May 16, 2011
VIA ELECTRONIC TRANSMISSION
The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Holder:
Last week I submitted Questions for the Record (QFRs) following the Judiciary Committee hearing on Oversight of the Department of Justice (DOJ).
Historically, the Justice Department generally takes five to eight months to respond to QFRs. However, because of my ongoing investigation into the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), I would appreciate receiving responses to questions on this topic much sooner. Attached is a copy of those questions. Please provide responses as soon as possible.
Additionally, I would like to reiterate the requests that have remained unanswered from my previous letters on this matter.
a) In my letter of February 16, 2011, I requested that you provide:
1) All records relating to communications between the ATF and the Federal Firearms Licensee (FFL) who sold the weapons to Avila, including any Report of Investigation (ROI) or other records relating to the December 17, 2009 meeting “to discuss his role as an FFL during this investigation.”
2) All records relating to communications between ATF headquarters and Phoenix Special Agent in Charge (SAC) William Newell from December 1, 2010 to the present, including a memorandum, approximately 30 pages long, from SAC Newell to ATF headquarters following the arrest of Jaime Avila and the death of CBP Agent Brian Terry.
3) A copy of the presentation, approximately 200 pages long, that the Group 7 Supervisor made to officials at ATF Headquarters in the Spring of 2010.
4) Copies of all e-mails related to Operation Fast and Furious, the Jaime Avila case, or the death of CBP Agent Brian Terry sent to or from SAC Newell, Assistant Special Agent in Charge (ASAC) George Gillette, Group 7 Supervisor, or the Case Agent between November 1, 2009 and January 31, 2011.
I requested that these documents be provided on a rolling basis as they are identified and located.
I also requested that you please prioritize your search for documents and produce them in the following order: (1) documents in response to requests one through three, (2) documents in response to request four dated between December 13, 2010 and January 31, 2011, and (3) documents in response to request four dated between November 1, 2009 and December 13, 2010.
b) After ICE Agent Jaime Zapata was brutally murdered in Mexico on February 15, I was shocked to learn that, like Border Patrol Agent Brian Terry, Agent Zapata had been killed with a weapon traced to an individual in the U.S. that the ATF had been aware was trafficking firearms. Accordingly, in my March 4, 2011 letter, I requested answers to the following questions:
(1) Although the gun used in the assault on Agent Zapata that has been traced back to the U.S. was purchased on October 10, 2010, how can we know that it did not make its way down to Mexico after the November investigation, when the arrest of these three criminals might have prevented the gun from being trafficked and later used to murder Agent Zapata?
(2) When did law enforcement first become aware that Morrison purchased the gun?
(3) Given that the likely recipients of any trafficked guns were so close to the border, did any ATF personnel raise concerns about the possibility of those guns being used against U.S. law enforcement? If so, how did the ATF address those concerns?
(4) Did any ATF personnel raise concerns about the wisdom of allowing individuals like the Osorio brothers or Morrison to continue their activities after the November weapons transfer?
If so, how did the ATF address those concerns?
In addition to answering those questions, I also requested all records relating to:
(5) When law enforcement officials first became aware of the trafficking activities of Otilio and Ranferi Osorio and Kelvin Morrison;
(6) Surveillance that may have been conducted on the Osorio brothers or Morrison prior to the November transfer of weapons between the ATF’s confidential informant and the Osorio brothers and Morrison;
(7) The November transfer; and
(8) Any surveillance that law enforcement continued to conduct on the Osorio brothers or Morrison after the November transfer.
Finally, I requested a briefing on the Zapata matter. I reiterated these requests in my letter of March 28, 2011, and am still awaiting both a response and a briefing.
c) In my letter of April 8, 2011, I requested written answers to three questions. The third read:
(3) What steps have you taken or do you plan to take to ensure that employees are aware of their right to communicate directly with Congress if they so choose?
In response, you provided me with information about the ATF providing its agents with information about the Whistleblower Protection Act in order to prevent retaliation against whistleblowers. While that is appreciated, it does not respond to my question. I asked about making employees aware of the appropriations provision that protects their right to communicate directly with Congress. As I outlined in that letter:
[A]ttempts to prevent direct communications with Congress are not a lawfully authorized activity of any officer or employee of the United States whose salary is paid with appropriated funds. Specifically, no officer or employee may attempt to prohibit or prevent “any other officer or employee of the Federal Government from having direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress” about a matter related to his employment or the agency “in any way, irrespective of whether such communication or contact is at the initiative” of the employee or Congress (emphasis added).
I wrote to you on January 31 to ensure you were aware of these provisions and to express concerns that without proper guidance, managers might inappropriately intimidate employees to discourage them from speaking with Congress and thus unlawfully interfere with a Congressional inquiry. In order for Congress to exercise its oversight authority and act as a check on Executive power, it is crucial that agency employees are free to communicate directly with Members and Committee staff. Direct contact means contacts that do not necessarily involve Congressional liaison or agency management. Without such direct, unfiltered communications, Congress would still be unaware of, and unable to inquire about, the serious allegations involving the death of Border Patrol Agent Brian Terry and the sales of weapons to known and suspected gun traffickers.
Accordingly, please provide responses to the questions attached, as well as those outlined above, by May 30, 2011. If you have any questions regarding this letter, please have your staff contact (202) 224-5225. Thank you for your prompt attention these important issues.
Sincerely,
Charles E. Grassley
Ranking Member
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