The Obama administration could have gotten ahead of the revelations about Operation Fast and Furious before it became a scandal, say a pair of researchers on U.S. presidential scandals.
Instead, it treated criticism of the ill-conceived gun-trafficking investigation like a partisan attack, said professors Brandon Rottinghaus and Scott Basinger of the University of Houston. By waiting to disclose the details of the Phoenix-based investigation that facilitated the sale of 2,000 firearms to suspected criminals, the Justice Department opened itself to ongoing disclosures and critiques, they said.
Now those are continuing more than a year after U.S. Border Patrol Agent Brian Terry was killed near Rio Rico, possibly with a Fast and Furious gun, and even as a presidential election year begins.
"They've been nonchalant about it, and I don't think that's the best thing for them," said political-science professor Rottinghaus.
Basinger, his research partner and fellow political-science professor, said the administration's response reflects a trend in today's highly partisan politics.
"Because things are so polarized, one side is immediately convicting and insisting it goes all the way to the top," Basinger said. "The other side is insisting there's nothing there."
The Justice Department has pointed to its practice of not commenting on ongoing investigations as a reason for its relative silence. Also, the department's Office of Inspector General is conducting its own investigation of Operation Fast and Furious, so the department is taking few steps until the report is complete.
Here are five episodes since Terry was killed on Dec. 14, 2010, when the Justice Department and its agencies either flubbed its response to the operation or could have done better to get ahead of the controversy:
1. December 2010-February 2011: Non-disclosure of Fast and Furious after Terry was slain
On Wednesday, Dec. 15, 2010, the day after Terry was killed, federal officials gathered in Tucson for a news conference and other consultations, as agents combed the area northwest of Nogales for suspects.
FBI supervisors knew that day that two assault rifles found at the scene of Terry's murder had been sold at a Phoenix gun store to a man under surveillance by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Dennis Burke, then-U.S. attorney for Arizona, Burke confirmed it that night.
But it took about three months until the Justice Department acknowledged the connection of those guns to the investigation.
On Feb. 4, Assistant Attorney General Ronald Weich wrote Sen. Chuck Grassley, R-Iowa, a letter, now notorious, denying the connections: "The allegation described in your January 27 letter - that ATF 'sanctioned' or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico - is false. ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."
"There was information in that letter that was inaccurate," Attorney General Eric Holder admitted Nov. 8. "I received things as late as March of 2011 from people at ATF who assured me that gun walking did not occur."
2. May 3, 2011: When Holder learned of the operation
During a House Judiciary Committee hearing on May 3, U.S. Rep. Darrell Issa, R-Calif., asked Holder when he first learned about Operation Fast and Furious.
Holder answered, "I'm not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks."
That estimate came back to bite him in October, when, in response to a request from the House Oversight and Government Reform Committee, the Justice Department handed over several 2010 memos to Holder describing Fast and Furious.
At a Nov. 8 hearing of the Senate Judiciary Committee, Holder denied he read the memos sent him in 2010 because it's actually staff who reads the many memos addressed formally to him.
"I have ultimate responsibility for that which happens in the department, but I cannot be expected to know the details for every operation that is ongoing in the Justice Department on a day-to-day basis," Holder said.
At the same hearing, he said it would have been more accurate to say on May 3 he'd heard of Fast and Furious in the past "couple of months."
3. Aug. 11, 2011: Victim status for Terry's parents
In an Aug. 1 court filing, Brian Terry's parents asked through their attorney to be officially recognized as victims in the case against accused gun trafficker Jaime Avila Jr., federal prosecutors say.
Avila is accused of buying AK-47-type guns from Phoenix-area stores for Mexican crime groups. He has pleaded not guilty. Two guns he bought, Romanian-made assault rifles, were found at the scene of Terry's killing, but the FBI said it cannot determine whether either was the murder weapon.
To the surprise of Josephine and Kent Terry's attorney, a federal prosecutor argued against their request to be named victims. That status would have required the government to inform the family of hearings and any possibility the defendant would be released, as well as assuring them a chance to speak at Avila's sentencing.
The prosecutor who opposed the parents' request was Emory Hurley, the same attorney who led Operation Fast and Furious for almost two years. He said in his response that the Terrys would certainly be afforded victim status in the separate case against those accused of killing their son, but that Avila's alleged crimes were too disconnected from the killing for them to fit the legal definition of victims.
Soon, Hurley was removed from the case, which was handed over to federal prosecutors in San Diego. They found a way to keep the Terrys informed about the case without formally declaring them victims.
4. November 2011: Ex-U.S. attorney admits leak
Over the summer and into the fall, Grassley spoke angrily about a memo and a set of talking points leaked to a reporter that smeared ATF Special Agent John Dodson. Grassley pointed to the leak as an attempt to retaliate against Dodson, the whistle-blower who originally contacted Grassley about Operation Fast and Furious in January 2011.
The documents were never released publicly or even used in a news story, but the leak became big news Nov. 8 when former U.S. Attorney Dennis Burke admitted publicly he was responsible. On Aug. 16, Burke had privately told the inspector general's investigators that he leaked the memo. He resigned Aug. 30.
Burke's admission did not satisfy Grassley, who promised the drip-drip of disclosures would continue.
"The Justice Department should not be allowed to continue scapegoating the one person who has resigned," Grassley said in a written statement.
5. November 2011: Case against Terry's accused killer sealed
Sometime in late 2011, while reporters and other watchdogs had their eyes averted, federal prosecutors asked that the case against the people accused of killing Brian Terry be sealed.
It's not unusual that cases are sealed in federal court, but the decision threw another blanket of obscurity over a prominent case already layered in haze.
Manuel Osorio-Arellanes was indicted and charged with second-degree murder in May, but the indictment said Osorio-Arellanes was not the man who shot Terry. He was just a member of the "rip crew" whom Terry's tactical unit encountered that night west of Rio Rico.
Other names appeared to be listed on the indictment, but those were blacked out.
Some supporters of Brian Terry and his family saw the sealing as a sign that the Justice Department was trying to hide something, but Brandon Judd, president of the agents' union local in Southern Arizona, took a more nuanced view. He said there may be a legitimate investigative reason for sealing the indictment, but agents are frustrated with the secrecy.
He also said the sealing keeps prying eyes off what he suspects will be information showing "a debacle on the part of the government."
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"Because things are so polarized, one side is immediately convicting and insisting it goes all the way to the top. The other side is insisting there's nothing there."
University of Houston political-science professor
Contact reporter Tim Steller at 807-8427 or firstname.lastname@example.org