Informants—DOJ Report Released

A couple of weeks ago, we mentioned that a federal judge in San Francisco had ordered the US Department of Justice to investigate its use of informants. Yesterday, Inspector General Glenn A. Fine, the Department of Justice’s internal watchdog, released a somewhat unrelated report that found that there were rules violations in 87% of the cases in which informants were used.^[1]

To test compliance with informant guidelines, the Office of the Inspector General [hereinafter OIG], visited 12 FBI field offices between June and August of 2004, and selected 120 individual confidential informant files.^[2] The files selected fit into at least one of four categories: long-term informants, informants authorized to perform otherwise illegal activity, privileged or media-affiliated informants, and informants who are not reviewed at FBI Headquarters.^[3] In the process of examining the individual informant files, the OIG collected data on: the informants’ suitability, instructions, documentation and notification of unauthorized illegal activity, approval of illegal activity, and deactivations.^[4] There were five questions the OIG sought to answer:

• Were the required reviews of confidential informants conducted within the required time period, and was the required information provided?


• Were the required instructions or cautions given to informants at registration and periodically thereafter?


• Were applications to permit confidential informants to engage in illegal activity complete and timely, was the proposed illegal activity described in sufficient detail, and was the requisite approval obtained from the US Attorney’s Office? [hereinafter USAO]


• Was unauthorized illegal activity by confidential informants reported when required?


• If informants were deactivated “for cause” or other reasons, was the deactivation appropriately documented; was the informant notified of the deactivation; and if the informant was authorized to engage in illegal activity, was the authorization revoked and the revocation documented?^[5]

In 104 of the 120 files, deficiencies were found, including failure to document evaluations of suitability factors, failure to give required instructions to informants, failure to obtain proper authorization to permit informants to engage in illegal activities, failure to report unauthorized illegal activity, and failure to document deactivation of informants.^[6]

Some of the findings are surprising. In the five files that concerned unauthorized illegal activity, no notification at all was provided by the FBI to the USAO.^[7] In the 25 files that concerned authorized illegal activity, 15 of the files, or 60%, had violations such as failure to obtain authorization from the USAO, or failing to have the informant sign acknowledgements.^[8] 49% of the files were deficient in the instructions that were provided to informants.^[9] And 37% of the files had deficiencies in the way that informants were deactivated.^[10] Furthermore, deficiencies were fairly uniform across the 12 selected Field Offices; in other words, the numbers were not skewed by a particularly egregious Office.^[11]

Many of the FBI personnel reported that agents find the paperwork “burdensome and time-consuming,” and that the guidelines are written in “dense ‘legalese’ that is hard for case agents to absorb, remember, and follow.”^[12] Furthermore, the burdens have created concerns that the FBI may not “open” informants, or that they may shift to “hip pocket” informants so that they don’t have to fill out the paperwork.^[13]

The OIG rounded out its analysis by offering some recommendations. It suggests, “regardless of whether the FBI retains the Criminal Informant Program as a separate program or integrates it into a more generic human source program,” that the following steps need to be taken:

• develop and implement a compliance plan;


• provide enhanced administrative and technical support;


• make adjustments to promote adherence to the guidelines; and


• provide necessary training.^[14]

A surprising and troubling category of potential informants are lawyers, doctors, and the clergy--all who have confidentiality obligations—as well as some members of the news media.^[15] FBI spokesman Ed Cogswell would not confirm whether any of those types of informants are used, but he did say “We can use them and if a need presents, I’m sure we do. … But we do not want to identify what our sources are.”^[16]

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[1] Mark Sherman, Justice Dept.: FBI Ignores Informant Rules, Seattle Post-Intelligencer, Sept. 12, 2005, available here; see also Office of the Inspector General, The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines, Sept. 2005, available here [hereinafter OIG] (large PDF); OIG, Report Appendices, Sept. 2005, available here (large PDF).
[2] OIG at 90.
[3] Id.
[4] Id. at 91.
[5] Id. at 91-92.
[6] Id. 93.
[7] Id. at 95.
[8] Id.
[9] Id. at 94.
[10] Id. at 95.
[11] Id. at 100 & 107.
[12] Id. at 113.
[13] Id.
[14] Id. at 133-35.
[15] Id. at 78; Sherman, supra note 1.
[16] Sherman.