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Fast and Furious: Can Holder, ATF Agents Be Prosecuted?

The family of U.S. Border Patrol agent Brian Terry wants answers, and they are growing impatient. Terry is apparently the sole American among countless victims of Mexico’s violent, ongoing drug wars. Drug gangs in that country received a major boost in firepower by way of a disastrously flawed and arguably illegal U.S. program that authorities now say should never have been implemented.

The now infamous “Operation Fast and Furious” was concocted and carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives, a division under the direct control of Eric Holder’s Department of Justice. The operation’s stated purpose was to allow illegal buyers to purchase firearms with the hope of tracking the weapons to Mexican narco-terrorist drug gangs. Agents say they lost track of hundreds of guns, some of which also surfaced later at horrific crime scenes in Mexico and at the scene of the murder of Brian Terry in Arizona. Recently uncovered e-mails now show a more nefarious motivation behind the operation: The Obama Administration’s desire to further clamp down on Second Amendment rights via a new law requiring strict reporting of the sale of long guns.

The buck stops at Holder’s desk. That’s what more than fifty lawmakers and four Presidential candidates insist as they call for the Attorney General to resign. While some insist that the operation was “botched”, ATF whistle blowers say it basically went as planned: The only thing that went wrong is that it was exposed. While Holder has testified, under oath, that neither he nor his Justice Department colleagues were aware of the “gun-walking” tactics involved in Fast and Furious, many lawmakers find it hard to believe that the the nation’s top law enforcement official would be out of the loop in such a potentially deadly trans-national operation.

Despite the onslaught of calls for him to resign, Holder indicates he will do no such thing. He has indignantly responded “I’m the attorney general who put an end to these misguided tactics” But did he only stop those “tactics” after they were exposed? The family of Brian Terry is aggressively demanding action beyond political punishment, stating recently “We now believe that if it can be shown that laws were broken, then all those responsible for Fast and Furious should be held criminally liable.”

For the average American, the punishment for transferring a gun to someone who they know plans to commit murder is severe, if a murder does in fact take place: A lengthy term, perhaps life, in prison. When it comes to the crimes of being an accessory, Federal law is simple: Whoever aids, abets, counsels, commands, induces or procures the commission of an offense, is punishable as a principal. In other words, an average citizen gives a gun to another knowing that it would be used in a crime, that average citizen is equally as guilty as the primary offender. A conviction for “conspiracy to commit a crime” requires an agreement to commit a crime and at least one act in furtherance of that agreement. An agreement among ATF agents, and Holder if he was involved, to facilitate the gun transfer…and actually permitting the transfer would suffice in the case of Fast and Furious. So what about the Fast and Furious players?

At last count federal agents involved in Fast and Furious facilitated the transfer of at least two thousand firearms to violent Mexican drug gangs. All but several hundred of those weapons are whereabouts unknown and presumably in the hands of cartels such as the Zetas, a drug gang made up of many former members of the Mexican Army. The homicidal tendencies of these gangs have been evidenced by the tens of thousands of murders committed in that country over the last decade. So how is it that our government can engage in conduct that is clearly criminal when private citizens go to prison for doing the same thing? Did the apparent goal of creating stricter gun laws serve as a legal defense to what are otherwise serious felony crimes? Clearly the answer is no. Further, while the federal government enjoys immunity from most civil suits, that immunity does not apply to criminal conduct, such as that which arguably cost Brian Terry his life. The government may claim that agents planned on intercepting the weapons sent to Mexico before they could be used in crimes. So far there is no evidence to support such a defense.

Fast and Furious is not just a political mess for Eric Holder, his Department of Justice and the ATF. This entire sordid episode could, and many would argue should result in federal criminal prosecutions. While there is clearly no appetite in the current administration to go after those involved in Fast and Furious, that could well change next November, when many of those fighting for justice for Brian Terry may occupy positions of power and influence.

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