Cornyn urging wider probe of ‘Fast and Furious’
‘Spillover effects’ in Texas cited
by Jerry Seper
Sen. John Cornyn, Texas Republican and a member of the Senate Judiciary Committee, asked Sen. Chuck Grassley and Rep. Darrell E. Issa on Monday to expand their formal "Fast and Furious" investigation to include accusations that similar gunrunning probes took place in Texas.
Mr. Cornyn said he asked U.S. Attorney General Eric H. Holder Jr. in August to address the "scope and details of any past or present ATF gun-walking programs" in his home state, but never got a response.
"Though their failure to respond is not direct evidence of malfeasance, the department's reluctance to address allegations of additional 'gun-walking' schemes in my state raises serious questions, and Texans deserve a full accounting of the department's role in this matter," he wrote.
Mr. Cornyn, a former Texas attorney general, said Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) "gun-walking" schemes have had significant "spillover effects" in Texas. In two separate incidents in January and April 2010, 60 rifles that were "walked" during the Fast and Furious operation were recovered from criminals in El Paso, Texas.
He said the attorney for a federal firearms licensee (FFL) in Houston has charged that his employees were ordered by ATF to conduct suspicious sales of firearms to purchasers who may have been working on behalf of Mexican drug cartels.
Last December, he said, the Justice Department convened a grand jury to investigate whether several salespersons at the Houston gun dealers were criminally liable for selling weapons to straw purchasers. The investigation, he said, was dropped only after the licensed firearms dealers revealed that the illicit sales were carried out at the behest of the ATF.
"I fear that ATF may have pressured other FFLs in Texas to conduct illegal activities, and that many of these weapons may have ended up in the hands of cartels and at the scene of multiple violent crimes in Mexico," Mr. Cornyn said.
He also asked that the investigation include a look into whether a Texas-based "gun-walking" program was responsible for the slaying of U.S. Immigration and Customs Enforcement (ICE) agent Jaime Zapata on Feb. 15, 2011, in Mexico. One of the weapons used to kill Zapata was purchased by Texas resident Otilio Osorio in October 2010 and, according to Mr. Cornyn, later trafficked to Mexico through Laredo, Texas.
Zapata was fatally shot, and his partner, Victor Avila, was wounded twice in the leg in the ambush on a major highway near the city of San Luis Potosi, about 250 miles north of Mexico City. The men, assigned to the U.S. Embassy in Mexico City, were returning to their office after a meeting with other U.S. personnel in San Luis Potosi.
Neither man was armed, as Mexico does not allow U.S. law enforcement personnel to carry weapons in the country.
Mr. Osorio, 22, and his brother, Ranferi, 27, were arrested at their home on charges of possessing firearms with an obliterated serial number. Kelvin Leon Morrison, 25, also was arrested and charged in a separate complaint with making false statements in connection with the acquisition of firearms and dealing in firearms without a license. He lives next door to the Osorios.
According to court documents, a confidential ATF informant arranged a meeting in early November with people who had firearms to be transported from Dallas to Laredo. The meeting was arranged as part of an investigation of Los Zetas, a violent and ruthless Mexican drug-trafficking gang.
Mr. Cornyn said evidence uncovered by Mr. Grassley, Iowa Republican, suggests that the ATF was aware of Mr. Osorio's weapons-trafficking activities "long before that date."
"The delay in his arrest raises concerns that the ATF knowingly allowed Osorio to continue trafficking weapons through Texas as part of a broader 'gun-walking' program," he said, adding in his letter that he supported efforts by the two lawmakers "to hold the Department of Justice accountable for their involvement in the Operation Fast and Furious tragedy."
"American tax dollars should never again be spent to arm Mexican drug cartels," he said.
In the Arizona-based Fast and Furious operation, 20 "straw buyers" purchased more than 2,000 weapons between September 2009 and December 2010, many of which were walked into Mexico and turned over the Mexican drug smugglers. The weapons included AK-47 assault weapons, Barrett .50-caliber sniper rifles, FN 5.7mm semi automatic pistols and other assorted rifles, shotguns and handguns — many of which remain unaccounted for.
The straw buyers paid as much as $900,000 for the weapons, with much of the illicit cash being furnished by the drug cartels.
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Justice Dept. proposes lying, hiding existence of records under new FOIA rule
by CJ Ciaramella
A proposed revision to Freedom of Information Act rules would allow federal agencies to lie to citizens and reporters seeking certain records, telling them the records don’t exist.
The Justice Department has proposed the change as part of a large revision of FOIA rules for federal agencies. Specifically, the rule would direct government agencies who are denying a request under an established FOIA exemption to “respond to the request as if the excluded records did not exist,” rather than citing the relevant exemption.
The proposed rule has alarmed government transparency advocates across the political spectrum, who’ve called it “Orwellian” and say it will “twist” public access to government.
The draft FOIA revisions were first published in March, but the Justice Department re-opened comment submissions in September after several open-government groups raised objections. A Justice Department spokesperson said the agency is committed to public input and transparency, which is why it re-opened public comments on the rule — an unusual step in the process.
In a public comment regarding the rule change, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org, said the move “will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”
Anne Weismann, the chief counsel of CREW, said the Justice Department has a legitimate purpose behind the rules: to protect sensitive information about ongoing investigations. However, she said lying about the records “is an overbroad and improper response.”
“The problem is, if you’re a FOIA requester and the agency says they don’t have the records, you have no reason to doubt that,” Weismann said. “But if they cite an exemption, you have the option to sue.”
Those groups have suggested an alternate federal response that would not require any revisions to the rules. “We interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.”
Conservative government watchdog Judicial Watch has also lambasted the proposed rules change. (RELATED: Obama admin. pulls references to Islam from terror training materials, official says)
The news is “not surprising, coming from the Obama administration,” said Christopher J. Farrell, director of investigations and research at Judicial Watch.
“The Obama administration is already doing it right now by actively misleading the public concerning White House visitor logs,” Farrell said. “Every day, the Obama administration misrepresents and conceals the true, complete record of who is going in and out of the White House — all the while proclaiming themselves champions of transparency. It’s truly Orwellian. The proposed rule change should be rejected.”
However, the Justice Department says it has long had this standing authority. A 1987 memo from then-Attorney General Edwin Meese III advises the Justice Department that it has the legal authority to deny existence of records, using the same language as the new rule.
“Where an exclusion is employed, the agency is legally empowered to ‘treat’ the excluded records as not subject to the FOIA at all,” Meese wrote. “Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request ‘could not be located’ — most rationally and fairly implements an exclusion’s effect.”
If the new rule were to go into effect, there is a good chance it might be challenged in court. Courts have traditionally given the Justice Department fairly broad powers regarding records disclosure, but recent precedent may give the DOJ trouble.
In a case involving the FBI and records disclosure, U.S. District Judge Cormac Carney wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”
Under current FOIA practice, the government may withhold information and issue a denial saying it can neither confirm nor deny the existence of records. Such a denial is known as a “Glomar response” — named after the legal battle between the Los Angeles Times and the CIA in the 1970s over records concerning the CIA’s attempts to salvage a sunken Soviet submarine.
Upon taking office, President Obama released a memorandum declaring his administration was “committed to operating with an unprecedented level of openness. Specifically, he pledged to bolster the strength of the FOIA act, calling it “the most prominent expression of a profound national commitment to ensuring an open government.”
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