Discussion 8a

A Policy Review of Operation Fast & Furious: Applying Lessons from an Interdisciplinary Approach

Eloy L. Nuñez, PhD. Saint Leo University

Abstract

This article examines the policy gaffes made by senior command-level personnel in the U.S. Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF) for Operation Fast and Furious. We examine how an

interdisciplinary approach to policy making and policy review may have averted the consequences

associated with this high profile news story.

Officer Down

On December 15, 2010, U.S. Border Patrol Agent Brian Terry was shot and killed in Arizona, near the

Mexican border while attempting to arrest a gang of armed subjects who were robbing illegal

immigrants. Agent Terry was hit in the pelvis by a round fired from an AK-47 rifle and later died at the

hospital. Four of the five armed subjects were immediately taken into custody (Cosgriff, n.d.).

Agent Terry’s tragic death was covered extensively by television and print media. Anytime a law

enforcement officer is gunned down, it is likely to get considerable coverage at the local level, and on

slow news days, at the national level too. Given the prominence of the illegal immigration issue in this

country, it is not surprising that Agent Terry’s death would make the national news, and linger for

several days longer than most law enforcement shooting deaths. However, even this story faded from

the mainstream media’s attention… at least it did for a while.

Like most police officer shooting cases, the Terry shooting would have quickly faded and been

supplanted by the type of news stories that seem to captivate the interest of the American public.

Stories such as Casey Anthony trial, the Anthony Weiner scandal, and the untimely death of pop singer

Amy Winehouse seemed to dominate the news in 2011. However, early that year, on February 23,

2011, CBS News first reported a link between Agent Terry’s death and a “gun running” operation

conducted by the U.S. Bureau of Alcohol Tobacco and Firearms (ATF). The Brian Terry story was back on

prime time news… and this time a scandal appeared to be brewing (Attkisson, 2011).

Congressional Investigation

As the story received more attention from the mainstream media outlets, some politicos in Washington

D.C. sensed the importance of this issue. Clearly something terrible had happened and not a lot of

information was being provided by ATF or Department of Justice officials. As more information slowly

became available to the public, it became evident that Agent Terry’s tragic death was only the tip of the

iceberg. Clearly, this case was taking a momentum beyond the unfortunate killing of a law enforcement

agent. It was now spilling over into the national political arena, and was becoming a possible wedge

issue for the upcoming presidential campaign in 2012. This incident was becoming a potential

embarrassment to the Obama administration. As such, a joint congressional committee headed by

Representative Darrell E. Issa, Chairman, United States House of Representatives, Committee on

Oversight and Government Reform, and Senator Charles E. Grassley, Ranking Member United States

Senate Committee on the Judiciary convened to interview a number of witnesses familiar with, or

directly involved in the case (Issa & Grassley, 2011).

On July 26, 2011, Fox News reported the findings of the Issa-Grassley Report with an online headline

titled ATF Accused in Congressional Report of 'Arming' Cartel for 'War' Through Operation Fast and

Furious. Fox News reported that ATF agents had facilitated the sale of 1,026 weapons, worth more than

$650,000 to members of the Sinaloa drug cartel in Mexico (Lajeunesse, 2011).

According to the Issa-Grassley Report, the ATF had provided 1,418 weapons to the Mexican drug cartels.

These weapons included AK-47s, .38 caliber revolvers, FN Five-seveN semi-automatic tactical pistols, and

perhaps most disturbing, the powerful Barrett .50 caliber sniper rifles. The intended purpose of this

operation was to let the guns “walk” so that investigators could track them as they made their way

through the Mexican drug cartel organizations (Issa & Grassley, 2011).

Unfortunately, there doesn’t appear that there were sufficient mechanisms in place to track these

weapons, and as seen in the Terry shooting, there was little or nothing done to prevent these guns from

being used for unlawful and violent purposes. The Los Angeles Times reported on August 17, 2011, that

the Justice Department has acknowledged to the joint congressional committee that firearms from the

ATF's Operation Fast and Furious had been found at the scenes of at least 11 violent crimes in the U.S.

(Serrano, 2011).

Perhaps more disturbing than the 122 weapons that have been recovered to-date at various crime

scenes, was that there were still 1,048 weapons attributed to Operation Fast and Furious which

remained unaccounted for (Issa & Grassley, 2011). The full extent of the consequences related to

Operation Fast and Furious has yet to be determined.

Analysis

How did this happen? How could professional federal law enforcement supervisors at the mid-

management and upper management levels conceive of this idea in the first place? Who approved it?

And more importantly, when things started going bad, who allowed it to continue?

First, let me fully disclose that I have been involved with a number of joint investigations with the FBI

and the ATF over my 26 year law enforcement career with the Miami-Dade Police Department. In all

these investigations, particularly the longer term and complex ones, there are times where immediate

results are subordinated for the expectation of larger and more important results further down the line.

In order to affectively dismantle a large or complex organized crime network, arrests are often delayed,

and material goods (money, stolen property, or illicit narcotics) are often allowed to “walk” in an effort

to trace the objects as far up into the network as possible. This is a common and acceptable practice in

the law enforcement realm.

The theory behind letting material goods “walk” is a sound one, and it has both operational and

prosecutorial advantages. The longer you let it ride, the bigger the fish you are going to catch. Also, the

more evidence that is built up from an extended investigation, the better the chances of gaining a

conviction in court against the eventual defendants. At least, that’s the idea.

In every one of these long term investigations that I have been involved in, there always seems to be

some disagreement among the parties involved, as to how long to let the investigation go before we

“cash in” and make significant arrests. There is also considerable disagreement among the parties as to

whether material goods are allowed to “walk” and for how long. These disagreements are especially

evident in joint investigations involving multiple agencies.

My experience has been that the local agencies tend to want to conclude the cases sooner, rather than

later; while the federal agencies prefer to “let it ride” as long as possible. There are budgetary reasons

for this divergence. The federal pockets seem to be much deeper than those of most local or county

agencies. Also, the local agencies have to be more directly responsive to their stakeholders, while the

federal agencies can afford to be more aloof. Local stakeholders want to see the results right away and

are not as willing to wait for arrests to be made or for stolen property to be recovered.

Regardless, it is almost certain that in any complex, long-term investigation there are bound to be some

disagreements among the participating investigators as to how long to “let it ride” without making

arrests, and how much material property is allowed to “walk.” Underlying the decisions that are made

on a daily basis by task force investigators, are the concepts of cost, expected benefits, and the likely

consequences associated with their actions. Simply stated, investigative decisions such as the ones

made by the administrators of Operation Fast and Furious are based (or should have been based) on

fundamental risk management concepts. In other words, are the benefits worth the risk?

Interdisciplinary Approach to Risk Management

The concept of risk management is evident in many different disciplines. Much can be gained from

learning the best practices from other disciplines. In the case of Operation Fast and Furious, I contend

that entire fiasco could have been averted had the ATF investigators and their supervisors used some

fundamental risk management principles in their policy decision-making.

I am convinced that I am a much better college instructor because of my 26 years of experience as a law

enforcement officer and supervisor. So many of the lessons learned in my job are passed on to the

students in my classes by way of case studies, simulated scenarios, and discussion forum postings based

on my real life experiences during those years. I know this to be true because of the feedback that I get

from my students, telling me how much they appreciate me sharing my stories and allowing them to

share their stories with the rest of the class. I have learned a lot from my students and their real life

experiences. As a practitioner-based learning institution, Saint Leo University is all about sharing

knowledge and applying the knowledge in the real world. The sharing of real world experiences in the

classroom is what makes this University so unique and attractive to the student-practitioner.

Likewise, I am also convinced that I was a much better police supervisor because of my graduate studies

at the masters’ level, and later in my doctoral studies. There is no doubt in my mind that many of the

tough decisions that I had to make as a police supervisor, either in the field during a critical incident

management situation, or in the office for a personnel or administrative issue, were made much easier

because of the concepts and lessons learned in my graduate studies. The case studies from my masters’

program and the research that I conducted for my doctoral dissertation had a profound effect on almost

every aspect of my professional career.

Why am I saying all this? Because I am a strong believer in the synergistic outcomes when school work

and “real” work come together. This synergy also applies when persons from multiple disciplines get

together and learn from one another. I got an up close perspective of this synergy during the planning

of the 2007 Super Bowl in Miami, where I assembled six JHRT teams (Joint Hazard Response Team) from

various local, state, and federal agencies to respond to any chemical, biological, radiological, nuclear, or

explosive incident during the week of the event. In the weeks leading up to the Super Bowl, the

exchange of information and ideas between the members of my Bomb Squad (Miami-Dade), the FBI’s

Hazard Material Response Unit (HMRU), the ATF’s bomb techs, the U.S. Department of Energy’s

radiation teams, the Miami-Dade Fire Rescue Hazmat team, and the Florida National Guard’s 44 th

Civil

Support Team were invaluable.

Not only did these multi-agency interdisciplinary teams fill a needed response capability for this large

scale special event, but the residual benefit for all the participants was magnificent. My bomb techs and

I learned a lot by dealing up close with the FBI and ATF bomb techs. We all learned a lot from the 44 th

Civil Support Team, and in turn, they learned a lot from us.

Another discipline that I have learned from is the medical profession. Namely, the Hippocratic Oath

above all, do no harm is something that I ascribe to in all aspects of my life, not just as an investigator, a

bomb squad commander, or a road patrolman. During my doctoral studies, I learned that this concept is

also used by researchers, most notably by the Institutional Review Boards (IRB) that monitor all studies

involving human subjects (Office of Human Subjects Research, 1979).

In preparation for my doctoral dissertation study, I had to take several online courses to familiarize

myself with the IRB process and its theoretical underpinnings. Part of that preparation involved the

reading of the basic principles outlined by the Belmont Report. Briefly stated, the principles associated

with human research are: voluntary participation, confidentiality, informed consent, harm to others,

privacy concerns, and deception (U.S. Food and Drug Administration, 2001).

While all these principles come into play in criminal investigations, as they do in research involving

human subjects, the one that stands out the most for this particular investigation is the concept of harm

to others. Clearly, anytime that certain illegal substances (such as cocaine or heroin), or weapons are

allowed to “walk” in an investigation, the chances of harm to others increases considerably. Clearly,

allowing weapons (especially weapons such as those involved in Operation Fast and Furious) poses

considerable likelihood of harm to others. The foreseeable consequences of allowing those weapons to

get into the hands of violent gangs are very high.

In the case of an IRB reviewing a research proposal, the concept of harm to others does not necessarily

preclude the study from going forward. However, the benefits have to far outweigh the risks. For

example, an IRB may consider a study involving a risky medical procedure on a select sample of human

subjects if the findings are likely to lead to a cure for cancer once and for all. In that case, the benefits to

humanity may be worth the risks to a few volunteers. In most cases; however, the risks rarely outweigh

the benefits. Out of respect for human dignity and basic human rights, the bar has to be set very high

for this type of scenario to unfold.

Certainly, in Operation Fast and Furious, the likely benefits did not outweigh the likely risks of allowing

all those guns to “walk.” Moreover, it seems that no operational controls were in place to track the

weapons. Controls such as hidden GPS devices coupled with aerial and ground surveillances may be

employed as a way to maintain limited control over the property. In this operation, it seems that the

only control mechanism in place was the recording of the weapons’ serial numbers (and perhaps the

striation patterns of their barrels) prior to handing them over to the drug cartels.

Clearly, ATF did not establish sufficient controls when they allowed the weapons out of their custody

and into the hands of the violent criminals. One control that they could have used is to render the

weapons safe by disabling their firing mechanisms prior to disseminating them. Obviously, since the

weapons have been used in several shootouts, this was not done. The Issa-Grassley Report ends with

the following conclusions:

“The faulty design of Operation Fast and Furious led to tragic consequences. Countless United States

and Mexican citizens suffered as a result. The lessons learned from exposing the risky tactics used during

Operation Fast and Furious will hopefully be a catalyst for better leadership and better internal law

enforcement procedures. Any strategy or tactic other than interdiction of illegally purchased firearms at

the first lawful opportunity should be subject to strict operational controls. These controls are essential

to ensure that no government agency ever again allows guns to knowingly flow from American gun

stores to intermediaries to Mexican drug cartels” (Issa & Grassley, 2011, p. 60).

Conclusion

Had the ATF investigators and supervisors followed the most fundamental risk management principles

evident in the methodology used by IRBs, Operation Fast and Furious would not have been approved for

implementation. The consequences so far from this ill conceived operation have been the death of a

U.S. Border Patrol Agent, the deaths of countless others in Mexico, and damage to relations between

the governments of the U.S. and Mexico. Moreover, with 1,048 of those weapons still missing, we get

the sense that the extent of the damages will not be known for a while.

References

Attkisson, S. (2011, February 23). Gunrunning scandal uncovered at the ATF. CBS News. Retrieved from

http://www.cbsnews.com/stories/2011/02/23/eveningnews/main20035609.shtml

Cosgriff, C. (n.d.). Officer down memorial page: Remembering all of Law Enforcement’s Heroes.

Retrieved from http://www.odmp.org/officer/20596-border-patrol-agent-brian-a-terry

Issa, D. E., Grassley, C. E. (2011, July 26). The Department of Justice’s Operation Fast and Furious:

fueling cartel violence. Congressional Joint Staff Report. Retrieved from

http://grassley.senate.gov/judiciary/upload/ATF-07-26-11-Report-on-Impact-on-Mexico-2.pdf

Lajeunesse, W. (2011, July 26). ATF Accused in congressional report of 'arming' cartel for 'war' through

Operation Fast and Furious. FoxNewscom. Retrieved from

http://www.foxnews.com/politics/2011/07/26/atf-accused-in-congressional-report-arming-

cartel-for-war-through-operation/

Office of Human Subjects Research (1979). The Belmont Report Ethical Principles and Guidelines for the

protection of human subjects of research. The National Commission for the Protection of

Human Subjects of Biomedical and Behavioral Research. Retreived from

http://ohsr.od.nih.gov/guidelines/belmont.html

Serrano, R. A. (2011, August 17). Firearms from ATF sting linked to 11 more violent crimes. Los Angeles

Times. Retrieved from http://articles.latimes.com/2011/aug/17/nation/la-na-atf-guns-

20110817

U.S. Food and Drug Administration (2001, April 16). Information sheets: Guidance for Institutional

Review Boards and clinical investigators 1998 Update. Appendix F: The Belmont Report.

FDA/Office of Science Coordination and Communication. Retrieved from

https://istar.usc.edu/iStar/Doc/0/PL35N0QM3R04P12AKOHUB75P7C/belmont.pdf