Subject for a Second Front on Gunwalker: The International Traffic in Arms Regulations (ITAR).

On Sunday I wrote this appeal for a "Second Front" in the Gunwalker Scandal. Since then, folks have emailed me asking for specifics they can write their Congresscritters about.

Back in May, I wrote this piece: "Media & Congress Still Missing the Big Legal Point of the Gunwalker Scandal: it was a conspiracy to illegally export weapons to a foreign country." This article explains in detail the ins and out of ITAR -- the International Traffic in Arms Regulations -- and how they were violated by the Gunwalker Plot of the Obama Administration.

Yesterday, Kathleen Millar wrote this at the Foreign Policy Association blog: "Melson out–Holder digs in: 1700+ violations of the Arms Export Control Act?" Ms. Millar explains:

If investigators determine that Fast and Furious was intended to be something other than a bona fide law enforcement operation—an under-the-radar political ploy, for instance, designed to shore up Mexico’s claims that US gun dealers have been responsible for fueling Mexico’s gang wars and to lend support to the push for stronger gun control in the US—then Fast and Furious will stand beside the Iran-Contra scandal as a politically inspired effort devised by officials within the US government to export weapons illegally, in violation of the Arms Export Control Act (AECA), to criminal actors in Mexico.

The Oversight Committee indicates DOJ/ATF officials knew from the beginning there was a high probability the guns ATF let ‘walk’ would fall into the hands of cartel gunmen who would use those guns, not just to murder Mexican nationals, but to attack and kill US citizens as well. . .

The Arms Export Control Act is the same law that brought down the architects of Iran-Contra, officials who facilitated the illegal sales of weapons to Iran and to Nicaraguan rebels (Contras) during the Reagan Administration.

It’s a critical piece of legislation, especially for the ordinary American, who’s usually the one wearing the boots when they hit the ground in bad places. Americans have a hard time with the notion that the bullets, guns, missiles, tanks, and other military hardware the enemy may be using to kill their sons and daughters in the military may have been ‘made in the USA.’

Here’s how it’s supposed to work. The Arms Export Control Act prohibits US arms merchants and defense manufacturers from selling lethal weapons and sensitive or dual-use technology to people who may want to use those weapons and technology to fire back at US citizens—at the military, law enforcement agents, and more and more often, a lot of just plain Americans who routinely miss those signs 80 miles inland on the US side of the Mexico-Arizona border warning tourists to go no further–Mexican gunmen on the prowl.

US weapons cannot be sold and shipped to countries that support terrorism, or nations, states, groups, or other entities deemed unfriendly to the United States.

I’d say Mexican cartels, especially the violent assassination squads that comprise Los Zetas, fall into that category, wouldn’t you?

Even more importantly, the Arms Export Control Act is, in fact, a servant to Article Three of the United States Constitution, which defines the act of selling weapons to those who would ‘levy war against the United States’ or ‘giving aid and comfort to our enemies’ as treason. No kidding. Treason.

If a US law enforcement agency wants to involve itself in the sale of weapons purchased from US gun dealers for export purposes–sales that may be part of an legitimate enforcement or military operation–that agency, let’s say ATF, must apply to the State Department for an exemption from the licensing requirements normally imposed on the commercial sale and export of such weapons. If an enforcement agency or military entity intent on running a covert op involving the export of lethal weapons does not obtain the necessary exemptions from State, for–listen carefully–each weapon or bundle of weapons purchased, that agency or military purchaser has committed a crime. Consider. ATF sent more than 1700 weapons across the border into Mexico–that could translate into 1700+ violations of the Arms Export Control Act.

When arms are purchased as part of a commercial deal from US manufacturers for shipment overseas–when the sale is not part of a law enforcement or military operation–the purchasing agent must apply to State for both a license and an End-User Certificate (EUC). If the EUC is obtained as part of a fraudulent deal, i.e., the guns were never meant to go where the purchaser said they were going, then the export license is automatically deemed null and void. If a commercial buyer does not obtain an export license from State as well as a bona fide EUC, that buyer has committed a crime. . .

But let’s give the devil his due, and suppose that Fast and Furious was, in fact, conceived as a legitimate law enforcement operation: the agency, which intended to facilitate the sale of guns from US dealers to agency informants or ATF ‘ringers,’ chosen to act as straw buyers, would have factored in the need to obtain exemptions from the licensing requirements mandated by the State Department, which has oversight for the Arms Export Control Act.



But even before State issued those exemptions to ATF, DOJ/ATF would have had to demonstrate operational accountability, convincing State Department officials and other relevant agencies that Fast and Furious reflected solid planning, measurable objectives, and an endgame which guaranteed that none of the weapons in question would go missing or be used in the commission of crimes.

As we know, that’s not what happened with Fast and Furious. . .

Congressional investigators tell us that from the inception of the operation, there was no strategy to trace or tag the weapons DOJ/ATF officials knew would cross illegally into Mexico, and no plan to interdict in an alternative manner, or to prevent thousands of deadly fully-functional weapons from disappearing without a trace once they moved across the US-Mexico border.

Instead, federal agents merely entered the serial numbers of the weapons sold to straw buyers (at ATF’s urging) into their database, and went back to the office to wait until Mexican, or US authorities returned these same weapons, by then used in the commission of a crime or a killing, to ATF.

ATF agents had no way of knowing to whom or where those weapons had traveled once they had crossed into Mexico, or who used any specific weapon to commit a crime or homicide. All ATF was able to do, and perhaps expected to do, was count the number of guns they knew for certain (because ATF had arranged the sale) had been purchased at gun shops along the US side of the border.

Does this sound like a gun-tracing operation that went bad? Or a clandestine gun-running operation whose purpose was to retrieve, mostly from Mexican authorities, piles of ‘illegally purchased and trafficked’ AK-47s and other lethal weapons ATF and DOJ could point to as solid evidence that the US has, as Calderon keeps insisting, been responsible for fueling the violence that’s already killed 40,000 Mexican civilians? Was the US responsible for the deaths of Border Patrol Agent Brian Terry and ICE Agent Jaime Zapata?

Who approved the ATF operation?

Ask yourself this question: who ok’d Fast and Furious? What are the chances that an interagency review board, the kind to which every enforcement agency that wants to run a cross-border covert operation goes to for approval, would give a thumbs-up to a plan to smuggle thousands of military-grade weapons into Mexico when there were no provisions in that plan to interdict, or track/trace, or somehow retrieve those guns before they could be used to kill innocent civilians?

Zero.

Why would other law enforcement/intelligence agencies put their heads on the block for a plan that promised to do nothing but send weapons to killers in Mexico and provide the Administration with a tally, after the fact, that proved how deeply involved the US had become in Mexico’s murderous gang wars?

Let’s think about who would have had representatives sitting on this kind of interagency review board, ready to yea or nay the ATF operation? DOJ and ATF, obviously. DHS and ICE—the latter has authority for investigating violations of the Export Control Act. Then DEA, the FBI, and the State Department—since State would have had to issue exemptions re the Export Control Act to allow ATF to move the guns into Mexico. DOD? NSA? CIA? Sometimes.

Why so many players?

The easy answer is coordination. But here’s the rest of the story . . .

First, a covert operation involving the trafficking of weapons across the US-Mexico border falls within ICE’s jurisdiction, not ATF’s.

You don’t steal turf in federal law enforcement and walk away unscathed.

If ATF wanted to ‘own’ Fast and Furious, it would have had to strike that deal with ICE and then work out the potential for jurisdictional ‘overlap’ with other enforcement and intelligence agencies as well. All of it before, not after, the operation began.

Let’s say that didn’t happen. No coordination with DHS/ICE. No green light re Fast and Furious from an interagency review board. Bad judgement. Bad form. Bordering on the illegal.

But not a crime. . .

The State Department had, and still has, the really big dog in this fight—that’s why it would have sent a department rep to a review board meeting re Fast and Furious. Play fast and loose with State, and it is, indeed, a crime. A serious one.

It was ATF’s job to make sure State knew it was engineering shipments of AK-47s and .50 cal rifles across the border and ATF’s responsibility under the law to obtain exemptions from State’s licensing requirements to send these guns south. To obtain these exemptions to the Arms Export Control Act, officials at DOJ, ATF’s parent agency, would have had to send a letter or formal request to State.

The State Department would have a copy of that letter or request in its files today, and on it would be the signature/s, no doubt, of one or more of the top three officials at DOJ–the Deputy Assistant Attorney for the Criminal Division, the Deputy Attorney General, or the Attorney General of the United States, Eric Holder. It takes horsepower to obtain authorization to send guns to Mexico.

So, where is that letter, that request for exemptions? Let’s take ATF off the hook.

The State Department isn’t talking, and the media doesn’t yet seem to understand how deafening that silence is.

ATF is talking, but their spin doctors are clinging desperately to a single message: ‘botched operation.’ Not good, but infinitely preferable to admitting Fast and Furious might have been a criminal endeavor, a deliberate effort to circumvent US law and use a US law enforcement agency to pursue political, as opposed to operational, objectives.

There is more, but Millar concludes:

Let’s get to the bottom of this ATF scandal. Stop the games, the professional executions, the subterfuge, the diversionary strategies, and the disinformation that aims to distract the press from the real story.

Administration officials can end this controversy right now. If DOJ/ATF did not break the law, if that agency did obtain exemptions to the Export Control Act, the Department of State will have that information at the ready.

All we have to do is ask.

So that's the question we need to ask -- Of the GOP members of the House Committee on Foreign Affairs and of Lamar Smith, who chairs the House Judiciary Committee and sits on the Homeland Security Committee -- Did ATF follow the ITAR or not? Was the Department of State (and other departments) involved in these acts of war against a sovereign nation and its people?

It is time to open the Second Front in the Gunwalker debacle. And ITAR is the weapon to do it with.