FBI Agents Often Break Informant Rules

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FBI Agents Often Break Informant Rules

Newspaper article

By: Dan Eggen

Date: October 12, 2005

Source: Eggen, Dan. "FBI Agents Often Break Informant Rules." Washington Post, October 12, 2005, 〈http://www.washingtonpost.com/wp-dyn/content/article/2005/09/12/AR2005091201825.html〉 (accessed February 11, 2006).

About the Author: Dan Eggen is a staff writer for the Washington Post newspaper. The Washington Post, first published in 1877, is regarded as one of America's leading daily newspapers.

INTRODUCTION

The use of an informant is the seamy reality faced by law enforcement agencies that conduct investigations into many types of serious criminal activity. Terrorism, drug trafficking, loan sharking, protection rings, and similar activities are often perpetrated within the realm of the organized criminal. The hallmark of any successful organized criminal venture is secrecy.

The wall of silence surrounding a criminal venture is breached in one of two ways—through undercover police operatives or through the cultivation of confidential informants. The grooming of inside informants to provide information concerning the operations of La Cosa Nostra (the LCN, or Mafia) or motorcycle gangs such as the Banditos or the Hell's Angels is a time-honored investigative practice.

Police agencies worldwide use informants. The aphorism "to find an outlaw you have to use an outlaw" is a restatement of a broader principle—the end justifies the means. The extreme secrecy employed by most criminal organizations makes the use of an undercover operative, working inside the target organization, a dangerous, difficult, and time consuming undertaking. A well-placed informant can often provide a steady stream of useful information.

Since its creation in 1936, the FBI developed a number of internal practices regarding the cultivation and protection of informants. As a result of public pressure concerning the relationships between FBI field agents and confidential informants, the federal Attorney General has—since 1976—regularly published detailed guidelines to regulate the FBI in its confidential informant relationships, with mixed success.

FBI excesses in terms of permitted confidential informant conduct were the impetus to the latest guidelines advanced by the Attorney General. The most notorious example was that of Boston mobster James "Whitey" Bulger—permitted to flee Boston by his FBI handlers in advance of a racketeering indictment. Bulger was the suspected head of organized crime in South Boston for many years. While the FBI's informant practices had long overlooked the commission of minor crime by its designated informants, the FBI had a responsibility to exercise more care regarding the treatment of serious criminals.

The informant world is the intersection of crime detection and investigative expediency; if the information secured from an informant is the only evidence upon which a case against a criminal kingpin is founded, the issue of prosecutorial transparency will follow. What was offered? What was promised? What was given? These are the questions that will be pivotal to any successful prosecution that is founded on the word of a confidential informant. Where the entire relationship between FBI agent and an informant is not documented and cross-checked, an acquittal at trial is likely to result.

PRIMARY SOURCE

Many FBI agents have ignored Justice Department rules for handling confidential informants that were established in the wake of several high-profile scandals, according to a study released yesterday.

In an analysis of 120 informant files from around the country, the Justice Department's inspector general, Glenn A. Fine, found that FBI agents violated procedures in 87 percent of the cases, including some in which informants allegedly engaged in illegal activity without proper oversight or permission.

"We found significant problems with the FBI's compliance with the attorney general's guidelines on confidential informants," Fine said in a statement. "We are concerned that the FBI has not taken the necessary steps to ensure that FBI agents and their supervisors adhere to these important requirements."

The report, parts of which are redacted because they involve classified material, also faults FBI agents for in some cases failing to notify officials in Washington about the initiation of criminal intelligence probes and for consistently failing to obtain advance approval to listen in on informants' conversations.

FBI Director Robert S. Mueller III told Fine's investigators that many agents found it difficult to comply with complicated paperwork requirements for confidential informants. The FBI said in a statement yesterday that many of Fine's recommendations for reform have been implemented and that the FBI is reworking procedures to make it easier for agents to comply with the rules.

"Confidential informants and other confidential human sources are critical to the FBI's ability to carry out our counterterrorism, national security and criminal law enforcement missions," the FBI statement said. "A source can have a singular piece of information we could not otherwise obtain, enabling us to prevent a terrorist act or crime, or apprehend a fugitive."

Among the violations Fine highlighted were a handful of cases involving "otherwise illegal activity," referring to cases in which the FBI permits informants to commit an act—such as engaging in conversations about a conspiracy or handling money as part of a controlled drug purchase—that would otherwise be a crime.

Fine's report listed two cases in which agents allegedly failed to properly inform prosecutors when an informant was allowed to engage in illegal activity and five others in which agents failed to tell prosecutors that an informant had committed a crime not authorized by his FBI handlers. FBI field agents also often failed to properly review an informant's performance or notify senior officials when an informant had been "deactivated," according to the report.

Fine's report comes more than four years after the FBI revised its rules in the wake of several incidents involving informants. Perhaps the most infamous involved former FBI agent John J. Connolly Jr., who allowed Boston mobster and FBI informant James J. "Whitey" Bulger to flee by tipping him off to an imminent federal racketeering indictment.

Kevin R. Brock, assistant director of the FBI's Office of Intelligence, said in an interview that many of the cases cited by Fine involved administrative violations or honest disagreements about legal definitions. Some acts involving minor crimes, for example, can be authorized internally without involving a U.S. attorney's office.

"Most of these are administrative failures and we are working to address those," Brock said. "It's not like we had sources running around, willy-nilly breaking the law."

SIGNIFICANCE

The dramatic incidence of breaches of the Attorney General's guidelines in the handling of FBI informants underscores the greatest difficulty in the conduct of high level, often sensitive, criminal investigations that occur in the murk of the dark, fluid underworld. The desire to remain attentive to the public interest—as it is manifested by 100 percent transparent law enforcement practices and adherence to investigative rules—is contrasted with the often compelling pressure to solve cases through the use of confidential informants, even where that solution will render a serious criminal as legally untouchable.

The Bulger case is a worst-case example. By any reckoning, the relationship between Boston FBI agents and James "Whitey" Bulger and his Winter Hill Gang associate Stephen "The Rifleman" was a wholesale bypassing of the Attorney General's directives. It was a story with a particularly bad ending, since Bulger was evidently tipped off about a pending murder and racketering indictment. He disappeared, and his FBI handler received ten years in prison. In addition, the FBI were the target of numerous civil wrongful death law suits, advanced by the families of persons allegedly murdered by Bulger while he worked with the FBI.

Public reaction to the revelation that FBI agents do not always adhere to their mandated guidelines in confidential informant relations is not likely to resound as loudly as would a complaint that the FBI decided to not pursue certain investigative leads due to the restrictions of bureaucratic guidelines. The use of informants in organized crime investigations is so well entrenched that the public is somewhat inured to such administrative breaches. The fact that the excesses of the Bulger case did not generate a public firestorm is proof that the practice is valued.

The FBI confidential informant methods survived the adverse public opinion generated by the notorious COINTPRO investigations into alleged subversive groups in the 1950s and 1960s. An FBI informant received blanket immunity and $150,000 in fees for what would have been chicanery anywhere else in the notorious ABSCAM sting in the 1980s. It is a notable feature of FBI/informant dealings that there are only guidelines, not federal statutes, to mandate the way in which FBI agents must conduct themselves in confidential informant relations.

As a national police agency, the FBI has a larger-than-life reputation in the minds of American citizens. If this gold standard law enforcement agency, operating with the weight of the national government behind its activities, fails to abide by its own rules, what of the three person detective office in a small American town, operating with far less scrutiny?

Where America has operated with guidelines and Inspector General reviews, other jurisdictions have added further measures of insulation between the informant and the judicial process. In the province of Ontario, Canada, all cases that propose to use the testimony of a "jailhouse informant" are vetted by a committee of prosecutors prior to trial. There is a fear in many countries that the use of a police informant will lead to miscarriages of justice, especially wrongful convictions.

FURTHER RESOURCES

Books

Ranalli, Ralph. Deadly Alliance: The FBI's Secret Partnership With the Mob. New York: Harper Collins, 2001.

Periodicals

U. S. Department of Justice. Office of the Inspector General. "Federal Bureau of Investigation Compliance with Attorney General's Investigative Guidelines." September 2005.