State Response to FOIA Lawsuit Questions ATF Arms Export Criminality

USA – -(Ammoland.com)- “Did the State Department issue the Justice Department a license or a written waiver in order to allow for the transfer of thousands of weapons across the U.S.-Mexico border?” an internal Oct. 31, 2011 email anticipating questions for closed hearings with the full Senate and House asked (see pg. 10 of response, below).

“Under the Arms Export Control Act the Justice Department was required to receive a written waiver from the State Department to account for their intent to cause arms to be exported to drug cartels in Mexico.

“If no such waiver was received, Justice Department officials have violated the law,” the inquiry continued. “And you would agree with that, correct?”

If an answer was provided to those questions, it is not reflected in the 100 page June 29 response to a Freedom of Information Act lawsuit filed against State by attorney Stephen Stamboulieh representing Kent Terry, the brother of slain Border Patrol agent Brian Terry, and me. State’s response prior to this has been essentially non-responsive, to include material not asked for, copies of material already widely and publicly available, blank pages and copies of heavily-redacted documents where it’s impossible to tell who said what to whom.

This latest response, while hardly candid and comprehensive, offers glimpses of previously unseen internal concerns, and the question of Arms Export Control Act violations goes to the heart of what our FOIA was attempting to determine. It actually, and for the first time, officially discusses concerns raised in July 2011:

“Did Fast & Furious violate the Arms Export Control Act?” attorney and author David T. Hardy asks on his Of Arms and the Law blog. He’s referring to the Arms Export Control Act that “authorizes the President to define defense articles and regulate their export.”

There’s no exemption from the State Department permit requirement for “official use” since no one is admitting walked guns are part of approved U.S. foreign policy, so the bottom line seems to be: Any person who willfully violates these provisions “shall upon conviction be fined for each violation not more than $1,000,000 or imprisoned not more than ten years, or both.” Hardy also notes that U.S. Code also includes provisions for “principals” who “induce” or “willfully cause” offenses, so presumably those who did not physically walk guns but nonetheless induced lawbreaking could be in for a world of hurt if caught.

That understanding is reflected in another item appearing in State’s document production from the Bureau of Western Hemisphere Affairs with the Bureau of International Narcotics and Law Enforcement Affairs (see pg. 40) “prepared for the Secretary’s upcoming budget testimony”:

When did the State Department find out about Fast and Furious, and what was the Department’s role? Were you aware that Operation Fast and Furious was part of Project Gunrunner?

Put another way, what did Hillary Clinton know and when did she know it? If the answer is she knew, then where are the authorizing documents and why was the ATF attaché to Mexico kept in the dark and told to “stand down” (see pg. 36 of Joint Staff Report) when he found out? If the answer is Clinton did not know and no such authorizing documents exist, why have charges not been filed against ATF officials as “principals” who “induced” or “willfully caused” offenses?

Also of direct interest to the FOIA inquiry is an email forwarded by Kevin M. O’Reilly at State (see pg. __ of response) reporting on an Amnesty International-backed letter to the president by that, among other things, recommended:

• “Expand the reporting rule for assault weapons that is currently in effect for the border state” and
• “Ratify the Arms Trade Treaty recently approved by the UN General Assembly.”

O’Reilly’s inclusion is relevant because requests for communications involving him have met repeated dead ends over the years. He was the National Security Council North American Affairs Director, with a White House office, who got information from the Phoenix SAC about gun running operations along with the disclaimer “You didn’t get this from me.”

They moved O’Reilly out of country to a State Department position in Iraq when House Oversight initially wanted to talk to him, he declined though his lawyer to speak with the Office of Inspector General, and finally, Barack Obama’s White House Counsel told Oversight and Judiciary they were not going to allow O’Reilly to speak with them.

Why?

That’s part of what we’re trying to find out, and despite specifically asking, State’s latest response continues to avoid the issue.

A lot of noise has been made in recent months about the Department of Justice giving up more Fast and Furious documents to the House Oversight Committee. Those documents will not address any of this, because no one else has been asking about the issues raised in our FOIA.

Until such time as someone with power and reach gets serious about going after lawbreaking officials on criminal charges for an operation with an untold (and still accumulating) death count, all we will continue to hear is noise. No one will be held truly accountable.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.