Background

		Confidential Informants

Confidential informants provide information and take action at the  direction of law enforcement agencies to further investigations, and  agencies may rely on confidential informants in situations in which it could  be difficult to utilize an undercover officer. An informant can be motivated  by many factors, including financial gain or reduced sentencing for  criminal convictions. Confidential informants who assist DOJ or DHS law  enforcement agencies often have criminal histories, though some are  concerned citizens with no criminal connections.
Case Study: Risk of Using Criminals as Informants  In 1995, the government indicted James “Whitey” Bulger, the leader of an  organized crime syndicate in Boston, and his associate Stephen “The  Rifleman” Flemmi on multiple charges of racketeering, including acts of  extortion, murder, bribery, loan sharking, and obstruction of justice.  Bulger and Flemmi had been Federal Bureau of Investigation (FBI)  informants for much of the time period covered by the indictment.  Evidence presented during the 1998 pretrial hearings in the government’s  case against Flemmi revealed misconduct and criminal activity by the FBI  agents who handled the two informants.

		The Attorney General’s Guidelines

The Guidelines require each DOJ law enforcement agency to develop  agency-specific policies regarding the use of informants, and the DOJ  Criminal Division is tasked with reviewing these agency-specific policies  to ensure that the policies comply with the Guidelines. The Guidelines  also provide that whenever an agency believes that an exception to any  provision in the Guidelines is justified, the agency is to seek an exception  from DOJ’s Criminal Division, and the agency is required to maintain  documentation of any exceptions granted. The Guidelines do not explicitly  apply to DHS agencies, and neither the Guidelines nor DHS requires any  such review for DHS component agencies’ policies. However, one of the  stated purposes of the Guidelines is to set policy with regard to  informants that may become involved in criminal prosecutions by federal  prosecuting offices. To the extent that DHS agencies are investigating  cases that will be prosecuted federally, federal prosecutors expect  agencies to adhere to the Guidelines for any informants whose role may  affect prosecution. These prosecutors work with agents on a case-by- case basis to ensure the evidence from an investigation supports  prosecution.

		Requirements for Vetting Informants

The Guidelines require that, prior to utilizing a person as an informant,  agencies vet informants to assess their suitability for the work. In  particular, agents who oversee the use of informants (case agents or  control agents) must complete and sign a written initial suitability report  and recommendation that addresses factors about the proposed  informant such as biographical information, personal information (e.g.,  relationship to the target of the investigation), motivation for becoming an  informant, and criminal history. Additionally, the Guidelines require that  agents address these same factors through continuing suitability reviews  that are to occur at least annually. A first-line supervisor approves the  written initial and continuing suitability reports that the agent prepares and  ensures that new continuing suitability reports are completed when  information becomes available that could materially affect a prior  suitability determination. Upon registering an informant and every year  thereafter, the agent, along with another government official who must be  present as a witness, is required to review written instructions with the  informant to convey the scope of the informant’s authority, the limits on  assurances of confidentiality, prohibitions against certain types of illegal  activity, and the possible consequences of violating these conditions.
These instructions and the accompanying documentation are to ensure  that the constraints within which the informant is to operate are clear and  well documented so that unnecessary risk does not result. In particular,  documenting and administering these instructions helps to prevent  informants from claiming that the agency gave the informant authority to  commit crimes.
Case Study: Importance of Providing Instructions to Informants to  Prevent Claims of Authority to Commit Crimes  During the course of several investigations, the U.S. Secret Service  (USSS) uncovered the fact that Albert Gonzalez—who had previously  been arrested in an unrelated case—was criminally involved while  working as an informant. Gonzalez was masterminding a scheme that  involved the theft and sale of more than 40 million credit and debit card  numbers from numerous U.S. retailers. According to USSS officials,  Gonzalez signed a stipulation stating that he was not to engage in  unauthorized criminal activity. Gonzalez was subsequently charged with  and pled guilty to computer fraud, wire fraud, aggravated identity theft  and conspiracy for his role in the scheme.

		Requirements for Overseeing Informants’ Illegal Activities

Since 1980, the Guidelines have permitted agencies to authorize  informants to engage in activities that would otherwise constitute crimes  under federal, state, or local law if someone without such authorization  engaged in these same activities. For example, in the appropriate  circumstance, an agency could authorize an informant to purchase illegal  drugs from someone who is the target of a drug-trafficking investigation.  Such conduct is termed “otherwise illegal activity.” According to the DOJ  Office of the Inspector General, authorizing informants to engage in  otherwise illegal activity can facilitate their usefulness as a source of  information to the government but may also have adverse or unforeseen  consequences. For example, the informant’s participation in authorized  otherwise illegal activity could hinder prosecution of the informant’s  coconspirators by prompting, for example, defenses of public authority or  entrapment. Agency officials in field offices are responsible for  documenting authorization and oversight of otherwise illegal activity, in  some cases in consultation with the appropriate local chief federal  prosecutor.
The Guidelines include certain requirements when authorizing otherwise  illegal activity and restrictions on the types of activities an agency can  authorize, as shown in figure 1. In particular, agencies must authorize the  activity in advance, in writing, and for a specified period not to exceed 90  days. Additionally, the authorizing official must document certain findings  as to why it is necessary for the informant to engage in the activity and  assess whether the benefits to be obtained from the activity outweigh the  risks. The Guidelines also prohibit agencies from authorizing an informant  to participate in an act of violence, obstruction of justice, and other  enumerated unlawful activities. After an agency authorizes an informant  to engage in otherwise illegal activity, the case agent or control agent,  along with another government official acting as a witness, must review  with the informant additional instructions addressing the scope and limits  of the otherwise illegal activity.
According to the Guidelines, agents are to instruct informants that they  may be prosecuted for any unauthorized illegal activity. However,  informants who are prosecuted for such conduct may claim in defense  that the government authorized or immunized their crimes. To address  this concern, if an agency has grounds to believe that an informant has  engaged in unauthorized illegal activity, the Guidelines require the agency  to notify a federal prosecutor of the suspected activity and the individual’s  status as an informant. The Guidelines require the federal prosecutor and  the agency’s local special agent in charge to consult and concur  regarding whether to notify state and local authorities about the  individual’s participation in illegal activity or the individual’s status as an  informant. Furthermore, if an agency has reason to believe that an  informant has failed to comply with the specific terms of an authorization  for otherwise illegal activity, the Guidelines require the agency to make a  determination whether the informant should be deactivated, and the  informant may be subject to prosecution for any unauthorized illegal  activity.
Case Study: Importance of Overseeing Authorized Otherwise Illegal  Activity  As part of Operation Wide Receiver, Bureau of Alcohol, Tobacco,  Firearms and Explosives (ATF) agents did not secure the approvals  necessary under the Guidelines for allowing an informant (a licensed  firearm dealer) to conduct otherwise illegal activity. Agents did not  closely monitor the informant’s sale of firearms, including firearms sold to  buyers with suspected cartel ties, and in not doing so, the agents gave  little to no consideration for the public safety repercussions.  Subsequently, in November 2011, ATF revised its confidential informant  policies and incorporated the Guidelines’ provisions regarding  authorizing otherwise illegal activity for informants, including provisions  requiring the agency to closely supervise the activity.

	Five Agencies’ Policies Do Not Include All Requirements in the Guidelines

DOJ and DHS component agencies’ policies in our review generally  address a majority of the Guidelines’ requirements for vetting potential  informants; however, about half of those policies are not fully consistent  with the provisions for overseeing informants’ illegal activities. Though  DOJ requires agencies to follow the Guidelines and has an established  structure for overseeing this, the department has not ensured that DEA’s  or USMS’s policies explicitly address all provisions in the Guidelines for  overseeing informants’ illegal activities. USSS, USCG, and ICE within  DHS also have policies that do not fully reflect provisions in the  Guidelines, in part because DHS does not explicitly require them to  develop policies that adhere to the Guidelines. Nevertheless, federal  prosecutors expect DHS agencies to follow the Guidelines to support  prosecution for cases involving informants, and without additional DHS  guidance regarding expectations for adhering to the Guidelines, DHS  cannot ensure consistency of policy and practice across all of its  agencies.

		Agencies’ Policies Are Generally Consistent with the Guidelines on How to Vet Informants

The eight DOJ and DHS component agencies in our review generally  require agents to consider the factors identified in the Guidelines when  conducting initial suitability reviews prior to utilizing a person as an  informant. Specifically, with respect to the initial vetting of informants, we  found that the FBI’s policy addresses all of the factors outlined in The  Attorney General’s Guidelines Regarding the Use of FBI Confidential  Human Sources, and the other seven agencies all require agents to  address the following factors, among others, in an informant’s initial  suitability review:   the person’s reliability and truthfulness, whether the person is a substance abuser or has a history of whether the person is reasonably believed to pose a danger to the whether the person has a criminal history.
Appendix IV provides additional detail on our assessment of the extent to  which each agency’s policy is consistent with specific provisions of the  Guidelines, including the extent to which each agency addresses the  required factors for an initial suitability review. Furthermore, all of the  agencies’ policies require that a continuing suitability review be conducted  at least annually, in accordance with the Guidelines.

		Five Agencies’ Policies Are Not Fully Consistent with the Guidelines on How to Oversee Informants’ Illegal Activities

ATF, the FBI, and CBP have policies that are consistent with each  provision of the Guidelines regarding oversight of informants’ illegal  activities. However, the other five agencies—specifically, DEA, USMS,  ICE, USSS, and USCG—have policies that we determined are either  partially consistent with or do not address some provisions in the  Guidelines regarding oversight of informants’ illegal activities. As a result,  these agencies do not have policies that explicitly inform their agents of  all the activities and safeguards that the Guidelines outline for minimizing  the risks involved with using informants. Implementation of the processes  in the Guidelines helps increase the likelihood that informants will not  engage in criminal activity that may be detrimental to the agency or the  general public, thereby preventing issues with informants that agencies  have experienced in the past.
Written, advance authorization of otherwise illegal activity: As  depicted in table 1, three of the agencies’ policies (USMS, USCG, and  USSS) do not have any content that addresses the Guidelines’  requirement to authorize otherwise illegal activity in advance, in writing,  and for a specified period of time not to exceed 90 days. Furthermore,  three of the agencies’ policies (USMS, USCG, and USSS) do not require  officials to document why the agency needs the informant to engage in  the otherwise illegal activity—for example, that the informant’s role in the  activity would obtain information that is not otherwise reasonably  available or that it would prevent injury or significant damage to property.  These same agencies, along with DEA and ICE, are partially consistent  or not consistent with the Guidelines’ requirements to provide written  instructions to the informant regarding the parameters of the authorized  otherwise illegal activity and to have the informant sign an  acknowledgment of these instructions.
Suspension or revocation of authorization for otherwise illegal  activity: Furthermore, as depicted in table 2, five agencies (DEA, USMS,  ICE, USSS, and USCG) do not have policies that are consistent with  some or all of the Guidelines’ provisions regarding the suspension or  revocation of authorization for an informant to engage in otherwise illegal  activity. Under the Guidelines, agencies are required to take certain  actions when suspending authorization for otherwise illegal activity for  legitimate reasons unrelated to the informant’s conduct, but DEA, USMS,  ICE, USSS, and USCG do not have any content in their policies that  addresses these requirements. If an agency has reason to believe that  an informant has failed to comply with the specific terms of an  authorization for otherwise illegal activity, the Guidelines require agencies  to undertake specific actions to revoke the authorization, but USMS and  USSS do not have any content in their policies that addresses these  requirements.
Senior officials at multiple agencies told us that, in practice, their agencies  address required Guidelines provisions, even though the provisions are  not explicitly outlined in the policy. Headquarters officials from DEA, ICE,  USCG, and USSS who are responsible for developing and distributing the  agencies’ informant policies stated that though their respective policies  may not explicitly contain some or all of a particular provision of the  Guidelines, these agencies believe their agents and supervisors  implement some of the Guidelines’ provisions in practice. For example,  ICE officials stated that ICE’s practice is to authorize otherwise illegal  activity for a specific operation and that such an authorization would not  cover a time period as long as 90 days. However, it is not clear in the  policy that authorization for informants’ otherwise illegal activities is to be  limited to 90 days. Given that the Guidelines were developed to address  the substantial risks involved in using informants, it is important that  policies include the specific procedures that implement the requirements  of the Guidelines. For example, informant program management and  supervisory officials told us that when an agent has a question about a  required procedure, they will direct the agent to the requirements in the  agency’s policy. Therefore, by explicitly including in the agencies’ policies  certain practices that the Guidelines require, agencies would be better  positioned to provide sufficient guidance to their agents and supervisors  to ensure that agents are implementing these practices in accordance  with the Guidelines.
Senior headquarters officials from DOJ agencies whose policies were not  consistent with the Guidelines’ provisions discussed above provided  additional rationales and approaches for their agencies. Two senior  headquarters USMS officials who oversee the agency’s policy stated that  USMS does not authorize otherwise illegal activity because USMS’s  mission is to locate and arrest fugitives. Therefore, according to USMS  officials, USMS does not expect its informants to provide information over  a period of time regarding felonious criminal activities the way that other  agencies’ informants do. However, USMS’s policy includes instructions  that Deputy U.S. Marshals are required to provide to informants, and  these instructions refer to the possibility that the agency could authorize  otherwise illegal activity. Specifically, USMS’s policy states that an  informant is not to engage in any unlawful acts, “except as specifically  authorized by representatives of the USMS.” This language suggests that  the agency could authorize an informant to engage in otherwise illegal  activity, and there are no USMS policy provisions to inform agents that  they are not permitted to authorize such an activity. Because the policy  does not provide any further discussion of the procedures for authorizing  otherwise illegal activity, this ambiguity in the policy could result in an  agent authorizing an activity without adhering to the provisions set forth in  the Guidelines. USMS officials agreed that, based on our findings,  information about the role of informants in otherwise illegal activity could  be stated more explicitly in the agency’s policy, and they will plan to  update the policy in the future, but officials did not have specific details  about their next steps.
With respect to the Guidelines’ requirement to authorize otherwise illegal  activity in advance, in writing, and for a specified period of time not to  exceed 90 days, DEA officials stated that their policy is more restrictive  than the Guidelines because the agency authorizes otherwise illegal  activity for a given operation that occurs within a time frame shorter than  90 days. However, our review of DEA’s policy found that it does not state  this explicitly, and therefore a DEA agent looking to DEA’s policy for  guidance may not understand that agents are expected to prepare  documentation in accordance with the Guidelines for all circumstances  that would be considered otherwise illegal activity. With respect to  providing informants instructions for each instance of otherwise illegal  activity, DEA’s policy requires briefing the informant for an operation, but  the policy does not meet the specific requirements in the Guidelines that  instructions be provided in writing and that the informant sign an  acknowledgment of these instructions. Without such documentation, if an  informant engages in an activity that exceeds the scope of the  authorization, the agency may not be able to demonstrate that the  informant’s actions were not authorized, thereby limiting the agency’s  ability to prosecute the informant for the unauthorized illegal activity.
The Guidelines require DOJ component agencies to submit informant  policies to the Assistant Attorney General for the Criminal Division for  review, but these reviews did not ensure that DEA’s and USMS’s policies  explicitly address all provisions of the Guidelines. DEA and USMS each  submitted agency-specific policies to the Criminal Division for review after  the latest version of the Guidelines was issued, in May 2002. Criminal  Division officials stated that they reviewed documentation, where  available, reflecting the review and approval of these agencies’ policies.  According to Criminal Division officials, the agencies submitted their  respective policies and made revisions as a result of the Criminal  Division’s review, and the Criminal Division approved the amended  policies. However, as discussed above, our assessment identified that  DEA’s and USMS’s policies were not fully consistent with the Guidelines.  The Guidelines permit component agencies to make departures from the  Guidelines by seeking an exception or through a dispute resolution  process. However, according to two senior Criminal Division officials,  neither agency applied for a departure from the Guidelines. During our  meeting with these officials, they stated that noncompliance with  provisions in the Guidelines could have serious effects on prosecution  and that agencies’ policies are the tool for ensuring that agents know  what steps are required in using informants. Accordingly, policies that do  not address all requirements in the Guidelines could result in agents not  being aware of the necessary precautions to take when working with  informants, and not taking such precautions could jeopardize  prosecutions. In response to our findings, Criminal Division officials said  that they plan to revisit the agencies’ policies in coordination with the  component agencies, but did not provide further details on their plans.
As discussed earlier in this report, federal prosecutors expect DHS  agencies to adhere to the Guidelines to support successful prosecution  through DOJ prosecuting offices. Not adhering to the Guidelines can  affect agencies’ cases for prosecution and put agencies at risk when  informants commit unauthorized crimes. For example, an official at one  field division of a DOJ component agency we visited said that an  informant continued to engage in illegal activities after an authorization  had expired, and because the agency had documentation that the  informant was no longer authorized to do so, the informant could not  claim that the activity was authorized. This ensured that the government  could successfully prosecute the informant for the activity that occurred  outside of the authorization. Additionally, complying with the Guidelines  can help an agency demonstrate control of how the informant obtained  evidence for the case. Demonstrating such control can help to prevent the  possibility that a defendant could undermine the prosecution’s case by  attacking the credibility or role of an informant.
In contrast to DOJ component agencies, DHS agencies do not have  guidance from the department level instructing or requiring the agencies  to develop policies that directly match the Guidelines. Officials from the  Offices of the Chief Security Officer, Policy, and the General Counsel said  that they do not have an oversight role regarding DHS agencies’  informant policies or the agencies’ use of informants, although the Office  of the General Counsel may provide guidance on a case-by-case basis  when an agency requests assistance. Senior officials from the Office of  the Chief Security Officer said that the DHS component agencies had  their own informant policies prior to the formation of DHS, and therefore  the agencies continued to operate under component-specific policies  since that time without additional involvement from the department.  Without departmental oversight, the DHS agencies have independently  managed their own policies and have different perspectives about the  importance of incorporating all provisions of the Guidelines. As a result,  some agencies do not incorporate all requirements in the Guidelines that  can be important for supporting prosecution. Specifically, four senior  USSS officials who manage the agency’s informant policy said that they  would incorporate provisions that were missing, according to our review.  USSS subsequently made changes to its policy in February 2015.  Similarly, two senior USCG officials who manage the agency’s policy said  that they would incorporate missing provisions, although at that time, they  could not estimate when a revised policy would be drafted or  implemented. However, several ICE headquarters officials questioned  whether their agency is subject to the Guidelines, as the Guidelines  explicitly apply to DOJ, but not DHS, agencies. These officials stated that  they may consider amending their policy based on the results of our  review.
Providing department-level guidance regarding compliance with the  Guidelines would be consistent with federal internal control standards and  help support the DHS Secretary’s priority to achieve a unified DHS across  its many components. Federal internal control standards require that  authority and responsibility be defined throughout an organization, in  consideration of factors such as the nature of operations. Given that the  information from DHS agencies’ investigations flows to the U.S. Attorneys  within DOJ for prosecution, it is important to define the responsibilities for  DHS agencies with respect to adhering to the standards that apply at  prosecution, such as the Guidelines. The Secretary of Homeland Security  stated in The 2014 Quadrennial Homeland Security Review that one of  the highest priorities is to ensure that the department invests and  operates in a cohesive, unified fashion and makes decisions that  strengthen departmental unity of effort. In DHS’s 2012-2016 Strategic  Plan, the department identified a goal to improve departmental  management, policy, and functional integration. Part of the steps  identified under this goal is establishing an executive decision support  structure to provide strategic direction for program management  processes, among other processes. Enhancing DHS’s oversight of its  component agencies’ informant policies could help promote adherence to  the Guidelines, consistency in the approach to overseeing informants  across component agencies in support of DHS’s unity of effort goal, and  accountability for agencies to meet prosecution standards.

	Selected DOJ and DHS Agencies Monitor Compliance with Their Informant Policies but Not the Guidelines’ Provisions Missing from These Policies

DEA, the FBI, ICE, and USSS—the four agencies we reviewed that had  the highest numbers of informants in fiscal year 2013—have processes in  place, such as ongoing monitoring activities and separate evaluations,  which are designed to help ensure compliance with their respective  informant policies. However, as discussed earlier, DEA’s, ICE’s, and  USSS’s informant policies do not explicitly address some requirements in  the Guidelines, particularly those related to overseeing informants’ illegal  activities. Thus, these agencies’ monitoring processes, do not verify  compliance with these provisions in the Guidelines. In contrast, the FBI’s  processes monitor compliance with provisions in the Guidelines for both  vetting informants and overseeing informants’ illegal activities.

		Selected DOJ and DHS Component Agencies Have Monitoring Processes to Assess Compliance with Their Agencies’ Respective Informant Policies

DEA, the FBI, ICE, and USSS have monitoring processes that are  designed to help ensure compliance with their informant policies. In  particular, these agencies have mechanisms in place, such as requiring  regular supervisory and managerial reviews, consistent with federal  internal control standards for ongoing monitoring. At some agencies, an  assigned informant coordinator is to conduct additional reviews to ensure  the documentation is complete, and initiates periodic reminders for agents  to complete required documentation. Additionally, consistent with federal  internal control standards for separate evaluations, each agency performs  headquarters-led on-site inspections, and some agencies also have field  office–based inspection programs.

			Ongoing Monitoring Processes

Consistent with federal internal control standards, these four agencies  have ongoing monitoring processes that include the following:
Supervisory and managerial oversight. All four agencies’  monitoring processes include the requirement for regular supervisory  and managerial reviews that check for inconsistencies with policy. For  example, all four agencies require a supervisor to review informant  initial and continuing suitability reviews and assess any risk factors  identified for each informant. Additionally, these agencies have  developed administrative evaluation tools, such as standardized forms  that correspond with their respective policy requirements, to help  ensure that agents capture necessary information when vetting an  informant. Supervisory and managerial reviews are to be used to  verify that agents complete these forms correctly and properly store  them in the informant’s file.
Confidential informant coordinators. DEA, the FBI, and ICE  policies call for informant coordinator roles, or similar position  assignments, and officials at the three USSS offices we visited said  that they also have assigned staff to carry out similar responsibilities.
Coordinators or personnel in similar positions we spoke with at each  of the four component agencies told us that they employ various  practices, such as initiating reminders to agents and supervisors to  meet deadlines (e.g., for continuing suitability reviews), and  periodically reviewing individual forms or whole informant files to  ensure compliance with agency policies. According to headquarters  and field officials from the four agencies, these dedicated positions  help to ensure adherence with informant policies at the field division  level by providing support to field staff on working with informants.

			Separate Evaluations

DEA, the FBI, ICE, and USSS also perform separate evaluations, through  headquarters-led on-site inspection programs that occur on a 2- to 5-year  cycle. Additionally, DEA and ICE have field-based inspection programs to  assess compliance with informant policies between regularly scheduled  headquarters inspections. Consistent with federal internal control  standards, both types of inspections help to monitor the extent to which  agents are complying with their respective informant policies.
Headquarters-led inspection program. All four agencies’ on-site  inspections assess compliance with their informant policies, and some  of these inspections include inspecting administrative tools and  systems (e.g., how informant files are stored, the security of the file  room), reviewing the functions of officials responsible for overseeing  the informant program (e.g., managers, informant coordinator), and  talking to informants themselves to make sure the informants are  aware of key procedures.
Field office–based inspection programs. DEA, ICE, and the FBI  have field office–based programs that involve independent reviews for  compliance with agency policies. DEA and ICE also require their  field divisions to conduct self-inspections for compliance in major  program areas, including informant management. According to DEA  and ICE field officials, during the self-inspection process, field  supervisors are to review other supervisors’ informant files to  determine whether the files comply with required policies and  procedures. Additionally, in October 2014, the FBI implemented a  field-based program that involves a supervisor in one field office  reviewing, with the support of an intelligence analyst, informant files  from another field office for compliance with the informant policy,  among other things. Each FBI field office also has a division  compliance council to monitor, detect, and mitigate compliance risks,  including those related to informants.
As part of the monitoring processes described above, these four agencies  also have procedures for addressing serious violations of informant  policies, including steps for referring agent misconduct when working with  an informant. Officials from these four agencies stated that alleged  violations of their informant policies can be reported by an agent, by a  supervisor while conducting a file review, or by a third party such as the  informant or a person who has become aware of the violation. For  example, inspectors are required to address in the inspections report any  significant deficiency findings identified. According to officials, findings  identified during an inspection are handled on a case-by-case basis and  directed to headquarters-level management officials—such as inspection  unit officials or the agencies’ Offices of Professional Responsibility,  Integrity, or Internal Affairs—to ensure accountability for any policy  violations. These agencies report that failure to comply with the  provisions of their respective policies may result in disciplinary action,  which could involve dismissal of the employee. Additionally, these  agencies’ Offices of Professional Responsibility or Internal Affairs, or  Inspectors General, can receive allegations of misconduct identified  outside of an inspection, and these offices have procedures for  investigating such allegations.
We found that the agencies’ inspections processes can help to identify  deficiencies and develop corrective action steps. We reviewed examples  of inspection reports from each agency; in general the reports did not  identify deficiencies that would indicate systemic non-compliance, and  any deficiencies noted were isolated issues. The reports we reviewed  also documented the corrective actions taken to address these  deficiencies, such as completing the required documentation and adding  a corrective action memo to the informant file as an update.

		DEA, ICE, and USSS Do Not Have Reasonable Assurance That They Are Following the Guidelines for Overseeing Informants’ Illegal Activities

As noted above, DEA, the FBI, ICE, and USSS have monitoring  processes in place to help ensure compliance with their respective  policies on handling informants. However, as discussed earlier in this  report, DEA, ICE, and USSS have policies that do not explicitly address  all of the Guidelines’ provisions related to oversight of informants’ illegal  activities. Accordingly, these component agencies’ monitoring processes  do not assess compliance with the provisions in the Guidelines that are  missing from their policies (i.e., areas where we found that the agencies’  policies were not consistent with provisions in the Guidelines). The FBI,  on the other hand, fully addresses each of the provisions of the  Guidelines in its informant policy, and its monitoring processes address  oversight of informants’ illegal activity in accordance with its policy and  the Guidelines.
In particular, DEA’s, ICE’s, and USSS’s inspections correspond with the  requirements in their respective informant policies, but do not address  provisions that are missing from the policies. Accordingly, these  inspections generally address Guideline provisions for vetting an  informant. However they do not generally address compliance with illegal  activity provisions, in part because these provisions are not explicitly  addressed in the agencies’ respective policies. In response to our  findings, senior program officials at DEA, ICE, and USSS confirmed that  their informant program inspections do not assess provisions in the  Guidelines that are not explicitly stated in the agencies’ respective  informant policies. As a result, agencies may not have reasonable  assurance that agents are complying with provisions in the Guidelines for  overseeing informants’ illegal activities.

	Conclusions

The use of confidential informants is an important law enforcement tool  that supports investigations and prosecutions, but because informants  often have criminal histories, it is important for agencies to have  procedures that address the associated risks. The Attorney General’s  Guidelines established procedures to help ensure that agencies exercise  their authorities—especially for vetting the suitability of an informant and  authorizing the informant to conduct otherwise illegal activities— appropriately and with adequate oversight of informants. However, partly  as a result of limited departmental oversight, some agencies’ policies are  not consistent with all of the provisions in the Guidelines, particularly ones  regarding overseeing informants’ illegal activities. Policies that explicitly  impose the safeguards identified in these provisions of the Guidelines can  put agencies in a better position to minimize the risks of using informants  and ensure optimal prosecution of cases when using informants. For  example, if an agency does not adhere to the Guidelines’ provisions for  overseeing informants’ otherwise illegal activities, a defendant could  attempt to undermine the prosecution’s case by attacking the role of the  informant in the case. If the informant engaged in unauthorized illegal  activity, the agency could also find itself unable to successfully prosecute  the informant for the crime if the agency did not fully document and  explain to the informant the parameters of what the informant is and is not  allowed to do in furtherance of the investigation. Furthermore, without  ensuring that monitoring processes explicitly address all of the  requirements in the Guidelines for vetting and overseeing informants’  illegal activities, agencies cannot fully ensure that they are complying with  the Guidelines. Additional oversight at the department level could also  help to ensure that the agencies are taking the necessary steps to comply  with the Guidelines to effectively oversee informants in support of  prosecution.

	Recommendations for Executive Action

To help ensure that agencies’ policies and oversight are fully consistent  with The Attorney General’s Guidelines Regarding the Use of Confidential  Informants, we recommend that  the Administrator of DEA and the Director of USMS, with assistance  and oversight from the DOJ Criminal Division, update their agencies’  respective policies and corresponding monitoring processes to  explicitly address the Guidelines’ provisions on oversight of  informants’ illegal activities;   the Secretary of the Department of Homeland Security provide  oversight and guidance to ensure that DHS agencies comply with the  Guidelines; and  the Assistant Secretary of ICE and the Commandant of USCG update  their respective agencies’ informant policies and corresponding  monitoring processes to explicitly address the Guidelines’ provisions  on oversight of informants’ illegal activities.

	Agency Comments and Our Evaluation

We provided a draft of the sensitive version of this report to DOJ and  DHS for their review and comment. DOJ and DHS provided written  comments, which are reproduced in appendixes V and VI, respectively. In  their comments, DOJ and DHS concurred with our recommendations and  described actions under way or planned to address them. Specifically:
DOJ concurred with our recommendation that DEA and USMS  update their respective policies and corresponding monitoring  processes, and stated that DEA and USMS have begun updating  their policies in consultation with the Criminal Division.
DHS concurred with our recommendation that DHS provide  oversight and guidance to ensure that DHS agencies comply with  the Guidelines. DHS stated that it plans to designate a DHS entity  to be responsible for developing, implementing, and overseeing  policies and programs to ensure DHS-wide compliance with the  Guidelines, as appropriate.
DHS concurred with our recommendation that ICE and USCG  update their respective policies and corresponding monitoring  processes. DHS stated that ICE will review requirements related  to the oversight of informants’ illegal activities as part of an  ongoing update to its informant handbook. DHS stated that USCG  has issued an interim policy that requires compliance with the  Guidelines and that USCG also plans to do a comprehensive  review and revision of its policy.
When implemented, these ongoing and planned actions should address  the intent of our recommendations, result in revised policies that are  consistent with the Guidelines, and ensure that DOJ and DHS agencies  impose safeguards that minimize the risk of using informants. DHS and  DOJ also provided technical comments, which we incorporated as  appropriate.
We are sending copies of this report to the appropriate congressional  committees, the Attorney General, the Secretary of Homeland Security,  and other interested parties. In addition, the report is available at no  charge on the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-9627 or maurerd@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix VII.

Appendix I: Scope and Methodology

For this report, we reviewed the policies and processes for the eight  Department of Justice (DOJ) and Department of Homeland Security  (DHS) component agencies that used confidential informants in fiscal  year 2013, the most recent year for which data were available. The DOJ  agencies included in our review are the Bureau of Alcohol, Tobacco,  Firearms and Explosives (ATF); the U.S Drug Enforcement Administration  (DEA); the Federal Bureau of Investigation (FBI); and the U.S. Marshals  Service (USMS). The DHS agencies are U.S. Customs and Border  Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the  U.S. Coast Guard (USCG), and the U.S. Secret Service (USSS). For  each agency, we reviewed the policies and processes that apply to  criminal informants that agencies oversee domestically; we did not review  policies or processes that apply only to informants that assist with  national security investigations. We conducted interviews with officials  responsible for overseeing these agencies’ respective informant  programs, as well as an attorney adviser from the Executive Office for  U.S. Attorneys because the U.S. Attorneys’ Offices prosecute cases for  these agencies, including cases that involve the use of informants.
To determine the extent to which DOJ and DHS component agencies’  policies include procedures outlined in The Attorney General’s  Guidelines, we assessed the eight agencies’ informant policies against  provisions in the Guidelines regarding vetting informants or overseeing  informants’ illegal activities. Specifically, we compared the FBI’s policy  against The Attorney General’s Guidelines Regarding the Use of FBI  Confidential Human Sources, and we compared the policies of the other  seven agencies—ATF, DEA, USMS, CBP, ICE, USCG, and USSS— against The Attorney General’s Guidelines Regarding the Use of  Confidential Informants. We identified provisions in each set of Guidelines  that relate to vetting informants (see app. II) and overseeing informants’  illegal activities (see app. III). To conduct our assessment, two  independent reviewers examined each agency’s informant policy and  related documents to determine the extent to which an agency was  consistent with each provision we identified in the Guidelines. We defined  the assessment categories as follows:
Consistent. The agency’s policy documents generally address each  requirement in the provision.
Partially consistent. The agency’s policy documents address some,  but not all, requirements in the provision
Not consistent. The agency’s policy documents address none of the  requirements in the provision or are contradictory to the provision.
We compared the two reviewers’ assessments, and where the  assessments differed, the reviewers discussed the requirements in the  Guidelines’ provision and agency documentation to reach agreement on  an assessment, and had an additional reviewer verify the assessment as  appropriate. For any provisions that we assessed the agencies as  partially consistent or not consistent with the Guidelines, we provided our  preliminary assessments and reasoning to the agencies for additional  information or discussion. Following these communications with agency  officials, agency officials provided additional documentation that they said  demonstrated the agency’s consistency with the Guidelines. Two  reviewers analyzed the additional documentation and reached agreement  on our final assessments. Our assessment determined whether agencies  meet the minimum criteria established in the Guidelines; the assessment  did not evaluate the policies to identify leading practices or areas where  agencies’ policies exceed the requirements in the Guidelines. In addition  to our assessment, we interviewed officials responsible for overseeing the  agencies’ informant programs about policies and processes for vetting  informants and overseeing informants’ illegal activities. We also reviewed  guidance from and interviewed representatives of DOJ headquarters  offices (Office of the Deputy Attorney General and Criminal Division) and  DHS headquarters offices (Office of Policy, Office of the Chief Security  Officer, and Office of the General Counsel).
To determine the extent to which selected DOJ and DHS component  agencies have monitoring processes to ensure compliance with the  Guidelines, we analyzed monitoring processes at four component  agencies—two from DOJ, and two from DHS. Out of DOJ’s total of four  component agencies, we selected DEA and the FBI for analysis because  these agencies used the most confidential informants in fiscal year 2013.
Likewise, out of DHS’s total of four component agencies, we selected ICE  and USSS for analysis for the same reason. We reviewed the FBI’s,  DEA’s, ICE’s, and USSS’s internal review mechanisms and processes  related to compliance with their respective informant policies. We  compared these mechanisms and processes with Standards for Internal  Control in the Federal Government, specifically standards that require  agencies to develop an internal control monitoring system that allows  agencies to ensure that ongoing monitoring occurs in the course of  normal operations and separate evaluations are performed, as  necessary, to assess the effectiveness of agency controls used for  monitoring compliance with agency policies. Internal control is an integral  component of an organization’s management that provides reasonable  assurance that agency objectives are achieved. Given this, we reviewed  the elements of the FBI’s, DEA’s, ICE’s, and USSS’s processes that  monitor and ensure compliance with informant policies.
We analyzed agencies’ policies on monitoring and related documentation,  including agency-wide forms used to document the use of informants and  examples of inspection checklists, inspection reports, and corrective  action reports. We compared the controls and processes described in  these documents with those in Standards for Internal Control in the  Federal Government. In doing so, we reviewed internal controls related  to identifying opportunities for ensuring compliance with informant  policies; we did not review all aspects of or conduct tests of these  agencies’ internal control systems. We did not review a representative  sample of monitoring documents; however, the documents we reviewed  demonstrate the structure of agencies’ monitoring processes, such as  what is covered in inspections, that allowed us to compare these  monitoring processes against internal control standards.
Additionally, we visited these four agencies’ field division locations in  three cities that we selected based on the number of informants these  agencies oversaw in those locations and geographical diversity. On the  basis of interviews conducted regarding the systems and methods for  recording information about the number of informants, we determined that  the agencies’ data on the number of informants were sufficiently reliable  for selecting the agencies we reviewed for this objective and selecting  field locations to visit. At these 12 locations, we interviewed managerial  and supervisory agents regarding how they oversee and monitor the use  of confidential informants, and we analyzed supporting documentation,  such as supervisory checklists. The results of the site visits are not  generalizable to all field divisions, but provided important observations  and insights into how these agencies oversee the use of informants using  standardized, agency-wide methods and locally developed approaches.  We also interviewed attorneys at each of the U.S. Attorneys’ Offices  located in the same cities as the agency field offices we visited to obtain  the prosecutors’ perspectives regarding the role of the Guidelines in  supporting prosecution.
We conducted this performance audit from August 2013 to March 2015 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

Appendix II: Attorney General’s Guidelines Provisions Regarding Vetting Informants

Table 3 provides a listing of the provisions from The Attorney General’s  Guidelines Regarding the Use of Confidential Informants and The  Attorney General’s Guidelines Regarding the Use of FBI Confidential  Human Sources that were included in our assessment of agencies’  policies for vetting informants.

Appendix III: Attorney General’s Guidelines Provisions Regarding Overseeing Informants’ Illegal Activities

Table 4 provides a listing of the provisions from The Attorney General’s  Guidelines Regarding the Use of Confidential Informants and The  Attorney General’s Guidelines Regarding the Use of FBI Confidential  Human Sources that were included in our assessment of agencies’  policies for overseeing informants’ illegal activities. Both sets of guidelines  provide the following definitions for two categories of otherwise illegal  activity that an agency can authorize:
Tier 1 otherwise illegal activity is 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 (1) the  commission, or the significant risk of the commission, of any act of  violence by a person or persons other than the informant; (2) corrupt  conduct, or the significant risk of corrupt conduct, by senior federal,  state, or local public officials; (3) the manufacturing, importing,  exporting, possession, or trafficking of controlled substances in a  quantity equal to or exceeding those quantities specified in United  States Sentencing Guidelines § 2D1.1(c)(1); (4) financial loss, or the  significant risk of financial loss, in an amount equal to or exceeding  those amounts specified in United States Sentencing Guidelines §  2B1.1(b)(1)(I); (5) an informant providing to any person (other than a  law enforcement agent) any item, service, or expertise that is  necessary for the commission of a federal, state, or local offense,  which the person otherwise would have difficulty obtaining; or (6) an  informant providing to any person (other than a law enforcement  agent) any quantity of a controlled substance, with little or no  expectation of its recovery by the law enforcement agent.
Tier 2 otherwise illegal activity is 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.

Appendix IV: Selected Results from GAO’s Assessment of Agencies’ Informant Policies

This appendix provides selected results of our assessments for the  provisions of the Guidelines discussed in this report. We found that the  agencies generally address the required factors for initially vetting  informants. Table 5 provides our assessment regarding the 17 factors  that The Attorney General’s Guidelines Regarding the Use of Confidential  Informants requires in the initial suitability report and recommendation,  and table 6 provides our assessment regarding the six pieces of  information that The Attorney General’s Guidelines Regarding the Use of  FBI Confidential Human Sources requires when initially establishing an  informant.
We found that some of the agencies’ policies do not address provisions in  the Guidelines for authorizing otherwise illegal activity and subsequently  supervising informants that are authorized to engage in otherwise illegal  activity. Table 7 provides additional detail on the extent to which agencies  are consistent with provisions regarding informants’ otherwise illegal  activity. For these provisions, The Attorney General’s Guidelines  Regarding the Use of FBI Confidential Human Sources are almost  identical to the provisions in The Attorney General’s Guidelines  Regarding the Use of Confidential Informants, and therefore our  assessment of FBI’s policy is included alongside our assessment of the  other seven agencies in table 7. The Attorney General’s Guidelines  Regarding the Use of FBI Confidential Human Sources has an additional  provision regarding the authorization of otherwise illegal activity— specifically that the written authorization by the FBI special agent in  charge or chief federal prosecutor of otherwise illegal activity shall be as  narrow as reasonable under the circumstances as to the unlawful  activity's scope, geographic area, duration, and other related matters— and we assessed FBI’s policy as consistent with respect to this provision.

Appendix V: Comments from the Department of Justice

Appendix VI: Comments from the Department of Homeland Security

Appendix VII: GAO Contact and Staff Acknowledgments

	GAO Contact

	Staff Acknowledgments

In addition to the contact named above, Glenn Davis (Assistant Director),  Danny Baez, Gary Bianchi, Alana Finley, Yvette Gutierrez, Susan Hsu,  John Sheehan, and Janet Temko-Blinder made key contributions to this  report.

Summary:
Why GAO Did This Study

Federal law enforcement components used more than 16,000 confidential informants in fiscal year 2013 as part of criminal investigations. Informants can be critical to an investigation, but without appropriate oversight, problems can occur that undermine the credibility of the informant's role in an investigation. The Attorney General's Guidelines sets forth procedures on the management of informants, including vetting potential informants and overseeing informants' illegal activities that components authorize to support an investigation.
GAO was asked to review the use of confidential informants. GAO reviewed the extent to which (1) DOJ and DHS components' policies address the Guidelines for vetting informants and overseeing their illegal activities and (2) selected components have monitoring processes to ensure compliance with the Guidelines.
GAO reviewed components' documented policies and monitoring processes and interviewed agency officials about their practices. GAO visited components' field offices in three locations chosen based on the numbers of informants overseen, among other factors.

What GAO Found

Some components within the Departments of Justice (DOJ) and Homeland Security (DHS) do not fully address procedures outlined in The Attorney General's Guidelines (the Guidelines)—which established procedures to help ensure that components exercise their authorities regarding the use of informants appropriately and with adequate oversight. Eight components within DOJ and DHS—the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); the U.S. Marshals Service (USMS); U.S. Customs and Border Protection; U.S. Immigration and Customs Enforcement (ICE); the U.S. Coast Guard (USCG); and the U.S. Secret Service (USSS)—have policies in place that generally address the procedures outlined in the Guidelines for vetting a confidential informant.
However, five of the eight components' policies are not fully consistent with the Guidelines' provisions for overseeing informants' illegal activities. For example, the Guidelines require agencies to document certain information when authorizing an informant to participate in an activity that would otherwise be considered illegal (e.g., purchasing illegal drugs from someone who is the target of a drug-trafficking investigation). DEA, USMS, ICE, USCG, and USSS do not fully address the requirements to provide the informant with written instructions about the authorized activity and require signed acknowledgment from the informant. Without such documentation, if an informant engages in an activity that exceeds the scope of the authorization, the agency may not be able to demonstrate that the informant's actions were not authorized, thereby limiting the agency's ability to prosecute the informant for the unauthorized illegal activity.
The DOJ and DHS components that oversaw the most informants in fiscal year 2013—the FBI, DEA, ICE, and USSS—have monitoring processes in place to help ensure that agents are complying with their respective components' policies. Such monitoring activities include supervisory reviews, as well as headquarters inspections and self-inspections within the field offices. These agencies also use administrative tools, such as standardized forms, that cover the requirements in their policies and help ensure that agents capture necessary information. However, as noted above, some components' policies do not fully address the procedures in the Guidelines, and as a result, the components' monitoring processes likewise do not assess compliance with those procedures in the Guidelines. Consequently, agencies may not have reasonable assurance that they are complying with procedures established in the Guidelines to address the risks associated with using informants.
This is a public version of a sensitive report that GAO issued in March 2015. It does not include details that ICE deemed law enforcement sensitive.

What GAO Recommends

GAO recommends that DOJ and DHS and their components take actions to update components' policies and monitoring processes to improve handling and oversight of confidential informants. DOJ and DHS concurred with our recommendations.