The American Civil Liberties Union (ACLU) has stepped up to represent Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agent John Dodson, the whistleblower who first publicly unearthed the Operation Fast and Furious scandal, against the agency’s efforts to keep him from publishing a book on his account of the scandal.
In a scathing letter the ACLU sent on Monday to ATF deputy director Tom Brandon, the civil liberties organization likened the ATF’s activities regarding Dodson’s already-written book to “censorship.”
“We write to you on behalf of Agent John Dodson, special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Agent Dodson was denied permission to publish a manuscript about the gun trafficking investigation commonly known as the ‘Fast and Furious’ operation,” ACLU staff attorney Lee Rowland and policy counsel Mike German wrote to Brandon. “We are very troubled by the unlimited scope of ATF’s written guidelines for outside employment authorizations, as well as by the specific manner in which Order 2130.2 and related forms have been applied in Agent Dodson’s case. We urge you to reconsider his publication request.”
Specifically, according to the ACLU letter, the ATF denied Dodson’s request to publish his book using outside employment guidelines whereby federal employees are required to get clearance from their supervisors before doing any outside work. The reason the agency gave for denying Dodson’s request was that publication of his story “would have a negative impact on morale in the Phoenix FD and would have a detremental effect [sic] on our relationships with DEA and FBI.”
The ACLU says this ATF argument “not only fails to identify aspects of Agent Dodson’s expressive activity that present a risk of harm to ATF” but “it neglects even to specify whether the source of that risk is Agent Dodson’s proposed writing schedule, or his anticipated book deal, or the content of his manuscript. This failure to specify offending content or conduct cannot support line-by-line redactions, much less censorship of the sum and total of his manuscript.”
“To the extent that the E-Form remarks allege harms to ATF, these allegations are speculative and appear to invoke government injuries that cannot be recognized under the First Amendment,” the ACLU wrote. “When a government organization limits employees’ requests to ‘speak, write or teach’ in their personal time, it must show that such activities will have a ‘necessary impact on the actual operation’ of the workplace.
“Operation Fast and Furious has been widely publicized and the involved agencies heavily criticized in both the media and Congress. It is difficult to imagine how further public scrutiny, even if it prolongs official embarrassment, could outweigh Agent Dodson’s interest in giving his view on the controversy,” the letter argues. “Where information is already public, further discussion of that information cannot be seen as causing additional harm.”
The ACLU further argues that the credibility issues of the Department of Justice (DOJ) and the ATF with regards to Fast and Furious mean it has an unusually high burden of proof to argue that something related to the case should not be allowed to be public.
“Given the national attention to both the Fast and Furious operation and ATF practices more broadly, ATF faces an extremely high burden in demonstrating that its interests outweigh Agent Dodson’s right to speak- and the public’s right to hear- his views about Operation Fast and Furious,” the ACLU attorneys wrote. “This is because the protection of employees’ First Amendment rights is especially important where the speech concerns a matter of public policy.”
“The story of gun surveillance techniques and the death of a federal agent prompted national debates over gun policy, border security, and whistleblower protections, as well as inquiries into internal discipline and interagency relations at ATF,” they continued. “These debates address paradigmatic matters of public concern. Agent Dodson’s views are an indispensable piece of this public record.”
The ACLU lawyers argue there are many reasons why Dodson’s views are vital to the public record and that the agency should allow for publication of Dodson’s book. “Indeed, it was Agent Dodson’s disclosures that helped bring the operational failures at the Phoenix field division to public light,” the ACLU wrote. “As a knowledgeable and informed ‘insider’ who was directly involved in Operation Fast and Furious, Agent Dodson will add significantly to the national conversation about gun policy and its implementation by federal law enforcement agencies. Finally, Agent Dodson’s thoughts and opinions on Fast and Furious are valuable to the public precisely because they offer a viewpoint that may differ from the official government line.”
Dodson’s book is hardly the only Operation Fast and Furious information President Barack Obama’s administration is withholding from the public. President Obama asserted executive privilege over Fast and Furious documents that House Committee on Oversight and Government Reform chairman Rep. Darrell Issa (R-CA) has subpoenaed.
President Obama and Attorney General Eric Holder have denied that they or any of their top advisers were aware of the gun walking tactics–where agents were directed to allow straw purchasers working for the Mexican drug cartels to purchase weapons and then allow them to be transported into Mexico, where they have been used in the murder of 300 some Mexican citizens and the murder of U.S. Border Patrol Agent Brian Terry. Obama has asserted the lower form of executive privilege–deliberative process privilege–whereby he is trying to say that internal agency communications about this matter should not be allowed to be subpoenaed.
If Obama were to have asserted presidential communications privilege, the higher form of executive privilege, it would have meant either he or his closest advisers were involved in or aware of the gun walking tactics in the operation. The lower form of privilege, deliberative process privilege, is usually thrown out in court if there is even the suspicion of any wrongdoing on the part of the government.
Just over a week ago, a federal judge discarded the Obama administration’s attempts–specifically Holder’s–to dismiss a lawsuit Issa’s House oversight committee brought seeking the judicial system overturn the president’s privilege claim on the grounds it is invalid. The lawsuit stems from a bipartisan vote last summer in the House of Representatives where Holder was held in both criminal and civil contempt of Congress for refusing to comply with Issa’s subpoenas.
The U.S. Attorney for the District of Columbia, Ron Machen, a close political ally of the president’s and Holder’s, declined to pursue prosecution of Holder on the criminal contempt resolution. The lawsuit is a product of the civil contempt resolution.