Media & Congress Still Missing the Big Legal Point of the Gunwalker Scandal: it was a conspiracy to illegally export weapons to a foreign country.

Hillary. Conspiring to violate the laws she swore to uphold. What did she know and when did she know it?

International Traffic in Arms Regulations (ITAR) is a set of United States government regulations that control the export and import of defense-related articles and services on the United States Munitions List (USML). These regulations implement the provisions of the Arms Export Control Act (AECA), and are described in Title 22 (Foreign Relations), Chapter I (Department of State), Subchapter M of the Code of Federal Regulations. The Department of State interprets and enforces ITAR. Its goal is to safeguard U.S. national security and further U.S. foreign policy objectives.

For practical purposes, ITAR regulations dictate that information and material pertaining to defense and military related technologies (for items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used. U.S. Persons (including organizations) can face heavy fines if they have, without authorization or the use of an exemption, provided foreign (non-US) persons with access to ITAR-protected defense articles, services or technical data. . .

All U.S. manufacturers, exporters, and brokers of defense articles, defense services, or related technical data, as defined on the USML, are required to register with U.S. Department of State. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges, but is a precondition for the issuance of any license or other approval for export. Registration fees start at USD $2,250 per year.

Under ITAR, a “US person” who wants to export USML items to a “foreign person” must obtain authorization from the U.S. Department of State before the export can take place. -- Wikipedia.

I would like to introduce the uninitiated to the International Traffic in Arms Regulations. Before the Gunwalker Scandal I was aware of it, but only recently have veterans of the Departments of State, Treasury, Commerce and Justice helped me to understand just how important these regulations are to an understanding of the depth and breadth of the conspiracy. In the analysis below I use, largely without attribution, quotes and ideas derived from these experts. If I do not quote them, or indicate their own personal biographies, it is because they wish to maintain their anonymity.

As I have written before, Gunwalker was a deliberate conspiracy to subvert the Second Amendment by using the ATF to facilitate the smuggling of American civilian market firearms to the Mexican drug cartels. There was no "sting," just supervised straw-buying and then the collection of murder statistics from Mexico to make a political point that we needed more restrictions on American firearm owners.

But by focusing on the ATF, the tool in this conspiracy, many have missed the larger point:

While the ATF, and by extension the United States government, did not formally sell (or provide) weapons to straw purchases and physically deliver these weapons across the border to criminals in a foreign sovereign nation, the ATF and the federal government was/were the intellectual author(s) of a comprehensive plan to facilitate the sale and illegal export of weapons to a foreign country. As such, the ATF and the administration are the intellectual authors of a conspiracy to illegally export weapons to a foreign country.

Those exports were a clear violation of US weapons export laws -- ITAR chief among them -- and the government knowingly conspired and allowed those weapons to leave the United States without:

(1) A valid US Department of State Export License,

(2) a valid End Use statement signed by an appropriate Mexican GOV authority attesting as to the use and end destination of the weapons, and

(3) a valid Import License issued by the GOV of Mexico documenting approval for the weapons to enter Mexican sovereign territory.

Thus, given the facts in front of us already from the whistleblower agents and leaked documents, those who originated this program at the highest levels of the administration and the DOJ and ATF senior executive service employees who carried it out were:

(a) complicit in illegal arms trafficking in violation of US weapons export law as codified by ITAR (DOS export regulations), and

(b) complicit in a violation of Mexican law by knowingly allowing the weapons to transit into Mexican sovereign territory.

I am not a lawyer, nor have I done extensive reading in international law, so whether the administration could be found complicit or guilty of arms trafficking under international law (apart from ITAR and Mexican law) is not something I can be certain of. However, according to my sources:

(1) If any individual or any private group of any national origin had coordinated such an operation, the full legal powers of the Mexican government, the US government, and Interpol would have been brought to bear on that individual or group (witness international arms trafficking prosecutions over the last 20 years); each of those government/other entities would have competed to get the arrest and prosecution headline in their national newspapers; that individual or group would have been immediately detained and incarcerated pending charges; charges would most likely be not in the dozens but in the thousands (as each weapon trafficked can be made to count for several if not dozens of individual violations), and all assets (financial and other, whether or not gained from trafficking) would be seized, and

(2) if this were conducted by any number of sovereign countries – in particular any Latin American or African country – perhaps Ecuador facilitating transit/delivery of weapons to the FARC in Colombia, or South Africa providing weapons to a sub-Saharan civil war (create any scenario you wish) – that country facilitating the weapons transit would likely suffer several consequences:

First, The low-level individuals involved, if found by international authorities would be incarcerated (but likely they would never be found),

Second, an international court (and perhaps the the US government under previous administrations) would call for all top level GOV officials (Minister of Defense, Minister of Justice, and perhaps the President – as they are all in the chain of corruption) to be held accountable and tried – and perhaps extradited and

Third, the country in question would be labeled as an international pariah, perhaps sanctioned, and certainly black-listed from purchasing and selling weapons and “bellic materiel” from the “civilized nations”.

Thus – the “who knew what when” and the “who told you not to release material that my office requested” etc. is nice to know but gets away from the real issue. The real issue is that the federal government of the United States of America, through the ATF, was the intellectual author of an illegal arms trafficking operation that violated both US law and Mexican law – and perhaps international law. That is institutional and governmental corruption of the worst kind, above and beyond a few AKs crossing a border.

Two last points:

(1) The vast majority (if not essentially all) the weapons “fueling the drug trade” (whatever that means) come from:

(a) The US government exported to military armories in Mexico and trafficked to cartels by Mexican military mid-level and high-level officers who divert arms upon arrival at the port of entry or from military armories prior to or immediately after being logged in,

(b) US government-approved arms exported to other Latin American countries and diverted by their militaries (Brasil, Argentina, Ecuador, etc.) to the black market in neighboring regional countries,

(c) supplied directly from local regional manufacturers (Brasil, Argentina, etc.) and

(d) directly via container to Mexican ports from Israel, Russia, China, South Africa, and a half dozen others, and

(2) If Mexico were truly “outraged” about this operation they would have filed legal charges against the US in their courts, in US courts, and in the International Court. Normally you just have to “follow the money”; in this case it would be “follow the logic”. There was either a financial or political incentive that benefited Mexican officials. It is hard to understand how such a ludicrous plan could have ever have been proposed in the first place, as logic just does not apply.

As one of my sources said, "This project is much more likely the misguided attempt of a US politician with a political agenda, in conjunction with a few politically ambitious mid-level budget-hungry bureau administrators attempting to grow the agency. That is, concoct a scheme to allow weapons to transit to Mexico, knowing that ultimately those weapons will be found in Mexico, that event in turn would justify the argument that US weapons 'fuel the drug trade', and hence justify not only more stringent US gun laws but more importantly justify a higher budget for the bureau to 'keep America (and Mexico) safe….' (This is) merely an attempt to explain the completely illogical by looking at it logically. While one does not necessarily expect politicians or appointed bureaucrats to perform professionally or logically, they do take actions based upon their own internally generated norms, their own internally generated benchmarks, and their own anticipated reward criteria."

This comment comes from a retired fellow who knows this topic cold.

Subj: ITAR

My first read is mostly agreement with opinion provided.

The issue that still exists what did the Directorate of Defense Trade Control at State Department know of the operation?

My guess is the entire operation was briefed at State and the Assistant Secretary of State for Defense Trade Control was briefed and his approval requested.

Secondly, the Arms Export Control Act via its implementing regulations the ITAR 22 CFR 120-130, do not specifically require the government agency to follow a certain protocol for a Law Enforcement or Intelligence Operation.

The example I gave you regarded the Department of Treasury' Office of Foreign Assets Control (OFAC) on uncover licenses for the U. S. Customs Service Office of Investigation operations, involving a target of an investigation that had allegedly violated an embargo by entering into a commercial transaction involving a embargoed nation. That license would grant permission for the Customs Service to conduct the LE operation for the purpose of investigating and prosecuting a embargo violation. (If Mexico was embargoed from receiving certain firearms that were to be "walked" into Mexico, that would apply in this instance.)

Additionally, both the embargo and ITAR violations are specific intent crimes i.e. the government has the duty to prove that the violator knew there was a prohibition and more specifically the instant transaction being investigated and subsequently charged. Proving the specific intent knowledge is done through recorded conversations, business records, prior correspondence with OFAC or State Department regarding the rules of the road. A general intent violation is a bank robbery, everyone knows it's illegal to rob a bank.

Based on OFAC requirements, I believe DOJ/ATF would have briefed the State Department and received its permission to proceed.

As such there exists a file with juicy memos about the operation because it is dealing with the foreign policy of the United States i.e. the Arms Export Control Act-ITAR.

One other point, given the sensitivity and covert nature of this operation and the fact that it involves a foreign country, aspects of it were almost certainly "classified." One result would be that much of the attendant documentation would be classified. Have the congressional been granted access to the "good stuff"?

The US Embassy in Mexico City almost certainly was aware of this operation, or should have been had normal protocols been followed.

It would seem to me that, given the analysis above, it is time for the Gunwalker Scandal to become the subject of hearings by more than just Darrell Issa's little oversight committee. The House Foreign Relations Committee would be a good place to start.

The main point is that this was not just an ATF escapade initiated in a vacuum because the "ATF hasn't had a permanent director." It was a government-wide conspiracy to, among other things, violate the arms export laws of the United States.