Authors: John Fund
On October 11, 2012, Issa served Holder himself with a subpoena for documents relating to Fast and Furious. That subpoena, and Holder's refusal to comply with it, set off the biggest oversight battle between Congress and the Obama administration in the latter's more than five years in Washington.
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In the meantime, however, when Holder testified before the Senate Judiciary Committee again in early November, he retracted his May 3, 2011, testimony, revising that statement of a “few weeks” to a “couple months.”
“I did say a âfew weeks,' ” Holder testified at the Senate hearing when asked questions by Senator Patrick Leahy (D-VT), the chairman of the committee. “I probably could've said âa couple of months.' I didn't think the term I said, âfew weeks,' was inaccurate based on what happened.”
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Within the next month or so, the Department of Justiceâfaced with all the evidence that Dodson and others had provided to Congress, and what media outlets were able to uncoverâactually retracted the February 4, 2011, letter Weich wrote to Grassley denying that guns were ever walked. The administration admitted that statement was false when it retracted the letter.
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A series of hearings and public battles over documents ensued over the course of early 2012. More and more members of Congress kept demanding Holder's resignation, and Holder continued refusing to provide Issa's committee with all the documents pursuant to his subpoena. Negotiations between congressional investigators and Justice Department figures began, and crumbled quickly.
So, Issa's committee prepared contempt resolutions for passage through his committee in June 2012. Shortly before the committee hearing, Ronald Weich, who had sent the false letter to Congress, resigned from the Justice Department. Then just minutes before Issa's committee was beginning its proceedings, President Barack Obama himself stepped in to assert executive privilege over the documents. Obama's executive privilege claim was the lower of two forms of privilege, called deliberative process privilege. The higher form is called presidential communications privilege, but to assert that privilege communications about Fast and Furious would have needed to be to or from the president himself or to or from senior advisers to the president. Since Obama and Holder have claimed they did not know about Fast and Furious, asserting the higher form would have meant the president was being dishonest when he claimed he didn't know about the program.
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Then, in late June, as Holder continued refusing to comply with the subpoena, the full House of Representatives took the unprecedented step of voting to hold a sitting cabinet member in contempt of Congress. The vote, on June 28, 2012, was a two-part vote: One contempt resolution was a criminal contempt resolution and the other was a civil contempt resolution. The criminal contempt resolution passed 255-67, with 17 Democrats supporting it. The civil contempt resolution passed 258-95, with 21 Democrats voting for it.
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Many House Democrats, including Minority Leader Nancy Pelosi, walked out of the House chamber to protest the vote, even though several of their colleagues voted with Republicans in favor of the contempt vote. It is the first time in the history of the United States that a sitting attorney general has been found in contempt by the House of Representatives.
The criminal contempt resolution was referred to the U.S. attorney for the District of Columbia, Ron Machen, who declined to prosecute Holder.
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House Republicans, led by Issa, are attempting to enforce the civil contempt resolution with an outside legal team that is suing the Obama administration to have the executive privilege claim overturned and compel document production.
The lawsuit remains ongoing, and is expected to take several years to achieve a final decisionâand may end up going to the Supreme Court, depending on what happens in the lower courts. Preliminary decisions from U.S. District Court judge Amy Berman Jackson indicate that she could come down on the side of House Republicans.
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She refused the Justice Department's request to dismiss the case or to appeal that decision.
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In quite an ironic twist that is very revealing about Eric Holder, the Justice Department essentially made the same unsuccessful arguments that Richard Nixon's attorney general, John Mitchell, made during the Watergate scandal, when Nixon asserted executive privilege to prevent incriminating documents from ending up in the hands of the Senate, and claimed the dispute was a “political question” the courts should stay out of. As Jackson pointed out in her order, that issue had been decided against the government in
Senate Select Comm. on Presidential Campaign Activities v. Nixon
.
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But Senate Majority Leader Harry Reid's recent decision to invoke the nuclear option to force through confirmation of Obama's nominees potentially jeopardizes what may happen on the D.C. Circuit Court of Appeals no matter what final decision Jackson makes on the issue. Part of the reason why Reid invoked the nuclear option, changing long-held Senate rules and precedent, was to get Obama's ideological and political allies whom he nominated for that D.C. appeals court through the Senate.
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Obama's executive privilege claim is largely frivolous. Since he asserted deliberative process privilege, the lower form of executive privilege, which allows the president to withhold communications among any executive branch officials, there are restrictions that come with it. Specifically, if there is even the suspicion of government wrongdoing, as Issa has pointed out in his communications to the president, the privilege is invalidated. In the case of Fast and Furious, Obama himself, and Holder, have admitted government wrongdoing occurred.
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As such, Grassley said if the court system does not eventually overturn Obama's assertion of executive privilege, “it's going to be the most sweeping abuse of executive privilege in the history of executive privilege.”
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Issa said that Obama has “asserted an executive privilege that doesn't exist.”
“In fact, what's important about these documents is these are the documents related to who knew and helped continue to cover up false statements made to Congress that there were no guns walking,” Issa said in late 2013. “In other words, very much like Nixon in Watergate, these are the tapes. These are who knew and when did they know and how long did they debate whether they were going to tell the truth or continue to withhold the truth from the American people and Congress.”
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Like the lawsuit trying to force the Obama administration to turn over the documents, the deadly consequences of Fast and Furious continue to this day. In December 2013, in a gunfight between Mexican authorities and suspected drug cartel gunmen at a Mexico resort, a Fast and Furious gun was used. CNN reported that five cartel gunmen, including possibly a high-level Sinaloa Cartel chief, were killed in the shootout.
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The murders of Mexican police chief Luis Lucio Rosales Astorga and his bodyguard were done with Fast and Furious rifles as well.
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A Mexican army document obtained by Univision in 2012 showed that Fast and Furious weapons were used in the massacre of Mexican teenagers at a birthday party in Ciudad Juarez in late January 2010. Fourteen young men and women were killed there, and twelve more were injured.
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In late 2012, a Mexican beauty queen was murdered with Fast and Furious weaponsâsomething that sparked Representative Trey Gowdy (R-SC) to say: “There will be consequences from Fast and Furious that last for the rest of our lives.”
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While Washington has seen many political scandals over the years, this is the first one directly responsible for the deaths of many individuals.
The true number of people killed with Fast and Furious weapons will never be known. Hundreds of the guns remain unaccounted for. In fact, even the Obama administration admits more people are going to die. In a statement to Fox News in response to the December 2013 gunfight in Mexico and the revelation that Fast and Furious weapons were involved, ATF said it “has accepted responsibility for the mistakes made in the Fast and Furious investigation and at the attorney general's direction we have taken appropriate and decisive action to ensure that these errors will not be repeated. And we acknowledge that, regrettably, firearms related to the Fast and Furious investigation will likely continue to be recovered at future crime scenes.”
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Issa, for his part, puts it more bluntly: “Justice has blood on their hands.”
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Newly surfacing issues with regard to other ATF operations nationwide indicate that the agency has not learned its lessons from Fast and Furious. Issa, Grassley, and House Judiciary Committee chairman Representative Bob Goodlatte (R-VA) have filed additional document requests relating to a whole new series of troubling allegations. Among them are reports that ATF used mentally impaired persons in undercover investigationsâand then misled Congress about that.
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About these new allegations, Issa said that he wants to be clear that it is not just a rogue ATFâthe Department of Justice and other agencies like the FBI and DEA are clearly involved.
“They're not operating in a vacuum,” Issa said. “They always have a U.S. Attorney who's looking at their actions. They usually have a joint task force that includes sometimes ICE [Immigration and Customs Enforcement], which is in a different Department [Homeland Security], DEA [Drug Enforcement Administration], and certainly FBI. They often operate out of FBI facilities. When we say âATF,' let's be clear that it is almost always the Department of Justiceâincluding a U.S. Attorney and, in the case of Milwaukee, the same point. These tactics had to be approved by a prosecutor who was working out of there, and it clearly is where some of the responsibility has to lie, with political appointees.”
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Representative Issa has accurately and very succinctly called Operation Fast and Furious “felony stupid.” Not only was it a reckless, out-of-control law enforcement operation that should never have happened, but the Justice Department has done everything it can to cover up the details of the operation, particularly who in the top levels of the department knew about, and approved the operation. The Justice Department's inspector general, Michael Horowitz, said in a memorandum to the attorney general at the end of 2013 that he was concerned over the Justice Department's “reputation for integrity, fairness, and accountability.” This was particularly true because the IG had found that in the Fast and Furious investigation, “senior Department and ATF officials shared responsibility for providing inaccurate information in two letters to Congress” and he had “concerns about subsequent representations to Congress by Department officials.” This was a very polite way in inspector generalâspeak of saying that the senior leadership in the Justice Department had lied to Congress.
Amateur Night at the Justice Department
Eric Holder's Justice Department has bounced between a politically correct and suspect view of coping with terrorism to an obsessive quest for leakers of national security secrets. The department's unprecedented and secret pursuit of government leaks to reporters comes at the very same time that the Obama White House itself has been caught leaking sensitive and classified information many timesâwhen it benefited the public image of President Obama and his reelection prospects. Those leaks the Justice Department has no interest in pursuing.
Eric Holder started his tenure by shifting to a weaker, criminal model of terrorism preventionâthe kind that miserably failed during the Clinton administration, when he was also in the Justice Department. It was Holder who decided that he wanted terrorists treated like ordinary civilian criminals and read their Miranda rights. In fact, he was so proud of that decision that he sent a letter to Congress on February 3, 2010, noting that failed shoe bomber Richard Reid was “advised of his right to remain silent and to consult with an attorney within five minutes of being removed from the aircraft.”
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Holder seemingly had no concern for the complete loss of the opportunity to interrogate Reid in depth and get information about his trainers, backers, and fellow terrorists, as well as other possible terrorist attacks. As Senator Susan Collins (R-ME), a well-known moderate, said, Holder seemed oblivious to his “mishandling of this terrorist detention in the critical early hours, which likely resulted in the loss of valuable intelligence.”
It was Holder who decided that 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators should be tried in a civilian courtroom in New York City, just blocks from where the twin towers of the World Trade Center once stood. Counterterrorism experts say that would have been a propaganda coup for Al Qaeda and a security nightmare for the city.
Respected former U.S. attorney general Michael Mukasey, who as a federal judge presided over the successful prosecutions of the terrorists involved in the 1993 World Trade Center bombing, said that this decision made “it look like amateur night” at the Justice Department and made the United States “look weak.”
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Mukasey pointed out what Eric Holder doesn't seem to understand: “There are huge differences between the way you're supposed to deal with the guy who tries to stick up a 7-Eleven and a terrorist. It is a mockery of the rule of law to take people who are charged with violating all the rules of war and put them in a situation that's better than the one they would have been in if they followed the rules of war.”
Holder was unmoved by the protests of New York officials about the hundreds of millions of dollars for security a trial would cost, or concerns that the city would be a prime target for terrorist acts designed to disrupt the trial. It took an act passed by a Democrat-controlled House and Senate withholding any federal funds to house the terrorists in New York or anywhere else on the mainland to force Holder to reverse his decision and announce that the 9/11 conspirators would be tried by a military commission at the U.S. detention facility in Guantánamo Bay, Cuba. He remained unapologetic about his original decision, showing his contempt for the people's elected members of Congress when he said that he knew how to handle these prosecutions “better than them.” He only switched back to military trials because the restrictions imposed on a bipartisan basis by Congress were “unlikely to be overturned in the near future.”
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None of this should come as any surprise. In June 2008, Holder gave a speech to the American Constitution Society, an organization started by liberal “progressive” lawyers as a counter to the Federalist Society. At the time, Holder was the cochair of Senator Barack Obama's vice presidential search committee. Holder criticized the “disastrous course” of the Bush administration's war on terrorism (not acknowledging that it prevented another terrorist attack on U.S. soil after 9/11) and claimed it was “needlessly abusive and unlawful.” In a truly ironic twist, given recent revelations about National Security Agency eavesdropping, he also complained about “secret electronic surveillance” and “warrantless domestic surveillance,” as well as the denial of “habeas corpus to hundreds of accused enemy combatants”âthat is, terrorists caught on foreign battlefields killing Americans or planning terrorist attacks.
Even earlier in his career, Holder showed a permissive, casual, and dangerous attitude toward terrorists, particularly when doing so could be advantageous for his political patrons. In 1999, when he was the deputy attorney general in the Clinton Justice Department, he recommended that President Clinton give pardons to sixteen terrorists from FALN (Armed Forces of National Liberation). The FALN had carried out “more than 130 bombings, several armed robberies, six slayings and hundreds of injuries” in New York, Chicago, and elsewhere to gain independence for Puerto Rico.
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The pardons were delayed because these jailed terrorists, who never applied for or requested clemency, refused to renounce violence. Eventually all but two did so in order to get out of prison. One who received a pardon, Carmen Valentin, even threatened the federal judge who originally handled their cases, Thomas McMillen. At her hearing Valentin told McMillen only her shackles kept her from killing him and that he was “lucky that we cannot take you right now.” McMillen said that if the death penalty had been an option, he would have imposed it “without hesitation.”
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The judge pointed out that the FALN terrorists showed no remorse whatsoever for their violent acts. One of them, Ida Rodriguez, told the judge “you're right. Your jails and your long sentences will not frighten us.”
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They were apparently still without remorse when they received their pardons.
When questioned about the pardon recommendation during his confirmation hearing in 2009, Holder admitted that these individuals were “criminals. These were terrorists. These were bad people.”
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But Holder refused to apologize for his decision and still claimed it was reasonable, despite the vehement opposition of the FBI, Justice Department prosecutors, and the victims. It is virtually unprecedented for the Justice Department to recommend pardons unless its own prosecutors on the case agree that clemency is deserved and it is unheard-of to grant clemency to convicted criminals who threaten law enforcement officials, especially judges, with violent retaliation, as the FALN did. Holder never met with the victims of the FALN's acts of violence but met multiple times with advocates for their release; there was also no requirement by the Justice Department that the terrorists “provide information to solve any of their outstanding crimes.”
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Holder plainly had political motivations. He told the Justice Department's Office of Pardon Attorneys, which reviews all requests for clemency and makes recommendations to the president, to replace its original 1996 report that recommended
against
pardons with one that recommended clemency. Career pardon attorney Roger Adams resisted in numerous memos and a face-to-face meeting, telling Holder of his strong opposition to any pardons “for a group of people convicted of such heinous crimes.”
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Holder was unmoved and told Adams to “draft a neutral options memo instead,” which would allow Clinton to grant the pardons without appearing to go “against the Justice Department's wishes.”
These pardons were condemned in a House resolution that passed 311-41 and a Senate resolution that passed 95-2.
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The Senate resolution said the release was “an affront to the rule of law, the victims and their families, and every American who believes that violent acts must be punished to the fullest extent of the law.” These unpardonable pardons of terrorists did not prevent Holder's confirmation (neither did his engineering of a pardon for international fugitive Marc Rich, whose wife contributed almost half a million dollars to Bill Clinton's presidential library). But as Joseph Connor, whose father was killed in the FALN bombing of the historic Fraunces Tavern in New York's financial district in 1975, when Connor was just nine years old, said, we should “not tolerate officials who would put our lives in jeopardy by releasing terrorists.”
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Yet we have tolerated just such an official for more than five years.
At the same time Holder was arranging this pardon deal, Hillary Clinton was campaigning for her first term in the U.S. Senate for New York, a state in which the support of Puerto Rican voters is very important. Clinton had “numerous ties to people who were involved with the pardons” and who lobbied Eric Holder and the White House. The pardons were considered “a hot issue” that could have a “positive impact among strategic communities (read voters).”
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Janet Reno was marginalized by the Clintonites because she was not trusted to make the right political decisions, so Holder had long since become the Clinton White House's chief contact at Justice. It was Eric Holder who helped politicize the pardon process to go easy on terrorists at the cost of national security, before he ever became the nation's first black attorney general, in what former federal prosecutor Andrew McCarthy calls “embarrassingly naked instances of justice succumbing to influence peddling.”
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From the first moment he was confirmed as the Obama administration's new attorney general, Eric Holder began reshaping the Justice Department's attitude toward terrorism and national security. That included hiring many attorneys who, during the Bush administration, had worked strenuously on a volunteer basis to
help
terrorist detainees in Guantánamo Bay escape justice and to severely weaken the comprehensive security measures that had been implemented by the federal government, including the Justice Department, after the horrific events of 9/11. As of September 2013, at least one hundred of the detainees who were eventually released from Guantánamo have been confirmed by the director of national intelligence to have reengaged in terrorism and another seventy-four are suspected of reengaging.
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So almost 30 percent of the terrorists these lawyers were so concerned over and wanted released went on to commit even more terrorist attacks and murders.
One of the most controversial hires was Jennifer Daskal for the National Security Division, which was created in 2006 under the Patriot Act to consolidate the Justice Department's counterterrorism operations and prosecutions, as well as strengthen the effectiveness of its national security efforts. Daskal had no prosecutorial experience whatsoeverâshe was a left-wing activist who had represented Al Qaeda terrorists while working at Human Rights Watchâand yet she was hired to shape DOJ's detention policy and the future of Guantánamo.
The
New York Post
did a profile of her that illustrated her bias: “Daskal never missed a chance to give Gitmo detainees the benefit of the doubt while assuming the worst about US government intentions.”
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Despite the confessions of 9/11 mastermind Khalid Sheik Mohammed and four of his fellow terrorists, she “refused to accept their guilt.” As the
Post
pointed out, Daskal apparently did not hear the outburst from one of the five at the end of his hearing: “I hope the jihad will continue and strike the heart of America with all kinds of weapons of mass destruction.” She was “largely responsible for [Human Rights Watch's] exposure of covert CIA operations” that were holding top Al Qaeda operatives and in a 2006 memo she urged the U.N. Human Rights Committee to investigate the United States over its “so-called âwar on terror' ” as well as its enforcement of the death penalty and its supposed denial of the right of illegal aliens to organize labor unions.
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Daskal was a staunch supporter of another terrorist, Omar Khadr, who was caught on the battlefield in Afghanistan after he launched the grenade that killed Sergeant First Class Christopher Speer. She claimed that prosecuting him would violate his rights as a child because he was only fifteen when he coldly and brutally murdered an American serviceman and that he was simply “a victim of circumstances.” As Sergeant Layne Morris, who was wounded in the same attack says, “The fact that [Daskal] took on [Khadr's] caseâand has argued the ridiculous things that she hasâand is now appointed to the Justice Department, where she brings in those same thought processes and prejudicesâit doesn't bode well for the security of our country.”
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Numerous Justice Department political appointees hired under Holder had similar conflicts of interest due to their (or their law firms') representation of terrorists. One is Tony West, who headed the Civil Division and unfortunately was promoted to become the associate attorney general (the number-three spot in Justice). West proudly volunteered his services to represent the American Taliban, John Walker Lindh, who received a twenty-year sentence after pleading guilty to making war against the United States. Lindh failed to warn CIA agent Mike Spann of the planned uprising by his Taliban brethren in the Qala-e-Jangi prison in Afghanistan in 2001, which led directly to Spann's murder.
Andy McCarthy, the former Justice Department lawyer who prosecuted the terrorists in the 1993 World Trade Center bombing, has pointed out that the many DOJ officials with a conflict from representing terrorists “include Attorney General Holder, whose firm made the terrorists detained at Guantanamo Bay its most lavishly resourced no-fee project . . . boast[ing] about the firm's success in urging federal judges to grant its âclients'â18 enemy combatantsânew ârights' under the Fifth Amendment and the Geneva Conventions.”
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