2012-02-08 dei grassley meehan toholder-doj - f&f wiretap due 2-15

8/3/2019 2012-02-08 DEI Grassley Meehan ToHolder-DOJ - F&F Wiretap Due 2-15

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< U n n g r t S l i n f t l t t 1 ! t n i t t : b ~attlil I Iu!14ingtIlU. 1I0l 20515

February 8,2012

The Honorable Eric H. Holder, Jr.Attorney GeneralU.S. Department of Justice950 Pennsylvania Avenue, N.W.Washington, D.C. 20530Dear Mr. Attorney General:

During your testimony before the Committee last week, you pledged to work withCongress to find a way to make the wiretap applications from the Fast and Furious investigationavailable for congressional review. We appreciate your willingness to work with us on thisissue, and we believe these applications will advance the investigation in a meaningful way. Thecontents of the wiretap applications are central in determining the level of involvement of seniorDepartment officials during the pendency of Operation Fast and Furious. It is indisputable thatgunwalking occurred during Fast and Furious, and it is therefore important to know whether anyfacts in the wiretap applications should have raised concerns that gunwalking, or other i1l-advised tactics, were occurring. The contents of the wiretap applications are likely to resolvefactual disputes about the level of detail available to senior Department officials during Fast andFurious.Legal Sufficiency

The Office of Enforcement Operations (OEO), part of the Justice Department's CriminalDivision, is "primarily responsible for the Department's statutory wiretap authorizations." [Generally, federal prosecutors across the country submit wiretap packages to OEO, whoselawyers ensure that these wiretap packages "meet statutory requirements and DOJ policies.YWhen OEO deems a wiretap package sufficient, "[t]he Attorney General or his designee" - inpractice, a Deputy Assistant Attorney General in the Criminal Division - reviews and authorizesit.3 Each package includes an affidavit which details the factual basis upon which theauthorization is sought.

In previous testimony before the Senate Judiciary Committee on November l , 2011,Assistant Attorney General Lanny Breuer commented that the "one role" Main Justice pJays inauthorizing wiretap applications is to "ensure there is legal sufficiency to make an application.'"The federal wiretap statute describes what this legal sufficiency entails, requiring that theI Letter from James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice, to Rep. Darrell E. Issa, Chairman, H. Comm.on Oversight & Gov't Reform, et al., at 6 (Jan. 27, 2012) [hereinafter Cole Letter].2 [d.318 U.S.C. 2516(1).4 Combating International Organized Crime: Evaluating Current Authorities, Tools and Resources: Hearing Beforethe Subcomm. on Crime and Terrorism, S. Comm. on the Judiciary, 112th Congo (Nov. I, 20 II) (Test. of AssistantAtt'y Gen. Lanny Breuer)

P RIN TE D O N R EC YC LE D P AP ER


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The Honorable Eric H. Holder, Jr.February 8,2012Page 2 of 5application include "a full and complete statement of facts and circumstances justifying theapplication.r''' In addition, for a judge to order the requested wire interception, the appl icationmust show that "[n]ormal investigative procedures have been tried and have failed or willlikely fail, or are too dangerous.t'" The Department, therefore, must include specific facts inthe application that demonstrate other investigative procedures have been exhausted.

During our investigation into Operation Fast and Furious, several ATF agents havetestified about the use of many long-standing and highly effective investigative techniques usedin firearms trafficking investigations. These procedures include "knock and talks," traffic stopsconducted by local law enforcement, consensual encounters, sustained surveillance of suspectsand investigative targets, search warrants for suspected stash houses, use of undercoverinformants, and advising federal firearms licensees of their prerogative to refuse to sell weaponsto individuals they deem suspicious.

Last week, you testified that wiretap applications "don't always go into all of thetechniques that are used in a particular investigaticn.v Yet, a wiretap application must includeprecisely this type of information in order to meet the legal sufficiency standard required by theCriminal Division in its review. Therefore, law enforcement officials would have to includethese procedures, and possibly others, in the wiretap applications to meet the statutoryrequirement and obtain the Criminal Division's approval.

As such, if the Fast and Furious wiretap applications were accurate and complete, theyshould contain significant indications of gunwalking. If they were not accurate and complete,then serious questions arise as to why the Criminal Division approved them despite being legallydeficient for failing to describe the specific techniques that had been used and failed. Therefore,the content of the applications is crucial in order to gain a complete understanding of the issuessurrounding this controversy.Violations of ATF and Department of Justice Policy

The highly questionable investigative techniques used in Fast and Furious violated bothATF and Department policy. If the Fast and Furious wiretap applications mention ATF breakingoff surveillance or allowing illegally purchased guns to be transferred in an uncontrolled manner,then the Criminal Division approved the applications in direct conflict with ATF policy. If theFast and Furious wiretap applications mention guns crossing the border with ATF'sforeknowledge, then the Criminal Division approved the applications in direct conflict withDepartment of Justice policy. Congress needs to understand the exact facts and circumstances indetail to conduct adequate oversight and fully inform our legislative functions under theConstitution.

5 IS u.s.c. 2SIS(I)(b) (emphasis added).6 IS U.S.C. 2S1S(J)(c) (emphasis added).7 Fast and Furious: Management Failures at the Department of Jus/ice: Hearing Before the H. Comm. on Oversight& Gov'f Reform, 1 12 th C ong o (Feb . 2 ,20 12) (T est. of H on . E ric H . H old er, Jr., Art'y G en . o f th e U .S .).


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The Honorable Eric H. Holder, Jr.February 8, 2012Page 3 of 5

The core mission of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is to"protectj] our communities from ... the illegal use and trafficking of firearms."g Multiple agentstestified last year that in Fast and Furious, A IF prematurely broke off surveillance afterwitnessing illegal weapons purchases and allowed guns to walk. These tactics went againsteverything ATF stands for.

On March 9, 2011, Deputy Attorney General James M. Cole sent an e-mail to southwestborder U.S. Attorneys stating: "I want to reiterate the Department's policy: We should not designor conduct undercover operations which include guns crossing the border.,,9 Since this e-mailwas a reiteration of Department policy, any operations allowing guns to cross the border wouldviolate Department policy. On January 27,2012, Deputy Attorney General Cole sent a letter toCongress stating that the Department's "lawyers help AUSAs and trial attorneys ensure that theirwiretap packages meet statutory requirements and DOJ policies." Thus, Mr. Cole acknowledgedthat Criminal Division lawyers are responsible for ensuring that wiretap packages comply withboth federal law and Department policies, including the policy against designing operations thatallow guns to cross the border.Wiretap Information

We seek to determine whether wiretap applications were approved in contravention ofeither AIF or Department policy. It is highly likely that information contained in the wiretapapplications will provide answers to the following questions:

1. Do the wiretap applications include the nwnber of guns purchased by individualmembers of the straw purchasing ring? If so , do the applications demonstrate thatother investigative techniques, such as "knock and talks," traffic stops, or searchwarrants, were attempted and failed, or avoided, so as to not "tip off" the subjects andcause them to cease further illegal acti vity?

2. Do the wiretap applications include the amount of money spent on weapons byindividual members of the straw purchasing ring?

3. Do the wiretap applications include information about the taxable Incomes ofindividual members of the straw purchasing ring?

4. Do the wiretap applications contain any evidence that suspects were acquiring theweapons with the intent to transfer them to another person? If so, why wasn't suchevidence immediately used to arrest and prosecute those suspects for the crime ofstraw purchasing?

5. Do the wiretap applications include information about whether any of the targets orsuspects were attempting to acquire firearms for the purpose of trafficking them to

3 Bureau of Alcohol, Tobacco, Firearms, and Explosives, "ATF's Mission," http://www.atfgov/about/mission (lastvisited Feb. 8, 2012).9 E-mail from James M Cole to Angel Moreno, et al. (Mar. 9,20 II) [HOGR 005811].
http://www.atfgov/about/missionhttp://www.atfgov/about/mission


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The Honorable Eric H. Holder, Jr.February 8,2012Page 4 of5

Mexico? If so, was blanket surveillance initiated to insure that the targets or suspectsin question would not be able to effectuate their intent?

6. Do the wiretap applications contain any evidence that ATF allowed straw purchasersto acquire firearms? If so, what safeguards were put in place to protect public safety?

7. Do the wiretap applications contain any evidence of associations among individualsin the straw purchasing ring?

8. Do the wiretap applications include the number of border crossings, including dates,made by individual members of the straw purchasing ring?

9. Do the wiretap applications include the number of weapons recovered, both in theUnited States and in Mexico, that were bought by individual members of the strawpurchasing ring?

J O . Do the wiretap applications include the locations of residences where the transfer offirearms took place during the course of the investigation?

I J . Do the wiretap applications include specific instances of law enforcementsurveillance of illegal weapons purchases and subsequent transfers of those weaponswithout interdiction by law enforcement?

12. Do the wiretap applications contain any evidence that ATF deemed otherinvestigative techniques, such as the execution of search warrants, not feasiblebecause such techniques would alert the subjects to the investigation? If so, does thefailure to execute these search warrants demonstrate a violation of ATF's coremission?

Leave of CourtBy their very nature, requests for wiretap applications are intrusions into the privacy of

individuals. It is for this reason that the law requires the Justice Department to exercisemeaningful supervision over these applications, and one of the reasons why OEO scrutinizeseach application before submitting it to federal court. Although we are mindful of the sensitivenature of the information associated with the individuals mentioned in the applications, the gravepublic concern over Fast and Furious weighs in favor of providing this information infurtherance of our oversight interests under the Constitution.

Recently, the Arizona Republic "convinced a [federal] judge to [unseal] some documents[relating to the Brian Terry murder], saying the public had a right to inspect them."]O Thismarked the first time in a case relating to Fast and Furious that documents have been unsealed.10 Dennis Wagner, Brian Terry border case: 2nd suspect revealed, ARIZ. REpUBLIC, Jan. 30,2012, available athttp://tucsoncitizen.comJarizona-news/20 1 2 / 0 1/30Ibrian-terry-border-case-2nd-suspect-revealed/.
http://tucsoncitizen.comjarizona-news/20http://tucsoncitizen.comjarizona-news/20


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The Honorable Eric H. Holder, Jr.February 8, 2012Page 5 of5Likewise, in the event that the wiretap applications are sealed, we request that the Department ofJustice seek leave of court to unseal them for the purpose of facilitating congressional review. Ifthe Department requires a subpoena in order to take this step, the Committee is willing toprovide one.

We look forward to your response as soon as possible, but by no later than noon onFebruary 15,2012.

Sincerely,

ChairmanCommittee on Oversightand Government ReformUnited States House of Representatives

Charles E. GrassleyRanking MemberCommittee on the judiciaryUnited States Senate

Patrick MeehanMember of CongressUnited States House of Representatives

cc: The Honorable Elijah E. Cummings, Ranking MemberCommittee on Oversight and Government ReformUnited States House of RepresentativesThe Honorable Patrick Leahy, ChairmanCommittee on the JudiciaryUnited States Senate

2012-02-08 dei grassley meehan toholder-doj - f&f wiretap due 2-15

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