Playing Fast with the Truth Makes for a Furious Public

By: Eamon Eriksen

courtesy of the Chicago Tribune

A report released last week by the DOJ Inspector General’s Office may well become the final chapter of the Fast and Furious debacle.  Despite all of the political hullabaloo, the issue at the heart of this year-and-a-half long investigation has been the administration’s refusal to release certain documents to Congress, culminating in the president’s use of executive privilege to shield DOJ documents from disclosure.

Attorney General Eric Holder was the first sitting Attorney General to be held in contempt of congress – Photo by Mark Wilson/Getty Images

The Documents (or Lack Thereof)

The documents in dispute fall into two categories.  The first are “deliberative process” memos which include internal executive branch correspondence.  The second set of documents relates to court-sealed wiretap applications, which Mr. Holder maintained did not show that “inappropriate tactics were being used” and were therefore not released.

In October of last year, the National Security Archive filed three Freedom of Information requests asking for documents relating to the planning, execution and investigation of the Fast and Furious Operation.  Almost a year later, requests to the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Agency are still pending.  Judicial Watch, prompted by failures to respond to FOIA requests by the statutory deadline, has filed three lawsuits against the same agencies for similar records.

There are legitimate reasons for Obama to withhold the documents.  As one analyst speculates, “An effort to track gun-running between the US and Mexico could, in theory, be part of a larger US government effort to monitor how terroristsmight have been planning to exploit weaknesses in the US border control.”  Obama may also be reluctant to set the precedent of releasing internal executive branch correspondence, documents that have traditionally been excluded from Congressional subpoena.

Nevertheless, secrecy breeds mistrust.  As one Congressional spokesman remarked, “The White House decision to invoke executive privilege implies that White House officials were either involved in the Fast and Furious operation or the cover-up that followed”.  The refusal of the administration to open these documents to public scrutiny raises suspicions that executive privilege is being used to shield the administration from embarrassment, hardly a new phenomenon.

The Report

Justice Department Inspector General Michael Horowitz’s testimony before the House Oversight and Government Reform Committee last Thursday, and the release of a 471 page report, may be the closest to a definitive accounting of the Operation Fast and Furious debacle that the American public is likely to get.

The IG report marks the first time that any investigator was allowed unfettered access to the documents in question.  While the report exonerated several senior officials at the DOJ, including Attorney General Eric Holder, the report found that unreleased “wiretap applications approved by senior officials did contain red flags about reckless tactics.”  Apparently the withheld documents were more relevant to the investigation than the administration has maintained.

Cover of Inspector General’s report, and excerpt showing redactions in report.

The report also shows positive signs for government transparency, “made no redactions for Executive Privilege”, and asserted the IG’s commitment to releasing more material to the public.  As Mr. Horowitz said in his testimony,

At our request, the Department has agreed to seek court authorization to unredact as much of the wiretap information as possible (consistent with privacy and ongoing law enforcement interests).  If the court agrees to the Department’s request, we will shortly issue a revised version of the report with this material unredacted.

This saga raises many questions about government transparency, the limits of executive privilege, and who should hold the government accountable.  It is yet to be seen whether the US public will ever get the full story.