The Honorable Paul A. Price
Assistant Inspector General
Office of the Inspector General
Evaluation and Inspection Division
Department of Justice
Suite 6100
1425 New York Avenue
Washington, DC 20530

Dear Mr. Price:

While the FBI agrees with elements of the OIG's final recommendations, providing as they do generally constructive suggestions on improving coordination, we differ with aspects of the methodology employed by the OIG, the interpretation given certain data, and to certain conclusions and their suggested remedies. As noted by this response, these deficiencies in methodology and misinterpretation of policies and data have resulted in conclusions that present a somewhat flawed picture of FBI task force operations and coordination.

We believe it is important that the OIG's conclusions concerning the FBI's coordination of task force activities be viewed not only in light of the specific concerns enumerated in this letter, but in the larger context of he FBI's overall success in combating violent crime. In that regard, we note that FBI Safe Streets Task Forces (SSTFs) have, since their inception in 1993, made 186,140 arrests, obtained 40,681 indictments and 40,881convctions, and disrupted 2,208 and dismantled 434 criminal organizations.

Deficiencies in Methodology

Before discussing in detail the Repot's specific findings, we summarize below some general observations and concerns with the Report and its methodology.

Use of Anecdotal Opinion Comments

The OIG makes extensive use of anecdotal opinion comments in the Report. Many of the comments are not accompanied by the perspectives of other participants in the events referenced and, thus, lack the balance and context that multiple perspectives invariably provide. For an audit of this sort to yield accurate results, information from all possible sources should be taken into account to reliably identify ands and reach conclusions. Written survey instruments are often used for this purpose. The OIG has indicated that it did not employ such a too1 in this case.

Failure to Seek Responses to Interviewees' Comments

Statements by individuals regarding the performance or actions of other individuals or components included in the Report are rarely, if at all, accompanied by a response from the referenced individual or component. The OIG has confirmed in discussion that it typically did not seek responses to such statements, but accepted them at face value.

Lack of FBI HQ Program Management Input

The OIG audit would have benefited from earlier input by policy makers. The Assistant Director and the Deputy Assistant Director of the FBI's Criminal Investigative Division were not contacted by the OIG before it concluded that FBI Headquarters managers do not require coordination of task force operations. In essence, the OIG reached many conclusions about policy and coordination efforts without first consulting the policymakers.

Use of Improperly Defined Terms and Misinterpretation of Data and Policy

The audit results incorporate poorly or improperly defined terms. For example, the Report contains conclusions about “duplicate arrests” based on component comments as to whether there was cooperation on an “investigation” represented by a named arrestee. Given how Violent Gang SSTFs operate (i.e., an investigation is normally of a gang organization and not an individual), it is certainly the case that a component might not indicate there was coordination on an arrest of an individual, while there may have been ample coordination on the "investigation" of the gang to which that individual belonged. By relying on self-reporting by individuals in a component regarding whether they were aware of coordination, and without applying standard definitions regarding investigations, the OIG's conclusion about duplicate arrests and investigations cannot be an accurate assessment of either.

The OIG represented its conclusions on task force management, cooperation on investigations, and law enforcement event deconfliction though a series of graph chats. However, the absence of any rationale for the relevance of some of the criteria the OIG used as performance elements, or the manner in which performance was measured, detracts from the validity of the conclusions represented in the charts. There may be value in some of the findings set forth in some of the charts, but they are based on largely untested and unsupported reasoning.

Disputed Material

As stated above, deficiencies noted in the OIG's audit have resulted in erroneous conclusions or inferences regarding the FBI's coordination of violent crime task force activity. The most significant errors and inaccuracies are set forth below:

FBI Headquarters Guidance and Efforts Regarding Task Force Coordination

The OIG asserts that FBI Headquarters managers do not require their task forces to coordinate task force operations. On page 13 and in other locations in the Report in substance, the OIG states:

“Some components have nation-wide policies that require coordination of taskforce operations...In contrast, the FBI's policies do not address FBI coordination with new taskforces created by the other Department components or FBI participation in or coordination of investigations with violent crime taskforces lead by other Department components."

The FBI does, in fact, have nationwide policies for coordination, but does not instruct individual field offices in he means to most effectively accomplish coordination. The FBI recognizes that varying local circumstances influence how coordination is best accomplished and FBI Headquarters, after providing general guidance to its field offices, allows local field office managers the discretion to determine how to achieve optimum coordination with other taskforces. On page 7 of the Report, the OIG recognized that FBI Headquarters has in fact issued just such direction to the field. As noted in the Report, in 2004 FBI Headquarters began requiring that proposals for new SSTFs be submitted by SACs and approved by FBI Headquarters, and that those proposals must include "[A]n analysis of the crime problem within the FBI Safe Streets Task Force area; a list of the federal, state and local agencies that would participate on the FBI Safe Streets Task Force; and a list of existing task forces in the area with whom the new FBI Safe Streets Task Force would have to coordinate." (emphasis added). Not only do FBI Headquarters managers require coordination, FBI Headquarters approval of proposals for new task forces is contingent upon the proposal's inclusion of a satisfactory plan to achieve such coordination.

The FBI has long emphasized the importance of a coordinated approach to intelligence and investigative efforts. Cooperative relationships with our federal, state, local and tribal partners are essential to our work. Moreover, since the inception of the SSTF Program in the early 1990s, FBI Headquarters has consistently directed field offices to work cooperatively with other state, local and federal agencies to coordinate investigations and to work together in a unified law enforcement effort. In a memorandum from the Director to all SACs dated 11/16/93 announcing the FBI's National Gang Strategy, the following guidance is given: "[T]he task force concept is essential to ensure we eliminate any duplication of effort within the law enforcement community … the FBI, in conjunction with other affected federal, state, and local law enforcement agencies, will address....development of a multi-jurisdictional task force approach which will ensure field offices initiate and coordinate investigative efforts with other affected agencies... field offices will coordinate their intelligence-gathering efforts with other federal agencies, including the ATF, DEA,...all federal, state, and local law enforcement agencies are provided the opportunity to participate and contribute to this investigative effort."

The FBI will continue its coordination efforts with its law enforcement partners to reach agreements that result in each component achieving its mission and most effectively serving the public.

Duplicate Arrests/Duplicate Investigations

We disagree with the OIG's broad conclusion that duplicate arrest statistics indicate duplicate investigations or duplication of efforts. In fact, it appears that the OIG more likely has identified instances of duplicate reporting from multiple and disparate investigations rather than duplication of effort. The 1,288 arrests the OIG identified as being reported by more than one task force during a three year period (a nationwide average of only 429.3 each year for FYs 2003-2005) represents 1.3% of the 97,228 rota1 arrests made by the components examined. The 768 arrests labeled as "duplicate" by the OIG make up.78% of all arrests by the component agencies during the period. Even assuming that each of these arrests represent a duplicate investigation, the final number is so small as to be statistically insignificant. The OIG deemed a similar “duplication” percentage (.65% -196 out of 29,967 arrests erroneously reported by the United States Marshals Service (USMS)) as being of little consequence. Finally, seen another way, by its own accounting the OIG establishes that 99.2% of the nearly 100,000 component arrests proceeded without duplication of any kind --a testament to the coordination and deconfliction efforts of all of the DOJ component agencies.

On pages vii-ix of the Report, the OIG states,

"Of the 97,228 arrests the components’ taskforce made from FYs 2003 through 2005, we found that 1,288 had been reported by more than one taskforce. While this number is small, it represents significant efforts by to taskforces all (the way up to arrest...we found that the components conducted 768 duplicate investigations (60 percent) and cooperated in 520 joint investigations (40 percent).... Nonetheless, our analysis...demonstrated that the taskforces were more likely to duplicate another taskforce’s investigation than to cooperate in a joint investigation"

Further, the OIG conclusion that 7,611 arrests were duplicate arrests is not supported by its data. On page 25 of the Report, the OIG states, "'On the basis of the information the components provided, we identified four ways in which the components duplicated efforts," and broke down the composition of the figure of 768. Notwithstanding the FBI’s disagreement that duplicate arrest reporting is indicative of duplicate investigation, one of the “four ways” the OIG specifically identified as representing duplication does not qualify as either duplicate investigation or duplication of effort. The Report stated on page 26:

"In 81 arrests, one component reported that its taskforce became involved are the arrests, to prepare additional federal charges against the defendant or to arrange for the defendant transfer from the State to Federal custody. However, the component that conducted the pre-arrest investigation and made the arrest did not acknowledge the post-arrest participation of the other taskforce."

The OIG appears to describe a situation in which the USMS, upon assuming custody of a prisoner arrested by another component, determines the existence of additional warrants/charges --- charges other than the charges for which the other component initially arrested the subject --and "arrests" the prisoner for those charges in order to clear the other warrants. The key language in the OIG description that disqualifies the inclusion of this type of circumstance from any alleged "duplicated efforts" category are the words “became involved after the arrest” The OIG description of events indicates no duplicate efforts occurred concerning the initial arrest; one agency began a new "investigation" after another agency concluded its own by making an arrest.

The FBI does not agree with the Reports conclusion that the initial arresting agency should have acknowledged the post-arrest participation of the other task force. First, the initial agency is very likely unaware of the subsequent arrest on unrelated charges made by the other task force and therefore cannot be faulted for not including a reference to other task force/agency when reporting it’s arrest. Second, were the initial agency to become aware of a subsequent arrest of the subject on unrelated charges by another agency, the subsequent arrest would not be included during arrest reporting by he original arresting agency because it is unrelated to the initial arrest. Likewise, a custody transfer accomplished by one agency subsequent to a subject's arrest by another does not equate to participation in the initial arrest.

We object to another passage in the Report that discusses "duplicate" investigations. On page 30 of the Report, the OIG states,

"In these cities, we found that taskforces conducted duplicate investigations and wasted resources."

In view of the OIG's flawed interpretation of “investigation” and questionable data analysis, we disagree the law enforcement efforts in these cities represent “wasted resources.” This broad criticism is not borne out by the data.

Finally, we take issue with the statement appearing on page 22 of the Report, which reads,

"We found that the FBI and USMS fugitive taskforces have duplicated one another's efforts, and these duplicate investigations can create a risk to officer safety."

The OIG did nor establish that its duplicate arrest data (the inclusion of at least 81 arrests, or 10.5% of she total of the 768, likely being invalid as shown above), reliably indicated significant duplication in investigative efforts. The FBI takes seriously the need to ensure the safety of its Agents, other law enforcement officers and the public. As noted in the section of this response dealing with deconfliction, the Report did not identify a single instance of injury to either a law enforcement officer or member of the public as a result of inadequate deconfliction efforts by my of the components.

Event Deconfliction

The FBI is in full agreement with the need for effective deconfliction to ensure both officer safety and the effective use of resources. The FBI disagrees that effective deconfliction can only be achieved if law enforcement agencies deconflict every law enforcement action. Law enforcement officers conduct hundreds of thousands of investigations each year, many of them involving dynamic and fast-changing circumstances, The FBI believes existing information sharing/deconfliction efforts, while nor perfect, have functioned effectively and rejects the OIG’s conclusion that existing deconfliction efforts (particularity the FBI's) are inadequate.

The OIG defined its standard for effective information sharing and deconfliction on page xiii of the Report, as follows:

"We believe that the critical factor in event deconfliction is task force compliance with policies mandating the use of a common deconfliction system for every event....They are planning ---such as an undercover operation, surveillance or execution of a search warrant or arrest warrant.....Unless all law enforcement agencies operating in a geographic area notify one another by telephone, radio, or through an information sharing system of their planned events, officer safety can be put at risk."

Further, the FBI is concerned that the OIG's recommendation to "require each component to use national and local information-sharing and deconfliction systems to coordinate investigations and protect officer safety" could cause confusion. This is particularly true to the extent '"require" means to mandate systems that are not acceptable to all participating agencies, including the hundreds of state and local law enforcement partners on FBI task forces.

Page v of the Report includes the statement,

"We also found that failures to coordinate task force investigations resulted in three "blue on blue” incidents --incidents in which the failure to deconflict events resulted in taskforce members being misidentified as criminals by members of other taskforces."

The OIG identified three possible "blue-on-blue" incidents out of the thousands of investigative events (surveillance, arrests, searches, controlled buys, and undercover operations) conducted by the task forces whose operations were examined --and of the three events cited, one did not involve an encounter between two law enforcement officers and should not have been characterized as a "blue-on-blue" incident. The professionalism exhibited by the Officers, Deputy Marshals and Agents quickly defused the situations and no injuries resulted. The findings cited in the Report support neither the conclusion that existing deconfliction efforts are inadequate nor the recommendation that components and their state/local partners be required to use an additional, undefined, system --especially one so unworkable as to require deconfliction of every planned law enforcement action.

Joint Investigations/Cooperation on investigations

In several places in the Report, the OIG notes that the FBI infrequently joins the efforts of it SSTFs to other DOJ-component task forces. While we agree that there will be instances in which work between task forces is appropriate, we disagree with the notion that activity between task forces beyond deconfliction is an appropriate goal or represents an efficient use of task force resources. The DOJ components exercise sound judgment and cooperate when necessary, but are properly conducting investigations within their respective missions the majority of the time. There are approximately 1 million fugitives in the U.S. Task forces sometimes identify that they are pursuing the same subject. One subsequently steps aside, demonstrating coordination between agencies and avoiding the duplication the OIG asserts is occurring.

Nevertheless, the Report attributed to an FBI SSTF Supervisor a statement that the SSTF works firearms cases on its own, rather than turning over intelligence to the ATF. The FBI does not independently investigate felon-in-possession or illegal firearm cases. Rather, firearms violations are investigated when encountered as part of gang and violent crimes investigations. In February 2006, the FBI provided the OIG with FBI communications setting forth policy in the area of firearms violations. The policy statements establish the FBI as having concurrent jurisdiction with ATF for firearms violations integral to the FBI’s core gang and violent crime jurisdiction. As communicated to the OIG, this policy has been made available to the field by way of the FBI Manual of Investigative and Operational Guidelines and at least four separate Electronic Communications to the field from 1998 to the present.

To ensure the SSTF in question was abiding by FBI policy, we contacted the interviewee, who recalled the OIG question to be, "If you found a gun in a crack house would you notify ATF?" The Agent responded that he would not, as the FBI could charge the person with a firearms violation as part of its umbrella drug investigation. This is consistent with FBI policy and we are satisfied this and other FBI SSTFs are, consistent with FBI policy, not investigating stand-alone felon-in-possession or illegal firearm cases.

Finally, with regard to an incident reported on page 65 of the Report, the OIG states,

"...FBI Safe Streets Task Force members were conducting surveillance on a house when task force officers noticed that DEA Special Agents were conducting surveillance on the same house...the FBI Safe Streets Task Force members learned that the DEA had been investigating the targeted gang for a long time for drug trafficking before the FBI Safe Streets Task Force began a murder-for-hire investigation on the same gang...The U.S. Attorney had to referee between the two components. Both components have continued with their separate investigations, but said that they coordinate and deconflict on a daily basis."

The OIG confirmed that the DEA and FBI, in conjunction with the USAO, resolved the issue and coordinate/deconflict on a daily basis. The DEA’s concerns in this matter were entirely understandable, and the OIG justifiably cited the fact that the DEA had been conducting a long-term investigation. Also legitimate was the FBI's desire to move forward on its investigation; i.e., a murder-for-hire investigation. A potential for a murder-for-hire being carried out demands an immediate response, and the FBI was both with its jurisdiction and following proper investigative strategy to seek to move quickly. Ultimately, however, there was a need for the FBI to honor the DEA's ongoing efforts, which did occur. There will always be matters between agencies and taskforces that require resolution. The question should be whether such inevitable issues of agency overlap are satisfactorily resolved. Rather than representing a failure of coordination or need for joint investigation, we believe the resolution cited by the OIG is an example of the value of partnerships in law enforcement.

Conclusion

Certainly there is room for improvement in the conduct of FBI task force coordination, and the FBI remains committed to improving its efforts in this regard. We believe the many instances of documented coordination between the FBI and its partners, the failure by the OIG to establish more than nominal duplication of effort or risk to officer safety, and the significant record of success established by the FBI and its partners in pursuit of their various missions, suggest that FBI and DOJ component task force Coordination is generally very effective.

Sincerely,

(Signature)

Kenneth W. Kaiser
Assistant Director
Criminal Investigative Division