ATF Mexico Gun Statistics Flawed

Statement of Ranking Member Chuck Grassley of Iowa
U.S. Senate Committee on the Judiciary
Subcommittee on Crime and Terrorism
Hearing on “The Fix Gun Checks Act: Better State and Federal Compliance, Smarter Enforcement”

Tuesday, November 15, 2011

Mr. Chairman, thank you.  Before I go into my statement, I’d like to ask consent that a number of documents I’ll discuss be made a part of the record.  The debate surrounding updating federal gun laws gained national attention following the tragic shooting at Virginia Tech in April of 2007.  

Following that terrible tragedy, Congress passed the NICS Improvement Act which updated the National Instant Criminal Background Check System, known as NICS.  This bill passed both the House and the Senate by unanimous consent and was signed into law by President Bush.
  
Despite the strong bi-partisan support, the NICS Improvement Act was not a perfect bill, and is a good example of why we need to be careful when we legislate to avoid unintended consequences.  For example, the NICS bill has stripped thousands of veterans, and their beneficiaries, of their Second Amendment rights simply because they have a fiduciary appointed on their behalf.  Often times, a fiduciary is appointed simply for managing disability compensation, pensions, or survivor benefits.

Under an interpretation by the Department of Veterans Administration, veterans who have a fiduciary appointed are deemed “mentally defective”, are reported to the FBI’s NICS system, and prohibited from purchasing a firearm.

Under the NICS Improvement Act, a bi-partisan bill, around 114,000 veterans and their beneficiaries have been automatically denied their Second Amendment rights.  It is a terrible irony that veterans, who have served their country on a battlefield, have been entrusted with our national security, and have been provided firearms by their government, are the same people the NICS Improvement Act harmed by taking away their Second Amendment rights, all without a hearing or formal adjudication.

We just honored and celebrated Veterans Day last Friday.  Yet, we are here debating new legislation to restrict the Second Amendment rights of citizens, without fixing the unintended consequences of our last major gun law.

While the horrific events in Tucson are still fresh in our memories, as we discuss new gun control laws, we also need to move forward on bi-partisan legislation such as the Veterans Second Amendment Protection Act, introduced by Senators Burr and Webb.  This bill would fix the unintended consequences to thousands of veterans caused by the NICS Improvement Act.

Today’s hearing offers us another opportunity to discuss illegal firearms trafficking and the government’s efforts to stop it.  At the forefront of this is the Department of Justice’s failed operation Fast & Furious, where the ATF knowingly allowed illegal purchasers to buy guns.

The more we learn about Fast & Furious, the more we have discovered that senior Justice Department officials knew or should have known about the nearly 2,000 guns ending up in the hands of criminals, including the drug cartels in Mexico.  At the first House Oversight hearing on Operation Fast and Furious, multiple ATF agents testified that fear spread through the Phoenix Field Division every time there was news of a major shooting incident.

Specifically with regard to Congresswoman Giffords’ shooting, one agent said, “[T]here was a state of panic, like, … let’s hope this is not a weapon from that case.”

The Fast & Furious operation was failed in concept, design, and execution.  As the Attorney General said last week, it should never have happened.  And the Justice Department officials who knew about this program, including those who allowed false statements to Congress need to be held accountable.

I thought it was fitting that late last week Attorney General Holder finally wrote to the family of Agent Terry.  In his letter, he stated he was sorry for their loss, although he refused to take responsibility for the department’s role in Agent Terry’s death.

At the root of Fast & Furious, and a lot of rhetoric surrounding gun control legislation, has been the gun trafficking statistics provided by ATF.  These unclear statistics have fueled the debate, and contributed to undertaking such a reckless operation as Fast & Furious.

For example, in 2009 both President Obama and Secretary of State Clinton stated that 90 percent of guns in Mexico were from the United States.  But that statistic later changed to: 90 percent of guns that Mexico submitted for tracing to ATF were from the U.S.  And now, this year, that number has become 70 percent of guns submitted by the Mexican government for tracing were from the U.S.  What are the real numbers?

Articles discussing the 70 percent number misrepresent the facts, as I pointed out in a letter to then-ATF Acting Director Melson in June 2011.  First, there are tens of thousands of guns confiscated at crime scenes annually in Mexico.  The Associated Press stated in 2009 that over 305,424 confiscated weapons are locked in vaults in Mexico.  However, the ATF has acknowledged to my staff in a briefing on July 29, 2011, that ATF does not have access to the vault in Mexico described in the story.

ATF also acknowledges that only a portion of guns recovered in Mexico are actually submitted to the U.S. for tracing.  In a November 8, 2011, court filing, the Chief of ATF’s Firearms Operations Division made a declaration, saying: “It is important to note, however, that ATF’s eTrace data is based only on gun trace requests actually submitted to ATF by law enforcement officials in Mexico, and not on all of the guns seized in Mexico.”

That court filing further states that “in 2008, of the approximately 30,000 firearms that the Mexican Attorney General’s Office informed ATF that it had seized, only 7,200, or one quarter of those firearms, were submitted to ATF for tracing.”  So, if Mexico submits only 25 percent of guns for tracing, then the statistics could be grossly inaccurate one way or the other.

The discrepancies in the numbers do not stop there.  ATF also informed my staff that the eTrace-based statistics could vary drastically by a single word’s definition.  For example, the 70 percent number was generated using a definition of U.S.-sourced firearms -- that includes guns manufactured in the U.S. or imported through the U.S.  Thus, the 70 percent number does not mean that all guns were purchased at a U.S. gun dealer and then smuggled across the border.  It could simply mean the firearm was manufactured in the U.S.

So, when my staff asked ATF, how many guns traced in 2009 and 2010 were traced to a U.S. gun dealer, the numbers were quite shocking in comparison to the statistics we’ve previously heard.

For 2009, of the 21,313 guns recovered in Mexico and submitted for tracing, only 5,444 were sourced to a U.S. gun dealer.  That’s around 25 percent.

For 2010, of the 7,971 guns recovered in Mexico submitted for tracing, only 2,945 were sourced to a U.S. gun dealer.  That’s 37 percent.

Either way, both are a far cry from 70 percent.  Not to mention that guns in 2009 and 2010 from gun dealers could include some of the nearly 2,000 firearms walked as part of the Justice Department’s Operation Fast & Furious.

We need clearer data from ATF and from Mexico.  Mexico needs to open up the gun vaults and allow more guns to be traced, not just the ones they select.  We need to know if military arsenals are being pilfered as a source — as media articles have claimed the State Department points to in diplomatic cables.

To that end, I sent a letter today to Secretary of State Clinton seeking all diplomatic cables discussing the sources of arms from Mexico, Central and South America.  I believe this information is relevant to Congress, given I discovered a July 2010 cable as part of my Fast & Furious investigation.  That cable, titled “Mexico Weapons Trafficking – The Blame Game” seeks to dispel myths about weapons trafficking.  Among other things, the State Department authors discuss what they perceive as, “Myth: An Iron Highway of Weapons Flows from the U.S.”

These cables are vitally important to Congress’ understanding of the problem.  Further, given they appear in documents the ATF submitted to Congress as part of Fast & Furious, there should be no reason for the State Department to withhold them as part of our legitimate oversight—even if they are classified.

There is a lot more to be said about the specific problems with the legislation that we are discussing today.  I plan to ask some questions to flush out those serious problems, and to make sure that we are not creating more unintended consequences and legislating away the Second Amendment rights of our citizens.

Thank you.