Mexican Roulette

Until this year, the worst episode in the history of the Bureau of Alcohol, Tobacco, Firearms and Explosives came in 1993, when the ATF raided cult leader David Koresh’s Branch Davidian compound. That raid led to a 50-day standoff that ended with the deaths of 83 Davidians and provided endless fodder for anti-government types (Oklahoma City bomber Timothy McVeigh among them), the gun lobby, and Republican lawmakers, who overtook Congress the next year on a wave of anti-Washington resentment. Although it was the FBI that oversaw the final siege of the compound, and although four of its agents were killed in the shootout, the ATF took most of the blame. A board member of the National Rifle Association (NRA) wrote, in a letter to then Attorney General Janet Reno, "If you send your jack-booted baby-burning bushwhackers to confiscate my guns, pack them a lunch; it will be a damned long day. The Branch Davidians were amateurs; I’m a professional." By jackbooted, baby-burning bushwhackers he meant, of course, ATF agents.

Bad as 1993 was politically for the ATF, 2011 has been worse. In January, it came out that a U.S. Border Patrol agent, Brian Terry, killed in Arizona in December, was shot with an AK-47 purchased at a gun store near Phoenix by someone under ATF surveillance. Since this spring, Congress has been looking into the investigation that monitored that sale and others like it. Operation Fast and Furious, as it was infelicitously known, was aimed at dismantling a gunrunning ring smuggling weapons from the United States to the Sinaloa drug cartel in Mexico. It was an interagency investigation involving not just the ATF, but also the Drug Enforcement Administration (DEA), Immigration and Customs Enforcement (ICE), the FBI, the Arizona U.S. attorney’s office, and the Justice Department. It was carried out with the knowledge of the National Security Council.

But the ATF is, once again, taking the heat. On Tuesday, Aug. 30, ATF acting director Kenneth E. Melson and Arizona U.S. Attorney Dennis Burke were forced out over the scandal, according to the New York Times. All other major newspapers and networks have covered the controversy, mostly breathlessly and with a marked lack of context. Fox News and its Internet echo chambers would have you believe they’re on the trail of a major coverup. And the NRA is, to no one’s surprise, having a ball. As recently as February, NRA Director Wayne LaPierre blasted "the phony claim that armed violence committed by Mexican drug cartels on Mexican soil is fueled by guns obtained from federally licensed retailers in border states." Now, amazingly, LaPierre tells news organizations that cross-border gun-trafficking does exist — only, it’s the government that’s responsible for it.

"The largest gunrunning operation in history into the hands of the Mexican drug cartels has been conducted by the Obama administration’s Justice Department," he said.

Only slightly less shameful than his self-serving cant were hearings held in late July, in which House Oversight Committee Chairman Darrell Issa dragged ATF agents over the coals — or attempted to. Even by the farcical standards of congressional hearings, these were useless. Not that it mattered. The point, after all, was not to figure out how Fast and Furious went wrong (if indeed it did, a contention not necessarily proved by Terry’s death), but to embarrass the ATF. How else to explain why no officials from its partner agencies were called to testify? And how else to justify calling no fewer than three members of the Terry family, whose testimony, while heart-breaking, had no bearing on the details of the investigation?

It does the Terrys no more a service than it does Washington to skirt a substantive debate of Fast and Furious. Whatever its flaws, the program marked a major and welcome shift in the federal government’s attempts to combat border gun-trafficking — a fact not even its creators are willing to admit to now.

I spent much of early 2008 investigating arms-trafficking across the border for an article for Conde Nast Portfolio. I passed many hours with ATF agents in Arizona and Texas, interviewing them and attending gun shows with them. I also spent time at the smuggling routes on the border and in northern Mexico. What I found would have been more frightening had it not been so galling: on the one hand a huge gunrunning market that led directly to the deaths of thousands of Mexicans, and not a few Americans; and on the other a law enforcement agency trying to stop it with one hand tied behind its back. The problem was not that ATF agents weren’t dedicated and smart — many were — but that they were prey to absurd congressional stipulations urged, most vociferously, by the NRA.

Let’s start with the obscenely irresponsible laws that cover gun sales in America. For instance, anyone without a criminal record can legally purchase as many rifles and other long guns as they want in the United States. You read that correctly. If you have no criminal record, you can walk into a gun dealer and buy 100 AR-15 rifles, 200 AK-47s, the store’s entire inventory of shotguns, or a .50-caliber sniper rifle that can take down a low-flying aircraft — as long as you have the cash. Not only can the dealer sell them to you, but he doesn’t even have to notify anyone unless you buy multiple handguns as well. One of the buyers being surveilled under Fast and Furious, an Arizona man named Uriel Patino, bought about 720 guns — legally.

There are roughly 100,000 licensed gun dealers in the United States. Most of them are gun stores, pawn shops, sporting-goods stores, and the like, but many are so-called "kitchen table" dealers who sell secondhand guns out of their businesses, homes, or even cars. While reporting, I took a look at a pair of assault rifles in the office of a plumbing-supply salesman near Dallas who peddles guns on the side. I also learned of a Mexican drug trafficker who’d opened a series of gun stores in Texas to cut out the middleman. That’s how easy it is to legally sell guns. If you have a criminal record and want to avoid scrutiny, you can go to one of these kitchen-table dealers or to one of the thousands of gun shows that take place around the country each year, where you can find people who claim to be selling out of their private collection. They don’t need a license to do so, and you don’t have to submit to a background check. All you need is money and identification showing you’re over 18 years old.

This is what the ATF faces as it tries to head off gun-trafficking across the 2,000-mile border with Mexico with only a few hundred agents. Lawmakers — by no means all of them Republicans — have seen to it that the agency is as understaffed and underfunded as possible. Between 1973, when the ATF was founded, and 1998, the number of field agents increased by nine. Nine agents. It has half the budget and half the manpower of the DEA, and it has been laboring under a series of acting directors since 2006, when the NRA successfully lobbied Congress to require Senate confirmation for the job.

Still, William Newell, the ATF special agent who oversaw Fast and Furious, and his agents in Phoenix did what they could. A devoted, articulate lifetime civil servant who spent part of his childhood in Latin America and then cut his teeth as an agent in Colombia during the drug wars of the 1990s, Newell was under no illusions about his agency’s beleaguered standing in Washington. He didn’t let it stop him, however. When I interviewed him in 2008, he showed me "the vault," a large room with racks and bins full of guns his agents had caught before they could cross the border. They were the fruits of Operation Gunrunner, a Bush administration initiative. (The ATF’s policy is to destroy the guns it seizes, though many police departments around the country resell them on the secondary market, appallingly enough.) Newell had been implementing Operation Gunrunner so effectively that he was seen as a possible future head of the ATF.

It was remarkable he’d seized even those guns, however, given how needlessly hobbled his agency is by Washington. Congress prohibits the ATF from employing many basic tools of modern law enforcement. For instance, it is forbidden from creating a national registry of guns or gun owners. The U.S. government keeps track of everyone who owns a car or a house, but not a gun (nor even hundreds of guns or caches of military-grade weaponry). Gun buyers are required to fill out ATF sales forms, but the agency can’t systemize or even collect them; they’re kept by dealers. The number of dealers who knowingly aid in trafficking is miniscule, and the ATF knows who many of them are. But in most cases it’s not allowed to inspect a dealer unannounced more than once a year.

Meanwhile, the ATF’s National Tracing Center, which would be the hub of any serious attempt to combat gun-trafficking, houses hundreds of millions of documents, but thanks to Congress it can’t make them searchable by name. And, preposterously, there is no federal law explicitly forbidding international gun-trafficking. For years lawmakers have proposed such laws, and for years they’ve been defeated, including by Democrat-controlled Congresses. In 1997, President Bill Clinton signed the Convention on Illicit Firearms Trafficking. Congress has refused to ratify it ever since, under pressure from the gun lobby.

This means that when gun-trafficking cases are brought at all, they are brought under weak catchall anti-smuggling laws. U.S. attorneys in Arizona for years refused to help the ATF build gun cases, knowing prosecutions would likely result in, at best, minor sentences for straw purchasers who buy guns for criminal organizations but have no impact beyond that. And so the ATF, though an investigative agency, was relegated for years to interdiction. Agents arrested small fry and seized small caches, knowing that they were dipping a bucket into the ocean. For every gun they got, hundreds more made it over the border. Had they wanted to, Issa and his committee could have learned much of this from their very own Congressional Research Service’s 2009 report on border gun-trafficking, or a larger study by the Government Accountability Office.

Operation Fast and Furious was part of a plan to change the situation. In 2009, Barack Obama’s administration made combating gun-trafficking on the border a priority, and Burke, who was then the new Arizona U.S. Attorney, agreed to help. The goal was to investigate and build a serious case against a gunrunning network connected with the Sinaloa cartel, one of the biggest drug-trafficking organizations in Mexico. Building off the successes of Operation Gunrunner, Burke’s office, along with the ATF, DEA, ICE, and the FBI, created a new Organized Crime Drug Enforcement Task Force. Its operational name was Fast and Furious.

The aim of Fast and Furious was to investigate, and not, as the ATF had grown accustomed to, interdict. Instead of arresting the so-called "straw purchasers" who buy the guns and pass them on (again, legally, provided they pass a background check), Fast and Furious called for agents to surveil them and try to follow the flow of guns, to move beyond the pawns to the larger players. Of course, this is what investigators and detectives who don’t work at agencies hobbled by their elected overseers do every day: allow things to be bought and sold and moved so that they can map out criminal organizations and get to their highest levels.

If their testimony is to be believed, a number of agents newly posted to Phoenix and Fast and Furious were nonetheless shocked when they were instructed to "let guns walk," as it’s known. According to ATF personnel I spoke with, these agents had no idea of the scale of the gun-trafficking problem when they arrived in Arizona. They were used to interdiction and apparently were not properly read into the larger aims of Fast and Furious. A number of these agents delivered impassioned pleas at the hearings in July, expressing their unshakable opposition to the very idea of letting guns walk. (Issa and Sen. Charles Grassley, always happy to impugn his fellow federal employees, cherry-picked their best lines for a pair of mostly useless and histrionic reports.)

The agents’ indignation was duly righteous, but none felt it worth mentioning, apparently, that letting guns walk was precisely the point of Fast and Furious. None of them dared mention what is common knowledge on the border — that scores of American guns walk every day, regardless of surveillance, because buying and moving them is so easy and the ATF too hampered to stop them.

Nor, sadly, did Newell, the most enduring target of Issa’s ire, mention that. During his testimony, Newell mostly stared down at a prepared statement, offering evasive and feckless answers. He offered no explanation of Fast and Furious or of the colossal problem of the border’s illicit gun market, and he certainly didn’t mention — out of good manners or professional restraint, one assumes — the hoops that these same congressmen have made him jump through merely in order to do his job.