Obstruction Junction, what’s your function?

Eric Holder's Obstruction

In 2009, U.S. officials discovered that Mexican cartels had become the leading gun-traffickers responsible for high levels of crime throughout the Southwest U.S.

On October 31, 2009, the Arizona Field Office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), in cooperation with the Department of Justice (DOJ), launched a sting operation to help reduce cross-border drug and firearm trafficking by “purposely allowing licensed firearm dealers to sell weapons to illegal straw buyers.”  The operation was intended to track weapon purchases made by Mexican drug cartels to expose the location of high level leaders and ultimately lead to their arrests.

By June 2010, the case internally became known as “Operation Fast and Furious,” as ATF agents discovered numerous cartel leaders under investigation were operating out of a busy auto-repair store.  More than 1,608 firearms worth a total of $1 million were purchased by suspected cartel leaders, but unbeknownst to the U.S. government, 179 had been linked to Mexican crimes and 130 had been found at crime scenes in the U.S.

On December 14, 2011, while patrolling Peck Canyon in Santa Cruz County, Arizona, Border Patrol officer Brian Terry was shot and killed by Manuel Osorio-Arellanes, a high-level cartel leader who purchased a weapon linked to Operation Fast and Furious.  While the operation was officially terminated on January 25, 2011, Americans and government officials would soon discover that the problems surrounding the sting had only just begun.

On June 20, 2012, President Obama asserted executive privilege over Fast and Furious documents sought by both the House and Senate Oversight and Government Reform (OGR) committees, protecting Attorney General Eric Holder from future prosecution.  Both Attorney General Holder and President Obama claimed they had no knowledge of the operation until the story broke on national media.

On September 20, 2012 DOJ Inspector General (IG) Michael Horowitz told the House OGR committee that the OIG did not receive any internal communications from the Obama administration regarding the investigation.  Former White House official Kevin O’Reilly claimed this non-cooperation was “justified as White House documents were ‘beyond the purview of the OIG.’”

It wasn’t until November 3, 2014, more than three years after the termination of the program, that DOJ “dumped” nearly 65,000 pages related to Operation Fast and Furious that had previously been withheld on the committee’s doorstep, though Congress is still awaiting numerous documents that are critical in the Fast and Furious investigation.

While President Obama claims that his administration is “the most transparent administration in history,” such displays of obstruction are not unheard of or limited to one or two select agencies.

On August 5, 2014, 47 of the nation’s 78 IGs sent a letter to congressional oversight leaders in both the House and Senate that begged Congress to help them accomplish their jobs.

The letter stated that numerous federal agencies had created “serious limitations on access to records that have recently impeded the work of IGs in a manner that would override the express authorization contained in the IG Act of 1978” even though Section 6(a)(1) of the IG Act of 1978 plainly states that IGs have access to “all records, reports, audits, reviews, documents, papers, recommendations, or other material available” unless another federal law “expressly so states.”

The IGs cited specific examples of blatant obstruction in crucial investigations at the Environmental Protection Agency (EPA) and the Peace Corps.  Many other IGs faced similar obstacles due to claims of attorney-client privilege, grand jury secrecy, patient privacy, or burdensome administrative conditions on access.

The EPA Office of Homeland Security (OHS) repeatedly refused to provide information to IG Arthur A. Elkins Jr. regarding two separate cases involving an employee who had watched two to six hours of porn daily on government issued computers, and John C. Beale, who infamously defrauded $900,000 from the EPA under the guise of being a Central Intelligence Agency operative, and was later sentenced to 32 months in prison.

During a September 10, 2014 OGR hearing, Elkins testified that the EPA OHS forced employees to sign non-disclosure agreements, and in one high-profile incident, verbally assaulted and intimidated an OIG employee.  Elkins stated, “The IG Act hinges on the cooperation of the agency with its IG.  If there is no cooperation, the work of the OIG is stifled.  The result is that the taxpayers cannot have confidence that their investment is being used as intended.  The standard is fine; the ability to ignore the standard without consequence is the problem.”

At the Peace Corps, agency leaders created roadblocks for IG Kathy Buller during her investigation into how the agency responded to sexual assaults against volunteers.  During a January 15, 2014 OGR hearing, Buller stated that the agency’s general counsel  authored a legal opinion asserting that the Kate Puzey Peace Corps Volunteer Protection Act, a law created by Congress to help manage the records of victims who had been sexually assaulted and to protect the details of their assault and personal identity, did not apply to Section 6 of the IG Act.

Buller stated, “It defies common sense to imagine that Congress intended to increase OIG’s oversight duties over the Peace Corps’ response to sexual assaults, while simultaneously curtailing its ability to access the information it needs to fulfill those new duties.”  Even though the Peace Corps eventually allowed the information to be viewed under a special agreement, to date, it still has not allowed unfettered access.

Other agencies not mentioned in the letter have also obstructed investigators. The IRS infamously withheld information during the investigation into the agency’s targeting of tea party groups and other political organizations applying for tax-exempt status, claiming it had lost critical emails sent by former IRS Chief Lois Lerner.  Documents obtained and released on November 5, 2014 by government watchdog Judicial Watch, proved that the IRS “did not undertake any significant efforts to obtain the lost emails” to begin with.

IRS attorneys admitted they had failed to search both the agency’s disaster recovery tapes and its government-wide back-up system because “the servers would not result in the recovery of any information,” and they had “no reason to believe such a system … even exists.”

Twenty-five years after the passage of the IG Act, IGs should not have to plead with Congress to help them enforce the law.  When IGs are allowed to conduct their work effectively and independently, the operations of the federal government improve, taxpayer money is spared, and the temptation to commit wrongdoing is stifled.

As long as the administration and agency leaders are allowed to exhibit obstructionist behavior year after year, any trace of confidence the public might have in the government’s ability to conduct significant oversight will be completely diminished. Congress must get tough with those in the executive branch who obstruct IGs from doing their jobs.

Such behavior only ends up yielding one loser: the taxpayers.

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