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Tuesday, January 31, 2012

Howdy ... and some thoughts on guns.

Hello Prawfs readers!  I asked Dan to put me in for the February rotation after two years of blogging in July. I hope to chat about some of my new scholarly projects, offer some thoughts on contemporary issues in criminal law enforcement and corporate compliance, and cheer on all my friends who are waiting for a signal from Redyip

For now, I thought I would open with this news report on what appears to have been a flawed operation by the Arizona office of the Bureau of Alcohol, Tobacco and Firearms (ATF) to investigate gun-trafficking. Democrats on the House Oversight and Government Reform Committee have released a report (on the NYT website here) that absolves high-level DOJ and administration officials of any significant role in planning or executing the operation, which was called Operation Fast and Furious.  (Anyone else think its a mistake to brand investigations with these silly names?).  Attorney General Eric Holder is scheduled to testify before the House Committee on Thursday, and there seems to be a related fight brewing over whether the DOJ has handed over sufficient documents relating to a February 4, 2011 letter that supposedly misled Congress regarding gun-trafficking between the US/Mexican border.  

The subpoena and the February 4th letter appears to be a side issue that I'll leave for Thursday, after Holder testifies.  For now, I am interested in the crux of the Democratic members' report, which is entitled "Fatally Flawed: Five Years of Gunwalking in Arizona." 

Gunwalking occurs when government agents purposely allow a low-level gun trafficker to purchase an illegal firearm (or many firearms) without arresting the purchaser and confiscating his firearm(s).  The purported reason for letting the perpetrator "walk" is that it allows government agents to trace the gunwalker to more dangerous, higher-level gun traffickers.  The cases described in the report appear to have involved the Arizona ATF's attempt to trace guns across the border to Mexico, with the assistance of the Mexican authorities. In retrospect, it appears pretty obvious that the planned operations were highly risky; if controlled deliveries or investigations fizzled, then firearms that "walked" could eventually be used to harm or kill innocent victims (and eventually, other enforcement agents). 

Sound like an obviously untenable risk?  Pretty much - except I can think of numerous investigations in which drug enforcement agents have allowed the drug courier to walk away with his drugs, in the hopes that the buyer would lead the government to more powerful, higher ranking drug dealers within an organization.  Why do we allow "drugwalking" but abhor gunwalking? I assume that the facial reason is that firearms pose more of an immediate threat to the community than cocaine or heroin.  Then again, I'm not sure how convinced I am by that answer. I would be curious to know what Prawfs readers think.

In any event, this report is hardly cause for celebration by high-ranking DOJ officials or Holder himself.  It suggests that over a five year period, ATF engaged in a series of "fatally flawed" operations, with the knowledge of the local United States Attorney's office.  Were the federal government a corporation, we would likely criticize its compliance function for inadequate monitoring, and for its failure to recognize and respond to serious risks (which apparently spanned over two administrations and five years).  But, as I have noted in the past, compliance is difficult and it is easier to champion reform than it is to implement it intelligently.  To that end, I am curious to see what Attorney General Holder says when he testifies on Thursday. 

Posted by Miriam Baer on January 31, 2012 at 07:23 PM | Permalink


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