Did you know that Adolf Eichman never ordered any Jew to be gassed? No, he was a logistical genius, and masterminded the rounding up and transporting all the Jews to the camps. He never directly executed a single person.
When Eichmann was tracked down by Simon Wiesenthal in Argentina, then smuggled out by Mossad, then put on trial in Israel, he defended his actions by saying he “I vas only following orders”.
In fact, he was.
But by law one cannot obey an illegal order, and “he does so at his own peril” (US Supreme Court, 1799.) It was this overriding Law of Humanity that caused the men who gave Eichmann his orders to be hanged at Nuremberg in 1946.
Eichmann was a transportation officer with specialized skills. He carried a pistol, but just for show. In fact, he never heard a shot fired in anger. He was to combat soldiering what the guy who runs the loading dock at the Ford plant is to the men who build the cars, logistical support. Still, they executed him as if he had pulled the trigger on those poor helpless souls at Auschwitz and Bergen-Belsen.
There are good reasons for this that go beyond the inhumanity and the magnitude of the crimes the Nazis committed. The rule of law for even the solitary victim had to be upheld, and a reminder had to be sent to all those who killed from behind a desk, that they may stand in the well, just as guilty as the trigger men.
You see, Eichmann was more a bureaucrat than a soldier. More than any earthly species, there is a presumption among every bureaucrat, from law enforcement to food inspection, that everything he does is under the color of law. No bureaucrat, at any level, will ever simply go out and write his own set of rules. He has to know his actions are covered by regulation, by law, or from above. He has to know he is according to approved procedure. That’s a natural law of the beast, and Eichmann died believing he had done nothing.
And that authority must always be written down.
If you can remember the old John Ford cavalry films, it was commonplace among officers on the frontier to require a senior officer to put his orders into writing if the junior officer disagreed with it, so the junior officer could add his disagreement.
Which finally brings us to Fast and Furious.
I used Eichmann to illustrate that it has always been the law of the land that one cannot create legal cover for an illegal act. And that for certain acts, not even the president or Congress can make them legal, or sanitize them after the fact. The 1799 case I cited was where the Supreme Court said the executive order of John Adams, about seizing ships, was illegal, and the American ship that seized the Dutch vessel had to pay reparations and damages.
I also use Eichmann and the Nuremberg trials as an example of how speedily an investigation can proceed when you really want to catch the guys that did it: Eichmann was captured, then escaped to Argentine, then was captured in 1960 by the Israelis, tried and executed within two years.
In Fast and Furious, this means that those who gave the orders, and passed them forward, and who did what to who was known and documented in a very short period of time after the project came unraveled in late 2010, when Agent Brian Terry was gunned down.
It has also been documented that junior officers disagreed with how the plan was playing out even before that, and they put it in writing, just like John Wayne did in She Wore a Yellow Ribbon.
What we know is that Fast and Furious was conceived by ATF from an October 2009 teleconference between the heads of several agencies , DOJ, DEA, FBI, and ATF, (Border Patrol and ICE were not included) and that ATF would run point. They decided to use a variation of an older Bush-era program, where guns were bought and tracked electronically, in cooperation with Mexican police.
This new ATF Fast and Furious plan, however, did not interdict the guns at the point of sale. And they used ex-felons to make the buys ( a crime in itself). And the mechanics of just how the guns would be tracked once in Mexican hands was never made clear, for none of the 2000 or so were ever tracked once inside Mexico.
In fact, some of the ATF field agents in Group VII, operating out of Phoenix, (this happened in several states, with several Groups involved) were alarmed as they were ordered not to make arrests as they normally did, but rather to continue to allow the guns to walk into Mexican hands. One of the field officers, named John Dodson, complained to his supervisor, David Voth (who was later moved to Washington in 2011), who told him, and others’
“I will be damned if this case is going to suffer due to petty arguing, rumors, or other adolescent behavior. I don’t know what all the issues are but we are all adults, we are all professionals, and we have an exciting opportunity to use the biggest tool in our law enforcement tool box. If you don’t think this is fun you are in the wrong line of work – period! (March 2010, seven months before Brian Terry was gunned down in southern Arizona).
So, was Fast and Furious legal?
ATF claimed at the time, they had legal cover from existing ATF regulations to pass these guns across the border this way, and Dennis Burke, the federal district attorney (DOJ) in Arizona, provided them with additional legal cover…what every bureaucrat requires.
What we know is that Fast and Furious moved forward based on Burke’s “legal finding”, and subsequent operations proceeded, based on DA’s legal opinion. I assume both Grassley and Issa have copies of that opinion.
Ordinarily, such a finding would include a lot of “what ifs” that in the aggregate would amount to rules of engagement; legal “if you do this and don’t this, you’re OK,” sort of stipulations. A blanket writ of legality would never be given by the district attorney unless his back was covered as well.
So therein lies a crime, by wrongly believing higher ups can exonerate you simply be saying what you’re doing is OK. As Eric Holder himself has argued about the lawyer’s advice given to CIA interrogators’ use of water boarding, getting wrong advice from federal attorneys isn’t protection from prosecution.
We can’t say that the ATF at any level, intentionally caused those guns to walk for the specific purpose of killing innocent civilians so as lead back to the crime syndicates using them. But any fool could foresee that innocent people would likely die from those guns. That was almost a given. That the American media, and the Administration, only cares about the fallout from the death of one American border patrol agent provides proof aplenty about what they both really think about ordinary people…on either side of the border.
So, were ATF field agents criminally liable for their actions?
At the field (Group VII) level, probably not, although I am curious as to what the felon-straw buyers were supposed to say to the cartel buyers when they sold the guns, for it seems an awful lot of them seemed to almost intentionally leave their “walked” guns at the scene of several murders, almost as if asked to. People don’t shoot people then just leave the gun on the ground. First of all they cost a lot of money, but about a third of the guns that walked were found near their victims. What’s that all about?
Field agents believed they were operating under the “color of law,” and were the ones to actually begin asking questions and dissenting when the guns were not interdicted as per prior operating procedures. I tend to give them a pass.
It was not until Brian Terry (a Border Patrol agent, whose agency was not read into F&F) was murdered that ATF agent Dodson stepped forward to complain and the house of cards began to collapse. He first went to the ATF attorney, then to his IG (internal affairs) where he was stonewalled, then finally to Sen Grassley. This was when Burke, the Phoenix DA shut F&F down, Jan, 2011, and the story became public.
You can see that what happens, as the fear of exposure creeps up the chain, it also creeps up the “I can lose…seniority, rank, promotability, pension”…scale, and senior people look for junior people to dump on, and careerists begin getting their stories straight.
In theory the Attorney General, and certainly not the president, necessarily had to have any knowledge of Fast and Furious other than a name that passed across their desks. But apparently the head of ATF, Melson, did, and has subsequently been fired (re-assigned to a dead end job inside DOJ) for his missteps.
So, is Fast and Furious a crime? Is it criminal?
Yes and yes, even if it was not intended as crime. When 300 people are dead as the direct and proximate cause of a thing people do, such as the Exxon Valdez, whose skipper got drunk and ran it aground, killing around 300 birds, it was a crime. You can look it up.
The act doesn’t have to be criminal in intent, or even foreseeable, but Fast and Furious was clearly foreseeable at some level of management. When a person fires a gun straight up into the air, it is very remote that it will fall to the earth and hit someone. But when he fires that gun a 35% angle, the trajectory is much more likely to hit a person or property, and a kind of criminal reckless endangerment or homicide charge would fall, even if it only at a house. When one launches a dangerous instrumentality, however benignly directed, if it hurts someone, it’s criminal.
So where are the Indictments?
All this was known in January, 2011, 18 months ago. All the facts were known then only, at the time, only DOJ knew them. Now Rep Issa is trying to get those same facts in front of him, and he is right to do so, for if DOJ could not come up with indictments (relatively minor ones then) and career-ending censures then, they were either grossly incompetent, or covering up other, higher involvements.
I know you want it to be the latter, but it could very well be the former folks, for Eric Holder is much like Obama in that his arrogance disguises an incompetence and self-doubt of incredible depth. Never blame on conspiracy what can be blamed on incompetence, that’s the rule when dealing with the Left, for they have shown time and time again, when in power (Travelgate) they will move heaven and earth not to appear stupid.
When that conduct was produced by a ‘go-ahead” from a Justice of Department official, the Department of Justice should no longer qualified to investigate the case.
Incompetence can be a crime.
So where are the perp walks?
That’s easy. Actually, the Eichmann case and Nuremberg trials have already established what’s involved here. When it takes less than six months to pull all the records from the smoldering ashes of fifty German cities to investigate, try and convict the largest mass murdering and war-making machine in history, then it tells us that taking a year and a half to investigate a simple case of bureaucratic overreach that led to the deaths of 300 people is a stall.
As we tell our children about raising a little lie into a big lie by trying to lie out of some little thing they did, the Justice Department has increased the perp walk tenfold.
For a coverup magnifies the crime immeasurably, where, once again we revisit the age-old issue of when an accessory-after-the-fact, Dr Mudd and Richard Nixon come to mind, one an accidental getaway driver, the other intentional, are treated worse then the actual guys who broke into the DNC headquarters at Watergate.
Whereas only two or three relatively low ranking officials allowed this crime to happen, the subsequent cover up, as we discovered with Nixon, keeps moving the criminality up the ladder, possibly to the point, like Richard Nixon, we are willing to forgive the bank robbers if they will only rat out the getaway driver.
We aren’t Democrats, but I am certainly willing to find out just where the buck stops. And that process begins with indictments.
The reason I am writing this is because the people writing and talking about Fast and Furious act as if they do not know or have forgotten what the underlying crimes were,
Let the perp-walks begin.