It was another public hearing, another chance for Congress to lecture its least-loved law enforcement agency.
On March 9, Thomas Brandon, the acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, testified before the House Oversight Committee about the death of a federal agent in the Mexican desert in 2011.
Lawmakers on the committee demanded to know why the ATF hadn’t stopped known gun traffickers before they killed Jaime Zapata, an Immigrations and Customs Enforcement agent. Why hadn’t there been coordination between federal agencies? Where was the leadership? And why hadn’t the other two senior ATF officials invited to testify at the hearing shown up?
It was a scene that has become familiar to those who follow the ATF, the agency that enforces federal gun laws and regulates the firearms industry. In the quarter century since four ATF agents were killed trying to execute a search warrant at the Branch Davidian compound in Waco, Texas, the agency has repeatedly been called before Congress to answer for alleged transgressions, including, in the past year, hiring people with intellectual disabilities to run phony gun shops as part of sting operations and failing to oversee its network of paid informants.
In March, the Justice Department’s Inspector General determined that the ATF’s Dallas office could have arrested some of the men involved in Zapata’s death before he was killed, but had failed to act.
Lawmakers, especially Republicans, have seized on these missteps with a zeal that critics in the law enforcement community say is not entirely justified, given their scope. The fallout over a botched operation known as “Fast and Furious,” in which agents knowingly allowed straw buyers to traffic guns, led to a standoff between Congress and the Obama Justice Department, and took on Benghazi-level acrimony.
Many law enforcement officials say the scandals that have enveloped the ATF have stemmed, at least in part, from a lack of institutional control, with branch offices acting without proper oversight from Washington. Congress deserves a healthy share of the blame, these critics say.
For eight of the last 10 years, the agency has not had a Senate-approved director. Its budget has grown much more slowly than those of its law-enforcement counterparts like the Federal Bureau of Investigation and the Drug Enforcement Administration. The ATF is operating now under a continuing resolution extending the 2016 budget, which amounts to a budget cut because of built-in rent and salary increases, officials say.
“If you have permanent leadership, that person can establish the values of the organization, and build a framework in which to make decisions,” said Darrel Stephens, the executive director of the Major Cities Chiefs Police Association, a professional association of police chiefs and sheriffs representing the largest cities in the United States and Canada.
With Acting Director Brandon still on the stand last month, Representative Gerry Connolly, a Democrat from Virginia, said that Congress had played a role in the ATF’s failings.
“It seems to me that we can’t have it both ways in Congress,” Connolly said. “If we want you to do your job, and do it well . . . it seems to me we have to do our jobs, and I’m not sure we’ve consistently done that.”
The ATF’s challenges have taken on a new dimension with the dawn of the Trump administration. The president has close ties to the gun lobby, which is deeply distrustful of the ATF, and frequently points to its missteps as evidence of institutional incompetence — and as a reason why the agency should not be trusted to enforce federal gun laws.
On the other hand, Attorney General Jeff Sessions has promised to beef up federal prosecutions of gun crimes in order to slow the pace of shootings in cities like Chicago — a strategy that will rely on an effective ATF, at least in part, to help carry it out.
Some experts say that rather than strengthen or weaken the ATF, the Trump administration is likely to leave it just the way it is: weakened by scandal, underfunded, and leaderless.
“Their ideal leader is no leader,” Stephens said.
For all the criticism of the ATF, its agents often outperform those at other federal agencies. In 2013, for example, ATF agents referred three times as many ultimately successful cases as the FBI, according to a report by the Center for American Progress. Because the ATF is relatively small — there are just 40 agents in the Chicago field office, for example — it is known for establishing effective and powerful partnerships with local police departments.
“When you look at the return that ATF employees give the American citizens, we do a pretty fantastic job of being good stewards of government’s money,” said Christopher Shaefer, the ATF’s assistant director for public and governmental affairs.
But the agency’s mission is complicated by the fact that it is has a regulatory function, overseeing perhaps the most controversial industry in the United States. This has made it a ready villain for gun-rights activists and lawmakers, who see it as a restrictive force against gun ownership. Though he later apologized, Wayne LaPierre, the National Rifle Association’s executive vice president, once referred to ATF agents as “jackbooted government thugs.”
The ATF’s reputation for scandal may have started with the botched siege of the compound occupied by the Branch Davidian religious cult in Waco, Texas. In 1993, a team of special agents serving federal warrants on the compound found the occupants armed and waiting. What resulted was the biggest gunfight with federal officers in American history. Four agents were killed and 16 were wounded. Fifty-one days later, a siege by the FBI ended with the compound catching fire and the death of 76 people inside.
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A Treasury Department investigation into the initial raid found that it had been badly mishandled by ATF supervisors, who knew in advance that the Branch Davidians had been tipped off to the operation. ATF leaders have since said the failure led to significant improvements in their protocols, including medical care, training, planning, and use of snipers.
In recent years, the ATF has taken heat over other botched operations, perhaps most infamously the “Fast and Furious” program, in which agents purposely allowed straw purchasers to buy firearms over a five-year period with the hope of tracking them to Mexican drug traffickers.
In what was a major black eye at the time for the Obama administration and Attorney General Eric Holder, ATF agents admitted that they had lost track of almost 1,400 of the more than 2,000 weapons they were supposed to be monitoring. When roughly 700 of the guns were ultimately recovered, some of them were at crime scenes. The most highly publicized such incident was of two guns found that were later linked to the December 2010 murder of Brian Terry, a U.S. Border Patrol agent.
Congress and the Justice Department’s Office of the Inspector General issued reports finding mismanagement and blame with ATF and Justice officials, and numerous officials resigned. Holder was found in contempt of Congress over his failure to turn over documents related to the case, the first time Congress had made such a move against a sitting cabinet official.
Still, a six-month Fortune magazine investigation into the scandal found that ATF officials had not purposely allowed guns to be trafficked. Rather, it found that agents had seized weapons whenever they could, but were crippled by weak laws and prosecutors who would not take the cases.
In recent years, ATF controversies seem to have multiplied.
An audit into the bureau’s practice of running undercover storefronts published late last year found that the operations were poorly managed and lacked proper training and guidance for agents. In one case, the ATF didn’t station any agents outside a store to help with potential emergencies, and had no plans for stopping people who bought guns illegally and left the store armed. In another, agents set up their storefront 600 feet from a Boys and Girls Club.
In February, an investigation by the New York Times revealed that ATF agents in Virginia had been paying informants off the books. Two informants received at least $1 million each. And this month, the Times found that agents had used a secret account to cover expenses unrelated to enforcement work, including the rental of a $21,000 NASCAR suite.
Some in Congress believe the ATF is too troubled to survive.
Representative Jim Sensenbrenner, a Wisconsin Republican, has sponsored a bill that would dissolve the agency, transferring the ATF’s functions related to guns, explosives, and violent crime to the FBI, and its alcohol and tobacco oversight to the DEA.
“The ATF is a scandal-ridden, largely duplicative agency that has been branded by failure and lacks a clear mission,” he said. “It is plagued by backlogs, funding gaps, hiring challenges, and a lack of leadership.”
Calls for stronger central leadership have followed most, if not all, of the ATF’s scandals. But many law-enforcement experts say a true cultural shift at the ATF will be difficult without a director who is nominated by the Trump administration, and who is known to have its confidence.
“Without the needed leadership and support, it’s very difficult for people at ATF to do their jobs,” said Michael Bouchard, a former assistant director and president of the ATF Association, a membership organization for current and former employees.
The agency has not had a presidentially appointed, Senate-approved director since B. Todd Jones, whom President Obama nominated as part of his action plan on gun violence following the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, resigned in 2015. Criminal-justice experts say the gun lobby’s influence makes it nearly impossible to get a nominee approved by the Senate. Jones was approved by a narrow margin when the Democrats controlled the chamber.
Since then, Brandon, a career ATF agent, has filled the leadership role in an acting capacity. But he reaches mandatory retirement age this summer, leaving colleagues wondering who will fill his shoes.
Earlier this year, the ATF’s deputy director, Ronald Turk, wrote a position paper that favored loosening many gun regulations, a move that many took to be a bid for the director’s job in a new, more gun-friendly bureau under Trump. Other law-enforcement experts say the president is more likely to appoint an outsider, as he has for other important posts. David Clark, the sheriff of Milwaukee County, Wisconsin, who made headlines when he went on the radio to warn citizens to arm themselves rather than depend on the police, has been mentioned by law-enforcement experts and retired ATF officials — not as a specific contender, but as the type of person Trump might favor.
If Turk was making a bid to head the agency, he may have already blown it. He didn’t show up to testify at the March hearing into the death of Zapata, the ICE agent, drawing the ire of both Republicans and Democrats on the Oversight Committee. He later said he didn’t appear at the direction of other Justice Department officials.
The hearings into Zapata’s death are scheduled to continue, though no date has been set. An investigation by the Justice Department’s Inspector General found that two of the weapons used in Zapata’s killing were trafficked by suspects that the ATF was surveilling but didn’t arrest.
At the early March hearing, Brandon said many changes have already been made to avoid another botched operation.
“We know from hard-learned lessons that the level of complexity involved in firearms-trafficking investigations demands constant organizational vigilance, and that effective communication is essential to success in these high-stakes cases,” he said.
In response, he said, ATF headquarters is taking a more active role in the oversight of cases at field offices. The bureau is also relying more heavily on gun tracing and intelligence operations, and it has improved internal communications.
The chairman of the committee, Jason Chaffetz of Utah, was skeptical.
“We’ve had the ATF here on a couple different occasions dealing with these issues and yet we are concerned that these problems are still happening,” he said. “ATF must enforce existing laws and aggressively stop illegally purchased and possessed firearms. Repeated excuses … I think should be rejected.”