The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines

Special Report
September 2005
Office of the Inspector General

Chapter Nine:

On May 30, 2002, the Attorney General announced revisions to four investigative Guidelines that govern virtually all aspects of the Federal Bureau of Investigation's (FBI) authority to investigate crimes committed by individuals, criminal enterprises and groups, as well as investigating those who may be threatening to commit crimes.

The FBI does not operate under a general legislative charter. Nor are some of its key investigative authorities, such as the use of informants, undercover techniques, or non-telephonic consensual monitoring activities, subject to statutory restrictions. Rather, these activities are governed and constrained by these Attorney General Guidelines.

Our review found that the FBI's compliance with these four Attorney General Guidelines varied considerably by program and field office. We found the most serious compliance problems in the FBI's Criminal Informant Program, particularly with respect to the Guidelines' provisions requiring periodic suitability evaluations of confidential informants; the timely communication of instructions to informants; and the authority of confidential informants to engage in otherwise illegal activity.

We believe the principal reasons for these compliance problems were inadequate administrative and technological support; the FBI's failure to hold first-line supervisors and case agents accountable for Guidelines violations; burdensome collateral duties assigned to many Confidential Informant Coordinators; and inadequate training for case agents, Supervisory Special Agents, Informant Coordinators, and Division Counsel. Particularly with regard to the Criminal Informant Program, the Guidelines violations we found were troubling and merit immediate attention.

To address these compliance problems, we believe the FBI should take a series of steps. First, it must ensure that agents understand the Informant Guidelines. It should also provide administrative and technological support to agents, including standardized forms, a field guide, and compliance checklists. Additional training on the Guidelines for Special Agents, Supervisory Special Agents, Confidential Informant Coordinators, and Division Counsel is also needed. In addition, the FBI should hold agents and their supervisors more accountable for non-compliance with the Guidelines. We concluded - and some senior FBI field managers we interviewed agreed - that frequently voiced concerns about the complexity and burdens of adhering to the Informant Guidelines would diminish if the FBI adequately implemented steps to support compliance in the field.

We believe these steps should be implemented regardless of whether the FBI continues to operate under the existing Confidential Informant Guidelines or if it modifies them in response to the ongoing effort to streamline its human intelligence program. Given the importance of the FBI's human intelligence program and the risks of violations of Guidelines' requirements, these steps should be taken regardless of the eventual placement or restructuring of the FBI's program for operating informants or other human sources.

In contrast to the Confidential Informant Guidelines, we found that the FBI generally was compliant with the Undercover Guidelines. The Headquarters unit supporting undercover operations was well managed and effective. It generated an up-to-date field guide and standardized forms, and it used technology, such as a centralized database which permits effective monitoring of undercover operations, to aid field office compliance with the Undercover Guidelines and Headquarters' oversight of the Guidelines.

However, we identified a limited number of undercover operations with authorization-related deficiencies and several noteworthy documentation-related errors, including failure to describe adequately authorizations of otherwise illegal activity and to document field management's oversight of undercover employees. We also believe the positive compliance record for criminal undercover operations could be improved further if agents participating in undercover operations coordinated more closely with Undercover Coordinators and Division Counsel.

Our analysis of the authorities contained in the Attorney General's Guidelines for General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations found that the FBI generally adhered to the provisions of these Guidelines. With respect to the conduct of preliminary inquiries, however, we found a notable failure to adhere to the requirement to document in a timely fashion the extension or closure of preliminary inquiries, or the conversion of a preliminary inquiry to a full investigation. We found general compliance with respect to the FBI's use of criminal intelligence investigations, though we identified certain documentation errors, especially as concerns notifications to DOJ and U.S. Attorneys.

We were unable to conduct a parallel compliance analysis of the FBI's use of its new authorities under Part VI of the General Crimes Guidelines. These Guidelines allow FBI agents to visit public places and attend public events for the purpose of detecting and preventing terrorist activities in the absence of particularized suspicion that a crime has been, is being, or is likely to be committed. Neither the Guidelines nor FBI policy require agents to obtain supervisory approval before engaging in such Part VI activities, and the methodology used for documenting these visits and the information obtained from the visits does not generate easily retrievable information. As a result, we could not determine in this review if the FBI is using these Part VI authorities within the constraints of the Guidelines - including the prohibition on retaining information derived from these activities where no information indicating terrorist or criminal activity is obtained.

However, the FBI Headquarters and field personnel we interviewed expressed recognition of the civil liberties implications of the use of these Part VI authorities. We also found periodic guidance on this subject issued by FBI Headquarters and periodic communications between Headquarters and the field through the Headquarters point-of-contact on this issue whose position was established in April 2003.

A survey we administered found that 86 percent of surveyed FBI Division Counsel have been consulted about the propriety of retaining information derived from conducting surveillance of or visiting public places pursuant to these authorities. Yet, the same survey, taken 21 months after the Guidelines were issued, found that more than half of the surveyed Chief Division Counsel believed that the FBI's guidance on the use of Part VI authorities was unclear. We believe the FBI should develop additional guidance and procedures to ensure that these authorities - including restrictions on record retention, indexing, and dissemination - are used appropriately throughout the FBI and can be reviewed adequately.

With regard to the Guidelines for conducting non-telephonic consensual monitoring under the Attorney General's Procedures for Lawful, Warrantless Monitoring of Verbal Communications, we found the FBI was largely compliant. However, we found that 9 percent of the monitorings were recorded prior to obtaining the requisite approval.

Our review also examined the FBI's process for implementing the May 2002 revisions to the Attorney General Guidelines. We reviewed planning for implementation of the revised Guidelines, communication and guidance regarding the revisions, and training and administrative support for the revisions. We concluded that the FBI's implementation process was problematic. For example, no FBI official was responsible for ensuring that the need for training was adequately identified, that the FBI's administrative processes and forms used to support compliance with the Guidelines were updated in a timely fashion, and that sufficient guidance was provided on the revisions.

However, we did find that the Office of the General Counsel and the Undercover and Sensitive Operations Unit (USOU) in the Criminal Investigative Division communicated guidance and delivered training on the revised Guidelines. In addition, the Asset/Informant Unit (A/IU) initiated reinspections of field offices with exceptionally high non compliance in the Criminal Informant Program. We also found significant initiative and resourcefulness by some Informant Coordinators, Undercover Coordinators, and Division Counsel in developing individual field level "tickler" systems, checklists, manuals, and training to fill in the gaps left by the lack of adequate support for Guidelines compliance by FBI Headquarters. However, we believe the FBI should provide consistent administrative support and training and not depend upon the patchwork of individual initiatives that have emerged to fill these significant gaps.

Our review also analyzed the FBI's internal enforcement mechanisms that promote compliance with the Investigative Guidelines. We found that the A/IU's efforts from June 2003 through November 2004 (which were thereafter discontinued) to coordinate reinspections of field offices with high non-compliance rates were effective in improving compliance with the Confidential Informant Guidelines. We believe these reinspections should be reinstituted. We also found that the on-site reviews currently coordinated by the USOU for undercover operations highlight important compliance and performance issues, but should be more comprehensive in scope.

The FBI's Inspection Division also plays an important role in promoting compliance with the Investigative Guidelines and in handling disciplinary matters arising from their violation. In its own inspections of field offices, the Inspection Division found many Guidelines violations. For example, with respect to the Criminal Informant Program, Inspection reports catalogued frequent failures to deliver timely instructions to confidential informants and less frequent failures either to obtain proper authorization for an informant to engage in otherwise illegal activity or to report unauthorized illegal activity. However, we identified gaps in the Inspection Division's coverage of key Guidelines' provisions in the Criminal Informant Program. We also found areas in which the Inspection process could be more effective if it were more aggressive in conducting follow up inspections when identified problems persisted, either within a field or Headquarters division or in particular programs.

Finally, we found that the joint FBI-DOJ committees that approve and provide oversight over certain informant and criminal undercover matters are generally functioning well and in accordance with their charters. The Criminal Undercover Operations Review Committee (CUORC) approves and monitors criminal undercover operations involving "sensitive" circumstances. The Confidential Informant Review Committee (CIRC) approves and monitors high level, long-term, "privileged" and media-affiliated confidential informants, and certain other types of informants. We found that both committees foster a candid exchange of information about the legal, practical, and prudential judgments regarding the use of informants and undercover operations, and that both committees help to promote compliance with the Guidelines.

In sum, for nearly 30 years the Attorney General's Guidelines have provided direction to FBI employees in using their broad authorities to investigate crimes and threats of crime. The revisions to the Guidelines issued in May 2002 took into account the FBI's changed priorities by giving it additional authority to conduct more expansive investigations; delegating to field managers significant new authorities with respect to preliminary inquiries, criminal intelligence investigations, and undercover operations; reemphasizing the important constraints on the FBI's use of confidential informants; and authorizing visits to public places without particularized predication to address terrorist threats. But the use of these additional authorities must be in compliance with the Attorney General's Guidelines. We believe that our recommendations, if implemented, can help ensure that the FBI utilizes these additional authorities within the constraints of the Guidelines while also fulfilling its critical missions.




Glenn A. Fine
      Inspector General

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