Antigone, on 28 August 2010 - 09:33 AM, said:
In the post-9/11 changes, Congress moved explosives issues authority from the Secretary of the Treasury (the "Secretary") to the Attorney General (although some sections of 18 USC still say "the Secretary"). Except in 18 USC 856 ("In addition to any other investigatory authority they have with respect to violations of provisions of this chapter, the Federal Bureau of Investigation, together with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, shall have authority to conduct investigations with respect to violations of subsection (d), (e), (f), (g), (h), or (i) of section 844 of this title.") the jurisdictional authority lies with whomever the Attorney General delegates it to. The Attorney General delegated investigative duties to the Justice Department investigative agencies (like ATF and the FBI) best prepared to handle the duties. If the ATF DD told the DAG that ATF's authority comes from Congress, a reasonable response from the AG could have been "No, MY authority comes from Congress and I'll delegate it as I see fit;" perhaps putting ATF out of the explosives arena altogether. It was reasonable to simply showcase ATF expertise, make the case that ATF should do what it does so well, and hope that reason prevailed. It, perhaps, did not play out to the pure benefit of ATF, but I'm not sure that ATF didn't make its best case in the fight. Is it a surprise that the FBI has more clout? (Did anyone really expect that the FBI would settle for a "compromise" that didn't give them the leverage to do as they please?)
There are a lot of reasons ATF may get systematically dismantled, and I'll tell you why I think that, but want to start with an example of similar LE feuding. Every President since Theodore Roosevelt tried to merge Customs and the Border Patrol. Different cultures, personalities, and turf perceptions and lack of Congressional interest in getting involved kept that from happening until the wake of 9/11. Customs was pulled from Treasury, the Border Patrol component was excised from the former Immigration and Naturalization Service (which the Congress formally abolished), and both entities were relocated to the Customs and Border Protection (CBP) component of DHS. They still don't get along.
ATF is likely to come out on the short end in a joust with the Department of Justice for several long-standing reasons, in addition to the FBI's hatred of ATF (there's really no other way to put it). Perhaps the most salient is the fact that ATF comes out of the Department of Treasury culture; and as an ATF employee put it to me over lunch one day, "Treasury didn't give a [expletive deleted] what we did. At Justice it's different, they take the law seriously there." The context of the conversation was a discussion of the open-ended "registration period" for shotguns ruled to be Destructive Devices" which (1) lasted lasted from March 1, 1994, to May 1, 2001, some 7 years and 2 months, and (2) violated the NFA and ATF's own regulations by allowing unregistered NFA firearms to be registered during other than an amnesty period. ATF put itself in the position of requiring these DD shotguns to be registered, yet lacked the statutory authority to allow their registration. This is an example of ATF doing what it felt like doing to get something accomplished. I use it as an example because it is convenient, and because the ATF employee told me: "Justice would never allow ATF to do that. Treasury did because they didn't give a [expletive deleted]. This is what I mean by "different cultures."
It wouldn't take much to reorganize the Alcohol and Tobacco components of ATF into the Food and Drug Administration, and there seem to be noises about doing that.
The issue of Firearms is interesting. From what I can determine, the FBI wants absolutely nothing to do with regulating firearms and enforcing federal gun laws. ATF has been signaling "institutional incompetence" in some ways, such as in contradictory rulings by the Firearms Technology Branch (FTB), and the lack of scientific standards for evaluating firearms. FTB is not a certified lab. FTB also recently issued a letter (well known to Special Agents on the West Coast) declaring that a pistol-gripped firearm that is at least 26" in overall length can also have a barrel less than 18" in length and NOT be subject to the NFA. What kind of havoc is that going to wreak when a street agent encounters a person in possession of such a weapon? The FTB letter will probably cause a U.S. Attorney to refuse prosecution---just the existence of the letter represents a problem, no matter what subsequent letter or ruling FTB concocts. My view is this situation arose from some ATF attorney getting into an ego-driven match with somebody at FTB, and thus publishing a "new" policy in the November 2009 FFL Newsletter to prove his ding dong was larger than the FTB person's ding dong. In my judgment, that's NOT the way ATF ought to be run.
Have any of you thought about the implications of ATF adding transactions in NFA firearms and devices to the Form 4473 in its August 2008 revision? Since the manufacture, distribution and subsequent transfers of NFA firearmsm have been recorded in the National Firearms Registration and Transfer Record (NFRTR) since 1934, would not this added paperwork burden be an example of "waste" of public funds because it duplicates what another system is already doing? The short answer is that the NFA Branch loses, destroys, misclassifies and God knows whatever else to NFA paperwork, to an extent that the NFRTR has become inaccurate, incomplete and, therefore, unreliable. Why is ATF doing traces on NFA firearms now? This is supposed to happen if they are used in crimes, but if the NFRTR is inaccurate, what then? Or maybe the traces are done for other reasons. None of this is any secret to SOTs. Again, this is a "big picture" example --- why duplicate an existing NFA firearm registration/transfer system, by adding it to the Form 4473 process? Both defense counsel and budget-cutters in the Congress may have questions about that. Also, you might take a look at page 18 of the "LESSON OBJECTIVES" for the recent slide presentation entitled "OVERVIEW OF NATIONAL FIREARMS ACT: ROLL CALL TRAINING" which discusses that there is an "official" NFRTR and the implication that there has been an "unofficial" NFRTR used to establish probable cause. Note that the "LESSON OBJECTIVES" distributed with this slide presentation were directed specifically to "Special Agent and Industry Operations Investigator personnel," and it thus seems appropriate to refer to it here. This is the kind of stuff that can and probably has caused Department of Justice attorneys to gag, and it doesn't help ATF.
Another reason ATF is in a difficult position is that the FBI is simply better positioned, bureaucratically and historically, to wield vaster influence. ATF is not only coming late to the Justice family, it is doing so without any apparent champion and with the lack of a permanent Director. The lack of a permanent Director; the Obama administration's obvious reluctance to name and back a permanent Director for confirmation; and the "hands-off" attitude the Congress has displayed, leaves ATF open to get picked clean.
I'd like to end this post on a more positive note, by saying what I think that Special Agents and others can do to right the listing ATF ship; and make no mistake, the ATF ship is listing.
In a different earlier post that I'll not repeat here, I suggested that the folks who run CleanUpATF decide on a credible, savvy spokesperson and open communications with the Subcommittee on Appropriations --- that will bypass the foisting off of concerns expressed here, and take them to where it really matters. How money gets spent, and how much, is the lifeblood of any federal agency. Make the case yourselves that your leaders will not, directly to the Subcommittee on Appropriations. And make sure your spokesperson is articulate, intelligent, can think on his or her feet, and is impeccably politically savvy.