Even as it was publicly denying that it purposely allowed guns to flow to Mexican drug cartels, the Obama administration was taking pains to be sure the agents who revealed the gun-walking would be protected as whistle-blowers. The documents outlining the effort are among those sought by congressional investigators, who have been met with a claim of executive privilege.
The Justice Department has withheld from Congress memos showing that senior officials inside the Bureau of Alcohol, Tobacco, Firearms and Explosives began preparing as early as February 2011 to treat the agents who unmasked the bungled Fast and Furious gun operation as whistleblowers.
The memos, obtained by the Washington Guardian, were triggered by the agents' allegations, Justice officials confirmed. In them, ATF officials in Washington instructed field supervisors not to retaliate against the agents in Arizona who complained they had been ordered to let semiautomatic weapons flow to suspected straw buyers for Mexican drug cartels rather than interdicting them.
Even as the warning was being sent, Obama administration political appointees were publicly undercutting the agents’ credibility, insisting to Congress that ATF never knowingly let weapons cross the border into Mexico’s violent drug wars - a denial that turned out to be false.
Congressional investigators have been trying for months to get additional Fast and Furious documents from the administration, which has countered with a claim of executive privilege. Justice officials said they did not turn over the whistleblower memos because they did not believe they were responsive to earlier congressional subpeonas and requests.
Agents who disclose illegalities or wrongdoing are protected by the Whistleblower Protection Act and “a federal agency is prohibited from retaliating against an employee for having made a protected disclosure,” warned a Feb. 9, 2011 email forwarding legal advice to all ATF field supervisors from then-Assistant Director Mark Chait.
Chait’s lawyer told the Washington Guardian his client specifically requested ATF lawyers draft the legal memo because he had learned some agents had taken their concerns about the Arizona gun sting to Congress and he did not want them punished for coming forward.
"It was the right thing to do," attorney David Laufman said in an interview. "These were his guys in the field and he wanted to make sure they were treated right, that they were protected if they knew about something wrong and had come forward."
The belated emergence of the memo is likely to cut both ways for an Obama administration trying to bring closure to one of its biggest political scandals before the November election.
On one hand, the documents show that a top ATF supervisor and an agency lawyer in Washington took some actions early on that were consistent with President Barack Obama’s promise to better protect federal whistleblowers.
On the other hand, the memos immediately renew questions about whether the administration has been fully forthcoming in the Fast and Furious scandal, which has embarrassed the Justice Department and sparked the first executive privilege battle between the White House and Congress since Obama took office in 2009.
The administration denied for months last year that ATF had engaged in “gun walking’’ – a term used to describe when agents decide not to interdict weapons that fall into the hands of suspected bad actors. But it then reversed course when evidence emerged that the tactic had been used in a 2010 sting in Arizona that was codenamed Fast and Furious.
ATF now acknowledges that supervisors in its Arizona office, with the blessing of federal prosecutors, allowed more than 1,700 weapons to flow to suspected straw buyers with the expectation some would cross the border and fall into the hands of Mexican drug gangs. The hope was to trace evidence so officials could make bigger cases against the cartels, rather than focusing on small-time buyers, officials have said.
But many of the guns showed up in subsequent crime scenes on both sides of the Mexican border, including the scene of the fatal December 2010 shooting of a federal border agent, Brian Terry.
The president eventually denounced the tactics, Attorney General Eric Holder ordered the practice to stop, and he launched an independent investigation. But the administration has invoked executive privilege to keep Congress from obtaining some of its memos showing how it responded when the allegations first surfaced and why it took so long for Justice to correct its inaccurate statements to Congress.
The two Republicans leading the probe into the bungled ATF gun operation told the Washington Guardian on Monday that the whistleblower memo shows that the Justice Department should have taken more time to review the agents’ claims before issuing false denials that ATF had not engaged in gun walking.
“It's inexcusable that the Justice Department withheld evidence of yet another red flag that ATF walked guns,” said Sen. Charles Grassley, a Republican member of the Senate Judiciary Committee whose initial investigation disclosed the agents’ concerns in early 2011. It was Grassley who was the recipient of the Feb. 4, 2011 letter from Justice that inaccurately denied gunwalking had occurred.
“As DOJ's denial was being crafted, some in ATF were alerting senior management that whistleblower protection guidance was in order because another agent had backed up the initial reports of gunwalking,” Grassley said. “The Justice Department is denying the public a full understanding of what it knew and when by sitting on documents like these that might be embarrassing.”
A top Justice Department official, speaking only on condition of anonymity because of the ongoing executive privilege fight, said the agency didn’t turn over the memo because its lawyers concluded the document wasn’t technically responsive to congressional subpoenas and documents. That’s because the memo dealt with the administration’s reactions to Grassley’s request and not the operational details of the bungled sting, the official explained.
A spokesman for House Oversight and Government Committee Chairman Darrell Issa, who is leading a legal effort to hold Holder in contempt of Congress for refusing to turn over Fast and Furious documents, rejected that explanation.
“This new document indicates that officials knew whistleblower allegations had to be treated seriously, but nonetheless flippantly and falsely denied that claims of gun-walking had any merit,” Issa spokesman Frederick Hill said. “If the Justice Department truly wanted the American people to know the truth about what occurred, they would not be withholding such documents that undermine the false public narratives they have continually pushed.”
The memo falls in the middle of the key time period now is dispute in the executive privilege fight.
According to documents and interviews, Chait, at the time ATF’s assistant director in charge of field operations, began asking ATF attorney Joel Roessner as early as Feb. 3, 2011 to draft guidance to be sent to all ATF field supervisors on how to handle agents who blew the whistle on so-called "gun-walking." At that same time, ATF and Justice officials were drafting a response to Grassley, formally disputing the agents' allegations that weapons had knowingly been allowed to cross the border.
ATF officials had learned as early as Jan. 28, 2011, that one or more ATF agents in Arizona had begun raising concerns. By Jan. 31, 2011 a letter from Grassley divulged that at least one agent had reached out to Congress.
Roessner responded to Chait’s request on Feb. 8, 2011 with draft guidance clearly warning ATF supervisors they could not retaliate against agents who alleged wrongdoing. Roessner also instructed supervisors on how they should handle such complaints under the Whistleblower Protection Act.
Chait forwarded the guidance to Kenneth Melson, the ATF Acting Director at the time. Melson quickly approved the communique to the field. The next day, Chait sent the whistleblower instructions to all ATF field supervisors.
At the time, supervisors at Chait's level had not yet ascertained whether the agents' allegations of “gunwalking” were true, but the memo to the field was designed to ensure the agents were treated properly in accordance to the law, according to Laufman, Chait’s lawyer.
The memo was never produced by the Justice Department to Congress, though investigators for Grassley and Issa learned of its existence from a non-DOJ source.
Obama has made expanding the protection of whistleblowers a priority since his first day in office, when his administration issued an executive order forbidding retaliation. The president also advocated a broad new whistleblower law that stalled in Congress. He supported narrower whistleblower protections, which he signed into law in the stimulus and Wall Street reform legislation.
Administration officials said the ATF memo was consistent with the cultural change Obama sought to create, and they had no reason to hide it. Justice lawyers simply determined it wasn’t responsive to the specific requests Congress made, the officials argued.
One of the country’s top whistleblower experts said, however, the ATF memo fell short in one key respect: it focused on a process for whistleblowers to inform their supervisors of wrongdoing but ignored their right to also go to Congress.
“Given Congress' critical oversight role in the Fast and Furious investigation, this failure is very alarming,” said Steve Kohn, a Washington lawyer who has represented some of the government’s most famous whistleblowers and helped create the National Whistleblower Center to advocate better protections of federal and corporate employees who come forward to report wrongdoing.
“It appears that the managers who authorized this communication did not want ATF employees blowing the whistle to Congress," Kohn said.
While initially focused on what most sides now agree were ill-conceived law enforcement tactics, the Fast and Furious controversy has increasingly tested the administration's candor with Congress and its willingess to share documents. The administration waited 10 months to formally correct its false assertion to Grassley.
Fast and Furious is the code name given to a federal firearms trafficking operation in Arizona in 2009-10 that let more than 1,700 semiautomatic weapons flow into the hands of straw-buyers for Mexican drug gangs.
The ATF is the acronym for the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal law enforcement agency that combats illegal gun trafficking.
Executive Privilege is a constitutional doctrine made famous during Watergate that holds that a president is entitled to receive confidential advice from his staff without having to disclose it to Congress or the courts.