June 27, 2012: 5:00 AM ET
A Fortune investigation reveals that the ATF never
intentionally allowed guns to fall into the hands of Mexican drug
cartels. How the world came to believe just the opposite is a tale of
rivalry, murder, and political bloodlust.
By Katherine Eban
Dave Voth, Fast and Furious supervisor for the ATF
FORTUNE -- In the annals of impossible assignments, Dave Voth's
ranked high. In 2009 the federal Bureau of Alcohol, Tobacco, Firearms
and Explosives promoted Voth to lead Phoenix Group VII, one of seven new
ATF groups along the Southwest border tasked with stopping guns from
being trafficked into Mexico's vicious drug war.
Some call it the "parade of ants"; others the "river of iron." The
Mexican government has estimated that 2,000 weapons are smuggled daily
from the U.S. into Mexico. The ATF is hobbled in its effort to stop this
flow. No federal statute outlaws firearms trafficking, so agents must
build cases using a patchwork of often toothless laws. For six years,
due to Beltway politics, the bureau has gone without permanent
leadership, neutered in its fight for funding and authority. The
National Rifle Association has so successfully opposed a comprehensive
electronic database of gun sales that the ATF's congressional
appropriation explicitly prohibits establishing one.
Voth, 39, was a good choice for a Sisyphean task. Strapping and
sandy-haired, the former Marine is cool-headed and punctilious to a
fault. In 2009 the ATF named him outstanding law-enforcement employee of
the year for dismantling two violent street gangs in Minneapolis. He
was the "hardest working federal agent I've come across," says John
Biederman, a sergeant with the Minneapolis Police Department. But as
Voth left to become the group supervisor of Phoenix Group VII, a friend
warned him: "You're destined to fail."
Voth's mandate was to stop gun traffickers in Arizona, the state
ranked by the gun-control advocacy group Legal Community Against
Violence as having the nation's "weakest gun violence prevention laws."
Just 200 miles from Mexico, which prohibits gun sales, the Phoenix area
is home to 853 federally licensed firearms dealers. Billboards advertise
volume discounts for multiple purchases.
Customers can legally buy as many weapons as they want in Arizona as
long as they're 18 or older and pass a criminal background check. There
are no waiting periods and no need for permits, and buyers are allowed
to resell the guns. "In Arizona," says Voth, "someone buying three guns
is like someone buying a sandwich."
By 2009 the Sinaloa drug cartel had made Phoenix its gun supermarket
and recruited young Americans as its designated shoppers or straw
purchasers. Voth and his agents began investigating a group of buyers,
some not even old enough to buy beer, whose members were plunking down
as much as $20,000 in cash to purchase up to 20 semiautomatics at a
time, and then delivering the weapons to others.
The agents faced numerous obstacles in what they dubbed the Fast and
Furious case. (They named it after the street-racing movie because the
suspects drag raced cars together.) Their greatest difficulty by far,
however, was convincing prosecutors that they had sufficient grounds to
seize guns and arrest straw purchasers. By June 2010 the agents had sent
the U.S. Attorney's office a list of 31 suspects they wanted to arrest,
with 46 pages outlining their illegal acts. But for the next seven
months prosecutors did not indict a single suspect.
On Dec. 14, 2010, a tragic event rewrote the narrative of the
investigation. In a remote stretch of Peck Canyon, Ariz., Mexican
bandits attacked an elite U.S. Border Patrol unit and killed an agent
named Brian Terry. The attackers fled, leaving behind two semiautomatic
rifles. A trace of the guns' serial numbers revealed that the weapons
had been purchased 11 months earlier at a Phoenix-area gun store by a
Fast and Furious suspect.
Ten weeks later, an ATF agent named John Dodson, whom Voth had supervised, made startling allegations on the
CBS Evening News.
He charged that his supervisors had intentionally allowed American
firearms to be trafficked—a tactic known as "walking guns"—to Mexican
drug cartels. Dodson claimed that supervisors repeatedly ordered him not
to seize weapons because they wanted to track the guns into the hands
of criminal ringleaders. The program showed internal e-mails from Voth,
which purportedly revealed agents locked in a dispute over the deadly
strategy. The guns permitted to flow to criminals, the program charged,
played a role in Terry's death.
After the CBS broadcast, Fast and Furious erupted as a major scandal
for the Obama administration. The story has become a fixture on Fox News
and the subject of numerous reports in media outlets from CNN to the
New York Times.
The furor has prompted repeated congressional hearings—with U.S.
Attorney General Eric Holder testifying multiple times—dueling reports
from congressional committees, and an ongoing investigation by the
Justice Department's inspector general. It has led to the resignations
of the acting ATF chief, the U.S. Attorney in Arizona, and his chief
criminal prosecutor.
Rep. Darrell Issa (R.-Calif.)
Conservatives have pummeled the Obama administration, and especially
Holder, for more than a year. "Who authorized this program that was so
felony stupid
that it got people killed?" Rep. Darrell Issa (R-Calif.), chairman of
the House Committee on Oversight and Government Reform, demanded to know
in a hearing in June 2011. He has charged the Justice Department, which
oversees the ATF, with having "blood on their hands." Issa and more
than 100 other Republican members of Congress have demanded Holder's
resignation.
The conflict has escalated dramatically in the past ten days. On June
20, in a day of political brinkmanship, Issa's committee voted along
party lines, 23 to 17, to hold Holder in contempt of Congress for
allegedly failing to turn over certain subpoenaed documents, which the
Justice Department contended could not be released because they related
to ongoing criminal investigations. The vote came hours after President
Obama asserted executive privilege to block the release of the
documents. Holder now faces a vote by the full House of Representatives
this week on the contempt motion (though negotiations over the documents
continue). Assuming a vote occurs, it will be the first against an
attorney general in U.S. history.
As political pressure has mounted, ATF and Justice Department
officials have reversed themselves. After initially supporting Group VII
agents and denying the allegations, they have since agreed that the ATF
purposefully chose not to interdict guns it lawfully could have seized.
Holder testified in December that "the use of this misguided tactic is
inexcusable, and it must never happen again."
There's the rub.
Quite simply, there's a fundamental misconception at the heart of the
Fast and Furious scandal. Nobody disputes that suspected straw
purchasers under surveillance by the ATF repeatedly bought guns that
eventually fell into criminal hands. Issa and others charge that the ATF
intentionally allowed guns to walk as an operational tactic. But five
law-enforcement agents directly involved in Fast and Furious tell
Fortune
that the ATF had no such tactic. They insist they never purposefully
allowed guns to be illegally trafficked. Just the opposite: They say
they seized weapons whenever they could but were hamstrung by
prosecutors and weak laws, which stymied them at every turn.
Indeed, a six-month
Fortune investigation reveals that the
public case alleging that Voth and his colleagues walked guns is replete
with distortions, errors, partial truths, and even some outright lies.
Fortune
reviewed more than 2,000 pages of confidential ATF documents and
interviewed 39 people, including seven law-enforcement agents with
direct knowledge of the case. Several, including Voth, are speaking out
for the first time.
How Fast and Furious reached the headlines is a strange and
unsettling saga, one that reveals a lot about politics and media today.
It's a story that starts with a grudge, specifically Dodson's anger at
Voth. After the terrible murder of agent Terry, Dodson made complaints
that were then amplified, first by right-wing bloggers, then by CBS.
Rep. Issa and other politicians then seized those elements to score
points against the Obama administration, which, for its part, has
capitulated in an apparent effort to avoid a rhetorical battle over gun
control in the run-up to the presidential election. (A Justice
Department spokesperson denies this and asserts that the department is
not drawing conclusions until the inspector general's report is
submitted.)
"Republican senators are whipping up the country into a psychotic
frenzy with these reports that are patently false," says Linda Wallace, a
special agent with the Internal Revenue Service's criminal
investigation unit who was assigned to the Fast and Furious team (and
recently retired from the IRS). A self-described gun-rights supporter,
Wallace has not been criticized by Issa's committee.
The ATF's accusers seem untroubled by evidence that the policy they
have pilloried didn't actually exist. "It gets back to something basic
for me," says Sen. Charles Grassley (R-Iowa). "Terry was murdered, and
guns from this operation were found at his murder site." A spokesman for
Issa denies that politics has played a role in the congressman's
actions and says "multiple individuals across the Justice Department's
component agencies share responsibility for the failure that occurred in
Operation Fast and Furious." Issa's spokesman asserts that even if ATF
agents followed prosecutors' directives, "the practice is nonetheless
gun walking." Attorneys for Dodson declined to comment on the record.
For its part, the ATF would not answer specific questions, citing
ongoing investigations. But a spokesperson for the agency provided a
written statement noting that the "ATF did not exercise proper
oversight, planning or judgment in executing this case. We at ATF have
accepted responsibility and have taken appropriate and decisive action
to insure that these errors in oversight and judgment never occur
again." The statement asserted that the "ATF has clarified its firearms
transfer policy to focus on interdiction or early intervention to
prevent the criminal acquisition, trafficking and misuse of firearms,"
and it cited changes in coordination and oversight at the ATF.
Irony abounds when it comes to the Fast and Furious scandal. But the
ultimate irony is this: Republicans who support the National Rifle
Association and its attempts to weaken gun laws are lambasting ATF
agents for not seizing
enough weapons—ones that, in this case, prosecutors deemed to be legal.
The investigation begins
The ATF is a bureau of judgment calls. Drug enforcement agents can
confiscate cocaine and arrest anyone in possession of it. But ATF agents
must distinguish constitutionally protected legal guns from illegal
ones, with the NRA and other Second Amendment activists watching for
missteps.
U.S. Attorney General Eric Holder
Critics have depicted the ATF as "jackbooted government thugs"
trampling on the rights of law-abiding gun owners. From the deadly
standoff with the Branch Davidian cult in Waco, Texas, in 1993 to
allegations that ATF agents illegally seized weapons from suspected
straw purchasers at a Richmond gun show in 2005, these scandals have
helped cement the bureau's reputation in some quarters for
law-enforcement overreach.
In part because of these notorious cases, thebureau has operated in a
self-protective crouch. It has stuck to small single-defendant cases to
the detriment of its effort to combat gun trafficking, the Justice
Department's inspector general found in a review of ATF cases from 2007
to 2009. To refocus its efforts, the ATF established Group VII and the
other Southwest border units to build big, multi-defendant conspiracy
cases and target the leaders of the trafficking operations.Of course, the ATF can be its own worst enemy. Voth arrived in
Phoenix in December 2009 only to discover that his group had not been
funded. The group had little equipment and no long guns, electronic
devices, or binoculars, forcing Voth to scrounge for supplies.Then there was Voth's seven-agent team, which was almost instantly at
war with itself. Most of the agents were transplants, unfamiliar with
Arizona or one another. Fast and Furious' lead case agent, Hope
MacAllister, 41, was the exception—a tough, squared-away Phoenix veteran
with little tolerance for complaints. Her unsmiling demeanor led Voth
to give her the ironic nickname "Sunshine Bear." She declined to be
interviewed.Dodson, 41, arrived one day before Voth from a two-man outpost of
ATF's Roanoke field office, where he'd worked since 2002. He had joined
the ATF from the narcotics section of the Loudoun County sheriff's
office in Virginia, where his blunt, even obnoxious manner did not earn
him friends. He's "an asshole sometimes—there is no other way to put
it," says his former partner, Ken Dondero, who served as best man at
Dodson's wedding. "He's almost too honest. He believes that if he has a
thought in his head, it's there to broadcast to everyone."
Voth, MacAllister, and a third agent, Tonya English, were
quintessential by-the-book types. By contrast, Dodson and two other new
arrivals, Olindo "Lee" Casa and Lawrence Alt, seemed to chafe at ATF
rules and procedures. (An attorney for Casa says that "in light of the
current congressional investigation, as well as investigations by the
Department of Justice Inspector General and the Office of Special
Counsel" it would be premature to comment. A lawyer for Alt says Alt
could not be interviewed because he is in mediation to settle a suit he
filed in which he charges that he was retaliated against for being a
whistleblower.)
Dodson's faction grew antagonistic to Voth. They regularly fired off
snide e-mails and seemed to delight in mocking Voth and his methodical
nature. They were scornful of protocol, according to ATF agents. Dodson
would show up to work in flip-flops. He came unprepared for
operations—without safety equipment or back-up plans—and was pulled off
at least one surveillance for his own safety, say two colleagues. He
earned the nickname "Renegade," and soon Voth's group effectively
divided into two clashing factions: the Sunshine Bears and the
Renegades.
Even had they all gotten along, they faced a nearly impossible task.
They were seven agents pursuing more than a dozen cases, of which Fast
and Furious was just one, their efforts complicated by a lack of
adequate tools. Without a real-time database of gun sales, they had to
perform a laborious archaeology. Day after day, they visited local gun
dealers and pored over forms called 4473s, which dealers must keep on
file. These contain a buyer's personal information, a record of
purchased guns and their serial numbers, and a certification that the
buyer is purchasing the guns for himself. (Lying on the forms is a
felony, but with weak penalties attached.) The ATF agents manually
entered these serial numbers into a database of suspect guns to help
them build a picture of past purchases.
By January 2010 the agents had identified 20 suspects who had paid
some $350,000 in cash for more than 650 guns. According to Rep. Issa's
congressional committee, Group VII had enough evidence to make arrests
and close the case then.
Prosecutors: Transferring guns is legal in Arizona
This was not the view of federal prosecutors. In a meeting on Jan. 5,
2010, Emory Hurley, the assistant U.S. Attorney in Phoenix overseeing
the Fast and Furious case, told the agents they lacked probable cause
for arrests, according to ATF records. Hurley's judgment reflected
accepted policy at the U.S. Attorney's Office in Arizona. "[P]urchasing
multiple long guns in Arizona is lawful," Patrick Cunningham, the U.S.
Attorney's then–criminal chief in Arizona would later write.
"Transferring them to another is lawful and even sale or barter of the
guns to another is lawful unless the United States can prove by clear
and convincing evidence that the firearm is intended to be used to
commit a crime." (Arizona federal prosecutors referred requests for
comment to the Justice Department, which declined to make officials
available. Hurley noted in an e-mail, "I am not able to comment on what I
understand to be an ongoing investigation/prosecution. I am precluded
by federal regulation, DOJ policy, the rules of professional conduct,
and court order from talking with you about this matter." Cunningham's
attorney also declined to comment.)
It was nearly impossible in Arizona to bring a case against a straw
purchaser. The federal prosecutors there did not consider the purchase
of a huge volume of guns, or their handoff to a third party, sufficient
evidence to seize them. A buyer who certified that the guns were for
himself, then handed them off minutes later, hadn't necessarily lied and
was free to change his mind. Even if a suspect bought 10 guns that were
recovered days later at a Mexican crime scene, this didn't mean the
initial purchase had been illegal. To these prosecutors, the pattern
proved little. Instead, agents needed to link specific evidence of
intent to commit a crime to each gun they wanted to seize.
ATF agent John Dodson
None of the ATF agents doubted that the Fast and Furious guns were
being purchased to commit crimes in Mexico. But that was nearly
impossible to prove to prosecutors' satisfaction. And agents could not
seize guns or arrest suspects after being directed not to do so by a
prosecutor. (Agents can be sued if they seize a weapon against
prosecutors' advice. In this case, the agents had a particularly strong
obligation to follow the prosecutors' direction given that Fast and
Furious had received a special designation under the Justice
Department's Organized Crime Drug Enforcement Task Force. That
designation meant more resources for the case, but it also provided that
prosecutors take the lead role.)
In their Jan. 5 meeting, Hurley suggested another way to make a case:
Voth's team could wiretap the phone of a suspected recruiter and
capture proof of him directing straw purchasers to buy guns. This would
establish sufficient proof to arrest both the leaders and the followers.
On Jan. 8, 2010, Voth and his supervisors drafted a briefing paper in
which they explained Hurley's view that "there was minimal evidence at
this time to support any type of prosecution." The paper elaborated,
"Currently our strategy is to allow the transfer of firearms to continue
to take place, albeit at a much slower pace, in order to further the
investigation and allow for the identification of additional
co-conspirators."
Rep. Issa's committee has flagged this document as proof that the
agents chose to walk guns. But prosecutors had determined, Voth says,
that the "transfer of firearms" was legal. Agents had no choice but to
keep investigating and start a wiretap as quickly as possible to gather
evidence of criminal intent.
Ten days after the meeting with Hurley, a Saturday, Jaime Avila, a
transient, admitted methamphetamine user, bought three WASR-10 rifles at
the Lone Wolf Trading Company in Glendale, Ariz. The next day, a
helpful Lone Wolf employee faxed Avila's purchase form to ATF to flag
the suspicious activity. It was the Martin Luther King Jr. holiday
weekend, so the agents didn't receive the fax until Tuesday, according
to a contemporaneous case report. By that time, the legally purchased
guns had been gone for three days. The agents had never seen the weapons
and had no chance to seize them. But they entered the serial numbers
into their gun database. Two of these were later recovered at Brian
Terry's murder scene.
Rebuffed by the prosecutors
Voth was a logical thinker. He lived by advice he received from an
early mentor in law enforcement: "There's what you think. There's what
you know. There's what you can prove. And the first two don't count."
But he was not operating in a logical world. The wiretap represented
the ATF's best—perhaps only— hope of connecting the gun purchases it had
been documenting to orders from the cartels, according to Hurley. In
Minneapolis, the prosecutors Voth had worked with had approved wiretap
applications within 24 hours. But in Phoenix, days turned into weeks,
and Group VII's wiretap application languished with prosecutors in
Arizona and Washington, D.C.
No one has yet explained this delay. Voth thinks prosecutor Hurley's
inexperience in wiretapping cases may have slowed the process. Several
other agents speculate that Arizona's gun culture may have led to
indifference. Hurley is an avid gun enthusiast
, according
to two law-enforcement sources who worked with him. One of those
sources says he saw Hurley behind the counter at a gun show, helping a
friend who is a weapons dealer.
William Newell, then special agent in charge of the ATF's Phoenix
field division, suspected that U.S. Attorney Dennis Burke, an Obama
appointee, was not being briefed adequately by deputies about the volume
of guns being purchased. He wrote to colleagues in February 2010 that
the prosecutor seemed "taken aback by some of the facts I informed him
about"—by then, the Fast and Furious suspects had purchased 800 guns—"so
I am setting up a briefing for him (alone no USAO 'posse') about this
case and several other cases I feel he is being misled about."
The conflict between federal prosecutors and ATF agents had been
growing for years. Pete Forcelli, who served as group supervisor of
ATF's Phoenix I field division for five years, told Congress in June
2011 that he believed Arizona federal prosecutors made up excuses to
decline cases. "Despite the existence [of] probable cause in many
cases," he testified, "there were no indictments, no prosecutions, and
criminals were allowed to walk free." Prosecutors in Los Angeles and New
York were far more aggressive in pursuing gun cases, Forcelli asserted.
Phoenix-based ATF agents became so frustrated by prosecutors'
intransigence that, in a highly unusual move, they began bringing big
cases to the state attorney general's office instead. Terry Goddard,
Arizona's Attorney General from 2003 to 2011, says of federal
prosecutors, "They demanded that every
i be dotted, every
t be crossed, and after a while, it got to be nonsensical."
For prosecutors, straw-purchasing cases were hard to prove and
unrewarding to prosecute, with minimal penalties attached. In December
2010, five U.S. Attorneys along the Southwest border, including Burke in
Arizona, wrote to the U.S. Sentencing Commission, asking that penalties
for straw purchasing be increased. The commission did increase the
recommended jail time by a few months. But because the straw purchasers,
by definition, have no criminal record and there is no
firearms-trafficking statute that would allow prosecutors to charge them
with conspiracy as a group, the penalties remain low.
Prosecutors repeatedly rebuffed Voth's requests. After examining one
suspect's garbage, agents learned he was on food stamps yet had plunked
down more than $300,000 for 476 firearms in six months. Voth asked if
the ATF could arrest him for fraudulently accepting public assistance
when he was spending such huge sums. Prosecutor Hurley said no. In
another instance, a young jobless suspect paid more than $10,000 for a
50-caliber tripod-mounted sniper rifle. According to Voth, Hurley told
the agents they lacked proof that he
hadn't bought the gun for himself.
Voth grew deeply frustrated. In August 2010, after the ATF in Texas
confiscated 80 guns—63 of them purchased in Arizona by the Fast and
Furious suspects— Voth got an e-mail from a colleague there: "Are you
all planning to stop some of these guys any time soon? That's a lot of
guns…Are you just letting these guns walk?"
Voth responded with barely suppressed rage: "Have I offended you in
some way? Because I am very offended by your e-mail. Define walk?
Without Probable Cause and concurrence from the USAO [U.S. Attorney's
Office] it is highway robbery if we take someone's property." He then
recounted the situation with the unemployed suspect who had bought the
sniper rifle. "We conducted a field interview and after calling the AUSA
[assistant U.S. Attorney] he said we did not have sufficient PC
[probable cause] to take the firearm so our suspect drove home with said
firearm in his car…any ideas on how we could not let that firearm
'walk'"?
Voth believed the wiretap could help bring the case to a swift and
successful close. On March 5, 2010, ten days before their first wiretap
was set to begin, Voth was in Washington, D.C., to brief ATF brass and
Justice Department officials on Fast and Furious. The response was
overwhelmingly positive. A senior ATF attorney wrote Voth, "This is
exactly the types of cases ATF should be doing with a wire, it is
fantastic."
The schism inside Phoenix Group VII
Voth returned to Phoenix fully expecting his team to unite for the
work that lay ahead. But instead he found a minor mutiny—over the
schedule for the wire, which needed to be monitored around the clock.
Dodson didn't want to work weekends. Casa felt his seniority should
exclude him from the effort.
Agents were getting pulled from other field offices to assist, and on
March 11, one wrote to ask Voth, "You're not going to give the
out-of-towners the crappy shifts, are you?" Voth responded, "I am
attempting to split the weekends so everyone has to work one of the two
days that way no one gets screwed too hard and everybody gets screwed a
little bit."
The next day, March 12, Voth sent out the wire schedule at 5:15 p.m.
but got such a blizzard of complaints about the shifts that, two hours
later, he sent another e-mail to the group. It read in part: "[T]here
may be a schism developing amongst the group. This is the time we all
need to pull together not drift apart. We are all entitled to our
respective (albeit different) opinions however we all need to get along
and realize we have a mission to accomplish. I am thrilled and proud
that our Group is the first ATF Southwest Border Group in the country to
be going up on [a] wire…I will be damned if this case is going to
suffer due to petty arguing, rumors or other adolescent behavior…I don't
know what all the issues are but we are all adults, we are all
professionals, and we have an exciting opportunity to use the biggest
tool in our law enforcement tool box. If you don't think this is fun
you're in the wrong line of work—period!
This is the pinnacle of domestic U.S. law-enforcement techniques. After this the tool box is empty."
The wire turned out to be short lived. Within days, the agents
realized that their suspect was phasing out use of the phone they were
monitoring. Group VII would have to reapply, all over again, for
permission to tap the new phone number.
But Voth's so-called "schism e-mail" would live in infamy. Today it
is held up as proof that the group was desperately divided over the
tactic of gun walking and that Voth belittled those who opposed it. But
there is no documentary evidence that agents Dodson, Casa, or Alt
complained to their supervisors about the alleged gun walking, had
confrontations about it, or were retaliated against because of their
complaints, as they all later claimed.
Who's opposed to gun walking?
The atmosphere inside Voth's group had become toxic. The subjects of
dispute were often trivial. For example, when Voth asked Casa to turn
off his computer's Godzilla sound effect, which roared each time he got
an e-mail, Casa replied, "I have done some limited research and have
found no ATF order or internal division memo addressing this issue."
Voth remained even-tempered but did take a stand after one incident.
Alt taped to Voth's door an eight-point takedown of agent MacAllister,
sarcastically stating that she was in charge of
everything. Voth
reported the note to an ATF attorney, and Alt apologized. It's unclear
what drove the men's anger, but it seems unlikely that it was caused by
disagreements over alleged gun walking.
How is it possible to deduce that? Because Dodson then proceeded to
walk guns intentionally, with Casa and Alt's help. On April 13, 2010,
one month after Voth wrote his schism e-mail, Dodson opened a case into a
suspected gun trafficker named Isaiah Fernandez. He had gotten Casa to
approve the case when Voth was on leave. Dodson had directed a
cooperating straw purchaser to give three guns to Fernandez and had
taped their conversations without a prosecutor's approval.
Voth first learned these details a month into the case. He demanded
that Dodson meet with him and get approval from prosecutors to tape
conversations. Five days later, Dodson sent an uncharacteristically
diplomatic response. (He and Alt had revised repeated drafts in that
time, with Alt pushing to make the reply "less abrasive." Dodson
e-mailed back: "Less abrasive? I felt sick from kissing all that ass as
it was.") Dodson wrote that he succeeded in posing undercover as a straw
purchaser and claimed that prosecutor Hurley—who he had just belatedly
contacted—had raised "new concerns." The prosecutor had told Dodson that
an assistant U.S. Attorney "won't be able to approve of letting
firearms 'walk' in furtherance of your investigation without first
briefing the U.S. Attorney and Criminal Chief."
It was the first time Voth learned that Dodson intended to walk guns.
Voth says he refused to approve the plan and instead consulted his
supervisor, who asked for a proposal from Dodson in writing. Dodson then
drafted one, which Voth forwarded to his supervisor, who approved it on
May 28.
On June 1, Dodson used $2,500 in ATF funds to purchase six AK Draco
pistols from local gun dealers, and gave these to Fernandez, who
reimbursed him and gave him $700 for his efforts. Two days later,
according to case records, Dodson—who would later testify that in his
previous experience, "if even one [gun] got away from us, nobody went
home until we found it"—left on a scheduled vacation without
interdicting the guns. That day, Voth wrote to remind him that money
collected as evidence needed to be vouchered within five days. Dodson
e-mailed back, his sarcasm fully restored: "Do the orders define a
'day'? Is it; a calendar day? A business day or work day….? An Earth day
(because a day on Venus takes 243 Earth days which would mean that I
have plenty of time)?"
The guns were never recovered, the case was later closed, and
Fernandez was never charged. By any definition, it was gun walking of
the most egregious sort: a government agent using taxpayer money to
deliver guns to bad guys and then failing to intercept them.
On Feb. 4, 2011, the Justice Department sent a letter to Sen.
Grassley saying that the allegations of gun walking in Fast and Furious
were false and that ATF always tried to interdict weapons. A month
later, Grassley countered with what appeared to be slam-dunk proof that
ATF had indeed walked guns. "[P]lease explain how the denials in the
Justice Department's Feb. 4, 2011 letter to me can be squared with the
evidence," Grassley wrote, attaching damning case reports that he
contended "proved that ATF allowed guns to 'walk.'" The case and agent
names were redacted, but the reports were not from Fast and Furious.
They came entirely from Dodson's Fernandez case.
An unusual alliance
By the end of July 2010, the Fast and Furious investigation was
largely complete. The agents had sent prosecutors 20 names for immediate
indictment, Jaime Avila's among them. His purchase of the three
WASR-10s were listed among his criminal acts. On Aug. 17, 2010, ATF
agents met in Phoenix with prosecutors, including U.S. Attorney Dennis
Burke. According to two people present, the ATF presented detailed
evidence, including the fact that their suspects had purchased almost
2,000 guns, and pushed for indictments. A month later, on Sept. 17, an
ATF team—this time including ATF director Kenneth Melson—met with
prosecutors again and again pushed for action. The sides agreed to aim
for indictments by October, according to one person in attendance.
But as weeks and then months passed, prosecutors did not issue
indictments. The ATF agents grew increasingly concerned. By December,
prosecutors had dropped Avila's name from the indictment list for what
they deemed a lack of evidence.
Only when Terry, the U.S. Border Patrol agent, was murdered in
December 2010 did the prosecutors act. Voth's agents arrested Avila
within 24 hours of Terry's death. On Jan. 19, 2011, a federal grand jury
indicted him and 19 other suspects. (Avila has since pleaded guilty to
dealing guns without a license).
Meanwhile, a crucial part of the Fast and Furious scandal—an unusual
alliance that would prod politicians and spread word of the failure to
stop guns from making their way to Mexican drug cartels—was waiting in
the wings. Little more than a week after Terry's murder, a small item
about the possible connection between his death and the Fast and Furious
case appeared on a website, CleanUpATF.org. The site was the work of a
disgruntled ATF agent-turned-whistleblower, Vince Cefalu, who is suing
the bureau for alleged mistreatment in an unrelated case. His website
has served as a clearinghouse for grievances and a magnet for other ATF
whistleblowers.
It had also attracted gun-rights activists loosely organized around a
blog called the Sipsey Street Irregulars, run by a former militia
member, Mike Vanderboegh, who has advocated armed insurrection against
the U.S. government. It was an incendiary combination: the disgruntled
ATF
agents wanted to punish and reform the bureau; the gun-rights activists
wanted to disable it. After the item about Terry appeared, the bloggers
funneled the allegations through a "desert telegraph" of sorts to
Republican lawmakers, who began asking questions.
A week after the initial Fast and Furious press conference in January
2011, Dodson dropped a small bombshell. He told a supervisor that he
had been contacted by congressional staff. Dodson met that day with two
ATF supervisors. According to their written contemporaneous accounts,
Dodson was vague but claimed that Voth had always "treated him like
shit" and that it "felt good" to speak with someone outside ATF.
Dodson appeared on the
CBS Evening News a week later. As
Voth watched the program from his living room, he says, he wanted to
vomit. He saw sentences from his "schism" e-mail reproduced on the TV
screen. But CBS didn't quote the portions of Voth's e-mail that
described how the group was divided by "petty arguing" and "adolescent
behavior." Instead, CBS claimed the schism had been caused by opposition
to gun walking (such alleged opposition is not discussed anywhere in
the e-mail, which is below). CBS asserted that Dodson and others had
protested the tactic "over and over," and then quoted portions of Voth's
e-mail in a way that left the impression that gun walking was endorsed
at headquarters. CBS contacted the ATF (but not Voth directly). The
result was a report that incorrectly painted Voth as zealously promoting
gun walking. (A CBS spokeswoman, Sonya McNair, says CBS does not
publicly discuss its editorial process but notes, "The White House has
already acknowledged the truth of our report.")
The "Witch Hunt"
Less than 36 hours after the CBS report, Voth was jolted awake at
dawn by the blaring of his burglar alarm. With his wife and children
still in bed, he crept down the stairs of his desert home, his
ATF-issued .40 caliber Sig Sauer extended before him. In the garage, he
saw a door ajar and a massive kettle bell he used for workouts knocked
from its place. Outside, the fleeing intruder had left behind a partial
footprint in the sand.
As Voth waited for the police, he checked his e-mail and found an
anonymous threat, sent minutes earlier: "You God-damned stupid 'Yes-Man'
who does not have either the morals, or the intelligence, to realize
that allowing this 'Fast and Furious' operation would result in
unnecessary, unjustified deaths: MAY YOU EAT SHIT AND DIE." Later his
wife found a strange car outside their house and an angry post on the
Internet listing their home address. Voth confidentially shared his
concern about that post in a meeting
with two senior ATF officials, only to find an account of the meeting on the Sipsey Street blog within 24 hours.
The ATF's office of operations security investigated the threats to
Voth. A confidential report on March 29, 2011, concluded, "ATF
'insiders' are the number one threat to GS Voth and his family." The
report cited "at least six individuals," whom it did not name, who had
"personal agendas to undermine the credibility of ATF supervisors and
members of management as retribution for [Voth's] operational
shortcomings." The report cited the two blogs and concluded that "the
malicious intent of insiders" had led directly to Voth's becoming the
target of a "nation-wide…libel campaign."
Politicians soon got involved, and the situation grew worse for the ATF.
In
June, Republican staffers for the House Oversight and Government Reform
Committee and the Senate Judiciary Committee released a joint report
that leaned heavily on interviews with Dodson, Casa, and Alt and
identified Voth as a central figure in the scandal. It quoted Dodson
describing Voth as "giddy" over the slaughter in Mexico—Voth says he was
deeply upset by the violence—but didn't reflect Voth's perspective. The
report was released two weeks before Voth was scheduled to be
questioned for the first time by congressional investigators. (A
spokesman for Issa says the committee attempted to interview Voth
earlier.)
As the allegations mounted, pressure intensified. In early July the
ATF's once supportive acting director, Melson—who according to e-mails
had been briefed weekly on the case—went to Congress and threw his own
people under the bus. Melson told Grassley that he had read the case
reports only after the scandal broke, and had been "sick to his
stomach," according to press accounts of the meeting. In August, Melson
resigned, as did Arizona's U.S. Attorney, Burke. (Melson's lawyer,
Richard Cullen, says the Justice Department's inspector general will
likely answer many of the continuing questions.) In December 2011, the
Justice Department retracted its Feb. 4 letter, in which it had denied
walking guns in the Fast and Furious case.
For Voth, steeped in military loyalty, Melson's betrayal was the blow
he couldn't fathom. Voth began losing weight, losing sleep. As he puts
it, "You barely remember your own name, your mind is going 100 miles an
hour." He no longer knew what to do or who could be trusted. "There
would be no way," he says, "to foreshadow
this."
Since the scandal erupted, almost everyone associated with Fast and
Furious has been reassigned. Dodson, Casa, and Alt have been transferred
to other field offices. Voth, who has now been interviewed by
congressional investigators and the Justice Department's inspector
general, has been reassigned to a desk job in Washington.
New facts are still coming to light—and will likely continue to do so
with the Justice Department inspector general's report expected in
coming months. Among the discoveries: Fast and Furious' top
suspects—Sinaloa Cartel operatives and Mexican nationals who were
providing the money, ordering the guns, and directing the recruitment of
the straw purchasers—turned out to be FBI informants who were receiving
money from the bureau. That came as news to the ATF agents in Group
VII.
Today, with Attorney General Holder now squarely in the cross hairs
of Congress, Democrats and Republicans are accusing each other of
political machinations. Rep. Elijah Cummings, a Maryland Democrat and
ranking member of the oversight committee, has accused Issa of targeting
Holder as part of an "election-year witch hunt." Issa has alleged on
Fox News that Fast and Furious is part of a liberal conspiracy to
restrict gun rights: "Very clearly, [the ATF] made a crisis and they are
using this crisis to somehow take away or limit people's Second
Amendment rights." (Issa has a personal history on this issue: In 1972,
at age 19, he was arrested for having a concealed, loaded .25-caliber
automatic in his car; he ultimately pleaded guilty to possession of an
unregistered gun.)
Issa's claim that the ATF is using the Fast and Furious scandal to
limit gun rights seems, to put it charitably, far-fetched. Meanwhile,
Issa and other lawmakers say they want ATF to stanch the deadly tide of
guns, widely implicated in the killing of 47,000 Mexicans in the
drug-war violence of the past five years. But the public bludgeoning of
the ATF has had the opposite effect. From 2010, when Congress began
investigating, to 2011, gun seizures by Group VII and the ATF's three
other groups in Phoenix dropped by more than 90%.
Reporter Associate: Doris Burke
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