Statement Of Senator Patrick Leahy On Cornyn Amendment No. 775 To H.R. 2112

It is not a good idea to legislate law enforcement tactics on an appropriations bill.  To the extent the amendment by the Senator from Texas that has been modified with the help of the Subcommittee Chair restates Department of Justice policy, it is unneeded.  To the extent it seeks to create a well-intentioned implementation of that policy, it does so in a way that may adversely affect FBI operations and other law enforcement efforts, including joint task forces among Federal, state and local law enforcement, without really adding to what the Attorney General has already said and done to ensure that certain tactics from Operation Fast and Furious not be used again. 

The Department of Justice’s Inspector General’s Office has not yet completed its independent investigation of Operation Fast and Furious, which was a Bureau of Alcohol, Tobacco, Firearms and Explosives operation in Phoenix that apparently followed on the practices used in Tucson during the Bush administration in Operation Wide Receiver.  I expect to examine the Inspector General’s report through briefings, and possibly a hearing, when that investigation is concluded.  It is important to remember that there are ongoing and highly sensitive criminal investigations involved here, and I do not think anyone wants to unduly hamper the efforts of law enforcement agents to stem the fight against violent drug cartels in Mexico. 

I appreciate that the Senator from Texas, like all of us, is deeply concerned.  When he wrote to me asking for a hearing about the southern border, I asked Senator Durbin, who then chaired the Crime Subcommittee to work with him and accommodate his request.  I certainly hope that congressional attention did not add to the pressure felt by law enforcement officers and agents to utilize aggressive and risky methods with inadequate resources.

Of course, we all mourn the loss of all of the agents who have died in the line of duty, including members of our Customs and Border Patrol and Immigration and Customs Enforcement.  I have spoken previously about the loss of Jaime Zapata.  This year we also mourn Hector Clark and Eduardo Rojas.  Last year we lost five Department of Homeland Security (DHS) agents: Vincent Gallagher, John Zykas, Mark Van Doren, Floyd Collins and, of course, Brian Terry.  The year before that we lost another four agents: Nathaniel Afolayan, Cruz McGuire, Robert Rosas, Jr., and Trena McLaughlin.

Senator Cornyn has offered an amendment he describes as prohibiting funding for intentional “gun walking” programs.  The Department of Justice already has a longstanding policy against the knowing transfer of firearms to criminals without proper monitoring or controls.  I appreciate that the Senator from Texas, like all of us, is deeply concerned about law enforcement operations that could allow firearms to fall into the hands of violent criminals in Mexico. 

I was concerned that the original text of his amendment would actually make it more difficult to investigate and prosecute gun traffickers.  I am glad to see that Senator Cornyn has worked with Senator Mikulski to address some of my operational concerns with his amendment – concerns that were also voiced by the Department of Justice.   I am not sure that in the short time available to us that we have been able to rectify all of the unintended, collateral consequences that this language might occasion, however.  For example, I know that the FBI has voiced serious operational concerns about the impact that this amendment could have on their system of background checks through the National Instant Criminal Background Check System (NICS).  I hope that Senator Cornyn and others will continue to work with the Department of Justice, the FBI, and other law enforcement agencies to ensure that whatever final language may be included in law does not unduly hamper the ability of law enforcement, including efforts against violent drug cartels in Mexico. 

The Attorney General recently reiterated that longstanding Department of Justice policy already prohibits the transfer of firearms to known criminals without the proper monitoring or controls by law enforcement.  Indeed, when Attorney General Holder testified about Operation Fast and Furious before the Senate Appropriations Subcommittee for Commerce, Justice, and Science in March, he stated that he had made it clear to the Department of Justice, including the U.S. Attorney’s Offices and ATF agents nationwide, that “letting guns walk is not something that is acceptable.”  I also understand that earlier this year, this policy was expressly reiterated to prosecutors and agents in the field through guidance issued by the Deputy Attorney General.  Accordingly, this amendment attempts to legislate a policy that is already in effect.

I am also concerned that Senator Cornyn has offered this amendment without the benefit of all of the facts.  As I have noted, there is an independent investigation by the Department of Justice Inspector General that is ongoing.  Moreover, there is an ongoing criminal investigation and prosecution related to the tragic murder of Agent Brian Terry.  I am sure that Senator Cornyn would agree that we should all ensure that the FBI and the prosecutors assigned to the case can continue that criminal investigation without any interference or impediment.  Contrary to Senator Cornyn’s statement, there has been no conclusive evidence indicating that either of these guns connected to Operation Fast and Furious were “used” to murder Agent Terry.

Although the revised text of Senator Cornyn’s amendment has addressed some of my operational concerns, I remain concerned with language that purports to require United States law enforcement personnel to continuously monitor and control any firearms that may be transferred during an operation.  I cannot believe that is what is really intended.  Many law enforcement operations are joint operations through joint task forces with state and local law enforcement.  I do not believe that the Senator from Texas means to construct a rigid protocol of tactics for such operations.  Given the potential for operational problems that might arise from a overly literal application of the language, I am left to wonder whether this language is intended to apply to joint operations at all, since it would not make sense on the ground. 

Again, I appreciate the intent of Senator Cornyn’s amendment, and as I have demonstrated, I share his concern with the violence, drugs, and illegal gun trafficking along our borders.   The strategy and tactics being used to fight these problems need to be both smart and effective.  At the same time, I am confident that the Senator from Texas would agree with me that we must also continue to support and honor the efforts of the thousands of Federal, state, and local law enforcement officers who are working tirelessly to keep our border safe. 

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