The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines
Office of the Inspector General
In this chapter we discuss the role of confidential informants in FBI investigations and the rewards and risks associated with their operation. We also describe the requirements of the Confidential Informant Guidelines and the May 2002 revisions to the Guidelines. We then describe the results of our compliance review of informant files in 12 FBI field offices. Finally, we provide our analysis and recommendations based on those findings, our surveys and interviews, and the results of more than 40 FBI Inspection Division audits of field office Criminal Informant Programs.
According to the Confidential Informant Guidelines, a confidential informant or "CI" is "any individual who provides useful and credible information to a Justice Law Enforcement Agency (JLEA) regarding felonious criminal activities and from whom the JLEA expects or intends to obtain additional useful and credible information regarding such activities in the future."154 The Guidelines do not apply to the use of confidential informants in foreign intelligence or foreign counterintelligence investigations or to informants operating outside the United States in connection with extraterritorial criminal investigations (unless the informant is likely to be called to testify in a domestic case).155
A confidential informant differs from two other categories of sources. "Cooperating witnesses," or "CWs," differ from CIs in that CWs agree to testify in legal proceedings and typically have written agreements with the Department of Justice (DOJ) (usually with an Assistant U.S. Attorney) that spell out their obligations and their expectations of future judicial or prosecutive consideration. The FBI must obtain the concurrence of the U.S. Attorney's Office with regard to all material aspects of their use by the JLEA.156 "Assets" are sources who assist the FBI in international terrorism, foreign intelligence, or foreign counterintelligence investigations.
Persons who provide information to the FBI but do not fall into one of these specific classifications are referred to generally as "sources of information." A source provides information to a law enforcement agency only as a result of legitimate routine access to information or records. Unlike what is often the case with regard to CIs and CWs, a source does not collect information by means of criminal association with the subjects of an investigation. Under the Guidelines, a source must provide information in a manner consistent with applicable law.157
Confidential informants are often uniquely situated to assist the FBI in its most sensitive investigations. They may be involved in criminal activities or enterprises themselves, may be recruited by the FBI because of their access and status, and, since they will not testify in court, usually can preserve their anonymity.
According to the FBI's Manual of Investigative Operations and Guidelines (MIOG), CIs are classified in each of the following categories: Organized Crime, General Criminal, Domestic Terrorism, White Collar Crime, Confidential Source, Drugs, International Terrorism, Civil Rights, National Infrastructure Protection/Computer Intrusion Program, Cyber Crime, and Major Theft and Violent Gangs.158
Since the inception of the FBI in 1908, informants have played major roles in the investigation and prosecution of a wide variety of federal crimes.159 The FBI's Top Echelon Criminal Informant Program was established in 1961 when FBI Director J. Edgar Hoover instructed all Special Agents in Charge (SACs) to "develop particularly qualified, live sources within the upper echelon of the organized hoodlum element who will be capable of furnishing the quality information" needed to attack organized crime.160 In 1978, the FBI replaced that program with the Criminal Informant Program. Its mission is to develop a cadre of informants who can assist the FBI's investigation of federal crimes and criminal enterprises. Informants have become integral to the success of many FBI investigations of organized crime, public corruption, the drug trade, counterterrorism, and other initiatives.
Directors of the FBI frequently make reference to the value of informants while acknowledging that they present difficult challenges. In a June 1978 article, Director William Webster stated:
Not many people know very much about informants: and to many people, it's a queasy area. People are not comfortable with informants. There is a tradition against snitching in this country.
When we asked Director Mueller about the value of confidential informants today, he stated:
Human sources are vitally important to our success against terrorists and criminals. They often give us critical intelligence and information we could not obtain in other ways, opening a window into our adversaries' plans and capabilities. Human sources can mean the difference between the FBI preventing an act of terrorism or crime, or reacting to an incident after the fact.
Since the May 2002 revisions to the Investigative Guidelines were issued, the FBI has operated up to [SENSITIVE INFORMATION REDACTED] confidential informants at any one time. Larger field offices may simultaneously operate as many as [SENSITIVE INFORMATION REDACTED] informants, while smaller offices [SENSITIVE INFORMATION REDACTED]. According to the FBI's Human Intelligence Unit (HIU), as of April 30, 2005, the FBI was operating among its informants:
The FBI tracks the productivity of its CIs by aggregating their "statistical accomplishments," i.e., the number of indictments, convictions, search warrants, Title III applications, and other contributions to investigative objectives for which the CI is credited.164
Many, if not most, of the successes of the Criminal Informant Program are not widely known, because unlike the case with a cooperating witness who typically testifies at trial, an informant's identity rarely becomes public. In the course of this review, the FBI provided the following illustrations of cases in which FBI informants played a pivotal role in recent prosecutions.
Offsetting the many benefits that result from the use of confidential informants are the significant risks their use introduces for the United States Government. As Phillip B. Heymann, the former Deputy Attorney General and Assistant Attorney General in charge of the Criminal Division, observed:
[S]ome informants are responsible citizens who report suspected criminal activities without any hope of return. In the middle, other informants live in the midst of the criminal underworld and inform largely for cash. Still others, at the other pole, are charged with serious crimes and cooperate with law enforcement officials in return for the hope or promise of leniency.166
In some past cases, the FBI's use of informants violated the Informant Guidelines, the MIOG, or federal or state law, with serious adverse consequences to prosecutions, third parties, agents' careers, and the FBI's reputation. We describe below cases in which agents engaged in criminal or administrative misconduct in handling informants, informants committed unauthorized crimes and asserted claims and defenses against the government based on their informant status, and third parties initiated litigation against the government claiming injuries arising from the conduct of informants.
FBI Misconduct Relating to Informants. Serious FBI misconduct relating to the handling of informants can result in criminal prosecution. For example, in June 2002 John J. Connolly, Jr., who served as a Special Agent in the FBI's Boston office and handled complex organized crime investigations, was convicted following a jury trial of racketeering, obstruction of justice, and making false statements arising from his mishandling of FBI informants Whitey Bulger and Stephen Flemmi.167 We describe the Bulger-Flemmi matter in CI Case Study 1, below.
Misconduct related to an informant can also result in administrative sanctions for the agent. In one recent case, an FBI Special Agent resigned while under investigation by the FBI's Office of Professional Responsibility (OPR) for having an inappropriate relationship with an informant and failing to be truthful during the ensuing OPR inquiry. OPR determined that among the factors aggravating the misconduct were the agent's failure to document his contacts with the informant, misuse of the agent's official position by assisting the informant's relative with legal and business matters, and the agent's effort to make the relative an "informal informant." In a 1999 case, an FBI agent was suspended for having an inappropriate relationship with a prospective informant, failing to properly document the individual as a CI, and failing to arrange for the arrest of the CI source after discovering there was an outstanding warrant for the source's arrest.168
Criminal Prosecution of Informants. Federal criminal prosecution of FBI informants can result from the informant's unauthorized criminal conduct or from situations in which the informant exceeds the scope of his authority to engage in "otherwise illegal activity" under the Informant Guidelines. In such cases, the informants often claim in defense that the government authorized or immunized their crimes. For example, in United States v. Hilton, 257 F.3d 50 (1st Cir. 2001), an informant who was prosecuted for possession of child pornography claimed "entrapment by estoppel," asserting that he reasonably believed he was lawfully permitted to download the pornography as long as he sent it on to law enforcement. The court rejected the defense, ruling that while the FBI contact agent had initially approved the defendant's possession of child pornography, the agent later clarified that "the FBI no longer required his assistance and that possession of child pornography was illegal." Id. at 56.
One of the more notorious of such cases is the Bulger-Flemmi matter described below in Confidential Informant Case Study 1. Stephen "the Rifleman" Flemmi and James "Whitey" Bulger, were "Top Echelon" confidential informants for the FBI's Boston office. Along with four co-defendants, they were indicted for racketeering, conspiracy, extortion, and bookmaking charges in 1995. Bulger was tipped off by FBI Special Agent John Connolly to his pending arrest. Bulger evaded law enforcement and remains a fugitive. As the following case study describes, when the government prosecuted Flemmi, he claimed that the FBI had authorized the crimes for which he was indicted.
Similarly, an "authorization" defense arose in the prosecution of Jackie Presser, a Teamsters official who was charged with embezzling over $700,000 in union funds. Presser asserted as an affirmative defense that he had been an FBI informant for 10 years and was authorized by the FBI to hire "phantom" or "no-show" employees. When Presser's FBI handlers testified under oath, they confirmed the assertions supporting Presser's defense. The government thereafter declined to prosecute Presser and consented to vacating earlier convictions of two phantom employees. A report by the staff of the Senate's Permanent Subcommittee on Investigations, one of three committees that investigated the matter, concluded that DOJ had failed to adequately monitor the FBI's informant system and should have required the FBI to disclose information about its informants.169
Civil Litigation Based on Claims by Informants and Third Parties. By their terms, none of the Investigative Guidelines creates enforceable rights by CIs or anyone else. Specifically, the Informant Guidelines state:
Nothing in these Guidelines is intended to create or does create an enforceable legal right or private right of action by a CI or any other person.
CI Guidelines, § I.H. Despite this statement, private litigants - including confidential informants - have advanced alternative theories of liability against the United States, its law enforcement agencies, and individual agents and prosecutors based on informant or FBI misconduct, or some combination of the two. For example, the following types of claims have been litigated:
Other Informant Issues Arising During Federal Prosecutions. Since the January 2001 revisions to the Confidential Informant Guidelines, critical decisions about the registration and oversight of certain types of confidential informants are made jointly by the FBI and the Department of Justice. Other developments concerning confidential informants and certain decisions made exclusively by the FBI regarding informants require notice to DOJ or the U.S. Attorneys' Offices.170 In addition, § I.E of the Confidential Informant Guidelines provides that employees of the FBI and other Department of Justice Law Enforcement Agencies to which the Guidelines apply "have a duty of candor in the discharge of their responsibilities" under the Guidelines.
When the FBI fails to afford the required notice, fails to document activities or events involving informants in accordance with the Confidential Informant Guidelines, or is not candid with prosecutors concerning informant-related issues, the informants or other subjects of criminal prosecutions may claim that the government's failure to provide exculpatory or impeachment information arising from the informant's activities amounts to a violation of their constitutional rights. This was illustrated in United States v. Blanco, 392 F.3d 382 (9th Cir. 2004), in which the court held that the Government "wrongly suppressed" impeachment information about a confidential informant in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), during a narcotics prosecution. In particular, the court ruled that the Government had suppressed information pertaining to the special immigration treatment provided to the confidential informant by the Immigration and Naturalization Service (INS) for his work with the Drug Enforcement Administration (DEA). The court found that the DEA was well aware of the informant's immigration status, and the Government affirmatively represented that the informant's sole reward for work was monetary compensation, but it was not clear whether the prosecutor knew of the informant's immigration status because the DEA had been reluctant to provide information to the prosecutor. As a result, the appellate court issued an order requiring the district court to order the government to reveal all informant-related information.
Another issue that may arise is that the informant's identity will be disclosed in the course of the prosecution. The common law "informer's privilege" generally shields an informant's identity, but countervailing constitutional or policy considerations may result in court-ordered disclosure. In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Supreme Court recognized "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of the law." The informer's privilege is qualified, however, and the court may override the privilege and order disclosure of the informant's identity if disclosure is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro, 353 U.S. at 60-61. The determination whether to disclose the identity of a confidential informant requires the court to balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62.172
As the foregoing cases illustrate, when the FBI formalizes a relationship with a confidential informant, both the investigative benefits and the risks are substantial. Accordingly, the administrative and operational rules and procedures employed by the FBI ensure careful evaluation and oversight of informants and that appropriate expertise from both the FBI and DOJ is employed to evaluate informants who present the greatest risks and benefits to the interests of the government. The Confidential Informant Guidelines prescribe the process by which FBI Special Agents and their supervisors propose, approve, and operate confidential informants. We summarize below the major steps in that process.
The Confidential Informant Guidelines prescribe how FBI agents are to obtain approval to evaluate and operate confidential informants. The period during which an individual is evaluated as a prospective informant is called the "Suitability Inquiry Period." During this period, the Guidelines require that a case agent proposing to operate a confidential informant complete an Initial Suitability Report & Recommendation (ISR&R). The ISR&R addresses 17 different factors, including the person's age, alien status, and the following particulars:
CI Guidelines § II.A.1.
A proposed informant may remain in "suitability inquiry status" for up to 120 days with an extension of an additional 120 days.172 Thereafter, if the case agent is satisfied that the person is suitable, the case agent may register the person as a confidential informant, subject to the field manager's approval. At this juncture, the case agent must document in the CI's files:
CI Guidelines § II.B.
The Guidelines also require that case agents complete and sign a Continuing Suitability Report & Recommendation (CSR&R) at least annually and forward the document to a field manager for approval. The CSR&R must address all the factors covered in the initial suitability review and, in addition, state the length of time the person has been a CI and the length of time the CI has been handled by the same agent or agents.
The FBI's determination of a source's suitability to serve as a confidential informant is a pivotal judgment. Since the revisions to the CI Guidelines in January 2001, judgments about registering and retaining high-risk or particularly sensitive informants have been jointly made by the FBI and senior DOJ prosecutors. In addition, the Confidential Informant Guidelines require additional scrutiny and higher approval levels for confidential informants who fall into any of the following three categories:
Long-tern confidential informants, defined as those who have been registered for more than six consecutive years;173
High level confidential informants, defined as individuals who are part of the senior leadership of an enterprise that (a) has (i) a national or international sphere of activities, or (ii) high significance to the FBI's national objectives, even if the enterprise's sphere of activities is local or regional, and (b) engages in or uses others to commit activity that qualifies as Tier 1 Otherwise Illegal Activity under the Guidelines;174 and
Privileged confidential informants, defined as individuals who are under the obligation of a legal privilege of confidentiality (such as doctors, lawyers, and clergy) or individuals who are affiliated with the news media.175
For these categories of informants, approval must be secured from the Confidential Informant Review Committee (CIRC), which also provides ongoing oversight over these types of informants.176 As we discuss in Chapter Seven, the CIRC focuses on critical aspects of the informant relationship through an exchange of information between the field offices that operate the informants and senior FBI and DOJ officials who test various assertions about the CI's reliability and productivity, the scope of any FBI-authorized "otherwise illegal activity," the implications for the FBI's relationship with the informant of any unauthorized illegal activity by the CI, and the various risks attendant to maintaining a relationship with particular informants.
Special Agents who handle CIs are required by the Guidelines (and the MIOG) to instruct or caution them at certain intervals. The instructions convey to the CI the scope of the informant's authority, the limits on the FBI's assurances of confidentiality, prohibitions against certain types of activity, and the possible consequences of violating these conditions. Upon registering a CI, the case agent, along with one other agent who must be present as a witness, is required to review with the CI the following written instructions:
CI Guidelines § II.C.1.
In addition, if applicable, the case agent must add the following instructions:
As described in the next section of this chapter, if the informant is authorized to engage in "otherwise illegal activity," the FBI must provide additional detailed instructions addressing the scope and limits of the authority. CI Guidelines § III.C.4.
For all categories of informants, the instructions formalize the relationship between the individual and the FBI. If the constraints within which the informant is to operate are not clear and well documented, unnecessary risk results. Failure to adhere to the Guidelines' provisions requiring periodic instructions can result in claims by informants that they had authority from the FBI to commit crimes and can thereby jeopardize investigations and prosecutions of informants and others or result in civil liability for the government.
The Confidential Informant Guidelines permit the FBI to authorize confidential informants to engage in activities that would otherwise constitute crimes under state or federal law if engaged in by someone without such authorization. Such conduct is termed "otherwise illegal activity" or "OIA."
There are two types, or levels, of OIA: "Tier 1 OIA" and "Tier 2 OIA." Tier I OIA, the most serious, is defined as any activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization and that involves the commission or the significant risk of the commission of certain offenses, including acts of violence; corrupt conduct by senior federal, state, or local public officials; or the manufacture, importing, exporting, possession, or trafficking in controlled substances of certain quantities.177 "Tier 2 OIA" is defined as any other activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization.178
Both Tier 1 and Tier 2 OIA must be authorized in advance, in writing, for a specified period not to exceed 90 days. Tier 1 OIA must be approved by an FBI SAC and the "appropriate Chief Federal Prosecutor," typically the U.S. Attorney in the district that is participating in the investigation utilizing the CI.179 Tier 2 OIA may be approved by a senior FBI field manager (usually an Assistant Special Agent in Charge (ASAC) or a Supervisory Special Agent (SSA)), but does not require the approval of the U.S. Attorney.180 The Guidelines state that the FBI is never permitted to authorize a CI to participate in an act of violence, obstruction of justice, or other enumerated unlawful activities. CI Guidelines § III.C.1.b.
Authorizing confidential informants to engage in otherwise illegal activity can facilitate their usefulness as a source of information to the government but may also have adverse consequences. As illustrated in the Bulger-Flemmi and Presser cases described earlier, the confidential informant's criminal activity can hinder prosecution of the informant's co-conspirators by prompting, for example, defenses of public authority or entrapment. Moreover, OIA authorizations may have unforeseen consequences. For example, a decision to authorize a confidential informant to engage in bookmaking may create difficulties in prosecuting the informant or co-conspirators on charges related to the informant's activity.
Before either level of OIA may be authorized, the authorizing official must make certain findings as to why it is necessary for the CI to engage in the OIA and assess whether the benefits to be obtained from the FBI's authorization outweigh the risks. Specifically, the FBI must make a finding, documented in the CI's file, that the authorization for the CI to engage in the Tier 1 or Tier 2 OIA
If the OIA is approved, at least one FBI agent and an alternate agent must review special written instructions with the CI that the CI must sign or initial and date the form. The instructions must address the limits of the authority, the specific conduct authorized, the time period specified, prohibitions on certain behavior, including acts of violence and obstruction of justice, and the consequences to the CI of operating outside the authority granted. In addition, if the OIA is extended past the initial authorized time period, the informants must receive and sign the instructions pertaining to the OIA every 90 days. CI Guidelines, § III.C.4; MIOG § 137-10(9).
[SENSITIVE INFORMATION REDACTED],182 [SENSITIVE INFORMATION REDACTED],183 [SENSITIVE INFORMATION REDACTED].184 If an informant has engaged in unauthorized illegal activity, the FBI's originating field office must respond to seven questions from the FBI's Human Intelligence Unit (HIU) (formerly the Asset/Informant Unit in the Criminal Investigative Division) that focus on whether, in the judgment of the SAC, the informant nevertheless remains suitable. The SAC must also address other important issues triggered by the UIA, including whether the case agent or handler has attempted to intercede on behalf of the informant or to make any recommendations to state or local authorities regarding the informant's case. See MIOG § 137-11(4). FBI officials and prosecutors we interviewed during this review told us that when FBI agents get too close to their sources, they sometimes improperly intervene to assist their informants if they are arrested or run into other difficulties.185
The Guidelines recognize that if a confidential informant commits unauthorized illegal activity, the FBI and DOJ should immediately reevaluate the informant's continuing suitability. The Guidelines require that the unauthorized illegal activity must immediately be brought to the attention of senior FBI field office and Headquarters personnel, as well as the U.S. Attorney, so that a careful reevaluation is made of the informant's suitability in the following circumstances. First, if the FBI has reasonable grounds to believe that a confidential informant who has current authorization for Tier 1 or Tier 2 otherwise illegal activity has engaged in any criminal activity that is not authorized, the SAC must immediately notify the U.S. Attorney's Office of the CI's criminal activity and his or her status as a CI. CI Guidelines, § IV.B.1. Second, if the FBI knows that a confidential informant who has no current authority to engage in otherwise illegal activity has engaged in any criminal activity, the SAC must also immediately notify the U.S. Attorney. Id. Such notice is not required, however, when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier I OIA or been involved in an investigation that is utilizing the CI. CI Guidelines § IV.B.1.
If these steps are not taken and the informant continues to operate, serious complications may develop, including situations where prosecution of the informant is jeopardized because the informant claims the government acquiesced in the continuing illegal activity.186 On the other hand, if the FBI makes the limits of the informant relationship clear and documents its instructions to the informant, such claims are less likely to be sustained.187
The case of informant Gregory Scarpa, Sr. is an example of how an informant's unauthorized illegal activity can compromise criminal prosecutions. As described in the following case study, the FBI's informant relationship with Scarpa, a "capo" of a New York organized crime family, became controversial in several significant federal prosecutions in the 1990s. According to testimony presented in these cases, Scarpa's FBI handler ignored unauthorized criminal activity by Scarpa; revealed confidential law enforcement information to him, including the FBI's planned surveillance of a mob hangout; and helped Scarpa's son avoid arrest.
Due to the risks involved in operating informants and the corresponding need to closely supervise their status and operation, the Guidelines prescribe that certain steps be taken in the event a confidential informant is deactivated or "closed."188 If a determination is made to close a confidential informant, whether for "cause" or for any other reason, the case agent must document the reasons for deactivation in the CI's file. The MIOG defines "cause" as:
any grievous action by or set of previously unknown facts/circumstances that deem the individual not suitable for use as a CI. Such actions that might give "cause" include but are not limited to: disbarment; unauthorized criminal activity; incarceration; failure to follow instructions; violation of any parole, release guidelines or agreements; providing unreliable information, etc.189
When an informant is closed, the agent must also notify the CI that he or she has been deactivated and document this notification.190 Moreover, if the CI is authorized to engage in otherwise illegal activity (Tier 1 or Tier 2), the case agent must revoke this authorization, and document its revocation. CI Guidelines § V.A.4. If a U.S. Attorney's Office is either "participating in the conduct of an investigation" that is utilizing a CI or "working with a CI in connection with a prosecution," the FBI must coordinate with the prosecuting attorney assigned to the matter, "in advance whenever possible," regarding specified decisions relating to the CI, including a decision to deactivate a CI. CI Guidelines § V.D.
There have been many cases in which the confidential informant's status was unknown to the prosecution, among them the Bulger-Flemmi matter described above in CI Case Study No. 1. Flemmi and Bulger were opened, then deactivated or closed for various periods of time when they became suspects or targets of other investigations. According to prosecutors who are familiar with their FBI informant files, one could not tell looking at their files when they were opened, active, or closed as informants.191 Unless the informant's status is clear, the government may not be able to fully meet its discovery obligations. Moreover, if informants are closed but the FBI cannot document this fact along with any required revocation of OIA authority, the government becomes vulnerable to the defense that the FBI authorized the informant's illegal activities.
As described in Chapter Two, major revisions of the Confidential Informant Guidelines were approved by Attorney General Reno on January 8, 2001. The 2001 revisions were the product of a 2-year effort by a joint FBI-DOJ committee known as the "Resolution 18 Committee." The 2001 revisions included significant modifications to the provisions regarding suitability, authorization to engage in otherwise illegal activity, the prohibition against making commitments to the CI regarding immunity from prosecution, and notifying the prosecutor of the confidential informant's true identity. As we discussed in Chapter Two, many of the modifications to the previous version of the Guidelines attempted to address administrative and management weaknesses that came to light during the Bulger-Flemmi matter.
Further revisions in May 2002 made only minor modifications to the Confidential Informant Guidelines.192 Under the January 2001 Guidelines, case agents who worked with confidential informants were required to read to CIs verbatim certain instructions about the constraints imposed on their activities. This provision was replaced in May 2002 by a requirement that the contact agent or "handler," along with an additional agent present as a witness, review the written instructions with the CI. CI Guidelines § II.C.1. The removal of the verbatim requirement was needed, according to FBI Director Mueller, because "the verbatim instructions, written in often intimidating legalese, were proving to have a chilling effect, causing confidential informants to leave the program."193
Under the May 2002 revisions, an agent may now adapt the instructions - including the instructions on protecting the confidentiality of the CI's identity - to the CI's particular circumstances. Nonetheless, agents must clearly convey the content and meaning of each applicable instruction and document that the instructions were reviewed and that the CI acknowledged the CI's understanding of them.194
Under the Confidential Informant Guidelines issued in January 2001, case agents who worked with CIs were required to give an instruction to the CIs (even if they had no relevance to the CI's situation), relating to the inability of investigative agencies to promise immunity from prosecution. The revised Guidelines emphasize that regardless of whether these instructions are given, the FBI has no authority to confer immunity, and agents must avoid giving CIs the erroneous impression that they have such authority. CI Guidelines §§ II.C.1 (d), (e), and (k).
To test compliance with key provisions of the Informant Guidelines in the investigative files we reviewed, we selected a judgmental sample of 120 individual confidential informant files from 12 FBI field offices we visited between June and August 2004. The CI files we reviewed fit into at least one of four categories: long-term CIs, CIs authorized to perform otherwise illegal activity, privileged or media-affiliated CIs, and CIs who are not reviewed at FBI Headquarters.195 The files included some CIs who were reviewed by the CIRC and some who were authorized only at the field level.196 Among the "non-CIRC" CIs we reviewed, we chose CIs who were opened for over one year, CIs from different squads and programs, CIs who had been paid substantial sums, and CIs who were closed more than six months after the May 2002 revisions became effective.197
In examining individual informant files, we collected data on: suitability determinations, instructions, documentation and notifications to U.S. Attorneys' Offices of unauthorized illegal activity, approval of otherwise illegal activity, and deactivations.198 We sought to answer the following key questions.
Taken together, we believe these five factors address critical judgments the FBI must make under the existing Confidential Informant Guidelines to ensure that those registered as confidential informants are suitable and understand the limits of the relationship, and that responsible DOJ officials approve, concur in, or are notified of significant developments in the informant relationship. The requirements we tested became effective 120 days after issuance of the revised Confidential Informant Guidelines in January 2001. These requirements were unaffected by the May 2002 Guidelines revisions.
In addition to our review of informant files, we also examined field guidance distributed by the FBI's Criminal Investigative Division (CID) and the results of various reviews of the Criminal Informant Program. The reviews included inspection reports generated by the FBI's Inspection Division and reinspections coordinated by the Asset/Informant Unit (A/IU) in the Criminal Intelligence Section of the CID. We also examined the role played by Confidential Informant Coordinators, who are GS-10 through GS-13 non-supervisory Special Agents who have the responsibility, as their principal assignment or as collateral duty, to assist FBI agents with issues associated with the administration and operation of human sources. Confidential Informant Coordinators also work with confidential file room analysts in managing the special recordkeeping and document management requirements of the Criminal Informant Program, troubleshoot problems, and assist in the training and administrative aspects of informant operations.200 We surveyed these Coordinators about the work they do in supporting the Criminal Informant Program and solicited their views on FBI compliance with the Guidelines.201 To supplement these findings, we also surveyed FBI Division Counsel and the Chiefs of the Criminal Division of the U.S. Attorneys' Offices for their perspectives on compliance-related aspects of the Confidential Informant Guidelines.202
Overall, we found one or more Guidelines deficiencies in 104 of the 120 confidential informant files, or 87 percent of those we examined. The deficiencies included failure to document the agent's evaluation of one or more suitability factors in the initial or continuing suitability evaluations, failure to give the required instructions to CIs or to do so at the required intervals, failure to obtain proper authority to permit CIs to engage in otherwise illegal activities, issuance of retroactive approvals of otherwise illegal activities, failure to report unauthorized illegal activity in accordance with the Guidelines, and failure to document deactivation of CIs.
The following table summarizes our compliance findings by category.
We set forth below our findings for each of the five compliance categories we tested in our review of 120 individual confidential informant files. Due to the critical interaction mandated by the Guidelines between the FBI and the U.S. Attorneys' Offices, we separately address compliance findings relating to those exchanges.
As we discussed above, suitability reviews are the initial and periodic reviews undertaken by FBI Special Agents and their supervisors to evaluate the suitability of those whom they propose to operate or to continue operating as confidential informants. In one form or another, suitability reviews have been required for all confidential informants since the first set of Attorney General Guidelines issued in 1976.
Since January 2001, Special Agents proposing to designate a source of information as a confidential informant have been required to research at least 17 different factors which, collectively, will inform the initial suitability determination. Prospective confidential informants are initially placed in Suitability Inquiry Status (SIS) for up to 120 days, during which these factors are researched and evaluated by the Special Agent who is proposing to "run" or operate the confidential informant. If the case agent proposes, and the field manager approves, the suitability of an individual to serve as a confidential informant, the informant is "registered" as a confidential informant, at which point certain identifying and other information is placed in the informant's file. CI Guidelines § II.B.
The suitability elements listed in § II.A of the CI Guidelines address several concerns, including whether the CI's information can be corroborated and is relevant to an investigation's objectives. If the informant's information cannot be corroborated, it is likely to be insufficient for critical purposes (e.g., the informant will not establish probable cause for a search warrant or Title III wiretap under either Aguilar v. Texas, 378 U.S. 108 (1964), Spinelli v. United States, 393 U.S. 410 (1969), or Illinois v. Gates, 459 U.S. 1028 (1982)), and, at worst, part of an effort by the informant to serve the informant's own purposes at law enforcement expense.
Agents must also address the nature of the CI's relationship to the subject or target of the investigation. This is another means by which to assess the potential relevance of the confidential informant's information and also flag potential negative suitability issues. For instance, if the prospective confidential informant is a bookmaker who has been taken into the confidence of a mafia boss, he would be a potentially ideal informant from the standpoint of a cost/benefit analysis. The confidential informant presumably will have valuable information about an important target but is not committing crimes nearly as serious as the target's. If the situation is the reverse, however, it may not be a productive arrangement for the government. For example, confidential informants Bulger and Flemmi were mob bosses who were providing information about lower-level criminals and crimes while using law enforcement to serve their criminal purposes and preserving the possibility of an informant defense if prosecuted themselves for murder and other serious crimes.207
Of the 120 CI files we reviewed, 44 required an Initial Suitability Report & Recommendation (ISR&R) during the period of our review.208 Of those 44 CI files, we found that:
Case agents who operate confidential informants are also required to make continuing suitability reviews at least annually and to forward their reports and recommendations to their field managers for approval. CI Guidelines § II.A.2. Case agents must address all of the applicable factors required for the initial suitability determination and, in addition, indicate the length of time the individual has been registered as a confidential informant and the length of time the individual has been handled by the same agent or agents.
We found that 2 of the 12 field offices we visited did not require case agents to perform the continuing suitability reviews required by § II.A.2 of the Confidential Informant Guidelines.210 Of the 120 CI files we reviewed, 96 required a Continuing Suitability Report & Recommendation (CSR&R) during the period of our review. Of the 96 CI files (including files from the 2 offices that did not complete CSR&Rs), we found that 57 of the 96 files, or 59 percent, did not contain 1 or more required CSR&Rs. The breakdown of the 57 files that did not contain a required CSR&R is as follows:
Our surveys of Informant Coordinators also revealed concerns about agents' compliance with the suitability assessment requirements. With regard to the critical initial evaluation of CIs' suitability, 27 percent of the Coordinators said they believe that insufficiently rigorous suitability determinations are an occasional concern in their respective field offices, and 43 percent said they believe that agents' failure to devote adequate time to complete the paperwork associated with confidential informants is an occasional concern.211
As described earlier, when a confidential informant is registered, the case agent must review with the CI, in the presence of another agent, written instructions or admonishments detailing the constraints under which the CI is to operate. The Guidelines require that the content and meaning of the instructions must be clearly conveyed, but as of May 2002, they no longer require that the instructions be read verbatim. After the instructions are given, the case agent must obtain the CI's acknowledgement of the CI's receipt and understanding of the instructions and must document that the instructions were reviewed with the CI and that the CI acknowledged his or her understanding of them.
The 120 CI files we reviewed all involved informants who were supposed to be instructed by the assigned case agents at registration, annually, or both. Of those 120 CI files, we found that:
The following table illustrates our field office compliance findings with respect to documentation of the requirement to provide instructions to confidential informants.
The following table illustrates the significant disparity in the number of days the FBI was late in providing the required instructions, either upon registration of the CI or in giving the annual instructions.
Our findings that all required instructions were not given in a substantial percentage of the sampled CI files were corroborated by the survey responses from Confidential Informant Coordinators. As reflected in the following diagram, Informant Coordinators told us that they believed case agents in their field offices are communicating the required instructions and are delivering them in the presence of another law enforcement officer in all cases less than two-thirds of the time. Informant Coordinators further reported that adherence to the requirement that instructions be repeated every 12 months is even lower. As the following diagram illustrates, only 32 percent of Informant Coordinators said the annual instructions are given in all cases, and 66 percent stated they are given in a majority of cases.'
As described earlier in this chapter, under some circumstances the Confidential Informant Guidelines permit confidential informants to engage in otherwise illegal activity (OIA). The most serious OIA is called "Tier 1 OIA," which must be authorized by the FBI Assistant Director in Charge or Special Agent in Charge of the Field Office or Division and the appropriate U.S. Attorney in advance and in writing. The authorization is effective for a period not to exceed 90 days.213 "Tier 2 OIA" may be authorized for a period not to exceed 90 days by a senior field manager214 and must also be in writing.215
In order to be authorized to engage in either Tier 1 or Tier 2 OIA, the informant must be a fully operational CI, a status obtained only when the CI is "registered" at the conclusion of a successful suitability inquiry period.216 In addition, the authorizing official must make a finding that the authorization to engage in OIA is necessary either to obtain information or evidence that is essential for the success of the investigation and that is not reasonably available without the authorization, or to prevent death, serious bodily injury, or significant property damage, and that, in either case, the benefits to be obtained from the informant's participation in OIA outweigh the risks.
According to a senior HIU official, in a typical drug investigation Tier 1 OIA is usually limited to negotiating the purchase of drugs in quantities that exceed the Federal Sentencing Guidelines' provision referenced in the definition of Tier 1 OIA in § I.B.10.b.iii of the Confidential Informant Guidelines, or engaging in activities that involve a significant risk of violence. The official said that Tier 2 OIA typically involves similar activities to Tier 1 OIA but drug amounts below the sentencing guidelines thresholds and with no significant risk of violence.217 In a public corruption investigation, Tier 1 OIA might involve conspiratorial conversations involving bribery of a high level public official, while Tier 2 OIA would involve similar conversations about a lower level official.
We surveyed Confidential Informant Coordinators to see if they believed case agents in their field offices were complying with the Guidelines' requirement to obtain the informant's written acknowledgement of instructions relating to authority to engage in otherwise illegal activity.218 Only 52 percent of the Coordinators reported that they believed agents in their field offices obtain the required written acknowledgements in all cases, and only 36 percent said they believed that agents in their field offices are conveying in all cases the instructions indicating that the CIs have not been authorized to engage in any criminal activity and have no immunity from prosecution.
We reviewed 25 informant files in which OIA was authorized, of which 2 included Tier 1 OIA and 23 were exclusively Tier 2 OIA.219 With respect to the Guidelines' requirements governing the authorization of OIA, our findings confirmed the views of the Confidential Informant Coordinators. We found that 15 of the 25 files, or 60 percent, reflected compliance deficiencies. The deficiencies included OIA authorizations for sources who had not yet been registered as CIs, retroactive authorizations of OIA, authorizations of Tier 2 OIA that should have been denominated as Tier 1 and therefore required DOJ approval, insufficiently specific descriptions of OIA, failures to obtain the CI's written acknowledgment of instructions regarding the limits of OIA activities, and failures to provide required instructions.
Four of the 25 files, or 16 percent, indicate that sources were authorized by field supervisors to engage in Tier 2 OIA from 45 to 154 days before the source was approved for conversion to a fully operational confidential informant. Although these four files do not indicate when the OIA was actually performed, we consider this to be a Guidelines violation since the period during which the CI was authorized to engage in OIA preceded the period for which the CI was eligible to engage in OIA under the Guidelines. The Tier 2 OIA that was authorized for these sources included making controlled buys of cocaine, paying over $10,000 to establish the CI's credibility in a racketeering investigation, and engaging in conspiratorial conversations relating to a drug trafficking investigation.
Five of the 25 files that contained OIA authorization, or 20 percent, indicate that the field supervisors retroactively authorized confidential informants to engage in Tier 2 OIA anywhere from 17 to 63 days after the start of the authorization period. In these cases, field supervisors authorized the OIA retroactively to the first day of the 90-day authorization period. The OIA in these cases included engaging in conspiratorial conversations in connection with a domestic terrorism investigation, engaging in telephone conversations and face-to-face meetings with targeted subjects of a drug trafficking investigation, and purchasing drug paraphernalia as a drug broker. We could not determine from our limited file reviews the reason why the case agents sought OIA authority for the earlier period, whether the CIs in fact engaged in OIA prior to the retroactive authorization, or whether the field supervisors were aware of either the specific criminal activities that were retroactively authorized or the reason for the agents' delay in seeking approval.
We also identified two instances in which the FBI failed to obtain proper authorization from the U.S. Attorney with respect to Tier 1 OIA. Both matters originated in the same field office, and the OIA in question was treated as Tier 2.220 In the first case, the FBI's authorization included conspiracy to commit robbery, a crime of violence. In the second case, the risk of violence justified the Tier 1 status.
The files for 7 of the 25 CI files (28 percent) that contained OIA authorizations did not include sufficiently specific descriptions of the authorized OIA in that they failed to specify the time period or "specific conduct" authorized. For example, authorizations of Tier 2 OIA were based upon the following broad descriptions of the otherwise illegal activity:
In addition, 7 of the 25 files, or 28 percent, did not include the CI's signature or initials acknowledging that the CI had reviewed the written instructions on the limits of OIA activities. The files for 2 CIs indicated that the OIA admonishments were not given every 90 days as required by the Guidelines.
The following table illustrates our findings regarding premature, retroactive, and insufficiently specific authorizations, and authorizations of persons for whom the FBI had no basis to authorize OIA.
The FBI is required to notify either a U.S. Attorney or the head of a DOJ litigating component when a CI engages in illegal activity which was not previously authorized, known as unauthorized illegal activity or "UIA." CI Guidelines, § IV.B.1. The Confidential Informant Guidelines require that notice of the unauthorized illegal activity be provided by the Special Agent in Charge of the field office operating the CI to the U.S. Attorney or DOJ component head, not by subordinate FBI field office personnel to other U.S. Attorneys' Offices or DOJ personnel.
The FBI is not required to provide such notice when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier 1 OIA or been involved in an investigation that is utilizing the CI. Id.
Of the 120 informant files we examined during our review, we identified 12 instances, or 10 percent, where the CI engaged in unauthorized illegal activity. Under the Guidelines, the FBI was not required to notify the U.S. Attorney in 3 of the 12 cases.
In 4 of the 12 cases, the CI case files did not include sufficient information for us to determine whether charges had been filed by state or local prosecutors following arrest of the CI, and thus it was not possible to determine whether the Guidelines' notification requirement was triggered. Our review also found that neither the field nor FBI Headquarters typically monitors whether charges are filed by state or local prosecutors following a CI's arrest. We identified one field office that did not have any forms to record the occurrence of unauthorized illegal activity.222
The remaining five cases required notification to the U.S. Attorney's Office. In two of the five cases, the FBI failed to provide any notification to the U.S. Attorney's Office, in violation of the CI Guidelines. The UIA in these cases were a state arrest relating to purchasing heroin and a misdemeanor charge of manufacturing unauthorized records. The other three files contained documentation indicating that notice was provided to the U.S. Attorney's Office by FBI field personnel, but was not provided by the Special Agent in Charge to the U.S. Attorney as required by the Guidelines.
When a confidential informant is deactivated or closed, the Confidential Informant Guidelines require the FBI to maintain appropriate documentation in the CI's file of certain notifications to the informants and to FBI Headquarters and DOJ personnel. In our review of 46 informant files indicating that the informant had been deactivated, we found:
None of the 46 CIs who were deactivated was authorized at the time of deactivation to engage in OIA, so we had no findings on this issue.
As we discussed in Chapter Two, the significant revisions made to the Confidential Informant Guidelines in January 2001 changed the role of the U.S. Attorneys' Offices with respect to the approval and management of confidential informants.
To assist in determining whether the FBI is compliant with the Confidential Informant Guidelines' provisions that call for DOJ oversight, we surveyed the Chiefs of the Criminal Division in all 93 U.S. Attorneys' Offices throughout the country. Ninety-one Criminal Division Chiefs or their designees responded to our survey in February 2004. The results show that the Criminal Division Chiefs are overwhelmingly satisfied with the FBI's communication with them regarding confidential informants. The survey results included the following:
Detailed findings from our survey are presented in Appendix D. These results were one of the several areas in which the Criminal Division Chiefs indicated that the required interaction between FBI and DOJ personnel on informant matters is working well.
However, some of our findings and the results of our file reviews are in conflict with the Criminal Division Chiefs' positive assessment. As discussed above, in the course of our file reviews we identified Guidelines violations with respect to the required notifications regarding otherwise illegal activity, unauthorized illegal activity, and events surrounding the deactivation of confidential informants. We also identified two cases in which the FBI failed to obtain proper authorization from the U.S. Attorney with respect to Tier 1 OIA.
Moreover, the Criminal Division Chiefs indicated that they believe additional training for FBI Special Agents and supervisors and other measures are needed to promote adherence to the Confidential Informant Guidelines. Half of the Criminal Division Chiefs told us that the FBI and DOJ should sponsor periodic joint or cross-training with FBI agents and prosecutors. The following table describes the type of additional training they think is needed.
Human sources are critical to the success of the FBI's criminal investigative mission and of other law enforcement and intelligence efforts aligned with that mission, including the efforts to prevent terrorism and address other emerging national security threats. Our review focused on the FBI's implementation of Attorney General Guidelines for one category of human sources, confidential informants. The authorities and activities of other human sources, including assets and cooperating witnesses, are governed by different Attorney General Guidelines. Nor did our review examine how the FBI coordinates all of its human sources who, since November 5, 2004, have operated under the FBI's unified Directorate of Intelligence.225
The Confidential Informant Guidelines were revised in January 2001 largely in response to the adverse consequences arising from the FBI's operation of informants by its Boston Field Office and a few other informant problems in other offices. Some senior FBI officials and many field personnel we interviewed believe the revisions were an overreaction and that the resulting Guidelines have generated widespread resentment among field personnel. Nonetheless, there is widespread recognition by FBI personnel we interviewed that criminal informants are vital to the success of the FBI's criminal investigative mission, and that the challenge for the government is to appropriately weigh the informant's value against the risk that the informant will commit unauthorized crimes or otherwise prejudice the government, and to monitor and supervise the relationship closely.
FBI personnel ranging from new agents to the Director told us that agents find the paperwork associated with opening and operating informants to be excessively burdensome and time-consuming. In addition, personnel in HIU stated that the current version of the Confidential Informant Guidelines is phrased in dense "legalese" that is hard for case agents to absorb, remember, and follow. Although we were unable to quantify the precise impact of these issues, some of the field and Headquarters personnel we interviewed told us that some FBI agents are now reluctant to open informants because of these and other administrative and operational burdens.226 Others expressed concern that agents may shift toward operating "hip pocket" informants in contravention of FBI and Guidelines mandates so they will not have to complete the paperwork, obtain required approvals, or risk disclosing their informants' identities to prosecutors or others.
Our survey of Confidential Informant Coordinators revealed that the burden on case agents to complete the paperwork associated with the Criminal Informant Program is a major concern. Approximately 70 percent of the Coordinators reported that case agents fail to devote adequate time to completing their paperwork or resist doing so. In addition, as the following diagram illustrates, the paperwork burdens of operating informants is one of the most frequently raised issues in their field offices.
The view that the paperwork requirements associated with handling informants excessively burden field agents was also cited in our interviews of FBI Headquarters personnel from the Criminal Investigative Division, Counterterrorism Division, Office of Intelligence, and Inspections Division. FBI Director Mueller told us that he frequently hears agents complain about the "burdensome" procedures for opening and operating informants.
In contrast, 10 of the 12 SACs in the field offices we visited said they believe the CI Guidelines are workable as written.227 One senior field office manager said that "[t]he Guidelines are good, reasonable, and not a hindrance. They keep agents on track. Because of the Bureau's past fiascos, we need controls. Sometimes agents get sidetracked." Another senior manager told us that there was no excuse for agents in his office not to properly document compliance with the Informant Guidelines and that the Guidelines were not too complex. He stated that his informant program personnel complete the necessary documentation for the agents if asked and were prepared to answer any questions regarding the operation of informants. He characterized his agents as being "spoon-fed" on informant compliance issues. Notwithstanding the support available to agents in this field office, our review found that 100 percent of the informant files we reviewed in that office contained one or more Guidelines violations.
In the course of reviewing 120 informant files in 12 field offices, we were mindful of these concerns and sought to examine whether the reason for the complaints is the Guidelines themselves; other reasons that make compliance overly complex, time-consuming, and difficult; or a combination of these factors. After evaluating the requirements of the Confidential Informant Guidelines and how they work in the field, we share the view of the majority of SACs we interviewed that the Guidelines themselves are not overly burdensome. Instead, we believe that the significant reasons for non-compliance are:
Below we address each of these issues.
Our interviews, field office site visits, and analysis of documents produced by the FBI reveal that three years after the May 2002 revised Investigative Guidelines were issued, FBI agents do not have FBI-wide, standardized forms to support the administrative steps required to operate confidential informants. The FBI is capable of producing such forms; indeed, there is widespread use of automated forms throughout the FBI to support a host of administrative and operational programs.229 Nonetheless, in seeking approval for and operating informants, field agents in May 2005 still use hand-me-down forms (called "ponies") developed by either their field office or another field office. Some of these forms are out of date and some are under-inclusive or over-inclusive in what they require.230 In addition, field agents and supervisors routinely are transferred from one field office to another throughout their careers. Because of the different practices used by the FBI's field divisions to administer the Criminal Informant Program, transferred agents must make needless, time-consuming adjustments to the unique, sometimes outdated, requirements of their new offices.
The following table illustrates the wide discrepancies in data pertaining to Confidential Informant Guidelines' requirements that is collected in various forms maintained in 7 of the 12 field offices we visited.231
Complicating the agent's task even further is the fact that there is no one place on the FBI's Intranet where an agent who wants to initiate the registration of an informant can look for guidance regarding the approval and operation of CIs. During the period of our review, the current Confidential Informant Guidelines were available on the OGC's web site, an outdated version of the Informant Guidelines was on the Asset/Informant Unit's web site, the MIOG was on another FBI Intranet site, and agents had to search for forms on their field office's local computer system. Consequently, it is easy to understand the frustration expressed by field office personnel in explaining compliance deficiencies when it is so difficult for agents to find the various requirements, and standardized administrative tools are not available.
Another impediment to compliance with the Guidelines is the absence of a field manual comparable to the one provided for undercover operations by the Undercover and Sensitive Operations Unit (USOU), which we discuss in Chapter Four.232 Instead of having a useful document which captures the key Guidelines' and MIOG requirements for opening and operating informants, agents must depend on the initiative of their Informant Coordinators, Division Counsel, or other field personnel to obtain necessary paperwork and guidance in opening and operating informants. Several field offices, including Newark and Knoxville, have generated their own handbooks or manuals to fill this void. However, the best practices and time-saving devices that have evolved over the years in the field have not led to the development of a uniform field guide for all agents.233
Confidential file room analysts, whose role supporting the administration of all human sources is discussed above, play a critical role in assisting field agents in complying with the Guidelines. Some analysts have instituted tickler systems and other mechanisms to promote timely compliance. While this support is helpful, we believe the FBI needs an agency-wide, standardized system which can be accessed at Headquarters and in the field.
As noted in the FBI's response to the OIG's recommendations (provided in Appendix G), the FBI states that the Directorate of Intelligence (DI) has initiated a "re-engineering" of its Confidential Human Source Program. Because its internal human source policies, practices, and manuals must account for and comply with the Attorney General's Guidelines, the FBI enlisted DOJ to assist in the re-engineering effort. In December 2004, the FBI established a working group, including representatives from DOJ, to revise FBI policies regarding human sources (including confidential informants.) The working group's goals are to develop new guidelines, policies, and processes for the utilization of confidential human sources that are designed to reduce burdensome paperwork, standardize source administration procedures, clarify compliance requirements, and improve Guidelines compliance.
For example, Supervisory Special Agents (SSAs) are required every 90 days to conduct reviews of all confidential informant files, or, in the case of privileged informants, every 60 days. During this review, they are to note a variety of information, including Guidelines compliance deficiencies pertaining to payments, criminal history checks, authority to engage in otherwise illegal activity, and continuing suitability. MIOG § 137-4(3). We saw many instances where file reviews were not performed timely and deficiencies were not resolved promptly. In addition, we found some instances where the requests of the Informant Coordinator and/or SSA were not responded to by agents, as evidenced by repeated notations of non-compliance during file reviews. See also Chapter 7, Case Study 7.2 (describing conduct of SSAs in the San Francisco Field Office).
Beyond the general issue of timely compliance with the Guidelines, we believe, based on our field and Headquarters interviews and survey responses, that some field supervisors have historically failed to be as fully engaged as needed to identify risks associated with operating informants. Our findings with respect to supervisory approval and monitoring of "otherwise illegal activity" and notifications regarding the occurrence of unauthorized illegal activity are particularly notable in this regard.
With respect to otherwise illegal activity, as illustrated in Table 3.4 above, we found instances in which supervisors improperly authorized OIA prior to the source being converted to a registered informant (four files), authorized OIA for sources who were never registered as CIs (two files), retroactively authorized OIA in contravention of the Guidelines (five files), or authorized OIA which did not meet the Guidelines' specificity requirements (seven files). In each of these instances, field supervisors failed to exercise their responsibility to ensure that, as supervisors, they followed these Guidelines' provisions.
The FBI's Criminal Investigative Division (CID) has also expressed concern about non-compliance issues identified by the OIG in the course of this review. Personnel from FBI Headquarters' Asset/Informant Unit accompanied the OIG during our field office site visits from May to August 2004 and reviewed the same data we reviewed with respect to confidential informant files. On November 8, 2004, the Assistant Director of CID sent a candid self-assessment to all FBI field offices, the apparent purpose of which was to communicate the Division's concerns about these compliance deficiencies and to clarify related field guidance. Among its conclusions, the CID stated that one of the factors contributing to the present state of the Criminal Informant Program was "a failure on the part of field office managers to effectively exercise oversight" of the program. In particular, with respect to the critical role executive managers and supervisors play in approving otherwise illegal activity, CID made the following observation:
[Executive managers] and Supervisors, when reviewing reauthorizations, must ensure OIA authority requested is commensurate with the completed activity, for example, the previous OIA was to purchase drugs; however, during the authorization period, the source also purchased weapons. Subsequent justification, authority and concurrence must extend to weapons. Given the guideline definition and the role of CIs, [Executive Managers] and Supervisors must closely scutinize the use of CIs in OIA or any other operational activity.
The CID's November 8, 2004, memorandum also noted a variety of other compliance errors uncovered by the OIG review regarding authorizations of OIA that should have been noted and corrected by the contact agents' supervisors:
There were instances noted wherein OIA authority was not current, commensurate and/or specific to the operational activity actually being conducted. There were instances noted wherein requests for OIA authorization did not include sufficient justification and failed to note, with specificity, the activity(ies) authorized for the source. There were instances wherein AUSA concurrence was not obtained and/or not confirmed by letter to the United States Attorney's Office (USAO). There were instances in which OIA admonishments were backdated, completed by an agent other than the agent administering the admonishments, not administered within the authorized time frame, or simply not administered.
Among CID's general conclusions were that "despite the identification of non-compliance issues, there was a high rate of recurrence or failure to remedy those identified issues" and that "outside of mitigation, there was no accountability for identified non-compliance in the program."
With regard to unauthorized illegal activity, first-line supervisors play an important role in responding to CI participation in unauthorized illegal activity and ensuring that appropriate notifications are made either to a U.S. Attorney or to the DOJ Criminal Division. We found two instances in which required notifications did not go to the U.S. Attorney's Office at all and three occasions when the required notification either did not go from the SAC or to the U.S. Attorney, or both. This deficiency was also noted in the CID's November 8, 2004, memorandum which found that "files were devoid of any FBI/USAO interaction." Moreover, it was not possible to ascertain from the case file in approximately one-third of the cases we examined that involved unauthorized illegal activity whether notification to the U.S. Attorney was required. This was due primarily to the lack of information concerning whether a state or local prosecuting office had filed charges against the informant.
We believe it is critically important for FBI supervisors and Headquarters officials to be aware when CIs engage in unauthorized illegal activity and to exercise oversight to ensure that agents do not inappropriately insert themselves into state or local proceedings against the informant or otherwise act inappropriately when FBI informants are at risk. In addition, it is important that the FBI not continue its relationship with informants who, on balance, present greater risks than benefits. Because the Guidelines provide that the U.S. Attorneys' Offices and the DOJ's Criminal Division are to bring their judgments to bear on whether the FBI should continue to utilize CIs who have committed unauthorized illegal activity, it is important that FBI supervisors ensure that prosecutors are notified as required. The FBI's failure to track whether state or local charges have been filed against CIs who commit unauthorized crimes is a significant gap in its oversight of confidential informants.234
The Guidelines deficiencies noted above demonstrate that some supervisors are not properly conducting file reviews, are not resolving deficiencies promptly, and, with respect to certain of the FBI's most consequential decisions involving the authorization of otherwise illegal activity and continuation of the informant relationship in the event the informant commits unauthorized crimes, are not providing requisite notice to the prosecuting authorities. We believe that the failure of some executive managers to ensure that first-line supervisors and ASACs are held accountable for Guidelines violations by those under their supervision should be remedied promptly.
We outline in Chapter Eight our concerns about the FBI's failure to develop and implement a comprehensive training program to acquaint field agents, their supervisors, and Headquarters personnel with the requirements of the four Investigative Guidelines. With respect to the Confidential Informant Guidelines in particular, the FBI was provided specific direction concerning training. Section I.I.1 of the May 30, 2002, CI Guidelines states:
The FBI has taken some steps to provide training to its employees on the CI Guidelines. In November 2003, FBI Headquarters initiated a mandatory "Back to Basics" lesson plan for all assigned Special Agents, including managers, on the operation of human sources. The A/IU told us that it has provided 33 training sessions in support of the Criminal Informant Program from October 2003 to March 2005. These sessions included 80 hours of training for approximately 15 Confidential Informant Coordinators and other field personnel who were assigned to Headquarters about the administrative oversight of informants and other human sources. The FBI provided blocks of instruction on source administration in nine regional training sessions for a total of approximately 500 Supervisory Special Agents, Special Agents, and task force officers between May 2003 and October 2003, and five Informant Development in-service training sessions between January 2003 and February 2004 for a total of approximately 200 experienced Special Agents. Prior to the June 2003 training session, the last in-service advanced training provided on informant development was in September 1999.
In addition, from June 2002 through June 2003, the Office of the General Counsel (OGC) provided training on all four Investigative Guidelines to one field division. It also provided a block of training on the CI Guidelines at a specialized conference on health care fraud and at a white collar crime conference for ASACs. OGC provided training on the Informant Guidelines at the Informant Development in-service course in June 2003, noted above. In addition, Chief Division Counsel received training from OGC on the revised CI Guidelines in January 2003, at a Chief Division Counsel conference at FBI Headquarters.
At the field level, Informant Coordinators told us that they have conducted formal and informal training sessions, posted information about the revised Guidelines on field office computer systems, and distributed answers to frequently asked questions.
Yet, despite these training efforts, our review found that more training is needed to improve compliance with the Guidelines. For example, Confidential Informant Coordinators do not have a regular training regimen. They do not meet on an annual basis, and there are no regional or local training opportunities that focus on Guidelines issues.235 When we asked Confidential Informant Coordinators whether they believe they need additional training on the Guidelines, the majority reported that they did, as the following diagram shows.
Informant Coordinators also believe that FBI personnel need additional training on the Confidential Informant Guidelines. Seventy-two percent of the Informant Coordinators indicated that Division Counsel should provide additional training on the CI Guidelines to Special Agents and supervisors in their field offices. Several Informant Coordinators suggested that training go beyond simple instruction on what the Guidelines require. For example, one Informant Coordinator said:
We have many new agents in the Bureau. Most of them, I feel, look at a source as a necessary evil instead of a valuable tool towards investigative success. I try to counsel new agents that working sources can be interesting and somewhat enjoyable, and certainly can be a huge help to any investigation. Training towards that end, i.e., helping the new agents to look at sources as an interesting and maybe even fun part of the job could help bring new agents along the right path.
The Informant Coordinators' views on the need for additional training were shared by Division Counsel, whose responses to our survey indicated a need for additional training of agents, supervisors, and Division Counsel.
In addition to these survey findings, some FBI personnel believed that ambiguities or lack of sufficient detail in some of the Guidelines' requirements were impediments to compliance, and that clarification and supplemental guidance are needed. For example, field and Headquarters personnel indicated in response to our survey and in interviews that the FBI should issue clarifying guidance regarding the following issues.
In addition, the CID's November 8, 2004, self-assessment acknowledged that specific shortcomings in FBI training have impacted the operation of confidential informants. The CID assessment concluded that agents were not well-informed about the need to comply with time-sensitive Guideline requirements such as instructions, initial suitability inquiry periods, and the annual continuing suitability reviews. CID concluded that agents had a "misconception regarding the flexibility of time-sensitive issues" and wrongly "assumed that there is a 'grace period' associated with deadlines in the Asset and Informant Programs." The CID assessment also noted a "lack of familiarity" with the Guidelines' requirements regarding otherwise illegal activity.
Moreover, 50 percent of the Informant Coordinators responded that the FBI should direct SACs in large field offices not to assign additional collateral duties to Informant Coordinators. While we believe that not all field offices can justify having a full-time Informant Coordinator, the FBI should consider the workload of Informant Coordinators in large field offices and whether they have sufficient time to handle their critical duties as Informant Coordinators.
We also heard from both Informant Coordinators and executive managers that it would substantially assist the effectiveness of Informant Coordinators in larger field offices if executive managers had the discretion to elevate the Informant Coordinator position to a GS-14 supervisory position. Particularly in larger field offices, the challenges confronting Informant Coordinators in assisting agents and in being available to address problems and mitigate risks involving informants, may be sufficiently complex and sophisticated that they merit a GS-14 supervisory level appointment.236 Of the 12 SACs we interviewed at the conclusion of our review, two-thirds favored giving executive managers in large field offices the discretion to elevate the position to a GS-14 supervisory position. One SAC of a large field office commented that unless this option is available, it will be difficult to attract and retain good Informant Coordinators.
We also found that the effectiveness of the Informant Coordinator varied greatly depending on a variety of factors. We observed that the most successful Informant Coordinators were those who had sought the job, had credible experience handling informants as case agents, had good working relationships with their SACs and ASACs, had strong organizational skills, and remained in the position for a sufficient period of time. In contrast, some Informant Coordinators selected for the position had no particular experience with informants or interest in the position. Moreover, there is notable turnover in these positions; according to A/IU, approximately one-third of Informant Coordinators today are different from those in place on May 30, 2002.
One SAC expressed concern that resource constraints were prompting discussion about appointing non-agents to be Informant Coordinators, a move that he did not believe would be consistent with Guidelines compliance.237
We examined the performance plans for Special Agents that were in effect from May 30, 2002, to April 1, 2005, and found that the FBI's annual performance appraisals did not contain this mandated critical element. The only reference to the Attorney General Guidelines in the performance plans for GS-10 to15 Special Agents (and a corresponding provision for Senior Level Special Agents) during this period is a generic reference in the first critical element, which states:
Makes decisions in accordance with existing policies and procedures (e.g., follows Attorney General guidelines).239
During this same period, the "intelligence base" critical element for GS-15 and Senior Level Special Agents required these agents to "review suitability assessments of individuals for use in investigative or covert operations (e.g., informants, cooperating witnesses, assets) and ensures compliance with appropriate policies and procedures."
As our review was being completed, the performance plan for Special Agents was revised effective April 1, 2005, to contain a critical element for all GS-10 through13 Special Agents that references compliance with the "Attorney General Guidelines."240 Similar performance standards were added in April 2005 for GS-14/15 Special Agents. However, the performance standards for Senior Level Special Agents do not incorporate any requirement to effectively manage and oversee compliance with the CI Guidelines.
Thus, since the January 2001 Confidential Informant Guidelines became effective, and today, the FBI is still not in compliance with § I.I of the CI Guidelines because there is no provision in the performance standards for all FBI agents and supervisors stating that compliance with the CI Guidelines will be considered in their annual performance appraisals.
FBI agents who operate informants are credited with "statistical accomplishments" for the contributions the CIs make to investigative activities. We learned that some Informant Coordinators, SACs, and Headquarters officials are not satisfied with the manner in which personnel policies account for the operation of human sources. Throughout the period of this review and until 2005, FBI personnel were subject to a two-tiered evaluation system that limited supervisors to rating their subordinates as "meeting expectations" or "not meeting expectations."241 Several Headquarters officials and executive managers told us that when using this rating system, they would evaluate supervisors as "meeting expectations" even though they failed to properly discharge their duties under the CI Guidelines.
As noted below, notwithstanding the generic critical element relating to the "Attorney General Guidelines" for GS-14 and Senior Level Special Agents in effect for the last five years, we found that senior field managers do not consistently hold first-line supervisors accountable for Guidelines violations or even for persistent non-compliance. We were told in our interviews of the 12 SACs whose field offices we visited that most have taken or would take into account in weighing an SSA's promotion potential whether the supervisor was ineffective in promoting compliance with the Guidelines by agents under their command. However, judging by the number and range of CI Guidelines violations we found, we do not believe that Headquarters management has made compliance performance a sufficiently visible issue at either the agent or supervisory level by integrating a satisfactory compliance record into the FBI's performance reviews and promotion policies. We believe that the FBI should explicitly state in the performance plans for GS-15 and Senior Level Special Agents that compliance or overseeing compliance with the CI Guidelines is a critical element. In addition, we believe that the performance plans for GS-15 and Senior Level Special Agents should be modified to evaluate senior managers on their own compliance with the requirements of the CI Guidelines and their effectiveness in ensuring compliance by their subordinates.
Another issue we explored was the reward and incentive structure for Informant Coordinators. Most of the SACs we interviewed said that the current system for providing incentives to Informant Coordinators through quality step increases, awards, and promotions is adequate. Other SACs said they believed it would be helpful to supplement the current recognition methods by affording them the authority to make annual awards of $1,000 to Informant Coordinators, similar to their authority to award "principal relief supervisors." See MAOP § 5-15.5. Some Informant Coordinators said the task of promoting compliance with the Guidelines is time-consuming, often thankless, and tedious work, and should be recognized more often. Many suggested that the FBI should make greater use of recognition ceremonies, Quality Step Increases, and cash awards both for highly effective Informant Coordinators and for agents who are exceptional performers in handling informants.
As we discuss in Chapter Seven, the confidential informants who are vetted by the CIRC undergo thorough scrutiny that assesses the risk-to-reward considerations in operating high-level, long term, privileged, media-affiliated, and certain other informants. But the CIRC reviews only a small percentage of the confidential informants opened and operated by the FBI. As for the balance of the FBI's informants and the day-to-day decisions agents must make to ensure they are compliant with the oversight mechanisms in the Guidelines, we believe another reason for the compliance irregularities we observed is the attitude towards DOJ oversight that persists with some FBI employees, coupled with a belief that the Guidelines are complex and burdensome.
We observed different perspectives on this phenomenon throughout this review. Most FBI executive managers and Headquarters officials we interviewed said they believe the Informant Guidelines are an essential tool for constraining the FBI's operation of informants, and most SACs and Headquarters officials we spoke with during this review defend the current version of the Confidential Informant Guidelines. However, some Informant Coordinators and field personnel we spoke to blame the DOJ for, in effect, punishing the FBI by imposing the burdensome Guidelines on the entire organization when there have been only a few aberrant episodes. In addition, we were told that some FBI agents continue to believe that the FBI "owns" its informants and resent any obligation to disclose their identities to prosecutors or be told that they should close an informant in some circumstances.242
When we asked a senior FBI official in the Office of the General Counsel about the utility of joint training on informant management so that agents would appreciate the complications that can arise if prosecutors are kept "in the dark" and prosecutors could appreciate the FBI's challenges, the idea was greeted with mixed reaction. The FBI official said it might be a good idea, as long as the U.S. Attorney's Office representatives were not "nervous Nellies." An experienced federal prosecutor told us that the FBI has the erroneous impression that the DOJ is too skittish about working with informants involved in criminal activity, and that this view perpetuates the FBI's reluctance to share information with prosecutors.
We were told by some FBI officials that the roots of this distrust stem from the FBI's historic concern that informants' identities may be jeopardized when prosecutors leave DOJ for jobs in the private sector, often as criminal defense counsel. Whatever its roots, it is critical that the FBI and DOJ continue their ongoing efforts to work collaboratively in managing the FBI's Criminal Informant Program in accordance with the Confidential Informant Guidelines.
As this report was being completed, the FBI was in the process of considering significant changes to the FBI's human source program. Regardless of whether the FBI retains the Criminal Informant Program as a separate program or integrates it into a more generic human source program, we believe the FBI needs to address the compliance deficiencies outlined in this report. We also believe that some of the case agents' frustration with the Informant Guidelines would be reduced if agents and their supervisors had better administrative support, management tools, and periodic training. We therefore recommend that the FBI take the following steps.
Develop and Implement a Compliance Plan
(1) Develop a compliance plan for its human source program and an implementation plan to put the plan into practice. The compliance plan should specify the strategies that the FBI will employ to ensure compliance with applicable Guidelines governing the recruitment, validation, and operation of human sources and address issues such as administrative support (e.g., field guides, standardized forms, and "user-friendly" Intranet resources), training, technology, guidance, and accountability.
Provide Enhanced Administrative and Technical Support/Automation
(2) Develop standardized forms to capture the most significant requirements of the Confidential Informant Guidelines and the FBI's Manual of Investigative Operations and Guidelines (MIOG) for operating confidential informants, including a standardized "file review" cover sheet for Supervisory Special Agents to use in examining the files for adherence to the Confidential Informant Guidelines and MIOG provisions relating to confidential informants. The FBI should also create an electronic Confidential Informant User's Manual comparable to the Field Guide for Undercover and Sensitive Operations. That manual should include compliance checklists and the standardized forms recommended above. The FBI should consider other administrative improvements to support the Criminal Informant Program, including a standard electronic Criminal Informant Program tickler system that can be deployed in all field divisions to generate non-compliance notifications to field and Headquarters managers, and an updated Intranet web page that includes the current version of the Confidential Informant Guidelines and key Office of the General Counsel guidance memoranda concerning confidential informants.
(3) Institute procedures to determine whether state or local prosecuting offices have filed charges against confidential informants who engage in unauthorized illegal activity to determine whether notification must be provided to the U.S. Attorney's Office in accordance with Section IV.B.1.a of the Confidential Informant Guidelines.
(4) Amend the forms used to authorize "otherwise illegal activity" to specify the thresholds referenced in Section I.B.10 that distinguish Tier 1 from Tier 2 otherwise illegal activity.
Make Personnel and Performance Plan Adjustments to Promote Adherence to the CI Guidelines
(5) Revise the promotion policies and the performance plans for Special Agents and executive managers to indicate, where applicable, that compliance or overseeing compliance with the Confidential Informant Guidelines will be considered in employees' annual performance appraisals (in accordance with Section I.I.1 of the Confidential Informant Guidelines) and in promotion decisions.
(6) Evaluate the grade level of Special Agents who serve as Confidential Informant Coordinators and consider allowing Confidential Informant Coordinators to be elevated to a GS-14 supervisory level, particularly in larger field offices where the Coordinator is a full-time position. The FBI should also ensure that Confidential Informant Coordinators are supervised by personnel of a higher grade level who are familiar with the Criminal Informant Program and who have received training on the Confidential Informant Guidelines.
Provide Necessary Training
(7) Consider holding annual Informant Coordinator Conferences similar to those provided to Undercover Coordinators. The FBI should also consider opportunities for local, joint training with representatives from U.S. Attorneys' Offices, which could address topics such as Guidelines provisions requiring approval, concurrence, or notice to the U.S. Attorneys' Offices; the adverse consequences of Guidelines' violations from the standpoint of the prosecution and the FBI; and "lessons learned" from past cases.
(8) Review the training modules now used in New Agent Training, probationary training, and in-service training for Special Agents and Supervisory Special Agents to ensure that the Confidential Informant Guidelines' requirements and risks of operating confidential informants are explained.
(9) Include in the periodic training of Supervisory Special Agents a component or module on the importance of file reviews to the Criminal Informant Program. The training should also address frequently occurring violations of the Guidelines and MIOG provisions. A key objective of supervisory training should be on predictors of problems with confidential informants, such as long term confidential informants, confidential informants who have been assigned the same contact agents for an extensive period, confidential informants who are authorized to engage in otherwise illegal activity, confidential informants who have previously been deactivated "for cause," and confidential informants who have been arrested or engaged in other unauthorized illegal activity while working as confidential informants.243