious flaws in policy
and inadequate oversight, and flagrant disregard for public
safety allowed American weapons to fall in the hands of violent
Mexican criminals and drug cartel members as a part of
Operation Fast and Furious. It should never have been the
policy of this Government to allow these firearms to be
smuggled knowingly into Mexico, and the program should never
have been approved and it must never happen again.
So I have a question or two for you, Mr. Horowitz. You said
that steps have been taken already to prevent a reoccurrence.
Can you say specifically a couple of those steps that you
believe will prevent a reoccurrence that are already in place?
Mr. Horowitz. Well, as we have put in our report, the ATF
has instituted a variety of restrictions on when this type of
activity can occur, so that is first. Second, there have now
been put in place steps to require various levels of
supervisory review that didn't exist before. So, for example,
those are two that ATF has done, as identified. We have
suggested others and a more thorough review of the policies and
practices to make sure that others are caught, such as
requiring ATF to abide by the undercover operation rules that
the attorney general has in place.
Mr. Barber. Thank you for that. The family believes, and I
agree with them, that they may have been deliberately kept in
the dark about Brian's death and the circumstances surrounding
it. Did your investigation reveal that this was discussed
within the Department, and why it was not determined that the
family should know more sooner?
Mr. Horowitz. I don't recall us seeing evidence of
discussion specifically about what to tell the Terry family. I
would have to go back and refresh myself on that, but I don't
recall that being the basis, if that was occurring, if that was
what was being discussed in the emails we saw.
Mr. Barber. And one more question in the remaining time. We
have heard that there were internal disputes within the
Department of Justice at the field level that allowed Fast and
Furious to walk guns into Mexico, specifically that there was a
dispute between the ATF and the U.S. Attorney's Office. Can you
speak to what you found regarding this issue, please?
Mr. Horowitz. Yes. That is a very important issue that we
take on and address, because there has been the suggestion from
agents that while they couldn't seize or take action because
the U.S. Attorney's Office had a restrictive view on what they
could do or not do. That was an issue and that was a concern in
other cases.
What we found here in Fast and Furious was that didn't
exist. From the outset, both the U.S. Attorney's Office and the
agents at ATF decided they wanted to get to the top of the
organization, and the way to do that was to take no action as
to the straw purchasers. It wasn't, in our view, a legal
problem, an issue about the evidence; it was a tactical
decision that was made by both entities.
Mr. Barber. I want to thank you for your testimony.
Chairman Issa. Would the gentleman yield?
Mr. Barber. Mr. Chairman?
Chairman Issa. Would the gentleman yield for just a quick
question?
Mr. Barber. Please.
Chairman Issa. You have commented several times on this
bottom-up, the agents deciding to do it. In your opinion and
your staff's opinion, was any part of it, if you will, the
arrogance and the ambition, the our job is limited to we go
after guns, alcohol, tobacco, and firearms, but basically guns,
and they ran up the chain of drugs and drug cartels by this
ambition that they were going to roll up people and entities
that were well outside their basic jurisdiction? Was there any
sort of a feeling by your people that this was the exuberance
of ambition; I am going to get a big hit and I am going to move
up and I am going to be director at the ATF, or something like
that?
Mr. Horowitz. Well, I think there was a concern that we saw
about a desire early on, for example, to go for a wiretap. That
is generally thought of as a very sophisticated technique and
shows sophistication in a case, even though we found there was
all this evidence, by that point, hundreds of guns, lots of
cash from people who had no income. So the question was why not
take action then, but instead focus on the wiretap? So that
concerned us.
Another concern, and perhaps evidence of that thinking,
although no one, of course, told us that was a reason.
Chairman Issa. No one ever brags about their ambition.
Mr. Horowitz. Right. As shocking as that may be. But right
at the outset, the effort to keep ICE out of the case. As
indicated, their emails right away, in November, at the outset
of this, we have to keep ICE at bay; don't have them
investigate. Well, they have an important piece of the law
enforcement effort in gun trafficking at the border, and you
can't take that position if you want to be effective at the
border, in my estimation.
Chairman Issa. I thank the gentleman.
We now go to the gentleman from Texas, Mr. Farenthold.
Mr. Farenthold. Thank you, Mr. Chairman.
Mr. Inspector General, I apologize if I sound terse or
hostile. I am a huge fan of the inspector general program; I
think it is a great asset. But there do remain some questions
that I have gotten in my office, about is this investigation
just the fox guarding the hen house. I think your report does
go into great depth, but I do want to hit the outlines of it
and some things that may lead to where we need to go further in
this Committee in continuing to investigate Fast and Furious.
My first question is the Supreme Court has made very clear
with respect to executive privilege, there is not an
unqualified presidential privilege. The deliberative process
privilege requires that the protected material be both limited
to communications occurring before the policy adoption and
deliberately reflecting the process by which the policy
alternatives are assessed at the highest level.
As you know, the President has claimed executive privilege
to a broad group of documents this Committee has subpoenaed,
some of which I imagine you looked at in your investigation.
You have had access to thousands more documents than we have.
My first question is roughly how many of these documents,
in your opinion, would be covered by executive privilege?
Mr. Horowitz. Congressman, we, fortunately, didn't have to
make a decision about what we thought was or was not within
executive privilege because our decision right at the outset
was to ask for all the documents that we needed, we got them,
and to include them in the report.
Mr. Farenthold. But you all looked at them.
Mr. Horowitz. We looked at everything that was relevant.
Mr. Farenthold. Gut feeling, then, if you can't answer
specifically. Were there some in there covered by executive
privilege?
Mr. Horowitz. I don't know that. That was never our call.
We were never shared with any information about that.
Mr. Farenthold. All right. You noted also in your report
that the White House refused to share internal communications
with you during your investigation of Fast and Furious. We have
noted a connection into the White House through Kevin O'Reilly
at the National Security Council. Do you think the White
House's refusal to share these documents limited the scope of
your investigation and would this Committee be well served by
pursuing an investigation in that avenue?
Mr. Horowitz. Well, as we noted in the report, and as you
know, Congressman, we did not get internal communications from
the White House, and Mr. O'Reilly's unwillingness to speak to
us made it impossible for us to pursue that angle of the case
and the question that had been raised.
Mr. Farenthold. So it would probably be worthwhile for us
to pursue.
Mr. Horowitz. Well, certainly, we have sought to pursue
every lead we could, so I can just tell you from our standpoint
it was a lead we wanted to follow.
Mr. Farenthold. Thank you very much. As Mr. Burton pointed
out, the DOJ has been accused of cooperating with outside
groups like Media Matters for advice and spin on stories so
they will come out in a positive manner. And I imagine the
press office and all of the DOJ is concerned about that. It
actually kind of troubles me that there is such a political
facet to what goes on in the DOJ. Of all the executive
agencies, you would hope DOJ would be the one most above
politics.
But my question is do you know if the DOJ shared this
report, prior to its release yesterday, with any outside groups
and/or who within the DOJ that would have made substantive
changes to the report?
Mr. Horowitz. We provided, for purposes of our comment and
review, a draft of the report to the Department. We allowed the
Department, internally, to share it with people who had
relevant information, but to tightly control who saw it, and
that it was not to be shared outside the Department.
Mr. Farenthold. Okay, so, to the best of your knowledge,
Media Matters didn't vet this.
Mr. Horowitz. They should not have, and if they had been
allowed to see it, it would have been a violation of the
understanding that we had about the review.
Mr. Farenthold. All right, great. Now, I have been
approached by commentators and constituents alike who question
possible political motives behind allowing something like
Operation Fast and Furious to continue. Some of them have
claimed that there may have been a desire at some level to
create a public outcry for stricter gun laws. Would your
investigation have been able to uncover political motives
behind allowing the operation to continue, and did it? Or is
the entire fiasco a result of just gross mismanagement?
Mr. Horowitz. We did look at that issue and that question
to see if we had documents or other evidence on that point. We
didn't, obviously, go into the investigation looking for the
emotive specifically, but we did think it was important to
address it. We do highlight in the report those instances where
there is talk about perhaps changing rules, regulations, or
laws. What we found is all of those incidences came after the
investigation had begun. So the notion was, well, maybe this is
a good example to show why we need to change the laws. But we
didn't find evidence at the outset that that was what was
driving.
Mr. Farenthold. Did you find evidence that at any point
where the Fast and Furious Operation was in effect that this
was happening?
Mr. Horowitz. There was suggestion, later on in the
investigation, that it might be a good example to show why
rules, laws, regulations as an example of why they might need
to be changed.
Mr. Farenthold. I see my time has expired.
Chairman Issa. Would the gentleman yield?
Mr. Farenthold. Certainly.
Chairman Issa. So to characterize, they were opportunistic
after the fact, but you found no evidence that before the fact
they did Operation Fast and Furious in order to get laws
changed.
Mr. Horowitz. Correct. In the documents we reviewed, we did
not see at the outset. In fact, the documents we saw indicated
at the outset the notion was let's not take action to get to
the top, simply because they wanted to get to the top.
Chairman Issa. Is Fast and Furious, 2,000 weapons being
knowingly allowed to walk and leading to the death of Brian
Terry, is that a good poster child for why you need to have
tighter rules on gun dealers, since gun dealers were in fact
ordered or coerced into participating in this, rather than
listening to them when they say this guy is a straw buyer and
arresting him?
Mr. Horowitz. Well, we found that in terms of a law
enforcement technique or law enforcement tactics, that the
decision-making that justified what was going on just failed in
the primary mission of law enforcement, which was to protect
the public.
Chairman Issa. I thank the gentleman. I thank the IG and I
thank the gentleman.
We now go to that splendid individual from the great State
of Missouri for his questions and probing. With that, Mr. Clay
is recognized for five minutes.
Mr. Clay. Thank you, Mr. Chairman. I am so glad to be back
after the August break and to get right down to business.
Mr. Chairman, I think we can all agree that gun-walking,
whether during Operation Wide Receiver or Operation Fast and
Furious, was an incredibly reckless tactic that put both
American and Mexican lives at risk.
In February, the attorney general testified before this
Committee that the Department had removed, reassigned, or
accepted the resignation of a number of people within ATF and
the U.S. Attorney's Office in Phoenix that had operational
oversight of Operation Fast and Furious, including the Acting
ATF Director, Ken Melson, and U.S. Attorney for Phoenix Dennis
Burke.
Mr. Horowitz, it is my understanding that ATF has been
under new leadership since August of last year, when the
attorney general announced the appointment of B. Todd Jones, a
former military prosecutor and U.S. attorney for the district
of Minnesota, to serve as acting director of ATF. Is that
correct?
Mr. Horowitz. That is my understanding, Congressman.
Mr. Clay. And the attorney general also stated on several
occasions that he was waiting for the release of your final
report to make final determinations about further personnel
actions. Is it consistent with prior practice for agency
leadership to reserve certain personnel actions regarding
individuals under investigation for alleged misconduct until
there is an expected general report?
Mr. Horowitz. Well, since I am only five months on the job,
Congressman, I am not sure I can speak to the experience.
Mr. Clay. So you are not clear on the history of it?
Mr. Horowitz. I don't know what prior instances where my
office has done reviews, what different approaches might have
been taken, if any.
Mr. Clay. Well, your report not only makes policy
recommendations for the Department of Justice, but also
assessed ``the performance of each of the Department employees
who were most involved in Operation Wide Receiver and Operation
Fast and Furious.'' Several media outlets have reported that
you recommended individuals for discipline by the attorney
general. Mr. Horowitz, did your office make any specific
personnel recommendation in light of Operation Wide Receiver
and Operation Fast and Furious?
Mr. Horowitz. No. We simply reported on the facts of what
we found and where we thought there were failures or other
issues related to the performance, but not made specific
recommendations as to what should or shouldn't happen as to
the----
Mr. Clay. And is that common practice, to not make
recommendations on personnel?
Mr. Horowitz. Again, being fairly new in the job, my
understanding is that on occasions there may be instances where
we have in the past, so I am not sure I can speak to the
history of that.
Mr. Clay. I see. Okay. Yesterday the attorney general
announced that former Acting ATF Director Melson is retiring
and that Deputy Assistant Attorney General Jason Weinstein has
resigned. The attorney general also stated that there may be
more personnel actions for career employees at ATF and the
Phoenix U.S. Attorney's Office, although for Privacy Act
reasons he cannot disclose them at this time.
He stated, ``Those individuals within ATF and the U.S.
Attorney's Office for the District of Arizona whom the OIG
report found to have been responsible for designing,
implementing, or supervising Operation Fast and Furious have
been referred to the appropriate entities for review and
consideration of potential personnel actions. Consistent with
the requirements of the Privacy Act, the Department is
prohibited from revealing any additional information about
these referrals at this time.''
Mr. Chairman, looking at how this has all developed, it
gives me pause and makes me wonder did this Committee shoot
from the hip? Did we move too soon?
Chairman Issa. Would the gentleman yield?
Mr. Clay. I mean, that is just food for thought for you,
Mr. Chairman, and the rest of the Committee who voted so
recklessly when it was time to take action against our attorney
general. I yield.
Chairman Issa. I thank the gentleman. I might note that
contempt was narrow; it was for the attorney general's refusal
to give us the very documents that the IG required in order to
do this very comprehensive report. I would say just the
opposite, that contempt was most appropriate, in retrospect,
when in fact the very documents we now know and are applauding
in this report were the documents denied us.
Mr. Clay. Well, reclaiming my time, Mr. Chairman.
Chairman Issa. Before you came in----
Mr. Clay. Reclaiming my time.
Chairman Issa. Of course.
Mr. Clay. This report seems very thorough. What is it,
about 1,400 pages? It seems like the OIG got all of the
information----
Chairman Issa. We previously noted that it is thorough at
the minimum possible number of pages.
Mr. Clay. Well, thank you, Mr. Chairman.
Chairman Issa. I thank the gentleman. And I guess we are
going to agree to continue to disagree on this. I wish you had
been here earlier when the IG was explaining that he did need
the documents he got and was happy to have them, and felt that
we should have gotten them too.
Mr. Clay. And better late than never.
Chairman Issa. Well, Jason Weinstein should have resigned a
year and a half ago. The house cleaning should have happened a
year and a half ago, if in fact Justice was going to have good
judgment sooner, rather than later. But I respect the
gentleman's desire to disagree and I thank you.
Now we go to a gentleman with whom I am more likely to
agree at the moment, the distinguished gentleman from Oklahoma,
Mr. Lankford.
Mr. Lankford. Thank you, Mr. Chairman. And, yes, it would
have been nice to have all these same documents that you had
access to when we asked for them a very long time ago. I think
a lot of people have asked these same questions and just wanted
some answers. So thank you for your work and thank you for
pulling that together, and I look forward to our Committee
continuing to work, to be able to finish our reports out as
well and hopefully have access to those same documents.
Let's get to the issue of fixing it. It is one of my
primaries. When the attorney general was here, he and I had a
conversation about how do we resolve this, the issue of putting
out a statement that gun-walking is now forbidden, of any type.
We will interdict weapons every time, okay, great, that is a
first step.
But there are multiple other issues. We start dealing with
fixing it, things like the supervision of the process of
investigations is very different for the FBI than it is for
ATF, and my basic question is why. Why does FBI have one
process supervising investigations; ATF has a very, very
different process on that? It is overseen by the same DOJ. Why
do we have these two different sets?
The scope of the task that you mention in your report with
ATF, that there is a regulatory function and a criminal
function overlap at times, and there were obvious issues that
happened at this. I will allow you to make a comment on one of
those, then I have one more issue as well, the size of the
agency and what they were trying to accomplish.
As I read through your report, I got to page 338 and there
was a very interesting comment there that basically alluded to
the fact that ATF in Phoenix was over their head. They had too
few people, they were trying to take on this massive task, and
it looked like they were trying to accomplish something big,
but they didn't have the right people, were not coordinating;
that this particular group of ATF agents were in way over their
head and should not have been engaged in that. Again, it begs
back to the scope of the task.
So I have one more issue I want to visit on, but I want to
talk a little bit about the issue of this, whether to reverse
its criminal responsibility and the task that has been given to
ATF and the number of agents they have on it. Do you have
recommendations on that based on your investigation?
Mr. Horowitz. We do. And I think each of the issues you
identified, Congressman, are very important and reforms that
need to happen. The Department has four large law enforcement
agencies under it: the FBI, the DEA, the ATF, and the Marshal
Service. They should have consistency among their rules and
requirements, of course, taking into account their different
missions. That needs to happen. The fact that ATF was not
brought under the attorney general guidelines for undercover
operations eight years into their tenure in the Department I
think was significant, from our standpoint.
So we have recommended and our second recommendation is for
the Department to go back and review the other components, look
at who has the best practices. You have an organization, you
have multiple law enforcement agencies. There needs to be some
effort to look at best practices and figure out who has them.
If it is ATF, the other components should use them. If it is
the FBI, the other components should use those. So I agree with
you completely.
Mr. Lankford. So you are talking about a downsizing of
their task. Let's make their task more specific and clearer,
and also have clear parameters of supervision as you do with
the other departments.
Mr. Horowitz. There shouldn't be four different rules if
one is better than the other.
Mr. Lankford. Right.
Mr. Horowitz. They should conform.
Mr. Lankford. And if this is redundant, then let's make it
clear from there.
Mr. Horowitz. Correct.
Mr. Lankford. There also seems to be, as I read through
your report, a bunker mentality, that as soon as Grassley's
letter hits, there is a shutdown and a let's not allow Melson
to go out and talk to them right away, let's try to limit this
and let's try to work through the process, and try to limit it
and dial that down.
When Senator Grassley's letter mentions Gunrunners, like,
okay, let that sit out there when we really know it is Fast and
Furious so we don't start to get into the details. And the
stunning one was not just the February letter of 2011, it is
the May letter and it is the June 15th testimony here to this
Committee that it was apparent, by that point, that they either
knew or should have known at that point, in senior leadership,
that what they were writing to Congress and what they were
testifying was not the whole truth; it was a limited form of
that that if you interpreted it the right way it might actually
stand up under light, but now, in retrospect, wasn't clear.
That is a treatment to Congress and to those investigating
that we are going to close in and surround ourselves with the
wagons, and we are not going to let anyone in. Did you get that
sense at all?
Mr. Horowitz. Well, when we looked at that May 2nd letter,
again, we reached the conclusion, as you noted, that by that
point there was enough information in the Department that it
knew or should have known that it could not stand by that
February 4th letter.
Mr. Lankford. And they were not telling us, they were
writing in such a way to make it look like they were saying one
thing, when they were really saying something different.
Mr. Horowitz. Well, from our standpoint, the letter does
appear to be literally true, as the Committee itself, I think,
indicated in a report, but our concern was knowing the
information they knew after four letters between February 4 and
May 2nd where the Department made no substantive comments, but
by that point the appropriate response either was to continue
saying no substantive comments until the IG report comes out or
to acknowledge the information it had already found.
Mr. Lankford. Right. And when senior leadership, they do
not inform the attorney general when Brian Terry is murdered,
that there is a federal nexus to this as well in this ongoing
investigation, again, that seems to be we are just kind of
surrounding it and we are trying to make sure we are closing
the information down, rather than letting the information get
out. It seems to be from the very beginning this was a shutdown
of information.
Mr. Horowitz. There were many points in this case, at all
levels, where information flow not only wasn't what it should
have been, but in some instances, as we outline in there, was
inaccurate, even when information was flowing.
Mr. Lankford. Thank you.
I yield back.
Chairman Issa. I thank the gentleman.
I want to make sure I go correctly here. We now go to the
gentleman from Pennsylvania, Mr. Kelly.
Mr. Kelly. Thank you, Mr. Chairman.
Mr. Horowitz, thanks for being here. I think what we have
difficulty with--and I know as attorneys talk to each other it
makes sense to them, but people in their regular world can't
begin to understand what the heck it is that we're talking
about. In my world, any answer but a yes is a no, so if it
takes a long time to explain it, it is because you are hitting
on stuff that is a little sensitive.
You have done this for a long time. I know you have only
been on this for five months and 13 months before it. How long
does it take to do an investigation? Is this one of such a
magnitude that we couldn't come to a conclusion quicker than
this?
Mr. Horowitz. I will tell you my understanding is in prior
investigations, like the U.S. attorney investigation, that was
a two-year or so investigation by the IG's office. Given the
volume of documents that we had, 100,000-plus documents, and
the scope we wanted to undertake, which was to take it through
the congressional responses, it took a lot of time to do that.
And very importantly for us, this report had to be
thorough, it had to be fair, and it had to be accurate, and it
just took--I can tell you from the five months I was there
working nonstop on this, it was an extraordinary amount of
documents. But we wanted to make sure, and this is the
commitment I made, I wanted this report to lay out all the
facts.
Mr. Kelly. And I think--I don't speak for myself, but also
for the Committee, that the 18 months that we were waiting to
find out, and being stonewalled time after time after time, and
requesting information and not being able to get it, and
getting documents delivered in pickup trucks in the thousands
with most of the pages redacted, this one just doesn't pass the
smell test. There is something wrong here that we are not
getting to.
And I listened to Jason Weinstein; he has resigned. Lanny
Breuer, Gary Grindler, other officials at the Department are
not going to receive any disciplinary action? Is that a
disappointment to you after looking through what you have
looked through for the last five months and building on the 13
months before that?
Mr. Horowitz. The way the operations are set up and the law
is set up by Congress, we investigate, we then hand over our
findings to the Department, and it is for the Department head
to make those decisions.
Mr. Kelly. And so in this case the Department head would be
whom?
Mr. Horowitz. The attorney general.
Mr. Kelly. Okay.
Mr. Horowitz. And then it is up to the public and the
Congress to decide?
Mr. Kelly. Well, not so much. I think we can because
perception, I think, in many cases is reality, and I think when
you sit back and you watch as this unwound or did not unwind,
and as the Chairman continued to ask questions and was
stonewalled, you begin to get a feeling that, you know what?
While we keep saying this isn't political in nature, I have
found very few things in this town that aren't political in
nature.
And especially we talked about an administration, remember,
this was going to be the most clear and transparent
administration we have ever had. But when you ask questions and
you can't get the answers, when you have the attorney general
come here and he can't answer the questions, when you look at
things that are going on, I think the American public deserves
better than that. I mean, they have the right to know and we
certainly have the responsibility to find out for them.
But at some point the buck has to stop somewhere. The
attorney general is appointed by the President of the United
States. He comes in and he gets vetted, but all of these
different agencies, when there is a turnover in
administrations, there is a whole group of people that come in
with them. In other words, if I am taking over a company, I
also come in, I bring in all the managers I want in all the
departments.
Now, there may be some of those people still working in the
same departments, but there is a way that we do things
differently. And the law may not have changed, but maybe the
policy and the way we enforce it and the way we go about it
changes according to the philosophy or the methods of that
administration.
So I look at this, and Jim has talked about and we have all
talked about it. Why? Why so long? Why so hard to get
information that should have been very basic? And one may ask
questions that at least required a yes or a no. And, again, a
simple yes would have been fine, but the dragging out and
dragging out. Is there any wonder why the American people have
lost faith in the way we do things here?
So you have looked at this and I have to tell you I don't
know. I watch it and I look at all the things that have
happened, and whether it is Melson or Weinstein or whatever, if
I am a whistleblower, you know what I am thinking? I will
probably never do that again. Instead of these people being
given a plaque and being brought forward, say thanks for what
you did, they get thrown under a bus.
So we have to understand that is part of the process,
because what we have to do is we have to make sure the people
at the top get protected, but you people at the bottom are very
vulnerable. I would really be, as a person who worked in those
departments, I would be very lax, I would be very aware as I go
forward.
You looked through this whole thing. Anything you see in
your place? Are you disappointed that it looked more political?
Mr. Horowitz. Well, I have that concern precisely,
Congressman. There needs to be an assurance that people who
want to come forward come forward and don't feel like they are
going to be retaliated against, demoted, action taken against
them, whatever it is. This case is an example of the importance
of people willing to step forward.
Mr. Kelly. And I was very moved, I have to tell you. One of
the first hearings here was Agent Terry's family was here and
the people that worked with him were here. They came here with
a complete disregard for their future, but a complete
dedication to the fact that this should not have happened to
Brian Terry, and they needed to get to the bottom of it.
It is just troubling to me that after 18 months things that
we could have known way back then, and things that have been
distorted and manipulated didn't need to be done; and it just,
to me, is, again, an indication of if we really mean what we
say and say what we mean, we have to do it. We just can't do
words and think that that is the way to placate people.
With that, Chairman, I yield back.
Chairman Issa. I thank the gentleman.
Mr. Horowitz, you have called for, in your report, the
unsealing of portions of the wiretaps that you sum in your
report. I would like to also ask you to take possession of
letters, exchanges in which this Committee has some difference
of opinion, but concludes that wiretap affidavits describe
specific incidences that would suggest the prosecutor who was
focused on the question investigating tactics at the ATF would
have recognized that there was an intent not to interdict
weapons from straw buyers, and particularly ones in which straw
buyers who were known to already be doing it were allowed to
continue doing it, including the weapon sales that ultimately
led to Brian Terry's death.
I would ask you to receive these letters. They are also,
arguably, speaking about items under seal, but in hopes that
you would expand your request for the Justice Department to
unseal portions that may be also covered by those letters.
Mr. Horowitz. I have been given the letters and I will take
a look at them.
Chairman Issa. I thank the gentleman.
With that, we go to the ever patient Mr. Walberg, who, of
course, represents my alma mater, so I may have recognized you
last in the order, but certainly not least.
Mr. Walberg. I thank the Chairman.
Also, I represent a district in the great State of Michigan
which is proud of a favorite son or homegrown son, Brian Terry,
and we take that as important.
Also appreciate very much, Mr. Horowitz, your work,
extensive work, but valuable work.
Representative Lankford touched on the May 2nd Grassley
letter and I appreciated that, and your response to that saying
you were very troubled with the Department's response as well.
Do you believe your office had complete and unfettered access
to the documents that you required to ensure a thorough review?
Mr. Horowitz. I do, Congressman. We asked for everything we
thought was responsible and we ultimately got everything we
asked for.
Mr. Walberg. So you believe everything that was necessary
you received?
Mr. Horowitz. That was represented to us, including, as
noted in the report, we asked for some personal emails, given
the fact that, in at least one instance, we were aware of a
transfer to a personal email account.
Mr. Walberg. Well, again, I would reiterate that was all we
were asking here in this Committee as well, for those same type
of documents so we could have done this review, and I think it
would have ultimately brought about a substantiating report to
what you were able to bring.
As I understand it, you personally reviewed the Fast and
Furious wiretap applications.
Mr. Horowitz. That is correct.
Mr. Walberg. Former ATF Director Ken Melson said that after
he read the wiretaps, he was sick to his stomach. Did you have
a similar reaction?
Mr. Horowitz. Well, after I read them, I came to the
conclusion that there was, in my view, more than enough red
flags to identify serious questions about the tactics being
used in the case.
Mr. Walberg. In relation to that, your report recommends
that ``the Department should require that high level officials
who were responsible for authorizing wiretap applications
conduct reviews of the applications and affidavits that are
sufficient to enable those officials to form a personal
judgment that the applications meet the statutory criteria.''
That was on page 431.
Has the Department given you any feedback on this
recommendation or indicated that it will implement it?
Mr. Horowitz. Well, in their letter to us that is attached
as Exhibit A, they have indicated they agree with all our
recommendations, and one of the things we have asked for is a
report back in 90 days on the status of the response to our
recommendations. So they have indicated they are supportive of
the recommendation. That is important. And now we will follow
up in 90 days.
Mr. Walberg. Do you know whether Assistant Attorney General
Lanny Breuer agrees with this recommendation?
Mr. Horowitz. I don't know personally. The letter is from
the Department on behalf of the Department as a whole.
Mr. Walberg. So we would assume that Attorney General
Holder agrees with the recommendation?
Mr. Horowitz. That is my understanding.
Mr. Walberg. I appreciate that. We will wait to see. And
thank you for your response.
I yield to Mr. Gowdy.
Chairman Issa. Are you going to yield to Mr. Gowdy?
Mr. Walberg. I was going to do that, Mr. Chair.
Chairman Issa. Okay.
Mr. Gowdy. I am not real smart, but I am smart enough to
let the Chairman go if he had a question.
Chairman Issa. No. I just wanted to make sure I didn't get
it yielded back. The gentleman is recognized.
Mr. Gowdy. I thank the Chairman; I thank the gentleman from
Michigan.
Mr. Inspector General, I hate to inject facts as predicates
for questions that members of Congress ask, but the record will
reflect, I know you already know this, the attorney general was
never held in contempt of Congress because of his actions with
Fast and Furious; he was held in contempt of Congress because
he failed to turn over documents to committees of Congress,
documents which he turned over to you; documents, some of which
he is now beginning to turn over to us, 300 pages we got
yesterday. So I hate to make the record clear, but he was never
held in contempt of Congress because he sanctioned gun-walking.
He was held in contempt of Congress because he thwarted our
attempts to find out what you found out.
Secondly, you said the February 4th letter was reviewed by
dozens of people, including people within the Criminal Division
at the Department of Justice. Do you know whether Lanny Breuer
read the February 4th, 2011, letter before it was delivered to
Senator Grassley?
Mr. Horowitz. We found no evidence that he had reviewed it.
He told us he did not recall reviewing it, and we found nothing
in the emails indicating he had actually reviewed it or made a
comment about the content of the letter.
Mr. Gowdy. Did he give you any indication as to why he
would forward a draft of that to his personal private email
account?
Mr. Horowitz. I would want to go back to precisely answer
that and look at the transcript. My general recollection is for
purposes of reading it, but he didn't recall whether he had
read it after it had been sent out on February 4th.
Mr. Gowdy. Now, you have been around the block a time or
two; white collar cases. You twice have used the word recall.
That is not the same as saying I didn't read it; that is saying
I don't recall reading it. There is a difference, is there not?
Mr. Horowitz. There is.
Mr. Gowdy. Again, I am stumped as to what reason you would
forward a letter to your personal email account if you are not
an historian, you are not an archivist, you are not teaching
grammar to the person writing or drafting the letter. What
other explanation is there for forwarding it, other than to
read it?
Mr. Horowitz. And that, you would assume, would be the
reason to do it.
Mr. Gowdy. Well, my time is up. I have more questions, but
I will yield back, and I thank the gentleman from Michigan for
his time.
Chairman Issa. Mr. Horowitz, just to make the record clear,
you said that he didn't comment. But isn't the response good
job a comment? And, if so, did that come before, during, or
after the letter went out?
Mr. Horowitz. The comment you are referring to came, I
believe, on February 2nd, while the letter was still in draft
form. I think, from our standpoint, it didn't indicate an
understanding of the content. And if we didn't use the precise
words in the report that we should have, I understand that.
Chairman Issa. I am concerned only because the attorney
general's office, and Lanny Breuer as part of it, lied to
Congress and he said good job with a draft that had the lie in
it, and yet he is able to say I don't remember reading it. Now,
you are a former prosecutor, maybe one again someday. Do you
accept that you are able to respond good job, able to do, as
Mr. Gowdy said, forward it to your personal email, able to
allow 10 months to go by?
As an attorney and an officer of the court by definition,
you are able to do all of that and yet say, well, I would have
known it was a lie if I read it, but I didn't read it? Would
you accept that as a prosecutor, or would you go forward and at
least let the jury decide?
Mr. Horowitz. Well, I think in doing this review, our
standard was whether we could draw a decision, a judgment based
on the evidence we had to put it in this report ultimately, and
what we decided was we needed to put out the facts of what we
found; others can draw conclusions. We didn't feel like we
could draw that conclusion in this report, and I didn't
speculate as to what I might do as a prosecutor.
Chairman Issa. But you did reach a conclusion that he knew
or should have known. He was in that lump group that was at
least somewhat derelict in a letter going out that he received,
he forwarded, he commented on, and then says he doesn't
remember reading, and in fact was a lie to Congress and for 10
months was all over the front page of newspapers as we insisted
that we had been lied to, that there was gun-walking, and that
our whistleblowers were telling the truth while they were being
retaliated against by the attorney general's representatives.
Mr. Horowitz. Well, what we found as to Mr. Breuer was,
frankly, regardless of whether he read the letter or not, given
what he knew about Wide Receiver, his responsibility should
have been to come forward and explain what happened in Wide
Receiver, because the people who were drafting the letter told
us it would have made a difference, and that is what troubled
us.
Chairman Issa. Thank you.
Mr. Horowitz. It didn't really whether he read the letter,
frankly.
Chairman Issa. Thank you. At this time, to make the record
complete, I ask unanimous consent that the email trains of
2011, House Oversight and Government Reform DOJ date stamp
number 004022, be placed in the record. These items regarding
ATF Gunrunner are between Dennis Burke and a number of people,
Ron Weiss and so on, but including Lanny Breuer.
Also Bates Stamp House Oversight and Government Reform DOJ
004449, dated 2/2/2011, in which Lanny Breuer placed into his
personal email, the address being redacted, forward revised
Grassley letter, Grassley ATF clean, 5 p.m. docs, in which
there are a number of comments we have already alluded to.
Without objection, so ordered.
With that, we now recognize as our final questioner in the
first round the gentlelady from Florida, Mrs. Adams.
Mrs. Adams. Thank you, Mr. Chairman. I want to thank you
and the Committee for allowing me to sit in and join the
Committee.
Mr. Horowitz, I have sat here and, as you know, I come from
a law enforcement background, so I sit here and I listen, and I
am very concerned that we had an operation that appeared to
have no true oversight from anyone in an upper level, and when
an exit strategy is requested in March of 2010 and nothing
happens. I have a few questions as to what happened to this
agency.
I think I need to go back to maybe even before, because, as
I worked with this agency years ago in law enforcement, they
had these oversight protections. You could not get a wiretap
without going and getting someone from above to review it and
approve it, and then have it taken to a judge to be signed.
So do you happen to know when they decided to do away with
that practice?
Mr. Horowitz. I can provide you with the answer; I don't
recall as I sit here. But there was an evolving practice, as
you indicated, at ATF that removed that requirement.
Mrs. Adams. That would be nice to know, as to when they
decided to remove those practices, because apparently those
supervisors that should have been reviewing it did not review,
or claim to have not reviewed it, and therefore we have a loss
of a life of one of our own Border Patrol agents and many
weapons across the border and people being harmed everyday.
I, too, wanted to ask you, because I was reading on page
265 a statement about Mr. Hoover. He said he told us he did not
recall attending the briefing on March 5th or the briefing from
Melson on March 11th, although his Outlook calendar indicates
that he was invited to the meetings and, as mentioned earlier,
other witnesses placed him at both those briefings.
I have heard many of your comments about, well, people
could not recall, people could not recall. As an attorney,
someone who has prosecuted cases, when someone tells you they
can't recall, what is your first impression, as an attorney?
Mr. Horowitz. Well, it probably depends on the context.
Mrs. Adams. In the context of something like this?
Mr. Horowitz. When you have Outlook invites and other
people recalling you were there, it probably means you were
there.
Mrs. Adams. It means you were there. And so in the case of
Mr. Breuer, when he had this email that was forwarded from
himself to himself on a private account, and he sends back good
job, as an attorney, step aside from, and if this had been a
case that you were investigating as an attorney and
prosecuting, what would your impression be? Do you believe he
would have sent it to read it?
Mr. Horowitz. The only thing that causes me hesitation
there is that when you go through the email string, you do have
Mr. Weinstein, when he sends the draft at the bottom of that
string, Mr. Breuer isn't one of the people to whom he sends,
and there can be a tendency at times, I am not drawing a
judgment in this case, but there can be a tendency at times
when someone sends you an email or reporting on your good work
to say back good job or something like that.
So one of the things I wanted to be careful of in this case
is to make sure everything was well founded, in our view, that
we had something to support it, but to put out the evidence and
let people draw their own views and conclusions about that. So
I respect the varying views that I have heard today about that
issue.
Mrs. Adams. I appreciate that. Your friendship with Mr.
Breuer would not impact your decision-making on any of this,
would it not?
Mr. Horowitz. It had zero impact. When I took the oath to
take this office, I took an oath to do this job, and as I
committed before the Senate Judiciary Committee, the only thing
that was going to make my decisions here were the facts and the
law, period.
Mrs. Adams. And I appreciate the fact that you were asking
for personal emails, because I did ask that question in
Committee.
And I know that my colleague would like to ask another
question, so, if I may, I will yield the rest of my time to Mr.
Gowdy.
Mr. Gowdy. I thank the gentlelady from Florida.
Mr. Horowitz, I want to ask you this. I only have about 30
seconds, so I will do the quickest one that I have. Is your
investigation still ongoing?
Mr. Horowitz. There are pieces of this investigation that
are ongoing, as we have reflected in the report.
Mr. Gowdy. All right. And I will not ask you anything more
beyond that.
Contrary to the assertions of my colleagues, many of us
have never asserted that the attorney general knew about the
tactic of gun-walking. We have asserted that he should have.
And what kind of leadership or management style you have does
reflect on what kind of information is brought to you. Did you
make specific recommendations with respect to creating a
culture within the Department of Justice where information like
this would work its way up the command chain?
Mr. Horowitz. Well, one of the things that I hope to do
through the whistleblower ombudsman position is to make sure
that there is an understanding and appreciation and a
willingness for people to come forward and to get that
information forward. That is one of the tasks I want to
undertake, is to look at that culture issue, because, I agree
with you, I think it is important.
Mr. Gowdy. I thank the gentlelady.
My time is up, Mr. Chairman.
Chairman Issa. I thank the gentleman.
We will now take a short second round. We won't keep you
much longer.
One of the areas of particular interest, Mr. Horowitz, you
received 100,000 documents; we got about 7,000, many of them
documents we didn't ask for. But one particular one that
appeared in your report discussed emails between Jason
Weinstein, the head of the Office of Enforcement or Operations,
and William McMahon, who has been unavailable to us, in May of
2010 regarding applications and a possible roving wiretap. It
is on page 271 of your report. You are familiar with it?
Mr. Horowitz. I am.
Chairman Issa. These documents were explicitly asked for in
our subpoenas, but the Department never failed to hand them
over. Do you think it is appropriate for the Department to
deliberately withhold these documents without citing any reason
or privilege for doing so and, I might note, claiming that they
had turned over extensive, unprecedented documents before
February 4th? Would this document be unprecedented to send
over, in your opinion?
Mr. Horowitz. Well, let me just say they were clearly, to
us, highly relevant. I, frankly, don't know the back and forth
that occurred or the decision-making that occurred within the
Department, so I don't think I am in a position to answer
precisely that question without understanding that.
Chairman Issa. I will rephrase. This document was relevant
and important to your investigation that occurred before
February 4th, is that correct?
Mr. Horowitz. That is correct.
Chairman Issa. So when the attorney general has repeatedly
said that he made unprecedented levels of documents available
to us, he was thorough and complete, and he came before
Congress so many times before February 4th and then omitted
this, he omitted something which was clearly relevant and
important to the investigation.
Mr. Horowitz. As I said, I think these documents were, to
us, highly relevant and important, which is why we spent so
much time discussing them.
Chairman Issa. Now, as a former prosecutor, if you deliver
a subpoena and somebody simply doesn't mention a document,
doesn't turn it over and it is relevant to the subpoena, but
yet they assert that they have fully complied with the
subpoena, isn't that actually a violation of the law, to simply
not turn something over that you know you have?
Mr. Horowitz. Well, without understanding all the facts----
Chairman Issa. Well, I am just talking about the
hypothetical as a prosecutor. As a prosecutor, you serve a
subpoena; you either get it or the counsel, the lawyers for the
other side have an obligation to assert a privilege, provide a
law, do all these things. You don't simply not deliver it.
Mr. Horowitz. That would certainly be the expectation.
Chairman Issa. Are you considering or pursuing or
investigating criminal referrals related to whistleblower
retaliation? And I am making all of those so you don't have to
answer any one of them.
Mr. Horowitz. Let me say we are actively investigating a
variety of the whistleblower issues, some of which the
Committee has referred to us and Senator Grassley has referred
to us. I would be hesitant to say what we are going to do, but
I think you will find the reports will be coming in the not too
distant future, and we are taking them very seriously.
Chairman Issa. Thank you. Now, I am going to go against
sometimes the advice of folks who say, well, you know, don't
link the constant allegations that Wide Receiver and Fast and
Furious are two peas in a pod. I am going to ask you a question
that I think is at the kernel of my concern.
You discovered in your report extensively that a number of
people, including people at Justice, at the highest levels,
were aware of Wide Receiver; they knew it had failed, they knew
it had been shut down, they had U.S. attorney records. And yet
they allowed Fast and Furious, whether through commission or
omission, to do the same and more, correct?
Mr. Horowitz. There was no action apparent to try and
change any policies, I agree with you, Mr. Chairman.
Chairman Issa. Okay. So the Justice Department knew that
guns were walking, by their definition, at least in retrospect,
and they didn't take steps to stop it. We have a lot of people
dead on both sides of the border. Aren't you very concerned
that these are the very elements that it takes for the Federal
Government, for our government, for Congress's appropriated
dollars to be paid out in damages, whether to the hundreds of
people dead in Mexico or at least one U.S. Border Patrol agent
dead in the U.S.? Isn't this kind of failure one that exposes
the Federal Government to huge potential damages?
Mr. Horowitz. I am sure that is the case, and it troubled
us very much, that so many people understood and knew what
happened in Wide Receiver, took no actions, and, frankly, in
Fast and Furious again so many people knew about it as the
investigation was going on. Put aside what happened after the
agents came forward, just as it was going on that so many
people knew and no one seemed to take action, even the deputy
director, again, when he noticed the needed for an exit
strategy.
Chairman Issa. Now, you interviewed Lanny Breuer.
Mr. Horowitz. Correct.
Chairman Issa. One of your people interviewed him. After
Brian Terry was killed, after the February 4th letter, Lanny
Breuer looked me dead in the eye and told me that, in fact,
there was nothing wrong with Fast and Furious; it was bad work
on the ground. When you interviewed him, was that still his
feeling, that there was nothing wrong with Fast and Furious,
but simply the ATF agents had bungled it?
Mr. Horowitz. I don't recall his precise answers to those
questions. I am happy to go back and get that for the record
for you.
Chairman Issa. Okay.
I am going to yield to the Ranking Member. This continues
to be my reason that I have so much doubt about Lanny Breuer's
judgment and his ability to continue doing his job, is that he
believed that after February 4th, he believed it after Brian
Terry was dead, and I can't understand, for the life of me, how
he could have believed it and still have his job.
With that, I recognize the Ranking Member.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Horowitz, I have a kernel of concern myself. After you
have been here around here a few years, like I have, you get
concerned about effectiveness and efficiency. I started my
discussion off by thanking you and your staff for all that you
have done, but the question is where does this lead. All those
hours, all that effort. My mother, a former sharecropper, used
to teach us, she had limited education, second grade education.
She would tell us you can't have motion, commotion, and
emotion, and no results. Motion, commotion, emotion, no
results.
There are moments in life, and even in legislative life,
where things come together and it presents a moment which is
pregnant with the possibility of change. And if change does not
take place at that moment, things usually get worse. This is
one of those moments. I give the Chairman credit; he has
brought all of this to light. We have a great picture. You all
have painted the picture quite accurately for us. I don't think
anybody up here likes the picture that we see.
To be frank with you, knowing Eric Holder the way I know
him, the honorable man he is, I don't think he likes this
picture. So for all of us, you know, reform is so very, very,
very important, and in that light, because I want to be
effective and efficient. I don't want to leave here, looking
back at my tenure in Congress, and say I was involved in one of
those moments where we did nothing and it just got worse; where
we did nothing and folks continued to be killed in Mexico with
guns flowing from the United States; where we did nothing where
neighborhoods like the one I live in, where it is easier to get
a gun than it is to get a cigarette; where we did nothing.
So as to the reforms, I want to ask you just a few
questions. The Department of Justice has made significant
changes in ATF and DOJ policy to ensure that the mistakes made
in Operation Wide Receiver and Operation Fast and Furious never
happen again. While new permanent leadership within ATF is an
important step to ensuring accountability, Acting Director Todd
Jones has also implemented several policy changes at ATF to
improve case supervision and communication between field agents
and ATF management. In November 2011, Acting Director Jones
issued a memo clarifying ATF's policy regarding firearms
transfers, reinforcing the importance of interdiction, and
directing agents to take all reasonable steps to prevent
firearms criminal misuse.
Mr. Horowitz, your report describes this memo as explicitly
stating that ``If law enforcement officials have any knowledge
that guns are about to cross the border, they must take
immediate action to prevent that from occurring, even if it
means jeopardizing an investigation.''
I ask you now what do you think of this guidance? Is it
sufficient or would additional guidance be helpful?
Mr. Horowitz. I think it is an important piece of guidance,
but I think more has to be done. And I couldn't agree with you
more, Congressman, about the opportunity to effect change in
light of these events. We put out reports not just to put out
reports, but to see change happen when it needs to happen.
And I didn't come back to take this job to write a report
and have nobody follow through and no one listen to what we say
and what we recommend, which is why our recommendations are
bigger than just this case. For example, recommending to the
Department that it create a regular interagency law enforcement
coordination effort among its own law enforcement agencies,
because I think, as you see here, there was a failure to
coordinate among agencies, sharp elbows, a variety of things
happened, and I am guessing, from what I understand, and we
will see when the inspector general's report comes out from
DHS, that you will see more of that from the ICE standpoint.
And that has to go away, and that is an issue that we have to
think about.
Mr. Cummings. Well, I just want--again, I want to thank you
all for your efforts, and I know that--and I can assure you
that all of us up here want to make sure that your efforts have
not been in vein. I don't know, just how much jurisdiction do
you have with regard to trying to make sure that the
recommendations actually happen? I know we have some pressure
points up here, but how about you? You talked about things that
you are going to follow up on. How do you see that playing out?
Mr. Horowitz. What we do, and as we have outlined here, is
we have asked the Department and the attorney general to report
back to us within 90 days on the status of the efforts, and
with a time line for implementing it, because, as we all know,
if there is not a time line in place, things drag.
So our goal is to follow up, make sure things happen,
because, as an IG, our strength is in a report like this and
then following up on it; and, if recommendations aren't
followed, to go and report back, whether it is to Congress or
the attorney general or to others that they haven't been
followed through.
Mr. Cummings. Mr. Chairman, I don't know what will happen
in the election, but I hope that both sides will agree to bring
back the appropriate parties, he said 90 days, but maybe in
four months so that we can actually have that accountability
that we are talking about, so that we can have that
effectiveness and efficiency.
Chairman Issa. I agree with the gentleman. I would hope
that Mr. Horowitz would keep his calendar open in mid to late
January.
I forgot to do something at the open, before I recognize
Mr. Gowdy. As is the custom, I ask unanimous consent that all
members have seven days to insert written statements and
extraneous matter into the record. Without objection, so
ordered.
Mr. Gowdy, other than closing, you get the last word.
Mr. Gowdy. Thank you, Mr. Chairman. I want to have just a
little potpourri here at the end; I am going to bounce around,
and it is not designed to fool you, although I don't think I
could if that were my design.
Do you know when the Mexican government was informed about
Fast and Furious, or if they have been debriefed on it? Because
I could imagine it would impact our relationship with law
enforcement in Mexico.
Mr. Horowitz. I don't know when they were debriefed and I
don't know the extent to which they were debriefed about it.
There were some indications in emails that we saw about the
possibility of alerting the Mexican authorities, but I don't
know.
Mr. Gowdy. All right. There has been some discussion this
morning about changes. Mr. Cummings, as he always is, was
extremely eloquent talking about the desire to not see this
moment pass. I also don't want to see this moment used for
purposes that are duplicative. Did you ever prosecute 924(c)
cases?
Mr. Horowitz. Yes, although infrequently.
Mr. Gowdy. The penalty for 924(c), which is using a firearm
during a drug trafficking crime or another violent crime is
five years consecutive to any other sentence, and each
subsequent 924(c) is a consecutive five years. And depending on
the nature of the weapon, if it is semiautomatic, it could be
up to 20 years; and the third offense would be life.
By virtue of the fact I went to law school, I am not good
at math, but five years times 1,000 weapons just strikes me
that unless your name is Methuselah, that is going to be a
really long sentence. And I would also be curious, and I may
ask you at some point to look into whether or not line AUSAs
are asking for upper departures in lying and buying cases.
The remedy is not always to raise the statutory maximum if
we are never coming close to the statutory maximum in the first
place.
Finally, I want to say this, because I want to conclude on
a more harmonious note. Your job was to identify facts, and you
do draw some conclusions, and almost all of your conclusions I
agree with. And I am not suggesting we disagree on this.
I have a little different analysis with respect to the
Criminal Division chief. I think it is without question that he
knew the tactic of gun-walking existed within the Department,
whether he wants to say Wide Receiver or Fast and Furious is
irrelevant to me. He knew the February 4th letter was false as
drafted.
I appreciate the fact that there could be explanations,
other than reading a letter, that you would forward a letter to
your private personal email account, and I appreciate the fact
that from time to time we don't read emails in full; we just
say good job or thanks for sending it. I just have a higher
expectation for that department and for the criminal chief.
I think it is wonderful that we have someone of your
independence. I actually thought that is what prosecutors and
ministers of justice were to begin with. So I am going to
conclude by saying the same thing when I started. You have an
incredibly hard, important job. You were exceedingly candid in
our personal conversations and you have been exceedingly
professional in your public testimonies, and I wish you and the
people that work with you all the best, because on this we can
agree: the Department of Justice is not just another political
entity.
When we lose confidence in that blindfolded woman holding a
set of scales and a sword, we are finished. It is not about
politics; it never was. I appreciate the fact that Mr. Cummings
would compliment Mr. Issa. This is a very politically charged
environment that we work in and that you work in, and the fact
that our work could draw bipartisan support is a testament to
you and your staff.
With that, I would yield back, Mr. Chairman.
Chairman Issa. Would the gentleman yield for just a second?
Mr. Gowdy. Yes, sir.
Chairman Issa. Thank you. I never thought we would actually
get through your questions. You were good.
I want to summarize a couple things. Obstructing Congress
is a crime. I will make the statement; you don't have to
evaluate that one. Clearly, Justice, during this time,
obstructed Congress. They made an untruthful statement on
February 4th, they doubled-down by having, at a minimum, an
extremely deceiving statement.
As I have often said, the only way it is truthful they
didn't let guns walk is that the guns didn't physically have
legs and feet and shoes. They, in multiple areas, did not
respond honestly and truthfully to a subpoena, leaving
information out, information they made available to you. And,
of course, the separate contempt question of refusing
afterwards. But in that case I will accept that they were going
to argue the question of presidential executive privilege.
What do you think we should do, and what can you do, when
agencies outright refuse to provide information pursuant to an
investigation of a crime?
Mr. Horowitz. What I did when I walked into this job, and
was committed to doing, was pressing forward and writing a
report that covered everything, and putting it forward and
letting, if folks thought there was material to redact, that
was their responsibility. My job was to get to the facts and
put it out there so the Congress, the American public could see
what we saw, understand what we saw, hear the facts that we
found and the conclusions that we reached. That is my job as
inspector general. I wanted that out there and I am glad it is
out there. And now, obviously, as to what occurred or didn't
occur in terms of productions in other instances, the evidence
is there as to what we saw and we found.
Chairman Issa. But will you be looking into or doing any
potential criminal referrals, which is within your authority,
related to the February 4th letter and those who either lied or
who became aware, particularly lawyers, officers of the court,
became aware that an untruthful statement had been made and
sought to make no effort to correct the record?
Mr. Horowitz. And let me just touch on that, on the
February 4th letter, because that is important. We looked at
that and tried to figure out what people's intent was and state
of mind, because so much of that is driven by intent; and the
difficulty with that letter, as we outline in the report, is it
was such a disorganized and problematic process that you had
people who didn't know information making substantive edits to
a letter, along with people who did know information providing
inaccurate information.
Sorting out how that letter ended up the way it did and
blaming one person or two people for the particular information
that came forward was the difficulty we had. It was such a
problematic process, as we try and lay out, that you couldn't
disentangle, from our standpoint, all the different pieces as
to who offered what and how changes were made. That was the
difficulty we had with the intent issue.
Chairman Issa. Thank you.
Mr. Cummings, do you have any closing remarks?
Mr. Cummings. Yes, I just have one question.
Since I was just listening to the question the Chairman
asked, on page 395 of the report the inspector general's report
did not find that senior Justice Department officials engaged
in an intentional effort to mislead Congress. Instead, the
inspector general found ``Department officials relied on
information provided by senior component officials that was not
accurate.'' I am reading that from your report.
Mr. Horowitz. That is correct.
Mr. Cummings. And that goes to what you were just saying?
Mr. Horowitz. Right.
Mr. Cummings. I see.
Mr. Horowitz. And the problem is they were getting
information in some instances was inaccurate, in some instances
was accurate, and then the people finally drafting the letter,
who didn't know the underlying factual scenario, were actually
making changes that they didn't realize were substantive to the
letter.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Issa. I thank the gentleman.
In closing, this concludes a major chapter in Fast and
Furious and the false statements made to Congress, particularly
to Senator Grassley afterwards. As we turn the page, it is this
Committee's hope that we will, in the coming days, see a level
of cooperation that we have not thus seen. I was encouraged
that the 300 or so pages that the attorney general personally
said he would give me if I dropped further action on the
subpoena were delivered without that subpoena being dropped.
Notwithstanding that, I hope, in the days to come, that most,
if not all, of those 100,000 pages that were made available to
you, Mr. Horowitz, would be made available to this Committee,
or, in the alternative and perhaps better, a willingness by the
attorney general to allow a side-by-side evaluation by our
Committee so that we could save the redundant time that you and
your staff have used a great deal of in gleaning the facts and
figures of these documents that we haven't seen. It would be
hopeful that that kind of willingness to have our investigators
see what you have seen would in fact allow this to come to a
quicker close and perhaps eliminate the need for a protracted
fight in the courts.
Lastly, I look forward to the American people having an
opportunity to read as much of the material as can be made
unsealed as possible. I believe the American people and the
Terry family have an absolute right to have as much
transparency as possible. I think particularly when we look at
the failure of the safeguards of the Fourth Amendment rights,
as you so aptly said, that, in fact, all groups, groups who
have nothing to do with Fast and Furious, but have everything
to do with civil liberties, are going to want to know how these
failures occurred in detail and, like the Ranking Member said,
in a nonpartisan way we are going to want to make sure there is
change so this does not happen again.
I might note that ATF is not the only law enforcement
agency that requests wiretaps. Wiretaps are requested on a
daily basis from many organizations. Through this
investigation, I have, as a non-lawyer, gleaned a better
understanding that wiretaps are presented to judges normally as
a nearly complete decision. Judges rely on the honesty and
integrity of the process at the Justice Department in order to
authorize these. That does not mean they don't have the right
to question or to reject, but for the most part they are
quickly dispensed with based on a trust that the documents are
complete. Often, judges have told me that in fact their clerks
look through a number of these and they rely on the
completeness of that.
To me, that says that the American people's constitutional
protections are perhaps delegated to individuals who ultimately
do not exist in the statute as the responsible parties. I think
Mr. Horowitz's statement of his own experience at a time when
he was reading these wiretap requests tells us that this has
not always been so much a beneath me, even though the statute
requires me standard. For that reason, both for those of us on
both committees, Judiciary and Oversight, I pledge to work with
both those committees to see that there is strict adherence to
the statute in the future. And we do so not because of the
Terry family's suffering, but, in fact, because the American
people have a right to expect that government respects greatly
the limited and necessary invasion into people's privacy, and
that it must be both necessary and limited.
In the case of Fast and Furious, it was not necessary. And
if nothing else has been told, the understanding that these
operations continued long after a wiretap was not the source of
additional information was a lesson.
Lastly, I would be remiss if I didn't think Mr. Horowitz
and your entire team who have worked tirelessly for perhaps
more months than some people would like, including those of you
who worked on it for so many months. But I think for the Terry
family, who is trying to deal with the striking down of their
son, their brother, their cousin, at the tender age of 40, for
those over here, very tender age of 40, in a way that he
shouldn't have been, this will bring partial closure, and for
that I would like to thank you and I know the Terry family
would like to.
With that, I thank Mr. Cummings for his efforts today. I
thank all the members who participated.
And, Mr. Horowitz, again, for those not sitting behind you
and the many who have worked so long, please express our thanks
for your thorough and complete work.
With that, we stand adjourned on this and we will
immediately reconvene, after you leave, for a quick markup.
[Whereupon, at 12:45 p.m., the committee was adjourned.]
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