Sentencing underway in murder of border agent Brian Terry

New focus on Justice Dept.'s handling of case


This is a rush transcript from "Your World," February 10, 2014. This copy may not be in its final form and may be updated.

NEIL CAVUTO, HOST: In the meantime, a whole lot of questions over exactly how this happened, how Attorney General Eric Holder has been handling the case since, and if the Department of Justice is obstructing justice in this case by withholding, as many critics say it has been, key documents for years now.

Former CIA operative Wayne Simmons and attorney Dwane Cates following all of this very, very closely.

Wayne, to you first. From the get-go, the administration was claiming executive privilege with -- when Congress was looking into this. Did that argument stand with you?


First of all, Neil, the moment that your leadership, especially all the way up as high as Holder, Attorney General Holder, began to cover their tracks, began to make moves, up to and including, quite frankly, the President of the United States, Obama, actually claimed the same executive privileges for any type of -- of divulgence of anything that happened.

And once that starts taking place in leadership, you have to start questioning everything all the way down the line, right into the Phoenix office, right into the field, right into who allowed these -- these operations.

This is one of the most egregious, incompetent operations and -- and combination of operations, quite frankly, Neil, that I have ever heard of, read about. And I can tell you I have personally been involved in these types of things.

I know what I`m talking about. This is something that some of the other officers, Neil, actually tried to get stopped, and their superiors shut them up and told them to go sit down, and -- and...


CAVUTO: You`re saying -- when you say they tried to get it stopped, you`re talking about the Fast and Furious, the drugs -- the drug program -- or to try to catch these drug runners via these weapons in their hands?

SIMMONS: Yeah. No, that`s exactly right.

CAVUTO: Right.

SIMMONS: So, the superiors came and said we`re going to -- we`re going to do this operation. This is what we`re going to do.

CAVUTO: Right.

SIMMONS: We`re going to let the guns walk.

CAVUTO: Gotcha.

SIMMONS: And the agents went who fortunately said, no, we`re not going to do that, and they said, yes, you are, go sit down and hush.

CAVUTO: All right.

Now, in the meantime, a lot of these federal authorities didn`t get in any trouble. We should also point out, Dwane -- and you follow this more closely than I -- that a separate suit that the family had filed against them, a judge dismissed, claiming that federal employees killed in the line of duty are already covered by things like the -- I guess the federal employment retirement system, the federal employees compensation, the Public Safety Offices Benefits Act.

So, when it came to try to separately sue the government or its parties in relation to this, the family came up squat, and the judge in that case said, more or less, this is the way it is. Right?

DWANE CATES, ATTORNEY: Well, the judge did. And you have to realize it`s difficult to sue the federal government any time. They have what`s called qualified immunity. So -- and if every time something went bad in law enforcement and a law enforcement officer died that you could sue the government, there would be thousands and thousands of lawsuits.

So, there are other ways that the family has been compensated. Probably -- you know, you can never compensate somebody enough for losing a loved one, but that`s what happened in the civil side of this thing. And it wasn`t -- it wasn`t surprising that that`s how it ended up.

CAVUTO: Yeah. I know the father has said that he is not pursuing this for the money and these constant appeals, but for his son, who he said -- quote -- "I love very much to this day."

So, on that point, Dwane, just to be very, very clear, I know the family is suing the gun shop, the Lone Wolf Gun Trading Company where the weapon in question that was found at the scene of Terry`s murder. As a lawyer, do you think a case like that makes much headway?

CATES; Well, it might.

If they sold the guns to somebody that they knew they shouldn`t be selling the guns to, then they may have a case. I mean, it is foreseeability.

CAVUTO: Right.

CATES; Was it foreseeable that the guns that they sold could end up in the hands of somebody that could have killed their son? It`s a stretch, and it`s going to be difficult, but a case could be made.

CAVUTO: Now, Wayne, separately, you have been arguing about the trend the administration has set since, including this latest effort to allow those who want to get into this country to have a shot at it even if they have a questionable past and even if they were sympathetic or indeed supportive of terrorist organizations. Explain.

SIMMONS: Well, here we go again, Neil.

This is another example of the Obama administration and the State Department deciding that they`re going to use their refugee -- allow refugee status for the -- for the Syrians now, for -- they have done it for the Libyans. They have done it for the Somalis.

They -- you know, we`re -- we`re starting to develop a habit of causing wars, fighting wars, creating havoc, creating poverty, and bringing these people into the United States. The problem with that is -- one of the many problems is that we have no way of vetting these guys.

It seems like just yesterday, Neil, you and I were talking about the Libyans. Well, today, we have got the Syrians on the horizon. And they are going to come into McGuire Air Force Base and over to Fort Dix, and then they`re going to be up in Minnesota someplace or out in North Dakota.

So, it`s -- it`s -- it`s terrible. Folks, Americans do not understand that this is a clear violation of any national security acts that we have in place, and should never be allowed, unless we can vet these guys, because they`re terrorists -- some of these guys are terrorists. They know how to get in the country and they know how to answer the questions.

CAVUTO: Gentlemen, thank you both.

Again, we`re -- should be getting more details on this. We`re awaiting as well to hear from family members who are going to discuss what happened, and how it is possible that a U.S. border agent, a little more than 38 months ago, was getting ready to get married, and had his full life in front of him, before it was snuffed out in a desert along the U.S.- Mexican border. To this day, people are asking why and how the heck it happened, and, more to the point, how it is that one guy agreeing to a 30-year prison sentence somehow makes it all go away.

Family members here to say, today at least, not so.

Content and Programming Copyright 2014 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2014 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.