U.S. Department of Justice 

Of'fice of the Inspector General 

The Federal Bureau of Investigation's 

Compliance with the Attorney General's 

Investigative Guidelines 

Ofice of the Inspector General 

Sentember 2005 
i

TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................ i

TABLE OF APPENDICES ...........................................................................vii

INDEX OF CASE STUDIES, DIAGRAMS, AND TABLES .............................. ix

EXECUTIVE SUMMARY.............................................................................. 1

I. Overview ............................................................................................. 1

II. Background ........................................................................................ 5

III. The Scope and Methodology of the OIG Review .................................... 6

IV. OIG Findings....................................................................................... 7

A. The Attorney General’s Guidelines Regarding the Use of 

Confidential Informants ............................................................... 7

B. The Attorney General’s Guidelines on Federal Bureau of 

Investigation Undercover Operations............................................ 9

C. The Attorney General’s Guidelines on General Crimes, 

Racketeering Enterprise and Terrorism Enterprise 

Investigations............................................................................. 10

D. Procedures for Lawful, Warrantless Monitoring of Verbal 

Communications (Consensual Monitoring Guidelines) ................ 14

E. FBI Compliance Oversight Mechanisms...................................... 14

F. The FBI’s Implementation Process for the Revised 

Guidelines.................................................................................. 15

V. Recommendations............................................................................. 16

CHAPTER ONE: INTRODUCTION............................................................. 17

I. Background ...................................................................................... 17

II. Scope and Methodology of the OIG Review......................................... 21

A. Scope of the Review.................................................................... 21

B. Methodology of the Review ......................................................... 24

III. Organization of the Report................................................................. 25

CHAPTER TWO: HISTORICAL BACKGROUND OF THE ATTORNEY 

GENERAL’S INVESTIGATIVE GUIDELINES ....................................... 29

I. Introduction...................................................................................... 29
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II. The Pre-Guidelines Period..................................................................29

III. Establishment of the Attorney General Guidelines..............................36

A. The Levi Guidelines – 1976 .........................................................36

B. The Civiletti Guidelines – 1980-1981...........................................39

C. The Smith Guidelines – 1983 ......................................................46

D. The Thornburgh Guidelines – 1989.............................................50

E. The Reno Guidelines – 2001........................................................55

IV. Conclusion ........................................................................................59

CHAPTER THREE: THE ATTORNEY GENERAL’S GUIDELINES 

REGARDING THE USE OF CONFIDENTIAL INFORMANTS .................63

I. Role of Confidential Informants..........................................................63

II. The Benefits and Risks of Using Confidential Informants in FBI 

Investigations ....................................................................................64

III. Significant Requirements of the Guidelines ........................................75

A. Suitability Reviews......................................................................75

B. Instructions................................................................................79

C. Authority to Engage in Otherwise Illegal Activity (OIA).................80

D. Unauthorized Illegal Activity (UIA)...............................................82

E. Deactivation of Confidential Informants ......................................88

IV. Major Revisions to the Guidelines ......................................................89

V. The OIG Review of the FBI’s Compliance with the Confidential 

Informant Guidelines .........................................................................90

VI. Compliance Findings .........................................................................93

A. Initial and Continuing Suitability Reviews...................................96

B. Instructions................................................................................98

C. Authority to Engage in Otherwise Illegal Activity (OIA)...............103

D. Unauthorized Illegal Activity (UIA).............................................108

E. Deactivation of Confidential Informants ....................................109

F. Seeking Approval or Concurrence from, and Providing 

Notification to, the United States Attorney’s Office.....................109

VII. OIG Analysis....................................................................................112

VIII. Recommendations ...........................................................................133
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CHAPTER FOUR: THE ATTORNEY GENERAL’S GUIDELINES ON 

FBI UNDERCOVER OPERATIONS ................................................... 137

I. Role of FBI Undercover Operations.................................................. 137

A. The Need for Undercover Operations ........................................ 137

B. The Benefits and Risks of the Undercover Technique in FBI 

Investigations........................................................................... 140

II. Significant Requirements of the Undercover Guidelines ................... 144

A. Group I Undercover Operations................................................ 145

B. Group II Undercover Operations............................................... 148

III. Major Revisions to the Guidelines.................................................... 148

IV. The OIG Review of the FBI’s Compliance with the Undercover 

Guidelines....................................................................................... 150

V. Compliance Findings....................................................................... 151

VI. OIG Analysis ................................................................................... 156

VII. OIG Recommendations.................................................................... 164

CHAPTER FIVE: ATTORNEY GENERAL’S GUIDELINES ON 

GENERAL CRIMES, RACKETEERING ENTERPRISE AND 

TERRORISM ENTERPRISE INVESTIGATIONS.................................. 169

I. Levels of Investigative Activities ....................................................... 169

II. Preliminary Inquiries....................................................................... 170

A. Significant Requirements ......................................................... 170

B. Major Revisions to the Guidelines............................................. 171

C. The OIG Review of Preliminary Inquiries................................... 172

D. Compliance Findings................................................................ 172

E. OIG Analysis and Recommendations........................................ 173

III. General Crimes Investigations......................................................... 174

A. Role of General Crimes Investigations....................................... 174

B. Significant Requirements ......................................................... 175

C. Major Revisions to the Guidelines............................................. 175

D. The OIG Review of General Crimes Investigations..................... 176

E. Compliance Findings................................................................ 176

F. OIG Analysis and Recommendations........................................ 178

IV. Criminal Intelligence Investigations ................................................. 178

A. Role of Criminal Intelligence Investigations............................... 178

B. Significant Requirements ......................................................... 179
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C. Major Revisions to the Guidelines .............................................181

D. The OIG Review of Criminal Intelligence Investigations..............181

E. Compliance Findings ................................................................182

F. OIG Analysis and Recommendations.........................................186

V. Part VI of the General Crimes Guidelines: Counterterrorism 

Activities and Other Authorizations..................................................188

A. Rationale for the New Part VI Authorities ..................................188

B. New Authorities Added to the General Crimes Guidelines..........190

C. The OIG Review of the FBI’s Use of Part VI Authorities ..............191

D. Compliance Findings ................................................................192

1. The FBI’s Use of Part VI Authorities Since May 30, 

2002, and the FBI’s Implementing Guidance......................192

2. Internal Controls Regarding Predication for the 

Exercise of Part VI.A.2 Authorities .....................................196

3. Internal Controls for Record Retention Relating to the 

Exercise of Part VI.A.2 Authorities .....................................200

E. OIG Analysis and Recommendations.........................................202

CHAPTER SIX: PROCEDURES FOR LAWFUL, WARRANTLESS 

MONITORING OF VERBAL COMMUNICATIONS (CONSENSUAL 

MONITORING) .................................................................................207

I. Role of Consensual Monitoring.........................................................207

II. Significant Requirements .................................................................208

III. Major Revisions to the Consensual Monitoring Guidelines................210

IV. The OIG Review of the FBI’s Compliance with the Consensual 

Monitoring Guidelines......................................................................211

V. Compliance Findings .......................................................................212

VI. OIG Analysis and Recommendations................................................215

CHAPTER SEVEN: FBI AND DOJ COMPLIANCE OVERSIGHT AND 

ENFORCEMENT MECHANISMS.......................................................217

I. FBI-DOJ Committees that Approve and Monitor Certain 

Undercover Operations and Confidential Informants ........................217

A. Criminal Undercover Operations Review Committee 

(CUORC)...................................................................................217

1. The CUORC Review Process...............................................219

2. The CUORC’s Activities from October 2003 to March 

2005..................................................................................221

3. FBI Undercover Coordinator Survey Responses..................223
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4. OIG Analysis and Recommendations................................. 224

B. Confidential Informant Review Committee (CIRC) ..................... 225

1. The CIRC Review Process .................................................. 227

2. The CIRC’s Activities from August 2003 to April 2005 ....... 228

3. OIG Survey of Confidential Informant Coordinators 

Regarding the CIRC........................................................... 232

C. OIG Analysis and Recommendations........................................ 233

II. Inspection Division.......................................................................... 235

A. Background on the Inspection Function................................... 236

1. Organization of the Inspection Division ............................. 236

2. How Inspections Are Conducted........................................ 237

3. What is Inspected ............................................................. 241

B. Changes in the Inspections Process After the May 2002 

Revisions of the Attorney General Guidelines............................ 247

C. Inspection Division Findings Regarding Attorney General 

Guidelines Compliance............................................................. 247

1. Criminal Informant Program ............................................. 248

2. Inspection Division Audits of Undercover Operations 

and Consensual Monitoring .............................................. 257

3. General Crimes, REIs, and TEIs ........................................ 257

D. OIG Analysis............................................................................ 258

1. Scope of On-site Inspections ............................................. 258

2. Promoting Accountability .................................................. 262

3. The Timing of Inspections and Better Use of 

Technology........................................................................ 263

E. Recommendations.................................................................... 265

III. On-site Reviews by Program Offices................................................. 266

A. Undercover & Sensitive Operations Unit On-site Reviews ......... 266

B. Asset/Informant Unit Reinspections......................................... 267

C. OIG Analysis and Recommendations........................................ 270

IV. FBI Disciplinary Process.................................................................. 271

A. Investigative Guidelines Issues Addressed by the FBI 

Disciplinary Process................................................................. 273

1. Classification of Offenses .................................................. 273

2. Investigative Guidelines Violations Adjudicated by OPR 

from 1999 to 2004 ............................................................ 274

B. OIG Analysis............................................................................ 274

1. Standards for Referral to the FBI Disciplinary Process....... 275

2. Additional Offense Codes .................................................. 276

3. Technology and Information Dissemination....................... 277

C. Recommendations.................................................................... 278
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CHAPTER EIGHT: HOW THE FBI IMPLEMENTED THE MAY 30, 

2002, REVISIONS TO THE ATTORNEY GENERAL’S 

INVESTIGATIVE GUIDELINES .........................................................279

I. The FBI’s Implementation Process for the Revised Investigative 

Guidelines .......................................................................................279

A. Planning for Implementation.....................................................279

B. Communication and Guidance..................................................280

C. Training....................................................................................282

D. Administrative Support, Including Mechanisms to Promote 

Accountability...........................................................................288

II. OIG Analysis and Recommendations................................................292

CHAPTER NINE: CONCLUSION..............................................................297
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TABLE OF APPENDICES 

Appendix A Organization Charts: 

• Department of Justice 

• Federal Bureau of Investigation 

Appendix B The Attorney General’s Investigative Guidelines issued 

May 30, 2002 

• The Attorney General’s Guidelines Regarding the Use 

of Confidential Informants 

• The Attorney General’s Guidelines on Federal Bureau 

of Investigation Undercover Operations 

• The Attorney General’s Guidelines on General Crimes, 

Racketeering Enterprise and Terrorism Enterprise 

Investigations 

• Memorandum Regarding Procedures for Lawful, 

Warrantless Monitoring of Verbal Communications 

Appendix C Table of Revisions to the Attorney General’s Investigative 

Guidelines of May 30, 2002 

Appendix D USAO Criminal Division Chiefs’ Views on Adequacy of FBI 

Coordination on Confidential Informant Guidelines Issues 

Appendix E Department of Justice Office of the Inspector General’s 

Recommendations 

Appendix F Discrepancies Between the Attorney General’s 

Investigative Guidelines and FBI Policy Manuals 

Appendix G FBI Response to OIG Recommendations 

Appendix H OIG Analysis of the FBI Response to OIG 

Recommendations 

Appendix I List of Acronyms 
viii

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ix

INDEX OF CASE STUDIES, DIAGRAMS, AND TABLES 

Page 

Case Study 1 FBI Informants James J. “Whitey” Bulger and 

Stephen J. “The Rifleman” Flemmi 

71

Case Study 2 FBI Informant Gregory Scarpa, Sr. and 

his FBI Handler, R. Lindley DeVecchio 

85

Case Study 4.1 Operation Greylord 139

Case Study 4.2 Operation “Lighting Strike” 143

Case Study 7.1 FBI Inspection Division Audit of a Field 

Division’s Criminal Informant Program 

246

Case Study 7.2 The San Francisco Criminal Informant Program 252

 

Diagram 3.1 Confidential Informant Coordinators’ Views on 

Field Office Compliance with CI Guidelines 

Requirement to Give Instructions to Confidential 

Informants 

102

Diagram 3.2 Confidential Informant Coordinators’ Views on 

Field Office Compliance with CI Guidelines 

Requirements Relating to Authorization to 

Engage in “Otherwise Illegal Activities” 

104

Diagram 3.3 The Three Issues Most Frequently Raised by 

Special Agents Regarding the Confidential 

Informant Guidelines According to Confidential 

Informant Coordinators 

114

Diagram 3.4 Confidential Informant Coordinators’ Views on 

Need for Training 

125

Diagram 4.1 Undercover Coordinators’ Views on Their Duties 159

Diagram 4.2 Division Counsel’s Views on Frequency of Field 

Agents’ Consultation on Select Issues 

Concerning Undercover Operations 

160

Diagram 5.1 Division Counsel’s Views on Consultation 

Regarding Part VI.A.2 Authorities of the General 

Crimes Guidelines and Clarity of Related FBI 

Guidance 

202

Diagram 7.1 Undercover Coordinators’ Views on the 

Effectiveness of CUORC Oversight of Undercover 

Operations 

224
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Diagram 7.2 Confidential Informant Coordinators’ Views on 

the Effectiveness of CIRC Oversight of 

Confidential Informants 

232

Diagram 7.3 Organization of the Inspection Division 236

Diagram 7.4 Organization Chart: FBI Disciplinary Units 272

Diagram 8.1 Division Counsel Reporting of Special Agents 

who have Received Training on the Investigative 

Guidelines in Their Field Offices as of March 

2004 

284

Diagram 8.2 Division Counsel’s Views on the Need for 

Investigative Guidelines Training 

285

Diagram 8.3 Confidential Informant Coordinators’ Views on 

the Need for Investigative Guidelines Training 

286

Diagram 8.4 Effectiveness of Training of Confidential 

Informant Coordinators and Undercover 

Coordinators on the Investigative Guidelines 

287

Diagram 8.5 Division Counsel’s Views of the Effectiveness of 

Their Training on the Investigative Guidelines 

288

 

Table 3.1 OIG Findings on Confidential Informant 

Guidelines Compliance Deficiencies in Select FBI 

Field Offices 

94

Table 3.2 Compliance with Confidential Informant 

Guidelines Instruction Requirements in Select 

FBI Field Offices 

100

Table 3.3 Timeliness of Instructions Given to Confidential 

Informants in Select FBI Field Offices

101

Table 3.4 Compliance Deficiencies Involving FBI 

Authorization of Otherwise Illegal Activity in 

Select FBI Field Offices 

107

Table 3.5 Training and Other Measures Proposed by USAO 

Criminal Division Criminal Chiefs to Promote 

Adherence to the Confidential Informant 

Guidelines 

111

Table 3.6 Views of 12 FBI Senior Field Managers on the 

Confidential Informant Guidelines 

115

Table 3.7 Suitability Elements Missing from Initial 

Suitability Reports & Recommendations 

(ISR&Rs) in Select FBI Field Offices 

118

Table 3.8 Division Counsel’s Views on Need for Training on 

Confidential Informant Guidelines 

126
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Table 4.1 OIG Compliance Findings from 83 Group I and 

Group II Undercover Operations in Select Field 

Offices 

155

Table 5.1 OIG Compliance Findings from 46 Preliminary 

Inquiries in Select FBI Field Offices 

173

Table 5.2 Documentation of Racketeering Enterprise 

Investigation Predication and Field Office 

Notifications to DOJ, USAOs, and FBIHQ 

184

Table 5.3 Division Counsel’s Views on Consultation 

Regarding Part VI Authorities of the General 

Crimes Guidelines 

194

Table 6.1 OIG Compliance Findings on Consensual 

Monitorings Conducted Without Written 

Authorization in Select FBI Field Offices 

213

Table 7.1 Group I Undercover Operations Approved During 

FY 2003 

219

Table 7.2 Audits Conducted During Inspection Division 

On-Site Inspections 

242

Table 7.3 Percentage of Criminal Informant Program Files 

with Compliance Deficiencies Identified by the 

Inspection Division (May 2002 – October 2004) 

249

Table 7.4 Inspection Division Deficiency Data for Criminal 

Informant Program in Select Field Offices 

250

Table 7.5 Types of Confidential Informant Guidelines 

Violations Identified by the Inspection Division 

(May 2002 – October 2004) 

256

Table 7.6 Comparison of Deficiency Measures for Select 

FBI Field Office Criminal Informant Programs 

261

Table 7.7 Inspection and Reinspection Non-compliance 

Rates for Select Criminal Informant Programs 

268
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1

EXECUTIVE SUMMARY*

I. Overview 

After the September 11, 2001, terrorist attacks, the Department of 

Justice (DOJ or Department) initiated a comprehensive review of four sets of 

the Attorney General’s Investigative Guidelines (Guidelines or Investigative 

Guidelines) that govern most aspects of the Federal Bureau of 

Investigation’s (FBI) authority to investigate crimes committed by individual 

criminals, criminal enterprises and groups, as well as those who may be 

threatening to commit crimes. The purpose of the review was to identify 

changes to the Guidelines that would enhance the Department’s ability to 

detect and prevent terrorist attacks. The four Guidelines are: 

• The Attorney General’s Guidelines Regarding the Use of 

Confidential Informants (Confidential Informant Guidelines); 

• The Attorney General’s Guidelines on Federal Bureau of 

Investigation Undercover Operations (Undercover Guidelines); 

• The Attorney General’s Guidelines on General Crimes, 

Racketeering Enterprise and Terrorism Enterprise Investigations 

(General Crimes Guidelines); and 

• Procedures for Lawful, Warrantless Monitoring of Verbal 

Communications (Consensual Monitoring Guidelines). 

On May 30, 2002, the Attorney General approved revisions to each of 

these Guidelines. 

The Department of Justice Office of the Inspector General (OIG) 

conducted this review of the FBI’s implementation of the revised 

Investigative Guidelines with two main objectives: 1) to assess the FBI’s 

compliance with the revised Guidelines; and 2) to evaluate the procedures 

that the FBI employed to ensure that the revised Guidelines were properly 

implemented. 

Our review was conducted in five phases. The first phase consisted of 

background interviews of key program managers at FBI Headquarters and 

an extensive document review. The second phase consisted of interviews of 

FBI Headquarters and DOJ personnel who oversee critical aspects of the 

substantive programs governed by the Guidelines. In the third phase, we 

surveyed three groups of Special Agents in the FBI’s 56 field offices who 

 

* The full version of this report includes a limited amount of information that the 

Federal Bureau of Investigation (FBI) considered to be law enforcement sensitive and 

therefore could not be publicly released. To create this public version of the report, the OIG 

redacted (deleted) the portions of the full report that were considered sensitive by the FBI, 

and we indicated where those redactions were made. 
2

played key roles in promoting adherence to the Guidelines: Confidential 

Informant Coordinators; Undercover Coordinators; and Division Counsel, 

who serve as chief legal advisers in the field offices. We also conducted 

another survey of the Criminal Division Chiefs of the 93 U.S. Attorneys’ 

Offices. That survey focused on the Guidelines’ provisions requiring 

approval, concurrence, or notification to U.S. Attorneys’ Offices relating to 

significant Guidelines-related authorities. 

The fourth phase of our review consisted of 12 FBI field office site 

visits during which we reviewed a judgmental sample of FBI investigative 

and administrative files reflecting use of the authorities or operational 

techniques authorized by the Guidelines. In that sample of files, we also 

reviewed the various forms and other administrative paperwork supporting 

the activities governed by the Guidelines.1 Following our field office visits, 

we interviewed the senior manager of each of those field offices – either the 

Assistant Directors in Charge or Special Agents in Charge (SACs).2

During the fifth phase of the review, after analyzing the data from FBI 

Headquarters and the 12 field offices and the other documents produced by 

the FBI and the DOJ, including more than 40 triennial FBI Inspection 

Reports generated by the FBI’s Inspection Division, we interviewed several 

senior FBI officials in Headquarters about organizational and other plans that 

could affect Headquarters and field supervision of the authorities governed by 

the Guidelines. We also interviewed the FBI Director in April 2005. 

We now summarize some of the key findings regarding each set of the 

Guidelines which we explain in greater detail later in this Executive 

Summary. 

We found that the FBI’s compliance with each of the four Investigative 

Guidelines differed considerably by Guideline and field office. The most 

significant problems were failures to comply with the Confidential Informant 

Guidelines. For example, we identified one or more Guidelines violations in 

87 percent of the confidential informant files we examined. By contrast, we 

found approximately 90 percent of the undercover operations and 

consensual monitoring files we reviewed contained no authorization-related 

Guidelines deficiencies. 

 

1 We included in our field office site visits six of the largest FBI field offices: 

New York, Washington, D.C., Los Angeles, Chicago, Miami, and Boston; four medium-sized 

field offices: Denver, Salt Lake City, Portland, and Buffalo; and two of the smaller field 

offices: Columbia, S.C., and Memphis. 

2 The senior field managers of the FBI’s larger field offices are designated Assistant 

Directors in Charge. However, for convenience, throughout this report we refer collectively 

to the senior field managers as SACs. 
3

Confidential Informant Guidelines. Our review found that FBI 

Headquarters has not adequately supported the FBI’s Criminal Informant 

Program, which has hindered FBI agents in complying with the Confidential 

Informant Guidelines. Although we noted some improvements in this area 

during the course of our review, in many instances agents lacked access to 

basic administrative resources and guidance that would have promoted 

compliance with the Confidential Informant Guidelines. For example, the 

FBI did not have a field guide or standardized and up-to-date forms and 

compliance checklists. The FBI also did not plan for, or provide, adequate 

training of agents, supervisors, and Confidential Informant Coordinators on 

informant policies and practices.

Undercover Operations Guidelines. We found that the FBI generally was 

compliant with the Undercover Guidelines and that the Headquarters unit 

supporting undercover operations was well managed and effective. That 

unit generates an up-to-date field guide and standardized forms, and it uses 

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. 

General Crimes Guidelines. We found that the FBI generally adhered to 

the provisions of the General Crimes Guidelines. For example, 71 of the 72 

files we reviewed identified appropriate predication in the case opening 

memorandum and, when disseminating information regarding these 

investigations to other law enforcement agencies, the FBI consistently 

documented an adequate basis to do so, in conformity with the Guidelines. 

However, the FBI has not developed adequate controls to ensure that 

notifications to U.S. Attorneys, DOJ, and FBI Headquarters are made on a 

timely basis and documented in the case files, that authorizations for the 

extension and renewal of preliminary inquiries and for the conversion of 

preliminary inquiries to full investigations are documented, that SAC 

reviews of criminal intelligence investigations are documented, and that 

progress reports to DOJ on terrorism enterprise investigations lasting for 

more than 180 days are included in the files.

We also reviewed the FBI’s new authorities in Part VI of the General 

Crimes Guidelines, which allow FBI agents to visit public places and attend 

public events to detect or prevent terrorist activities in the absence of any 

particularized evidence that a crime has occurred or is likely to occur. We 

found that the FBI encourages but does not require agents to obtain 

supervisory approval prior to visiting public places or attending public 

events. Moreover, neither FBI field offices nor Headquarters consistently 

maintains records regarding the use of and compliance with these 

authorities, including the provisions that address the FBI’s authority to 

collect, maintain, and disseminate information obtained at such events, and 

provisions forbidding retention of certain information. Without access to 

data reflecting approval or documentation of such visits, we were unable to 
4

draw conclusions about the FBI’s utilization of these authorities or its 

record of compliance with Part VI authorities.

Consensual Monitoring Guidelines. The Attorney General Guidelines 

governing consensual monitoring cover non-telephonic consensual 

monitorings, which include the use of body recorders and transmitting 

devices. We found that the FBI was generally in compliance with the 

Consensual Monitoring Guidelines, although we identified deficiencies, 

particularly with regard to the Guidelines’ requirements for supervisory 

authorization. 

FBI Oversight of Compliance with Attorney General Guidelines. The 

FBI and DOJ have various mechanisms to promote compliance with each of 

the Investigative Guidelines, including first-line field supervisors; the 

expertise of field office Confidential Informant Coordinators, Undercover 

Coordinators, and Division Counsel; two joint FBI-DOJ committees (the 

Criminal Undercover Operations Review Committee (CUORC) and the 

Confidential Informant Review Committee (CIRC)) which approve certain 

undercover operations and confidential informants; the FBI’s Inspection 

Division; the employee disciplinary process; and various policy manuals. 

We found that the joint review committees were operating effectively 

and in accordance with assigned missions. However, we found that field 

supervisors frequently were not held accountable for compliance violations, 

particularly in the Criminal Informant Program, and that the FBI at times 

failed to ensure that FBI personnel with special expertise and responsibility 

for issues addressed in the Guidelines, such as Informant Coordinators, 

Undercover Coordinators, and Division Counsel, were properly consulted 

regarding investigative activities. Our review also found that the Inspection 

Division’s triennial audits were useful in promoting compliance, but were 

not sufficiently comprehensive and did not adequately address the 

underlying causes of Guidelines violations. 

Implementation of the Guidelines. The process adopted by the FBI to 

implement the revised Guidelines was not optimal. Although several FBI 

components performed these duties well – particularly the Office of the 

General Counsel and the Undercover and Sensitive Operations Unit (USOU) 

within the Criminal Investigative Division (CID) – we found inadequate interdivision planning, coordination and direction. This hindered provision of 

necessary training for FBI employees on the revised Guidelines and also 

resulted in the failure to timely update standardized forms, inspection 

checklists, and other technical support. In addition, the lack of adequate 

case management and other information technology tools hindered the FBI’s 

ability to identify, track, and evaluate its compliance with the Guidelines. 

In the next section of this Executive Summary, we summarize in 

greater detail the contents of the report, including the background of the 

revised Guidelines, the scope and methodology of our review, our findings 
5

and conclusions regarding the FBI’s compliance with each of the four 

Investigative Guidelines, the oversight mechanisms used to promote 

Guidelines compliance, the implementation process, and our 

recommendations to address the issues identified in the report.3

II. Background 

The four Investigative Guidelines govern the FBI’s use of general 

crimes investigations to develop evidence about the commission of federal 

crimes and the FBI’s use of criminal intelligence investigations to develop 

evidence about the nature, size, and composition of ongoing criminal 

enterprises where the objective may not necessarily be to prosecute but to 

determine whether a pattern of criminal activity exists. The Investigative 

Guidelines also constrain the FBI’s use of three key techniques used to 

conduct general crimes and criminal intelligence investigations: the use of 

confidential informants, undercover operations, and non-telephonic 

consensual monitoring of verbal communications. 

The first Attorney General Investigative Guidelines were issued in 

1976 by Attorney General Edward Levi following congressional hearings and 

published reports criticizing the FBI’s domestic surveillance activities in the 

1950s and 1960s that targeted protest groups and others. Since then, the 

Guidelines have been revised by virtually every Attorney General, often after 

allegations of abuse by the FBI in the use of the authorities permitted by the 

Guidelines. 

The Investigative Guidelines apply to the FBI and in some cases other 

Justice Law Enforcement Agencies (JLEAs) or components of the United 

States Government.4 The Guidelines set forth detailed procedures and 

review mechanisms to ensure that law enforcement authorities are exercised 

appropriately and with adequate oversight, both in the field and, with 

respect to certain authorities or sensitive investigations, at FBI 

Headquarters and DOJ. For example, the Guidelines require that before 

 

3 Individual recommendations are provided at the end of Chapters Three through 

Eight of the report. A complete list of recommendations is provided in Appendix E. 

4 In addition to the FBI, the JLEAs bound by the Confidential Informant Guidelines are 

the Drug Enforcement Administration (DEA), United States Marshals Service, and the 

Department of Justice Office of the Inspector General. The Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF) became a Department of Justice Law Enforcement Agency 

(JLEA) effective in January 2003 and therefore is subject to the Attorney General's Guidelines 

Regarding the Use of Confidential Informants. ATF told the OIG that it is adapting its orders 

concerning the use of confidential informants and the conduct of undercover operations 

orders to conform fully with the Attorney General's Guidelines and anticipates that it will 

soon be forwarding draft Orders on these subjects to the Criminal Division for review. The 

General Crimes and Undercover Guidelines apply only to the FBI. The Consensual 

Monitoring Guidelines apply to all Executive Branch departments and agencies.
6

FBI agents employ certain intrusive investigative techniques, sufficient 

evidentiary predication must be established. The Guidelines also require 

agents to ensure that confidential informants working for the FBI are 

suitable and understand the limits on their activities, including their 

authority to engage in actions that would be illegal if engaged in by someone 

without such authority; that undercover operations used to develop 

evidence to prosecute white collar crimes, public corruption, terrorism, and 

other crimes are approved only after a thorough review of the risks and 

benefits of the operation; and that before the FBI intercepts and monitors 

oral non-telephonic communications without the consent of all parties, 

there is careful review of the reasons for the monitoring, the duration of the 

monitoring, the location of the monitoring, and the nature of any danger to 

the party consenting to the monitoring. 

III. The Scope and Methodology of the OIG Review 

The OIG review was conducted by a team of attorneys, inspectors, 

auditors, and paralegals. The OIG team conducted interviews of over 70 

officials and employees at FBI Headquarters, typically Unit Chiefs, Section 

Chiefs, and Assistant Directors. We attended dozens of meetings of the 

CIRC and the CUORC. We also examined over 2,000 FBI documents from 

FBI Headquarters’ operating and support divisions. Among the documents 

we analyzed were investigative case files, Headquarters guidance 

memoranda, correspondence, and reports by the FBI’s Inspection Division, 

Undercover and Sensitive Operations Unit (USOU), and the FBI Office of 

Professional Responsibility (OPR). 

In addition, the OIG surveyed four groups within the FBI and DOJ who 

work with the Guidelines on a daily basis. We surveyed the FBI’s 

Confidential Informant Coordinators, its Undercover Coordinators, and its 

Division Counsel, all of whom work in the 56 FBI field offices around the 

country. In addition, because U.S. Attorneys’ Offices have responsibility for 

approving or concurring in certain authorities in the Guidelines, or are 

required to be notified of certain activities or developments, we also surveyed 

the Chiefs of the Criminal Division of the 93 U.S. Attorneys’ Offices. 

After receiving the survey results, we visited FBI field offices from May 

through August 2004. OIG teams traveled to 12 FBI field offices to conduct 

interviews and examine a judgmental sample of nearly 400 administrative 

and investigative files pertaining to investigations governed by the revised 

Investigative Guidelines during the period May 30, 2002, to May 30, 2004. 

We examined this sample of individual investigative and administrative files 

to determine whether key provisions of the Investigative Guidelines were 

followed. 

In addition to our review of case files, we assessed the steps the FBI 

took to implement the revised Guidelines. In this portion of our review, we 

assessed the FBI’s planning, communication, guidance, and training for 
7

implementation of the revised Guidelines. We also evaluated the FBI’s 

mechanisms to ensure compliance, including the role of Supervisory Special 

Agents and senior managers in FBI field offices, the FBI’s Inspection 

Division, on-site reviews conducted by units within FBI Headquarters’ 

operating divisions, and the FBI disciplinary process. 

Toward the end of our review, we conducted interviews of the SACs of 

the 12 field offices we visited. We also interviewed three FBI Executive 

Assistant Directors and the FBI Director. 

IV. OIG Findings 

A. The Attorney General’s Guidelines Regarding the Use of 

Confidential Informants 

The Attorney General’s Guidelines on Confidential Informants are 

designed to ensure that proposed confidential informants undergo thorough 

scrutiny for suitability before they are approved and periodically thereafter; 

are warned about the limits on their authority by means of instructions that 

must be administered at least annually; and are authorized to engage in 

otherwise illegal activities that are justified in unusual circumstances only 

after such activities are carefully defined and their scope is approved by 

responsible DOJ and FBI personnel. The Guidelines also provide that when 

an informant engages in unauthorized illegal activity, it is promptly reported 

to FBI Headquarters and the appropriate prosecutor. They also require that 

if an informant is deactivated, whether for “cause” or other reasons, the 

deactivation is properly recorded, the confidential informant and 

appropriate FBI and DOJ personnel are notified, and any authority to 

engage in otherwise illegal activity is revoked. 

We found significant problems in the FBI’s compliance with 

Guidelines’ provisions. Those violations occurred mainly in suitability 

reviews; the cautioning of informants about the limits of their activities; the 

authorization of otherwise illegal activity; documentation and notice of 

unauthorized illegal activity by informants; and the deactivation of 

informants. In total, we found one or more Guidelines compliance errors in 

87 percent of the informant files we examined.5

 

5 As explained later in this report, we selected a judgmental sample of 120 

confidential informant files subject to the May 2002 Guidelines from 12 of the FBI’s largest, 

medium-sized, and smaller field offices. We randomly chose between 9 and 11 of the 

pertinent files to examine in each field office, except in offices where there were only a small 

number of files within a certain category of informants, in which case we reviewed all files. 

We did not pre-select CI files that had been identified as non-compliant by internal FBI 

inspections or other internal compliance mechanisms, nor did we base our selection of field 

offices on the compliance record of those field offices or on any other criteria that would 

produce a bias or skewing of the judgmental sample. 

(continued) 
8

These compliance errors are troubling in light of the history of the 

Confidential Informant Guidelines. As a result of a 2-year review after highprofile problems in the FBI informant program came to light in the 1990s, 

Attorney General Reno issued revised Confidential Informant Guidelines in 

January 2001 that made the approval process for opening and operating 

informants more rigorous. Attorney General Ashcroft issued further revisions 

to the Guidelines in May 2002, but left the provisions regarding opening and 

operating informants essentially unchanged. Yet, when we examined 

informant files in May 2004 and surveyed FBI field personnel, we found that 

serious compliance deficiencies still existed with regard to the approval, 

monitoring, documentation, and notification provisions of the Guidelines. 

Throughout our review, we were told by field office and FBI 

Headquarters personnel that the Confidential Informant Guidelines are 

cumbersome and the supporting paperwork requirements are onerous, and 

that these factors combine to discourage agents from developing informants 

or to use sources who are not formally registered in the informant program. 

A majority of the SACs in the 12 field offices we visited told us that they 

believe the Confidential Informant Guidelines are workable and well 

understood, but that the associated paperwork is too cumbersome. 

We found serious shortcomings in the supervision and administration 

of the Criminal Informant Program. The FBI’s Criminal Informant Program 

lacks adequate administrative and technological support from Headquarters 

and certain field offices. For example, the FBI has not provided 

standardized, automated forms to field agents to support their applications 

for informant-related authorities or a standard field guide describing the 

requirements to operate confidential informants. In addition, the FBI has 

provided insufficient training and administrative support to field supervisors 

and Confidential Informant Coordinators, and does not develop timely 

compliance data for field managers or FBI Headquarters.6

 

 As is the case, however, with any judgmental sample, one cannot extrapolate with 

statistical certainty that the non-compliance rate of the entire population of FBI 

confidential informant files would be identical to the non-compliance rate we found in our 

sample. 

6 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. 
9

In November 2004, several months after the OIG’s field office visits 

ended, the Criminal Investigative Division (CID) at FBI Headquarters 

generated a self-assessment in analyzing the field office-level compliance 

deficiencies regarding the Confidential Informant Guidelines identified in the 

course of our review. CID concluded that field agents still were not familiar 

with the Guidelines’ requirements two years after their implementation, 

executive managers did not exercise effective oversight, FBI case agents and 

supervisors did not recognize the implications of some of the most serious 

Guidelines violations, the FBI had not generated basic administrative tools 

using existing technology and resources to support operation of the 

program, and the FBI’s basic database tools were so archaic that they 

seriously limited the ability of field office and Headquarters personnel to 

support Guidelines compliance. The fact that CID’s critique found some of 

the same problems we did underscores the need for decisive action to 

remedy the systemic problems we found in the Criminal Informant Program.

B. The Attorney General’s Guidelines on Federal Bureau of 

Investigation Undercover Operations 

Our findings regarding the Criminal Informant Program are in 

contrast to our generally favorable findings regarding the FBI’s compliance 

with the Attorney General’s Guidelines on FBI Undercover Operations. FBI 

undercover operations, while more limited in scope than the Criminal 

Informant Program, entail similar Headquarters and field supervision 

challenges, operational risks, and administrative support needs. But with a 

few important exceptions, we found the FBI compliant with the Undercover 

Guidelines. 

For example, we found that the CID’s Operational Support Section 

and USOU were supporting and monitoring undercover operations in field 

offices and were using technological support and other guidance materials 

to achieve its objectives. Undercover Coordinators, Division Counsel, and 

other agents experienced with undercover techniques also assisted with 

ensuring compliance with the Undercover Guidelines. 

In contrast to the 87 percent rate of Guidelines’ violations in 

confidential informant files, our judgmental sample of undercover files in 12 

field offices found Undercover Guidelines violations in 12 percent of the files 

that we examined. These violations concerned the failure to obtain proper 

authorization for particular undercover activities. Sixty percent of these 

violations reflected errors relating to field office-approved undercover 

operations that continued beyond their expiration date or operations in 

which the FBI participated in a task force that was using undercover 

techniques. In addition to these authorization violations, 20 percent of the 

files contained documentation-related errors related to the FBI’s Undercover 

Guidelines compliance responsibilities. These omissions included the 

failure to document field management reviews of undercover employee 
10

conduct, adequately describe “otherwise illegal activity,” and include a 

supporting letter from the U.S. Attorney’s Office which made the five 

required findings. We believe that the majority of these compliance 

deficiencies likely would have been avoided if the FBI had procedures in 

place that ensured greater consultation between agents and Undercover 

Coordinators and Division Counsel. Yet, while not insignificant, we do not 

believe that these violations reflect the fundamental deficiencies that we 

encountered in the Criminal Informant Program. 

C. The Attorney General’s Guidelines on General Crimes, 

Racketeering Enterprise and Terrorism Enterprise 

Investigations 

During our field work, we examined a judgmental sample of 92 

general crimes and criminal intelligence investigations files to assess 

compliance with Guidelines’ requirements relating to the initiation of 

investigations, notification to FBI Headquarters and the appropriate U.S. 

Attorneys’ Offices of specified developments, and the approval by the SAC to 

use certain authorities. 

General Crimes Investigations

The General Crimes Guidelines provide direction for initiating and 

pursuing full investigations where the “facts or circumstances reasonably 

indicate that a federal crime has been, is being, or will be committed.” The 

Guidelines also require that sensitive criminal matters must be brought to 

the attention of the U.S. Attorney or other appropriate DOJ officials, as well 

as to FBI Headquarters. Our review found general compliance with these 

Guidelines. Specifically, we found: 

• all but 1 of the 72 files we reviewed contained the required 

predication in the opening documentation; 

• with respect to investigations of sensitive criminal matters, the FBI 

provided the required notifications to FBI Headquarters and either 

DOJ or the U.S. Attorney on a consistent basis, although a copy of 

the written notification was not regularly included in the case files; 

and 

• the FBI consistently documented notification of case closings. 

Criminal Intelligence Investigations

Criminal intelligence investigations do not focus on the prosecution of 

completed criminal acts, but instead seek intelligence on criminal 

enterprises. Criminal intelligence investigations focus on such factors as 

the size and composition of ongoing criminal enterprises, their geographic 

dimensions, past activities, intended criminal goals, and capacity to inflict 

harm. There are two types of criminal intelligence investigations: 
11

racketeering enterprise investigations (REIs), which focus on organized 

crime, and terrorism enterprise investigations (TEIs), which focus on 

enterprises that seek to further political or social goals through activities 

that involve force or violence, or that otherwise aim to engage in terrorism or 

terrorism-related crimes. 

With respect to criminal intelligence investigations, we examined 

whether the investigative files contained evidence of the required predication 

and whether the requisite notifications were made to FBI Headquarters, 

DOJ, and the pertinent U.S. Attorney’s Office. The files we examined 

reflected appropriate predication for the initiation of the REIs and TEIs. 

However, opening notifications to DOJ and U.S. Attorneys’ Offices were not 

evident in many of the files for REIs (71 percent and 86 percent, 

respectively). With respect to TEIs, 60 percent of the files did not contain 

evidence of required notification to the DOJ’s Counterterrorism Section, and 

80 percent of the files did not contain evidence of the required notification to 

DOJ’s Office of Intelligence Policy and Review (OIPR) and to the pertinent 

U.S. Attorney’s Office. Although only a few files (14 percent) lacked 

documentation of opening notifications to FBI Headquarters, we found a 

general lack of consistency in the FBI’s documentation practices and 

supervisory reviews. 

Counterterrorism Activities and Other Authorizations

The General Crimes Guidelines contain a new Part VI, labeled 

“Counterterrorism Activities and Other Authorizations.” This portion of the 

Guidelines explicitly authorizes the FBI to visit public places and attend 

public events on the same terms and conditions as members of the public 

for the purpose of detecting or preventing terrorist activities. Previously, the 

FBI’s authority to engage in these activities generally was interpreted to be 

limited to the investigation of crimes or the collection of criminal intelligence 

only when agents had a sufficient evidentiary basis to check leads, conduct 

a preliminary inquiry, or conduct a full investigation. 

We evaluated the timeliness and adequacy of the FBI’s guidance to 

the field regarding these new Part VI authorities and attempted to determine 

how frequently these authorities were utilized. We also examined the 

approval process and documentation practices used by field offices. 

In our interview of FBI personnel at Headquarters and the field offices, 

we found widespread recognition of the constitutional and privacy 

implications of these authorities. We also found that the FBI’s Office of the 

General Counsel (OGC) and the Counterterrorism Division (CTD) issued 

periodic guidance to address several issues pertaining to recordkeeping and 

dissemination of information derived from these activities. 

However, we found gaps in the FBI’s implementation of the Part VI 

authorities. Under present FBI policy, FBI agents are encouraged, but not 

required, to obtain supervisory approval to visit a public place or attend a 
12

public event under Part VI. They also are not permitted to document what 

they learn unless they obtain information that pertains to potential terrorist 

or criminal activity. If agents believe it is appropriate to retain information 

from these visits, but the information is insufficient to justify the opening of 

an investigation, the information is normally retained in a file called a “zero 

file.” Zero files are maintained in field offices and contain miscellaneous 

information, stacked cumulatively in hard copy, without the capability to 

readily retrieve all information pertaining to a particular issue or threat. 

Our survey of Division Counsel, the legal officers in FBI field offices, 

revealed that while 86 percent of Division Counsel said they have been 

consulted between May 2002 and February 2004 about the propriety of 

retaining information derived from visiting public places or attending public 

events, 63 percent said they believed that the FBI’s guidance on this issue 

was not clear when the revised Guidelines were issued, and 55 percent said 

they believed it was still not clear 21 months later. The FBI also did not 

establish a Headquarters point of contact to respond to field inquiries 

regarding constitutional and privacy issues, including questions concerning 

the Part VI authorities, until March 2003, ten months after the Guidelines 

became effective. Further, the FBI’s guidance on collecting, indexing, and 

disseminating information derived from the monitoring or surveillance of 

protest events was not issued until September 2004. 

Due to the absence of routine documentation of the FBI’s use of these 

authorities and the FBI’s practice of retaining information from these 

activities in “zero files,” we were unable to determine how frequently the 

authorities are used. In May 2003, in response to a congressional inquiry, 

the FBI stated that its informal survey of 45 field offices indicated that 

agents had visited a mosque only once pursuant to Part VI. At the field 

offices we visited, we were told that with few exceptions agents did not have 

time to visit public places or attend public events other than in connection 

with ongoing investigations. 

However, the way the information is retained makes it difficult for 

field managers or Headquarters to determine when these authorities are 

used, and whether information derived from their use is appropriately 

retained, indexed, and disseminated. And, unlike the practices associated 

with the FBI’s authority to visit public places and attend public events in 

ongoing investigations (whether in connection with a preliminary inquiry or 

full investigation under the counterterrorism classification, a full 

investigation under the General Crimes Guidelines, or under the Undercover 

Guidelines), neither program managers nor the Inspection Division is able to 

assess the exercise of these new authorities. While we understand that the 

FBI does not want to unduly burden case agents with paperwork and 

approvals, we believe that the FBI should reconsider the approval and 

documentation process related to Part VI authorities. 
13

In the course of this review, news articles were published stating that 

the FBI had questioned political demonstrators across the United States in 

connection with threatened violent and disruptive protests at the 

Republican National Convention and Democratic National Convention held 

in the summer of 2004.7 The initial article stated that dozens of people had 

been interviewed in at least six states, including anti-war demonstrators 

and political demonstrators and their friends and family members. 

Newspaper articles reported that the Department of Justice responded that 

the interviews were largely limited to efforts at disrupting a plot to bomb a 

news van at the July 2004 Democratic National Convention in Boston.8

Following publication of the news articles, several Members of Congress 

asked the OIG to initiate an investigation into “possible violations of First 

Amendment free speech and assembly rights by the Justice Department in 

connection with their investigations of possible protests at the Democratic 

and Republican political conventions in Boston and New York and other 

venues.”9 Because the request coincided with the investigative work then 

underway in connection with this review, the OIG commenced an 

examination of the FBI’s use of investigative authorities in advance of the 

national political conventions in 2004. 

In examining this issue, the OIG has conducted interviews of FBI 

Headquarters and field personnel and reviewed FBI documents concerning 

the basis for the interviews referenced in these news stories. We determined 

that the FBI’s pre-convention interviews were conducted pursuant to several 

different investigative authorities, only one of which falls within the scope of 

this review – the General Crimes Guidelines, including the authority to 

check leads or to conduct preliminary inquiries or full investigations. We 

therefore decided that in order to address fully the questions that have been 

raised regarding the scope of the FBI’s activities in relation to the 2004 

conventions, we would need to examine the FBI’s use of other authorities 

that are outside the scope of this review, such as the authorities granted 

pursuant to Presidential Decision Directive (PDD) 39 and the Antiterrorism 

and Effective Death Penalty Act of 1996, 18 U.S.C. § 2332b(f). This aspect 

 

7 Interrogating the Protestors, The New York Times, Aug. 17, 2004; Eric Lichtblau, 

Inquiry into FBI Questioning is Sought, The New York Times, Aug. 18, 2004. A FOIA request 

has led to the release of some FBI documents relating to the pre-Convention interviews. 

See Dan Eggen, Protestors Subject to ‘Pretext Interviews’, Washington Post, May 18, 2005; 

Eric Lichtblau, Large Volume of F.B.I. Files Alarms U.S. Activist Groups, The New York 

Times, July 18, 2005. 

8 Eric Lichtblau, Protestors at Heart of Debate on Security vs. Civil Rights, The New 

York Times, August 28, 2004. 

9 Letter to Glenn Fine from Congressmen John Conyers, Jr., Robert C. Scott, and 

Jerrold Nadler, dated August 17, 2004. 
14

of our review is still ongoing. We intend to continue this review of the FBI’s 

compliance with the pertinent authorities that applied to its actions in 

connection with these events, and we will produce a separate report 

describing our findings. 

D. Procedures for Lawful, Warrantless Monitoring of Verbal 

Communications (Consensual Monitoring Guidelines) 

Non-telephonic consensual monitoring, including the use of body 

recorders and transmitting devices, is governed by the Consensual 

Monitoring Guidelines. We examined 103 non-telephonic consensual 

monitoring files that included recorded conversations to assess compliance 

with the Guidelines’ requirements. We determined whether the files 

contained evidence of advice from the U.S. Attorney’s Office regarding the 

legality and appropriateness of the monitoring, DOJ approval when 

monitoring “sensitive” individuals, SAC or ASAC approval prior to recording 

monitored conversations, and timely authorizations for extensions. 

We found that 90 percent of the files were compliant with these 

Guidelines. The FBI requires that all consensual monitorings be requested 

on a standard form which addresses the requirements in the Consensual 

Monitoring Guidelines. We found that the consensual monitoring files 

consistently included evidence that the U.S. Attorney’s Office had provided 

advice that the consensual monitorings were legal and appropriate. 

However, although the standard form includes space for approvals 

from the SAC and DOJ, the field offices we visited were not consistent in 

documenting these approvals. Significantly, we found that nine percent of 

the consensual monitoring files we examined indicated that “overhears” 

were recorded prior to receiving SAC or ASAC approval and that the 

recording of conversations occurred from 1 to 59 days prior to receiving this 

authorization. We were told in some offices that the SAC approval had been 

obtained orally prior to recording, but had not been annotated. One percent 

of the monitoring requests involving “sensitive” individuals did not contain 

evidence of written DOJ approval. In addition, we found that an ambiguity 

exists in the Consensual Monitoring Guidelines regarding the permissible 

duration of non-sensitive consensual monitorings. 

E. FBI Compliance Oversight Mechanisms 

Our review found that the FBI did not consistently ensure that FBI 

personnel with special expertise and responsibility for issues addressed in 

the Guidelines (such as Informant Coordinators, Undercover Coordinators, 

and Division Counsel) were properly consulted regarding routine 

investigative activities. For example, we believe the most serious violations 

of the Undercover Guidelines we identified during this review likely would 

not have occurred if the Undercover Coordinator or Division Counsel had 

been consulted by the case agents, even at a minimal level. 
15

Our review concluded that Department of Justice personnel make 

important contributions to the oversight of the FBI’s Criminal Informant 

Program and the FBI’s use of undercover operations, including the 

promotion of compliance with the applicable Guidelines. This occurs 

through formal and informal consultations between FBI field personnel and 

local U.S. Attorneys’ Offices, and through DOJ’s membership on two key 

joint FBI-DOJ committees that approve and oversee certain undercover 

operations and confidential informants: the Criminal Undercover 

Operations Review Committee (CUORC) and the Confidential Informant 

Review Committee (CIRC). We agree with the members of these two 

committees, who stated that the committees are operating smoothly and 

that DOJ appropriately exercises oversight of sensitive criminal undercover 

operations and certain high-risk or sensitive confidential informants. With 

limited exceptions, we found good communication between the FBI and U.S. 

Attorneys’ Offices regarding approval, concurrence, and notice issues under 

each of the four Investigative Guidelines. 

F. The FBI’s Implementation Process for the Revised 

Guidelines 

We assessed the FBI’s implementation of the revised Guidelines, 

including: 1) initial planning for implementation of the revisions; 

2) guidance regarding the revisions; 3) training on the revisions; and 

4) administrative support for ensuring compliance with the revisions. We 

believe it is important to evaluate how the FBI implemented the revised 

Guidelines because lessons learned from this process can be useful when 

future revisions to Guidelines are made. 

We concluded that the FBI’s implementation of the revised Guidelines 

was problematic. Although certain FBI components undertook significant 

steps to implement the revised Guidelines, such as issuing guidance and 

providing training, insufficient planning and inter-division coordination 

affected important aspects of the Guidelines’ implementation. Our interviews 

with FBI personnel revealed, for example, that no entity in the FBI made 

decisions regarding the priority that should be accorded to Guidelines 

training throughout the FBI and the form it should take. As a consequence, 

our surveys of FBI employees approximately two years after revision of the 

Guidelines revealed that although 100 percent of agents in some offices had 

received training on individual Guidelines, agents in other offices had 

received no training. According to the surveys, most Informant Coordinators 

and Division Counsel believed that they, along with agents in their offices, 

still required additional training or guidance on the revised Guidelines. 

We also found that certain of the FBI’s administrative tools used to 

support compliance with the Guidelines were outdated or otherwise 

deficient. For example, with regard to the FBI’s primary investigative 

resource manual – the Manual of Investigative Operations and Guidelines 
16

(MIOG) – it took many months, and in some cases closer to two years, for 

the FBI to update sections to account for the May 2002 Guideline changes. 

We believe that the FBI’s lack of adequate attention to the implementation 

process contributed to many of the deficiencies we found. 

V. Recommendations 

It is important to recognize that the May 30, 2002, revisions to the 

Attorney General Guidelines were developed and issued within months of 

the September 11 terrorist attacks. During that period, the demands on the 

FBI and DOJ were extraordinary, and many of those demands continue 

today. 

In making recommendations about the implementation of the 

Guidelines, we also recognize that there are inevitable tensions between 

promoting aggressive, proactive, and fully effective investigative tools, on the 

one hand, and the need to have clearly articulated Guidelines, measures to 

assure that the Guidelines are followed, reliable data to measure 

compliance, and accountability for Guidelines’ violations, on the other. 

We have therefore made 47 recommendations to help improve the 

FBI’s compliance with the Attorney General’s Guidelines. In general terms, 

our recommendations seek to ensure that: 

• agents are provided the training, administrative, and technological 

support they need to comply with the Attorney General Guidelines 

and related MIOG requirements; 

• procedures are in place to ensure that personnel at the FBI and 

DOJ with responsibility for implementing the Guidelines (including 

Confidential Informant Coordinators, Undercover Coordinators, 

Division Counsel, and members of the CUORC and CIRC) 

participate in important decisions that are made under each of the 

Guidelines; 

• the FBI use technology to better identify, track, and monitor its 

Guidelines’ compliance performance; 

• the highly variable and often poor compliance performance of the 

Criminal Informant Program be remedied; 

• the FBI increase inspection coverage of Guidelines-related issues, 

promote greater accountability for Guidelines deficiencies, and 

conduct more inspections of priority programs and programs 

experiencing significant compliance problems; and 

• the FBI more effectively implement future revisions of the 

Guidelines through advance planning, timely guidance, better 

administrative support, and training of key FBI personnel. 
17

CHAPTER ONE 

INTRODUCTION 

I. Background 

This report describes the results of the OIG’s review of the FBI’s 

implementation of the Attorney General’s Investigative Guidelines issued on 

May 30, 2002. Four sets of Attorney General Guidelines were revised at 

that time: 

1) The Attorney General’s Guidelines Regarding the Use of 

Confidential Informants (CI or Confidential Informant Guidelines); 

2) The Attorney General’s Guidelines on FBI Undercover Operations 

(Undercover or UC Guidelines); 

3) The Attorney General’s Guidelines on General Crimes, 

Racketeering Enterprise and Terrorism Enterprise Investigations 

(General Crimes or GCI Guidelines); and 

4) Procedures for Lawful, Warrantless Monitoring of Verbal 

Communications (Consensual Monitoring or CM Guidelines).10

The provisions of these four sets of Attorney General Guidelines are 

mandatory.11

The objectives of our review were to 1) assess the FBI’s compliance 

with these critical controls, and 2) evaluate the methods and procedures 

used by the FBI to ensure that the revised Guidelines were properly put into 

practice. 

To place this review in context, it is important to recognize that the 

FBI operates under legal constraints in addition to the Guidelines, such as: 

• the Bill of Rights of the United States Constitution; 

 

10 Throughout this report, we refer to these four sets of Guidelines collectively as the 

“Guidelines,” “Attorney General Guidelines,” or “Investigative Guidelines.” The May 30, 

2002, Guidelines are attached at Appendix B and are available electronically on the web 

site of the Office of Legal Policy of the Department of Justice at: http://www.usdoj.gov/olp. 

Although the Attorney General’s May 30, 2002, memorandum entitled, Procedures 

for Lawful, Warrantless Monitoring of Verbal Communications is not referred to as an 

Attorney General “Guideline,” we included the FBI’s compliance with this memorandum in 

our review. For convenience, we refer to the memorandum as one of the Attorney General’s 

Investigative Guidelines. 

11 See, e.g., § I.A.3 of the CI Guidelines (“These Guidelines are mandatory . . .”); 

Preamble to GCI Guidelines (“These Guidelines provide guidance for general crimes and 

criminal intelligence investigations by the FBI. The standards and requirements set forth 

herein govern the circumstances under which such investigations may be begun, and the 

permissible scope, duration, subject matters, and objectives of these investigations.”). 
18

• numerous federal statutes and regulations, including laws 

authorizing the use of wiretaps and other investigative techniques, 

privacy protection laws limiting government access to bank 

records, medical records, and credit information; specialized laws 

limiting access to video rental information, telephone call logs, and 

educational institution records; and federal case law interpreting 

these protections; 

• Executive Orders and Presidential Decision Directives that 

establish various law enforcement and intelligence priorities and 

objectives, such as anti-terrorism initiatives issued before and after 

the attacks of September 11, 2001; and 

• policy, administrative, and operational pronouncements issued by 

the Attorney General, the FBI Director, and the Department of 

Justice (DOJ) and the FBI, including Attorney General Directives, 

the FBI’s Manual of Investigative Operations and Guidelines 

(MIOG), and the FBI’s Manual of Administrative Operations and 

Procedures (MAOP). 

We focused this review on compliance with the Attorney General 

Guidelines, rather than on these other legal constraints, for several reasons. 

First, the Investigative Guidelines govern most aspects of an FBI 

agent’s day-to-day authority to investigate federal crimes and to conduct 

criminal intelligence investigations.12

Second, these were the first Attorney General Guidelines issued after 

the September 11, 2001, terrorist attacks. When they were issued, the 

Attorney General and the FBI Director underscored that the revisions were 

necessary to remove bureaucratic obstacles to the ability of field agents and 

their supervisors to address terrorist threats, while at the same time guide 

the day-to-day activities of key federal law enforcement agencies within 

constitutional and other legal constraints. 

Third, the revised Guidelines give the FBI broader authorities in 

connection with its efforts to detect and prevent terrorism and to investigate 

other criminal activity. For example, the May 2002 Investigative Guidelines 

authorize the FBI to: 

• initiate certain types of investigations with lower evidentiary 

thresholds and without FBI Headquarters approval; 

 

12 One FBI Headquarters official referred to the Investigative Guidelines as the 

“blueprint” or “template” for the FBI’s investigative activities, and others referred to the 

Guidelines as “the Bible.” 
19

• conduct preliminary inquiries and full investigations for longer 

periods prior to obtaining authority to renew them, and use mail 

covers during preliminary inquiries;13

• use undercover techniques during criminal intelligence 

investigations (racketeering enterprise and terrorism enterprise 

investigations), not only in general crimes investigations; 

• visit public places and attend public events on the same terms as 

members of the public for the purpose of detecting or preventing 

terrorist activities, without the predication required to investigate 

leads or conduct a preliminary inquiry or full investigation; 

• perform general topical research in support of its investigative 

activities; and 

• conduct online searches and access online sites and forums on the 

same terms as members of the public for the purpose of detecting 

or preventing terrorism or other criminal activities. 

In addition, the Guidelines were revised to state that “the FBI shall 

not hesitate to use any lawful techniques consistent with these Guidelines, 

even if intrusive, where the intrusiveness is warranted in light of the 

seriousness of a crime or the strength of the information indicating its 

commission or potential future commission,” particularly in conducting 

counterterrorism investigations.14

With respect to the FBI’s use of confidential informants, the most 

significant recent revisions of the Confidential Informant Guidelines 

occurred in January 2001, when the version immediately preceding the May 

2002 revisions was issued. We believe it is important to evaluate how the 

FBI’s authorities regarding confidential informants are being utilized. 

Fourth, the passage of three years since issuance of the May 2002 

Guidelines has given the FBI a reasonable period within which to implement 

the revisions and a meaningful period by which to measure compliance and 

assess the implementation process. 

Fifth, the May 2002 revised Guidelines were adopted without 

customary congressional consultation. 

Sixth, this is the first comprehensive review of the FBI’s 

implementation of the May 2002 Investigative Guidelines.15 While the FBI 

 

13 A mail cover is the recording of any data appearing on the outside cover of any class 

of mail. MIOG II § 10-6.2. 

14 General Crimes Guidelines, § I at B-68. 

15 In June 2003, David M. Walker, Comptroller General of the United States, testified 

before a congressional committee that the United States General Accounting Office (GAO) 

(continued) 
20

Director, the Attorney General, and other officials of the DOJ have 

responded to several congressional inquiries about the implementation of 

certain provisions of the May 2002 Guidelines and the FBI’s use of some of 

its new authorities, this OIG review is the first detailed review of the steps 

the FBI has taken to implement the Guidelines. 

We also recognized that our review was conducted during a period of 

fundamental organizational change within the FBI, the DOJ, other federal 

law enforcement agencies, and the United States intelligence community in 

response to the attacks of September 11, 2001.16 Since late 2001, the FBI 

has been implementing major changes in its focus and organization, 

beginning with the December 2001 announcement of the reorganization of 

its executive management, followed by the May 2002 realignment of FBI 

resources from traditional criminal investigations to counterterrorism and 

counterintelligence, the development of greater analytical capabilities, and 

the institution of a targeted hiring program to fill acknowledged gaps. In 

June 2004, the FBI Director initiated the process for establishing an 

intelligence directorate within the FBI. These reforms have been 

accompanied by significant legal and operational changes in the 

relationships and information-sharing authorities between the law 

enforcement and intelligence communities, most notably through the 

passage of the Uniting and Strengthening America by Providing Appropriate 

Tools Required to Intercept and Obstruct Terrorism Act of 2001, known as 

the USA PATRIOT Act.17

 

investigators had conducted a preliminary review of the FBI’s implementation of the 

Guidelines and had determined that internal controls were in place to monitor compliance 

with the Guidelines. Walker stated that neither the FBI nor any of the oversight bodies or 

private groups had alerted the GAO to any abuses under the Guidelines. See U.S. General 

Accounting Office, FBI Reorganization: Progress Made in Efforts to Reform, but Major 

Challenges Continue, GAO-03-759T, 26-32 & App. VI (June 18, 2003). 

Both the House and Senate Judiciary Committees have held oversight hearings on 

different aspects of the revised Investigative Guidelines. With respect to the FBI’s use of 

confidential informants, the House Committee on Government Reform issued a report, 

Everything Secret Degenerates: The FBI’s Use of Murderers as Informants, H.R. Rep. No. 

108-414 (2004). The House Committee on Government Reform advised the Attorney 

General in a letter dated May 6, 2004, that it was undertaking an investigation of the FBI’s 

“handling of confidential informants, including its guidelines, policies and practices.” 

16 Organization charts for the DOJ and the FBI are attached at Appendix A. 

17 In addition, on June 29, 2005, the President announced a further restructuring of 

the intelligence community, the Department of Justice, and the FBI. A new National 

Security Division will be created in the Department of Justice, under the supervision of an 

Assistant Attorney General, which will consolidate the Department’s intelligence resources 

within one division. At the FBI, a new senior position directly under the FBI Deputy 

Director will be created to oversee the FBI’s intelligence, counterterrorism, and 

(continued) 
21

The FBI’s work in implementing the Investigative Guidelines has also 

occurred at the same time as other operational and administrative changes 

affecting the Headquarters and senior field managers who share 

responsibility with the FBI’s 12,000 agents to comply with the Guidelines. 

During our review, for example, FBI Headquarters’ oversight of the Criminal 

Informant Program moved from the Criminal Investigative Division (CID) to 

the new Directorate of Intelligence, where all human sources are now 

supervised in accordance with a Presidential Decision Directive. 

During the course of this review, the FBI has addressed some of the 

concerns identified in this report and is in the process of addressing others. 

In addition, further revisions of the Investigative Guidelines are under 

consideration by DOJ and the FBI, including a major overhaul of the 

various Guidelines used to operate human sources. We believe that the 

lessons learned from this review of the implementation process employed 

following the May 2002 revisions of the Investigative Guidelines will be 

useful whenever the next round of revisions is considered, drafted, issued, 

and implemented. 

II. Scope and Methodology of the OIG Review 

A. Scope of the Review 

Our review examined the FBI’s compliance with the four Attorney 

General Investigative Guidelines that were revised on May 30, 2002, and the 

procedures that the FBI relied upon to ensure their proper implementation. 

Because the Investigative Guidelines govern a broad array of investigative 

activity, we limited the scope of our compliance review to a number of key 

provisions in each of the Guidelines.18

The revised Guidelines address the FBI’s utilization of general crimes 

investigations to investigate various federal crimes and criminal enterprises, 

as well as the FBI’s use of three key methods or techniques used to conduct 

general crimes or criminal intelligence investigations: 

(i) the use of Confidential Informants – individuals who are used by 

the FBI to obtain information or to perform certain activities in 

furtherance of FBI criminal or intelligence investigations, with or 

without compensation, under the supervision of FBI case agents 

and their supervisors; 

 

counterintelligence components, which will be combined to form a National Security Service 

within the FBI. 

18 However, we collected a significant amount of information on the FBI’s 

implementation practices beyond those key measures. For example, with regard to FBI 

undercover operations that were reviewed at FBI Headquarters, we evaluated more than 50 

separate variables for each undercover operation we examined. 
22

(ii) the use of Undercover Operations – defined as “investigative 

activities involving the use of an assumed name or cover identity 

by an FBI employee or other law enforcement agency working 

with the FBI which involves an element of deception, the purpose 

of which is to detect, prevent, and prosecute certain federal 

offenses;”19 and 

(iii) the use of Non-telephonic Consensual Monitoring – the consensual 

monitoring of non-telephonic communications. 

In addition to the FBI’s compliance performance under each of the 

four Investigative Guidelines, we examined the steps the FBI has taken 

since May 2002 to implement the Guidelines, including its planning for 

implementation, distribution and communication of the Guidelines and 

related guidance, formal and informal training on the Guidelines, and 

administrative support provided by FBI Headquarters and the field 

divisions. 

We also examined the operation of the two joint FBI-DOJ committees 

that review and approve certain types of confidential informants and 

undercover operations. Those committees are the Confidential Informant 

Review Committee (CIRC) and the Criminal Undercover Operations Review 

Committee (CUORC). In addition, we examined the role of FBI components 

that monitor compliance with some of the Guidelines, including the 

Undercover and Sensitive Operations Unit (USOU), the Asset/Informant 

Unit (A/IU),20 the Office of the General Counsel (OGC), the Inspection 

Division, and the FBI’s Office of Professional Responsibility (OPR). 

Our review also examined, to a limited extent, internal FBI operational 

changes in the fall of 2003 that shifted Headquarters’ oversight of certain 

counterterrorism investigations from CID to the Counterterrorism Division 

(CTD), and the corresponding internal guidance that shifted the applicable 

Attorney General Guidelines governing those investigations from the 

General Crimes Guidelines to the Attorney General Guidelines on FBI 

National Security Investigations and Foreign Intelligence Collection (NSI 

Guidelines), which were revised on October 31, 2003. 

We did not include within our review the FBI’s implementation of the 

NSI Guidelines. However, as discussed in various recommendations offered 

throughout this report, because similar operational and administrative 

challenges are attendant to implementation of the NSI Guidelines, we 

 

19 Field Guide for Undercover & Sensitive Operations (FGUSO) (rev. July 25, 2003), 

at 1. 

20 During the period of this review, the FBI’s Asset/Informant Unit was in the Criminal 

Intelligence Section of the CID. Effective November 15, 2004, that unit moved to the 

Directorate of Intelligence and was renamed the Human Intelligence Unit. 
23

believe the principles we outline for promoting more effective compliance 

with the Investigative Guidelines may also apply to implementation of the 

NSI Guidelines. 

Following the September 11, 2001, attacks, the Attorney General 

ordered a top-to-bottom review of the Guidelines “to ensure that they 

provide front-line field agents with the legal authority they need to protect 

the American people from future terrorist attacks.”21 When the revised 

Guidelines were announced in May 2002, the Attorney General stated that 

the driving force behind the changes was the belief that “the [investigative] 

guidelines bar FBI field agents from taking the initiative to detect and 

prevent future terrorist acts unless the FBI learns of possible criminal 

activity from external sources.”22

Because the Attorney General identified the primary focus of the May 

2002 revisions as the prevention and detection of terrorism, our review also 

sought to determine how the FBI has used the new or expanded authorities 

and the internal control mechanisms that exist to monitor the exercise of 

these authorities. For example, we assessed the FBI’s implementation of the 

new (or newly clarified) authorities to visit public places and attend public 

events, which are set forth in Part VI of the General Crimes Guidelines. 

It is also important to identify several significant internal controls that 

we did not examine. The FBI and other DOJ law enforcement agencies 

operate under other Attorney General Guidelines that are beyond the scope 

of this review. These include the NSI Guidelines mentioned above; Online 

Investigative Principles for Federal Law Enforcement Agents (for Undercover 

Operations) (1999); the Attorney General Guidelines for Extraterritorial FBI 

Operations and Criminal Investigations; the Attorney General Guidelines on 

the Development and Operation of FBI Criminal Informants and Cooperative 

Witnesses in Extraterritorial Jurisdictions; the Attorney General Guidelines 

for Victim and Witness Assistance (2000); and the Attorney General’s 

Directives Regarding Information Sharing Under the USA PATRIOT Act 

(2002). With limited exceptions, this review also did not examine the FBI’s 

compliance with its internal operational mandates that supplement the 

requirements of the Investigative Guidelines, principally the FBI’s MIOG and 

the MAOP.23

 

21 Id. 

22 Remarks of Attorney General Ashcroft, Attorney General Guidelines, May 30, 2002, 

available at: http://www.usdoj.gov/ag/speeches/2002/53002agpreparedremarks.htm. 

23 One exception was the MIOG requirement that field supervisors review each case 

agent’s investigative files every 90 days. See MIOG § 137-4(3). We considered this to be a 

critical requirement to promote adherence to the Guidelines, and we included it in our data 

collection at 12 FBI field offices. 
24

In addition, this review did not examine the FBI’s compliance with its 

expanded authorities under the USA PATRIOT Act, including its 

investigation of international terrorism matters that are now principally 

governed by the NSI Guidelines. We did, however, seek to determine if there 

is any operational overlap between the Investigative Guidelines and the NSI 

Guidelines and, if so, whether there are any gaps or confusion in the field as 

to which Guidelines apply, what the Guidelines mean, and which FBI 

Headquarters Division is responsible for supervising the exercise of these 

authorities. Finally, our review did not examine whether the FBI has been 

successful in utilizing its new and expanded authorities in accordance with 

any internal performance measures, standards, or goals that align with the 

FBI’s stated priorities. 

B. Methodology of the Review 

Our review proceeded in five general phases, some of which 

overlapped. The first phase consisted of background interviews of key 

program managers at FBI Headquarters, along with a review of the guidance 

memoranda and other initial communications by FBI Headquarters to field 

personnel about the revised Guidelines. 

The second phase consisted of over 40 interviews of FBI Headquarters 

and DOJ personnel who oversee key aspects of the substantive programs 

governed by the Guidelines; members of the FBI’s Office of the General 

Counsel, which provides periodic guidance and legal advice to the field and 

conducts training on the Guidelines; senior FBI and DOJ personnel who 

serve on the joint committees that administer certain aspects of the 

Guidelines relating to confidential informants and undercover operations; 

and FBI officials who head the Inspection Division and FBI OPR – each of 

which plays an important role in promoting adherence to, and monitoring 

compliance with, the Investigative Guidelines. During this phase of our 

review, we examined over 1,000 documents generated by the FBI and the 

DOJ in the course of implementing and monitoring compliance with the 

revised Guidelines. 

During the third phase, we conducted web-based surveys of three 

groups of FBI agents in the FBI’s 56 field offices who play a key role in 

promoting adherence to the Investigative Guidelines: Criminal Informant 

Coordinators, Undercover Coordinators, and Chief Division 

Counsel/Assistant Division Counsel (collectively referred to as Division 

Counsel) who serve as chief legal advisors in the field. We also administered 

a fourth survey to Criminal Division Chiefs of the 93 U.S. Attorneys’ Offices 

that focused on the Guidelines’ provisions requiring routine approval or 

concurrence by, or notification of, U.S. Attorneys’ Offices. 

The fourth phase consisted of 12 field office site visits during which 

we reviewed a judgmental sample of FBI investigative and administrative 

files reflecting use of the Guidelines’ authorities during the period May 2002 
25

to May 2004.24 These files reflected investigations of domestic terrorism, 

international terrorism (prior to September 2003, when the FBI made an 

internal operational change shifting the Guidelines applicable to these cases 

to the Attorney General’s Guidelines for National Security Investigations and 

Foreign Counterintelligence Collection), organized crime, public corruption, 

narcotics trafficking, and health care fraud. We reviewed cases falling into 

the category of general crimes investigations as well as criminal intelligence 

investigations, which includes racketeering enterprise and terrorism 

enterprise investigations. We examined cases that were in the preliminary 

inquiry phase as well as full investigations. We also examined field office 

practices with respect to utilization of the new authorities set forth in 

Part VI of the General Crimes Guidelines (“Counterterrorism Activities and 

Other Authorizations”), pursuant to which the FBI is now explicitly 

authorized to visit public places and attend public events for the purpose of 

detecting or preventing terrorist activities. In each instance, we examined 

whether the available documentation showed that key provisions of the four 

sets of Guidelines were followed. Following our field office site visits, we 

conducted interviews of the senior managers of each of those field offices – 

the Special Agents in Charge (SACs). 

During the fifth and final phase of the review, after collecting and 

assimilating the data we collected from FBI Headquarters and the 12 field 

offices and the other documents produced by the FBI and DOJ, we 

interviewed several newly appointed senior FBI Headquarters officials and in 

some cases re-interviewed other senior officials about organizational and 

other plans that would impact Headquarters and field supervision of the 

programs governed by the Guidelines. We also interviewed the FBI Director 

in April 2005. 

III. Organization of the Report 

This report is organized into nine chapters, beginning with this 

Introduction. Chapter Two recounts the historical background of the 

Attorney General Guidelines. It discusses the initial versions of the 

Guidelines and events that prompted revisions of the different sets of 

Guidelines. 

Chapter Three focuses on the Confidential Informant Guidelines. It 

addresses the background of the May 2002 revisions, the role of confidential 

informants in FBI investigations, and the benefits and risks of using 

confidential informants. We then summarize the major revisions to the 

 

24 We included in our field office site visits six of the largest FBI field offices: 

New York, Washington D.C., Los Angeles, Chicago, Miami, and Boston; four medium-sized 

field offices: Denver, Salt Lake City, Portland, and Buffalo; and two smaller field offices: 

Columbia, S.C., and Memphis. 
26

Guidelines and report the findings of our field office site visits and the 

significant data collected from our surveys of Confidential Informant 

Coordinators, FBI Division Counsel, and the Criminal Division Chiefs of the 

U.S. Attorneys’ Offices. We provide our compliance findings – including our 

observations on how the different aspects of the FBI’s implementation 

process affected compliance outcomes – and provide our recommendations. 

Chapter Four examines the revised Undercover Guidelines. It 

addresses the use of the undercover technique in FBI investigations, the 

benefits and risks of undercover operations, and the major revisions made 

to the May 2002 Guidelines. We then report the findings of our field office 

site visits and the significant data collected from our surveys of FBI 

Undercover Coordinators, FBI Division Counsel, and the Criminal Division 

Chiefs of the U.S. Attorneys’ Offices. We also present our compliance 

findings and recommendations. 

Chapter Five addresses the revised General Crimes Guidelines and 

the FBI’s use of general crimes and criminal intelligence investigations. 

After summarizing the major revisions to the Guidelines, we report the 

findings of our field office site visits and the data collected from our surveys 

of FBI Division Counsel and the Criminal Division Chiefs of the U.S. 

Attorneys’ Offices. We also analyze the FBI’s utilization of its new authority 

to visit public places and attend public events for the purpose of detecting 

and preventing terrorist activities contained in Part VI of the General Crimes 

Guidelines under the heading, “Counterterrorism Activities and Other 

Authorization.” We then provide our analysis of our compliance findings, 

followed by our recommendations. 

Chapter Six focuses on the revised Consensual Monitoring Guidelines. 

It summarizes the revisions to the Guidelines and reports the findings of our 

field office site visits, together with data collected from our surveys of FBI 

Division Counsel and the Criminal Division Chiefs of the U.S. Attorneys’ 

Offices. We also present our compliance findings and recommendations. 

Chapter Seven discusses the mechanisms employed by FBI 

Headquarters to ensure compliance with the Guidelines. These include the 

operation of the two joint FBI-DOJ oversight committees that review, 

approve, and monitor certain types of undercover operations and 

confidential informants: the Criminal Undercover Operations Review 

Committee (CUORC) and the Confidential Informant Review Committee 

(CIRC). It also includes inspections conducted of FBI field offices by the 

Inspection Division every three years; on-site reviews of undercover 

operations conducted by USOU; and the reinspections of the Criminal 

Informant Program conducted by CID’s Asset/Informant Unit (A/IU) (a 

function transferred in November 2004 to the Human Intelligence Unit 

within the Field Intelligence Management Section of the Intelligence 

Directorate), and the FBI’s disciplinary process. The chapter provides our 

analysis of the effectiveness of each of these functions. 
27

Chapter Eight describes the implementation process employed by the 

FBI with respect to the May 2002 revisions, including its planning for 

implementation, its distribution and communication of the Guidelines and 

related guidance, formal and informal training on the Guidelines, and 

administrative support provided by FBI Headquarters and the field 

divisions, including measures used to promote accountability and 

compliance with the Guidelines. We provide analysis of how the FBI’s 

decisions on each of these aspects of the implementation process impacted 

Guideline compliance and conclude with our recommendations. 

Chapter Nine contains our conclusions. The appendices to the report 

provide organization charts of the FBI and the DOJ; the text of the four 

Investigative Guidelines; a table illustrating the May 2002 revisions to the 

Investigative Guidelines; a table showing the views of USAO Criminal 

Division Chiefs on the adequacy of FBI coordination on Confidential 

Informant Guidelines issues; a list of the recommendations that appear at 

the end of Chapters Three through Eight; a table showing discrepancies 

between the Investigative Guidelines and FBI policy manuals; the FBI’s 

response to the report; and the OIG’s analysis and summary of actions 

needed to close the report. 
28

[BLANK PAGE]
29

CHAPTER TWO 

HISTORICAL BACKGROUND OF THE 

ATTORNEY GENERAL’S INVESTIGATIVE GUIDELINES 

The May 30, 2002, Investigative Guidelines that are the subject of this 

review are the latest version of the Attorney General’s Investigative 

Guidelines, the first version of which was issued by Attorney General 

Edward Levi in 1976. Before addressing the FBI’s implementation of the 

Investigative Guidelines in the succeeding chapters of this report, we believe 

it is important to describe the historical events that prompted issuance of 

the first set of Guidelines in 1976 and the context in which the various 

revisions to them were made thereafter. 

I. Introduction 

Since their inception nearly 30 years ago, one of the principal legal 

constraints under which the FBI has operated has been the Attorney 

General Guidelines. The FBI does not operate under a general statutory 

charter but, rather, under Attorney General Guidelines that have been 

revised from time to time pursuant to the authorities set forth in 28 U.S.C. 

§§ 509, 510, and 533. 

Historically, the Investigative Guidelines have been divided into 

subject areas, addressing both the types of investigations the FBI may 

conduct (e.g., checking leads, making preliminary inquiries, or conducting 

full investigations in connection with general crimes or criminal intelligence 

investigations), and the specialized techniques the FBI may use in the 

course of such investigations (e.g., using confidential informants, 

undercover operations, or non-telephonic consensual monitoring). 

In this chapter, we summarize the major revisions of the Attorney 

General’s Investigative Guidelines, noting significant changes to investigative 

authorities and techniques and the events associated with each revision. 

II. The Pre-Guidelines Period 

From its inception, the FBI has had as part of its mission the 

collection of domestic intelligence and the investigation of domestic security 

matters. Attorney General Charles J. Bonaparte established the Bureau of 

Investigation within DOJ in 1908. During the post-World War I period, the 

Bureau of Investigation was charged with the investigation of suspected 

anarchists, Bolsheviks, socialists, and other radicals in contemplation of 

prosecution under the Espionage Act and the Immigration Act. 

In 1919 and 1920, a series of bombs exploded in eight American cities 

that targeted federal and local officials, judges, police departments, and 

financial institutions on Wall Street. In response, Attorney General 

A. Mitchell Palmer established a position within DOJ to focus on antiradical activities and obtained funding from Congress to fight subversion. 
30

On November 7, 1919, with the assistance of Justice Department attorney 

J. Edgar Hoover, who headed the DOJ’s General Intelligence Division, and 

the Immigration Service within the Labor Department, Attorney General 

Palmer ordered the first of a year-long sequence of coordinated raids in 12 

cities to round up and deport hundreds of members of the Federation of the 

Union of Russian Workers and other suspected “radicals.” In early January 

1920, a second wave of coordinated raids led to the arrest of between 5,000 

to 10,000 suspected radicals. 

During the 1930s, President Franklin D. Roosevelt expressed concern 

over the growing indications of subversive activities within the United 

States, especially those of communist and fascist supporters. At the 

direction of President Roosevelt, the FBI began gathering intelligence on the 

activities of such individuals and groups.25 After the end of World War II, as 

Cold War tensions grew, the FBI refocused its attention on 

counterespionage activities, including the investigation of Ethel and Julius 

Rosenberg, who were convicted of espionage against the United States on 

behalf of the Soviet Union, and executed. 

From World War II through the 1970s, the FBI conducted what it 

called “internal security investigations,” the objective of which was to collect 

intelligence about the political influence of organizations and individuals 

who espoused what the FBI regarded as revolutionary or extremist 

viewpoints. The FBI carried out these investigations during periods of 

intense congressional interest in the nation’s internal security, leading to 

the introduction of legislation in the 1940s and 1950s, principally, the 

Smith Act26, the Voorhis Act27, and the Internal Security Act of 1950.28

 

25 The FBI’s activities from 1936 to 1945 are described in the final report of the Senate 

Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 

Book II: Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 23-37 

(1976) (hereafter “Church Committee, Book II: Intelligence Activities and the Rights of 

Americans”).

26 18 U.S.C. § 2385 (1952). 

27 18 U.S.C. § 2386 (1952). 

28 Pub. L. No. 81-831, 64 Stat. 987 (1950) (codified as amended in 50 U.S.C. 

§§ 831-32; 834-35). The Supreme Court issued a series of decisions in the 1950s and 

1960s examining the scope or constitutionality of some of the key federal statutes 

criminalizing subversive activities. Among the most significant cases were Dennis v. United 

States, 341 U.S. 494 (1951)(upholding constitutionality of the Smith Act); Service v. Dulles, 

354 U.S. 363 (1957) (reversing Secretary of State’s discharge of foreign service officer under 

the “McCarran Rider” to the Department of State Appropriation Act of 1947); Yates v. 

United States, 354 U.S. 298 (1957) (overturning convictions of Communist leaders, 

requiring that the government must show advocacy “of action and not merely abstract 

doctrine” under the Smith Act); Communist Party of the United States v. Subversive 

Activities Control Bd., 367 U.S. 1 (1961) (upholding constitutionality of Subversive 

(continued) 
31

In the 1950s, the FBI also developed a series of covert programs 

designed to collect intelligence about the Communist influence in the United 

States (COMINFIL).29 The FBI established other counterintelligence 

programs, collectively referred to as COINTELPRO, to investigate “racial 

matters,” “hate organizations,” and “revolutionary-type subversives” whose 

activities were monitored in accordance with internal FBI policy even if they 

did not satisfy the “advocacy of violence” standard articulated in the 

Supreme Court’s controlling decisions. 

During the 1960s, the FBI’s internal security investigations extended 

to the investigation of the activities and supporters of the anti-war and civil 

rights movements.30 The FBI used informants throughout this period, 

including Gary Thomas Rowe, who infiltrated the highest levels of the 

Birmingham, Alabama chapter of the Ku Klux Klan from 1959 to 1965.31 

Rowe’s activities as an informant came to light during the murder trial of 

three Klan members who were convicted of killing a white civil rights 

worker, Viola Gregg Liuzzo, on March 25, 1965, the night after the SelmaMontgomery voting rights march.32 Rowe was one of the four Klansmen in 

the killer’s car and witnessed the murder.33 He reported the crime to the 

 

Activities Control Act); and Brandenburg v. Ohio, 395 U.S. 444 (1969) (striking down state 

syndicalism law). 

29 Annual Report of the Attorney General for Fiscal Year 1958, at 338. COMINFIL 

authorized the investigation of legitimate noncommunist organizations that the FBI 

suspected were being infiltrated by Communist influences. 

30 The FBI investigated the activities of the NAACP and its members for 25 years and 

specifically targeted Dr. Martin Luther King, Jr. in attempts to neutralize his public appeal. 

The surveillance activity of Dr. King and the Southern Christian Leadership Conference 

(SCLC) spanned nearly five years from December 1963 until his death in April 1968. It 

included wiretaps of Dr. King’s home telephone and the homes and offices of some of his 

advisers, wiretaps of the SCLC’s telephone, hidden microphones in Dr. King’s hotel rooms, 

and the use of FBI informants. Conducted under the FBI’s investigative classification 

COMINFIL, the efforts to discredit Dr. King included efforts to cut off SCLC’s funding 

sources, disrupt his marriage, undermine his efforts with foreign heads of state, and 

discredit him with the clerical and academic communities as well as the media. Church 

Committee, Book III, Supplemental Detailed Staff Reports on Intelligence Activities and the 

Rights of Americans, S. Rep. No. 94-75, at 79-184 (1976) (hereafter “Church Committee, 

Book III: Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of 

Americans”). The Church Committee concluded that the investigation was “unjustified and 

improper.” Id. at 85. 

31 Church Committee, Book III: Supplementary Detailed Staff Reports on Intelligence 

Activities and the Rights of Americans, at 239. 

32 Liuzzo v. United States, 565 F. Supp. 640 (E.D. Mich. 1983). 

33 Id. at 642. 
32

FBI within hours, and it is undisputed that Rowe’s information led to the 

conviction of the three perpetrators.34

In 1975, the Senate Select Committee to Study Governmental 

Operations with Respect to Intelligence Activities, known as the “Church 

Committee,” under the chairmanship of Senator Frank Church, and the 

House Select Committee on Intelligence under the chairmanship of Otis Pike 

(“Pike Committee”) conducted parallel hearings. The Church Committee 

examined what the FBI knew of Rowe’s knowledge of and involvement in the 

Klan’s activities and what instructions he was given.35 The Committee 

heard evidence that the FBI instructed Rowe to join a Klan “Action Group,” 

which “conducted violent acts against blacks and civil rights workers.”36 

Rowe testified that he and other Klansmen “had beaten people severely, had 

boarded buses and kicked people off; and went in restaurants and beaten 

them with blackjacks, chains, pistols.”37 On one occasion, Rowe said that 

despite giving the FBI advance warning that Klan members were planning 

violence against blacks, his FBI contact agent or “handler” instructed him to 

“go and see what happened.”38 Rowe admitted he participated in the 

resulting violence to protect his cover.39 According to the Church 

Committee, the FBI appeared to walk a fine line in utilizing Rowe, who had 

provided important information on a variety of murders and other violent 

crimes.40 FBI Headquarters instructed the field office to ensure that Rowe 

understood that he was not to “direct, lead, or instigate any acts of 

violence.”41 On the other hand, he was present on many occasions when 

 

34 Church Committee, Book III: Supplementary Detailed Staff Reports on Intelligence 

Activities and the Rights of Americans, at 241. Liuzzo’s heirs brought an unsuccessful civil 

suit against the Government under the Federal Tort Claims Act, 28 U.S.C. § 1291, et seq. 

The court rejected their claim, holding in Liuzzo v. United States, 565 F. Supp. 640, 646 

(E.D. Mich. 1983), that the Government was not liable because the FBI agents who handled 

Rowe as an FBI informant acted reasonably and prudently. After an Alabama jury found 

the three Klansmen not guilty of murder, the Klansmen were convicted of violating Liuzzo’s 

civil rights. See Liuzzo v. United States, 485 F. Supp. 1274, 1275-77 (E.D. Mich. 1980). 

35 Church Committee, Book III: Supplementary Detailed Staff Reports on Intelligence 

Activities and the Rights of Americans, at 243-44. 

36 Id. at 243 (footnote omitted). 

37 Id. 

38 Id. 

39 Id. 

40 Id. at 239. The Church Committee’s final report included a case study on Rowe, 

noting Attorney General Nicholas Katzenbach’s strong defense of the FBI’s use of 

informants (calling them “critical to the solution of the three murdered civil rights workers”) 

while at the same time acknowledging that an “effective informant program” may produce 

what Attorney General Katzenbach termed “disruptive results.” Id. at 240. 

41 Id. at 244. 
33

violence occurred, and he participated in acts of violence. Rowe’s FBI 

handler testified: “If he happened to be with some Klansman and they 

decided to do something, he couldn’t be an angel and be a good 

informant.”42

When the Church Committee presented its findings in 1976, Senator 

Church described the Committee’s work evaluating the FBI’s involvement in 

domestic intelligence in the following terms: 

[The Committee investigation’s] purpose is . . . to evaluate 

domestic intelligence according to the standards of the 

Constitution and the statutes of our land. If fault is to be 

found, it does not rest in the Bureau alone. It is to be found 

also in the long line of Attorneys General, Presidents, and 

Congresses who have given power and responsibility to the FBI, 

but have failed to give it adequate guidance, direction, and 

control.43

During its 15-month investigation, the Committee determined that 

FBI Headquarters alone had developed over 500,000 domestic intelligence 

files on Americans and domestic groups.44 The targets of the intelligence 

activities included organizations and individuals espousing revolutionary, 

 

42 Id. at 244 (footnote omitted). Rowe also testified before the Church Committee. See 

Intelligence Activities: Hearings on S. Res. 21 Before the Senate Select Committee to Study 

Governmental Operations with Respect to Intelligence Activities of the United States, 94th 

Cong., Vol. 6: Federal Bureau of Investigation, at 107-32 (1976) (hereafter “Church 

Committee, Vol. 6: Federal Bureau of Investigation) (statement of Gary Thomas Rowe). 

Rowe was also present when Walter Bergman, one of the “Freedom Riders,” was 

attacked and severely beaten by a mob in Birmingham, Alabama in 1961. Bergman 

brought a civil suit seeking damages under the Federal Tort Claims Act, successfully 

maintaining that the FBI violated its common law and statutory duties by ignoring credible 

threats of violence and failing to report them to the Department of Justice until four days 

after the events. A federal district court upheld two of three theories of liability advanced 

by Bergman in resolving the “question of the government’s responsibility to give effect and 

meaning to our system of laws, and protect those who sought to exercise their rights of free 

action.” Bergman v. United States, 565 F. Supp. 1353, 1415 (W.D. Mich. 1983). See also 

Bergman v. United States, 551 F. Supp. 407 (W.D. Mich. 1982); Bergman v. United States, 

579 F. Supp. 911 (W.D. Mich. 1984); and Bergman v. United States, 648 F. Supp. 351 

(W.D. Mich. 1986), aff’d, 844 F.2d 353 (6th Cir. 1988). Rowe’s December 1975 testimony 

before the Church Committee that he was an FBI informant at the time of the beatings and 

had told the FBI of the expected attack three weeks before it took place, was referenced in 

the court’s opinion in Bergman v. United States, 565 F. Supp. at 1382-85, 1392. Rowe 

wrote an account of the Freedom Riders incident in his autobiography, My Undercover 

Years with the Ku Klux Klan (Bantam Books 1976). 

43 Church Committee, Vol. 6: Federal Bureau of Investigation, at 1-2 (statement of 

Chairman Frank Church). 

44 Church Committee, Book II: Intelligence Activities and the Rights of Americans, at 6. 
34

racist, or otherwise “extremist” ideological viewpoints, but during the 1960s 

also included investigations of the civil rights, anti-war, and women’s 

movements. In total, the FBI conducted more than 2,000 COINTELPRO 

operations before the program was discontinued in April 1971.45

Significantly, the Church Committee found that the FBI went beyond 

investigation and employed COINTELPRO operations to disrupt groups and 

discredit or harass individuals. While the Committee’s final report did not 

question the need for lawful domestic intelligence, it concluded that the 

Government’s domestic intelligence policies and practices required 

fundamental reform.46

The FBI’s use of informants also was the subject of a staff report 

issued by the Church Committee entitled, “The Use of Informants in FBI 

Domestic Intelligence Investigations.” Noting that the FBI was using more 

than 1,500 informants in 1975 in connection with domestic security 

investigations, the report focused on the absence of clear guidance for FBI 

agents as to how they should operate informants and what constraints 

applied to handling agents’ and informants’ activities: 

The [FBI’s] Manual contains no standard limiting an informant’s 

reporting to information relating to the commission of criminal 

offenses or even to violent or potentially violent activity. In fact, 

intelligence informants report on virtually every aspect of a 

group’s activity serving, in the words of both FBI officials and 

an informant, as a “vacuum cleaner” of information. 

* * * 

The Manual does not set independent standards which must be 

supported by facts before an organization can be the subject of 

informant coverage. Once the criteria for opening a regular 

intelligence investigation are met, and the case is opened, 

informants can be used without any restrictions. There is no 

specific determination made as to whether the substantial 

intrusion represented by informant coverage is justified by the 

government’s interest in obtaining information. There is nothing 

that requires that a determination be made of whether less 

 

45 Church Committee, Book III: Supplementary Detailed Staff Reports on Intelligence 

Activities and the Rights of Americans, at 3 (citation omitted). 

46 The Church Committee held hearings on the FBI’s role in COINTELPRO in 

November and December 1975. The body of its publicly released work included 1) an 

interim report with findings on the United States’ involvement in assassination plots 

against foreign leaders; 2) seven volumes of public hearings; and 3) seven additional 

“Books” on various topics, including Book II, Intelligence Activities and the Rights of 

Americans (April 26, 1976), and Book III, Supplementary Detailed Staff Reports on 

Intelligence Activities and the Rights of Americans (April 23, 1976). 
35

intrusive means will adequately serve the government’s interest. 

There is also no requirement that the decisions of FBI officials to 

use informants be reviewed by anyone outside the Bureau. In 

short, intelligence informant coverage has not been subject to the 

standards which govern the use of other intrusive techniques 

such as wiretapping or other forms of electronic surveillance.47

In response to these ongoing concerns about ineffective internal 

controls and oversight, the Congress periodically considered subjecting the 

FBI to a statutory charter. In 1976 the Church Committee in its Final 

Report proposed a “comprehensive legislative charter defining and 

controlling the domestic security activities of the Federal Government.”48 

Initially, the legislative charter proposal was supported by FBI Director 

Clarence Kelly and his successor, William Webster.49

Two years later, in 1980, the House Judiciary Committee held 

oversight hearings on a proposal for a legislative charter. Attorney General 

Civiletti and FBI Director William Webster supported the House bill.50 

Attorney General Civiletti testified that the charter “is intended to be the 

foundational statement of the basic duties and responsibilities of the FBI 

and also its general investigative powers and the principal minimum 

 

47 Church Committee, Book III: Supplementary Detailed Staff Reports on Intelligence 

Activities and the Rights of Americans, at 229-30 (footnotes omitted). 

48 Church Committee, Book II: Intelligence Activities and the Rights of Americans at 

293-94. 

49 Legislative Charter for the FBI: Hearings on H.R. 5030 Before the Subcommittee on 

Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Cong. 1 

(1980) (hereafter “1979-1980 House FBI Charter Bill Hearings”); Law Enforcement 

Undercover Activities: Hearings Before the Senate Select Committee to Study Law 

Enforcement Undercover Activities of Components of the Department of Justice, 97th Cong. 

1041 (1982) (hereafter “1982 Senate Select Committee Hearing on Law Enforcement 

Undercover Activities”) (statement of William H. Webster, Director, FBI). 

A major reform that emerged from the Church Committee was passage of the 

Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. No. 95-511, 92 Stat. 1783 

(codified at 50 U.S.C. § 1801-11 (1994 & Supp. IV 1998), amended by Act of Dec. 3, 1999, 

Public L. No. 160-120, 113 Stat. 1606)), which was signed into law by President Carter on 

October 24, 1978. 

50 1979-1980 House FBI Charter Bill Hearings 3-15 (Testimony of Benjamin R. Civiletti, 

Attorney General, and William Webster, FBI Director). The Senate’s bill was S. 1612, The 

Federal Bureau of Investigation Charter Act of 1979, 96th Cong. (1979), reprinted in FBI 

Charter Act of 1979, S.1612: Hearings on S. 1612 Before the Senate Committee on the 

Judiciary, 96th Cong. pt. 2, 427 (1980). Section 537 of the bill authorized the FBI Director to 

impose fines up to $5,000 on agents who willfully abused “sensitive investigative techniques,” 

which included misuse of informants or intrusive surveillance authorities. Id. at 469. 
36

limitation on those powers.”51 He also stated that “the charter depends for 

enforcement on the internal disciplinary system of the FBI.”52

As we discuss below, Congress did not adopt a general legislative 

charter defining the FBI’s investigative authorities because of the adoption 

of the first Attorney General Guidelines in 1976. 

III. Establishment of the Attorney General Guidelines 

A. The Levi Guidelines – 1976 

Attorney General Edward Levi issued the first Attorney General 

Guidelines, entitled “Domestic Security Investigation Guidelines.” These 

guidelines, which were known as the first of the “Levi Guidelines,” became 

effective on April 6, 1976.53

In congressional testimony prior to release of the first Guidelines, 

Attorney General Levi stated that the Guidelines “proceed from the 

proposition that Government monitoring of individuals or groups because 

they hold unpopular or controversial political views is intolerable in our 

society.”54 The Guidelines represented a significant shift in DOJ’s approach 

to domestic terrorism. For the first time, investigations of domestic 

terrorism were treated as matters for criminal law enforcement, rather than 

as avenues for intelligence collection. 

The Guidelines placed specific limits on techniques the FBI could use 

and distinguished three types of domestic security investigations: 

 

51 1979-1980 House FBI Charter Bill Hearings, at 3 (Statement of Benjamin R. Civiletti, 

Attorney General). 

52 Id. at 7. 

53 The Levi Guidelines can be found at FBI Statutory Charter: Hearings Before the 

Senate Committee on the Judiciary, 95th Cong. pt. 1, 20-26 (1978) (hereafter “1978 Senate 

Hearings on FBI Statutory Charter Part 1”) and in FBI Oversight: Hearings Before the 

Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee on the 

Judiciary, 95th Cong. 181-87 (1978). 

Today, the FBI includes a reference to the Levi Guidelines on its history timeline as 

one of only 12 key events in the 1970s. See www.fbi.gov/fbihistory.htm. 

54 FBI Oversight: Hearings Before the Subcommittee on Civil and Constitutional 

Rights of the House Committee on the Judiciary, 94th Cong. 257 (1976) (hereafter “1976 

House FBI Oversight Hearing”) (testimony of Edward H. Levi, Attorney General, Department 

of Justice). A second set of Guidelines issued by Attorney General Levi governed the FBI’s 

authority to investigate groups it suspected of links to foreign powers. The Attorney 

General’s Guidelines for Foreign Counterintelligence Investigations (FCI) are classified. 

Today, these authorities are set forth in the Attorney General’s Guidelines for FBI National 

Security Investigations and Foreign Intelligence Collection (NSI Guidelines). The 

unclassified portions are available at: http://www.usdoj.gov/olp. 
37

1) preliminary investigations, 2) limited investigations, and 3) full 

investigations.55 The Guidelines provided that the FBI could commence a 

full domestic security investigation only on the basis of “specific and 

articulable facts giving reason to believe that an individual or group is or 

may be engaged in activities which involve the use of force or violence.”56

In a memorandum dated December 15, 1976, Attorney General Levi 

issued the second set of Attorney General Guidelines entitled, “Use of 

Informants in Domestic Security, Organized Crime, and Other Criminal 

Investigations” (“Levi Informant Guidelines”).57 Noting that the 

Government’s use of informants may involve deception and intrusion into 

the privacy of individuals and may require Government cooperation with 

persons whose reliability and motivation may be open to question, the 

Guidelines outlined the factors to be evaluated in using informants, the 

instructions informants were to be given, and the steps to be taken in the 

event the FBI learned that an informant used in investigating criminal 

activity had violated the instructions or learned of the commission of a 

crime.58

The Informant Guidelines were part of a broader effort to reform the 

FBI’s investigative and intelligence operations in light of the findings of the 

Church Committee.59 Attorney General Levi emphasized that it was 

imperative that “special care be taken not only to minimize [use of 

 

55 1978 Senate Hearings on FBI Statutory Charter Part 1 at 20 (Levi Guidelines § II.A). 

Although titled the “Domestic Security Investigation Guidelines,” the Levi Guidelines 

governed not only investigations of domestic security threats, but the FBI’s general criminal 

investigative authorities. 

56 Id. at 22 (Levi Guidelines § II.I). 

57 The Levi Informant Guidelines can be found at Final Report of the Select Committee 

to Study Undercover Activities of Components of the Department of Justice, S. Rep. No. 97-

682, at 531-35 (1983) (hereafter “1982 Final Report of the Senate Select Committee to Study 

Undercover Activities”). 

58 Id. The Guidelines “were intended, in part, to diminish the perceived need for 

legislation to regulate and restrict the FBI’s use of informants.” See generally United States 

v. Salemme, 91 F. Supp. 2d 141, 190-91 (D. Mass. 1999). 

59 According to the Church Committee, on December 23, 1974, FBI Headquarters sent 

employee conduct standards to all FBI field offices. The communication stated: “You are 

reminded that these instructions relate to informants in the internal security [domestic, 

intelligence] field and no informant should be operated in a manner which would be in 

contradiction of such instructions.” Church Committee, Book III: Supplementary Detailed 

Staff Reports on Intelligence Activities and the Rights of Americans, at 267. According to the 

Church Committee report, this instruction was the only written provision applying FBI 

employee conduct standards to informants. Prior to the issuance of this instruction in 

1974, there were no formal or specific provisions relating to informant conduct in FBI 

directives. Id. 
38

informants] but also to ensure that individual rights [were] not infringed and 

that the government itself did not become a violator of the law.”60 The 

Guidelines stated that while informants were not employees of the FBI, “the 

relationship of an FBI informant to the FBI impos[ed] a special responsibility 

upon the FBI when the informant engage[d] in activity where he received, or 

reasonably [thought] he received, encouragement or direction for that 

activity from the FBI.”61 Attorney General Levi also stressed that while the 

FBI would have primary responsibility for these investigations, DOJ would 

have “much greater involvement.”62

The Levi Informant Guidelines left significant decision-making 

authority within the discretion of the agents handling the informant. For 

example, neither the DOJ nor the U.S. Attorneys had any approval or 

oversight function in connection with an informant’s participation in 

otherwise illegal activity.63 However, if an informant committed an 

unauthorized criminal act in connection with an FBI assignment, the 

Guidelines required notification of the appropriate law enforcement or 

prosecutive authorities.64

The impact of the new Guidelines was readily apparent in FBI case 

statistics. William Webster, who served as FBI Director from 1978 to 1987, 

provided information in connection with a March 16, 1978, hearing 

indicating that the FBI’s domestic security investigations had declined from 

21,414 in July 1973 to 4,868 in March 1976, and stated publicly on May 3, 

1978, that the Bureau was “practically out of the domestic security field.”65

 

60 1982 Final Report of the Senate Select Committee to Study Undercover Activities, at 

531 (Levi Informant Guidelines, Introduction). 

61 Id.

62 1976 House FBI Oversight Hearing, at 258. 

63 Under the Levi Informant Guidelines, the FBI was merely required to notify DOJ if a 

confidential informant violated the law in furtherance or unconnected to an FBI assignment 

when notification to local authorities was inadvisable due to “exceptional circumstances.” 

As we discuss in Chapters Three and Seven, since the Confidential Informant 

Guidelines were revised in January 2001, the decision to approve a high level, long-term, or 

a privileged or media-affiliated confidential informant is made by the joint FBI-DOJ 

Confidential Informant Review Committee (CIRC). 

64 1982 Final Report of the Senate Select Committee to Study Undercover Activities, at 

533 (Levi Informant Guidelines § C.2). When an informant violated the law, and 

notification to local authorities was inadvisable due to “exceptional circumstances”, the 

DOJ determined when law enforcement or prosecutive authorities should be notified; what 

use, if any, should be made of the information gathered; and whether the FBI should 

continue using the informant. Id. at 533-34 (Levi Informant Guidelines § C). 

65 Report of the Subcommittee on Security and Terrorism, 98th Cong., Impact of 

Attorney General’s Guidelines for Domestic Security Investigation (The Levy Guidelines) 5 

(continued) 
39

Before a number of high-profile investigations occurred in the 1980s, 

the Attorney General Guidelines were generally considered to be working 

well. As Attorney General Civiletti stated when he testified in 1980 in 

support of the FBI charter legislation: 

I believe the experience of the last three years with the Levi 

Guidelines has been highly encouraging. It has demonstrated 

that guidelines can be drawn which are well understood by 

Bureau personnel and by the public and which can be filed and 

reviewed by the appropriate congressional committees. It has 

also shown that guidelines can be successfully applied to 

particular kinds of investigative activity and even to certain 

specific decisions made on a case-by-case basis. The 

reasonable conclusion which can be drawn from the success of 

these guidelines is that the charter need not detail every 

limitation or safeguard by express statutory terms. Such 

details are better covered in guidelines, with the charter setting 

forth the obligatory principles and objectives which the 

guidelines must meet and achieve.66

Within the FBI, however, there was concern that the Levi Guidelines 

would unduly limit authorized techniques and would not permit the FBI to 

be proactive, to collect intelligence before disaster struck, and to develop an 

adequate intelligence base.67

B. The Civiletti Guidelines – 1980-1981 

Revelations regarding the conduct of some informants, FBI agents’ 

knowledge of these activities, and interpretations of FBI statements or 

actions promising immunity for the informants prompted Attorney General 

Civiletti to issue revised confidential informant guidelines on December 4, 

1980.68 The revised Guidelines explicitly provided that, if necessary and 

appropriate, informants may be authorized to participate in two different 

 

(Comm. Print 1984) (hereafter “Impact of the Levi Guidelines”). The most significant drop 

occurred prior to the issuance of the Levi Guidelines, a development which the 

Subcommittee indicated was due in part to the fact that “the FBI was reducing its domestic 

security work for some time before the Guidelines were imposed.” Id. From March 31, 

1976, to February 24, 1978, the number of domestic security investigations dropped from 

4,868 to 102. Id. 

66 1979-1980 House FBI Charter Bill Hearings, at 4 (Statement of Benjamin R. Civiletti, 

Attorney General, Department of Justice). 

67 Impact of the Levi Guidelines, supra n.65, at 9. 

68 Attorney General’s Guidelines on FBI Use of Informants and Confidential Sources 

(hereafter “Civiletti Informant Guidelines”) can be found at 1982 Final Report of the Senate 

Select Committee to Study Undercover Activities, at 517-30. 
40

types of “otherwise criminal activity” at the behest of the FBI, “ordinary” and 

“extraordinary.” “Ordinary” criminal activity could be authorized by an FBI 

field office supervisor or higher FBI official. “Extraordinary” criminal activity 

was defined as any activity involving a significant risk of violence, corrupt 

actions by high public officials, or severe financial loss to a victim.”69 Only 

SACs could authorize extraordinary criminal activity, and only with the 

approval of the pertinent U.S. Attorney.70

In addition, both FBI Headquarters and the Assistant Attorney 

General in charge of the Criminal Division were to be “immediately” 

informed of any authorization of extraordinary criminal activity.71 In the 

event an informant engaged in unauthorized criminal activity which was 

deemed “serious”, the approval of either the FBI Director or a senior 

Headquarters official in consultation with the Assistant Attorney General in 

charge of the Criminal Division was required to continue to use the 

informant.72 The Civiletti Informant Guidelines also made modifications to 

the factors to be considered in determining the advisability of notifying 

appropriate law enforcement authorities of criminal activity by FBI 

informants.73

In addition, for the first time, the Guidelines assigned federal 

prosecutors a coordinating role in relation to informant activities: 

In any matter presented to a United States Attorney or other 

federal prosecutor for legal action . . . where the matter has 

involved the use of an informant or a confidential source in any 

way or degree, the FBI shall take the initiative to provide full 

disclosure to the federal prosecutor concerning the nature and 

scope of the informant’s or confidential source’s participation in 

the matter.74

 

69 1982 Final Report of the Senate Select Committee to Study Undercover Activities, at 

523 (Civiletti Informant Guidelines § F.2). 

70 Id. at 523 (Civiletti Informant Guidelines § F.3). 

71 Id. 

72 Id. at 524-25 (Civiletti Informant Guidelines § G). 

73 Id. at 526. 

74 Id. at 529 (Civiletti Informant Guidelines § L). In a memorandum explaining the 

Civiletti Guidelines, Director Webster stated that this provision was added merely to assist 

the prosecutor “in protecting the identity of our informants” and “should not be construed 

as the development of a partnership between the FBI and USDOJ in operating our 

informants.” See Staff Study: Overview of Government’s Handling of Jackie Presser 

Investigation, Permanent Subcommittee on Investigations of the Committee on 

Governmental Affairs (May 9, 1986) (hereafter “Senate Staff Study on Jackie Presser 

Investigation”), reprinted in Department of Justice’s Handling of the Jackie Presser 

(continued) 
41

The Civiletti Informant Guidelines also revised the terms of the 

instructions required to be given to informants. The Civiletti Guidelines 

required FBI agents operating informants to advise informants that their 

relationship with the FBI would not protect them from arrest or prosecution 

for any violation of federal, state, or local law, except insofar as a field 

supervisor or SAC determined pursuant to appropriate Attorney General 

Guidelines that the informant’s criminal activity was justified. If the 

required warnings were given to informants, they would reasonably 

understand that the FBI, without the involvement of any prosecutor, lacked 

the authority to decide if the informants would be protected from arrest and 

prosecution.75

In the 1980s, the Guidelines were again revised following press 

accounts and congressional hearings concerning the FBI’s domestic 

intelligence and counterespionage activities, and its undercover operations. 

The most dramatic revelations involved several high profile undercover 

operations, one of which targeted members of the United States Congress in 

the ABSCAM investigation. 

ABSCAM was an FBI “sting” operation run out of the FBI’s 

Hauppauge, Long Island office which initially targeted trafficking in stolen 

property and thereafter was converted to a public corruption investigation. 

The investigation ultimately led to the conviction of a United States Senator, 

six members of the House of Representatives, the Mayor of Camden, 

New Jersey, members of the Philadelphia City Council, and an inspector for 

the Immigration and Naturalization Service. 

During the ABSCAM investigation, the FBI relied on an informant, 

Melvin Weinberg, who presented himself as a business agent for “Abdul 

Enterprises,” a fictitious organization ostensibly supported by two wealthy 

Arab sheiks looking for investment opportunities in America.76 As part of 

the scheme, the sheiks approached designated public officials and offered 

them money or other consideration in exchange for favors assisting their 

cause. The undercover operation called for Weinberg to contact a variety of 

individuals and tell them that his principals were seeking to invest large 

sums of money. When the investigation became public in early 1980, 

controversy centered on the use of the “sting” technique and Weinberg’s 

 

Ghostworkers Case: Hearing Before the Permanent Subcommittee on Investigations of the 

Senate Committee on Governmental Affairs, 99th Cong. 105-106 (1986) (hereafter “Senate 

Subcommittee Hearing on the Jackie Presser Ghostworkers Case”). 

75 1982 Final Report of the Senate Select Committee to Study Undercover Activities, at

521 (Civiletti Informant Guidelines § E). 

76 For a discussion of the techniques used in ABSCAM, see United States v. Kelly, 

707 F.2d 1460 (D.C. Cir.) (per curiam), cert. denied, 464 U.S. 908 (1983). 
42

involvement in selecting targets. Although Weinberg was found to have 

previously engaged in numerous felonious activities, he avoided a three-year 

prison sentence and was paid $150,000 in connection with the operation. 

Ultimately, all of the ABSCAM convictions were upheld on appeal,77

although some judges criticized the tactics used by the FBI and lapses in 

FBI and DOJ supervision.78

In the wake of ABSCAM, Attorney General Civiletti issued “The 

Attorney General Guidelines for FBI Undercover Operations” (“Civiletti 

Undercover Guidelines”) on January 5, 1981.79 These were the first 

Attorney General Guidelines for undercover operations, and they formalized 

procedures necessary to conduct undercover operations. 

Following the initial press accounts about the ABSCAM investigation, 

Congress held a series of hearings to examine FBI undercover operations 

and the new Civiletti Undercover Guidelines. The House Subcommittee on 

Civil and Constitutional Rights began hearings on FBI undercover 

operations in March 1980 and concluded with a report in April 1984.80 

 

77 United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983) (per curiam), rev’g 539 F. 

Supp. 363 (D.D.C. 1982), cert. denied, 464 U.S. 908 (1983); United States v. Williams, 705 

F.2d 603 (2d Cir.), cert. denied, 464 U.S. 1007 (1983); United States v. Myers, 692 F.2d 

823 (2d Cir. 1982), cert. denied sub. nom. Lederer v. United States, 461 U.S. 961 (1983); 

United States v. Alexandro, 675 F.2d 34 (2d Cir.), cert. denied, 459 U.S. 835 (1982); United 

States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (en banc), rev’g, 501 F. Supp. 1182 (E.D. 

Pa. 1980), cert. denied, 457 U.S. 1106 (1982). 

78 See, e.g., United States v. Jannotti, 673 F.2d at 612, 613-14 (Aldisert, J., 

dissenting); United States v. Kelly, 539 F. Supp. at 373-74 & n.45. 

79 The Civiletti Undercover Guidelines can be found at 1982 Final Report of the Senate 

Select Committee to Study Undercover Activities, at 536-55. Attorney General Civiletti 

retained the Levi Domestic Security Guidelines but issued a revision on December 2, 1980, 

called, “The Attorney General’s Guidelines on Criminal Investigations of Individuals and 

Organizations.” The revisions distinguished between general crimes investigations and 

“racketeering enterprise investigations,” whose “immediate purpose” is to “obtain 

information concerning the nature and structure of the enterprise . . . with a view to the 

longer range objective of detection, prevention, and prosecution of the criminal activities of 

the enterprise.” 1982 Final Report of the Senate Select Committee to Study Undercover 

Activities at 515 (Civiletti General Crimes Guidelines § II.C). 

80 FBI Undercover Operations, Report of the Subcommittee on Civil and Constitutional 

Rights of the House Committee on the Judiciary, 98th Cong. (1983) (hereafter “1983 House 

Subcommittee Report on FBI Undercover Operations”). The hearings are reported at FBI 

Oversight: Hearings Before the Subcommittee on Civil and Constitutional Rights of the 

House Committee on the Judiciary, 96th Cong. (1980); FBI Undercover Guidelines: 

Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights of the 

House Committee on the Judiciary, 97th Cong. (1981) (hereafter “1981 House Oversight 

Hearings”); FBI Undercover Operations: Hearings Before the Subcommittee on Civil and 

Constitutional Rights of the House Committee on the Judiciary, 97th Cong. (1983) 

(hereafter “1982 House Subcommittee Hearings”); FBI Undercover Activities, Authorization, 

(continued) 
43

Among the concerns expressed during the hearings were the undercover 

agents’ involvement in illegal activity, the possibility of entrapping 

individuals, the prospect of damaging the reputations of innocent civilians, 

and the opportunity to undermine legitimate rights to privacy.81 Several 

witnesses testified that the Civiletti Undercover Guidelines did not 

sufficiently address entrapment and called for the revision of the provisions 

prohibiting inducing subjects not suspected of criminal activity.82 Congress 

also heard testimony from numerous individuals who claimed they were 

unjustly victimized by an FBI-sponsored undercover operation.83 On 

April 29, 1982, FBI Director Webster reported that there were 10 undercover 

operations that resulted in the filing of 30 civil suits implicating the FBI 

and/or its employees.84

In March 1982, after the Senate debated a resolution to expel Senator 

Harrison A. Williams for his conduct in ABSCAM, the Senate established the 

Select Committee to Study Undercover Activities.85 In December 1982, the 

Committee issued its final report, which was generally supportive of the 

undercover technique but observed that its use “creates serious risks to 

citizens’ property, privacy, and civil liberties, and may compromise law 

enforcement itself.”86

The Committee’s final report called for clarification of vague 

terminology in the Guidelines and strict approval procedures. The 

Committee stated that there were several weaknesses in the Civiletti 

Undercover Guidelines. 

• The terms “extension,” “operation,” and “public official” were 

internally defined by the FBI “in a manner that makes each of 

 

and H.R. 3232: Oversight Hearings Before the Subcommittee on Civil and Constitutional 

Rights of the House Committee on the Judiciary, 98th Cong. (1983). 

81 1981 House Oversight Hearings, at 2-7; 33-48 (statements of Professor Goeffrey R. 

Stone, Univ. Of Chicago Law School, and Gary T. Marx, Professor of Sociology, MIT). 

82 1981 House Oversight Hearings. 

83 1982 House Subcommittee Hearings at 1-35. 

84 Id. at 402. 

85 1982 Final Report of the Senate Select Committee to Study Undercover Activities, 

at 4-5. 

86 Id. at 11. The Committee observed that undercover operations “have substantially 

contributed to the detection, investigation, and prosecution of criminal activity, especially 

organized crime and consensual crimes such as narcotics trafficking, fencing of stolen 

property, and political corruption.” Id. 
44

those terms redundant, exceedingly narrow, or inconsistent with 

usage in other guidelines and documents.”87

• The Guidelines failed to indicate what circumstances justified “the 

use of violence, the commission of a crime, or interference with a 

privileged relationship.”88

• The Guidelines failed to make clear what circumstances required 

the FBI to perform all the steps required to initiate an undercover 

operation or to modify an existing undercover operation.89

In addition, the report asked that Congress be consulted at least 30 

days before the promulgation of every guideline governing undercover or 

criminal investigations, and every amendment to, or deletion or formal 

interpretation of, any such guideline.90

Both the House Subcommittee on Civil and Constitutional Rights and 

the Senate Select Committee concluded that the existing Attorney General 

Guidelines and the FBI’s internal controls were insufficient to constrain 

undercover investigations, and both proposed legislative solutions.91 The 

Senate Select Committee recommended federal legislation to govern law 

enforcement undercover operations and the inclusion of congressional 

oversight mechanisms. Although the Senate Select Committee supported 

legislation, it rejected the House’s recommendation of a judicial warrant 

requirement. Instead, the Senate Select Committee proposed a “probable 

cause” standard for undercover operations seeking to infiltrate 

governmental, religious, or news media organizations, and a finding of 

“reasonable suspicion” for all other operations seeking to detect past, 

ongoing, or planned criminal activity.92

Three years after the Civiletti Guidelines were issued and a year 

following the 1982 House hearings at which DOJ officials provided repeated 

assurances that the Undercover Guidelines would “ensure that critical 

judgments are made at appropriate levels of authority,” a House Judiciary 

Subcommittee examined their application in a Cleveland-based undercover 

operation, code-named “Operation Corkscrew.”93 The investigation was 

 

87 Id. at 54. 

88 Id. at 55. 

89 Id. at 53. 

90 Id. at 25. 

91 Id. at 23-29; 1984 House Subcommittee Report on FBI Undercover Operations, at 9-11. 

92 1982 Final Report of the Senate Select Committee to Study Undercover Activities, at 

377-78. 

93 1984 House Subcommittee Report on FBI Undercover Operations, at 7. 
45

designed to probe case-fixing in the Cleveland Municipal Court. Conducted 

in 1977 to 1982, the operation did not produce evidence deemed worthy of 

prosecution by the U.S. Attorney’s Office. While the paperwork submitted 

by the case agents asserted that the primary targets were judges, the only 

evidence developed was that the Court’s “antiquated recordkeeping 

system . . . could be easily tampered with or circumvented by any employee 

with access to these documents.”94

In blunt criticism directed at the FBI’s failure to adhere to the 

Attorney General Guidelines, the House Subcommittee concluded that in 

Operation Corkscrew “virtually every one of the principal safeguards was 

either directly violated, ignored, or administratively construed in a manner 

inconsistent with their stated purposes with profoundly disturbing results 

to the FBI, the suspects, and the public.”95 The Subcommittee asserted 

there were major Guidelines violations: 

• the operation was initiated without the requisite evidentiary 

threshold of “reasonable suspicion” of judicial case-fixing;96

• the Guidelines’ provision requiring that the proposed criminal 

activity be “clear and unambiguous” was “not only ignored but was 

apparently deliberately violated in order to produce ‘evidence’ of 

wrongdoing;”97

• evidence casting doubt on the principal FBI informant’s credibility 

was not investigated by the case agents or brought to the attention 

of field supervisors or FBI Headquarters; 

• the fact that the subject matter of the investigation qualified as a 

“sensitive circumstance” under the Guidelines did not result in 

special scrutiny either at FBI Headquarters or DOJ; 

• the Undercover Operations Review Committee (composed of both 

FBI and DOJ personnel) was provided “incomplete and misleading 

information” and failed to “challenge or test the sufficiency and 

accuracy of information” provided by field agents;98 and 

• the U.S. Attorney’s Office did not appear to assess independently 

the evidence developed in the investigation.99

 

94 Id. at 55. 

95 Id. at 7. 

96 Id. 

97 Id. at 8. 

98 Id. 

99 Id. at 74. 
46

Finally, the Subcommittee asserted that the problems in the ABSCAM 

and Corkscrew investigations “are not aberrations, but in fact reflect a 

pattern of recurrent problems which are inherent in the process.”100

C. The Smith Guidelines – 1983 

In the 1980s, Congress also scrutinized the FBI’s domestic security 

investigations. In 1982 and 1983, the Senate Subcommittee on Security 

and Terrorism held a series of five hearings on the Levi Domestic Security 

Guidelines.101 Some members of the Congress believed that the Levi 

Guidelines “unduly restricted” the FBI’s authority to monitor and prevent 

potential terror or violence against persons and property in the United 

States, pointing to the provisions that required a criminal predicate to 

initiate an investigation.102

The Subcommittee completed its assessment of the Levi Guidelines 

with the issuance of a report entitled, “Impact of Attorney General 

Guidelines for Domestic Security Investigations (The Levi Guidelines).” The 

Subcommittee concluded that the Attorney General Guidelines are 

“necessary and desirable” but recommended that the Guidelines be revised 

to delete the criminal standard for initiating domestic security 

investigations; extend time limits for investigations, particularly those for 

preliminary and limited investigations; lower the evidentiary threshold for 

initiating limited investigations; relax restrictions on the recruitment and 

use of new informants; and authorize investigations of systematic advocacy 

of violence, alleged anarchists, or other activities calculated to weaken or 

undermine federal or state governments.103 The Subcommittee 

recommended that the revised Guidelines be tested and evaluated and that 

DOJ should thereafter “present legislative recommendations to Congress to 

justify the enactment into law of adequate and effective guidelines for 

domestic security investigations.”104

After an 8-month review involving numerous DOJ components and 

consultation with members of the Congress, Attorney General Smith issued 

a revised set of Attorney General Guidelines, entitled “The Attorney 

General’s Guidelines on Domestic Security Investigations” (the “Smith 

 

100 Id. at 8-9. 

101 Attorney General’s Guidelines for Domestic Security Investigations (Smith 

Guidelines): Hearings Before the Subcommittee on Security and Terrorism of the Senate 

Committee on the Judiciary, 98th Cong. 1 (1983) (hereafter “1983 Senate Subcommittee 

Hearings on Smith Guidelines”).

102 Id. at 5 (statement of Senator John P. East, Member, Committee on the Judiciary). 

103 Impact of the Levi Guidelines, supra n.65, at 29, 34-35. 

104 Id. at 35. 
47

Guidelines”), on March 7, 1983.105 In announcing the revisions, Attorney 

General William French Smith stated that the Guidelines were needed “to 

ensure protection of the public from the greater sophistication and changing 

nature of domestic groups that are prone to violence” but would “retain 

adequate protections for lawful and peaceful political dissent.”106 Attorney 

General Smith stated that FBI agents had “demonstrated their professional 

competence, integrity, and ability to adhere to requirements.”107 Moreover, 

he said that the integration of all FBI law enforcement investigation 

guidelines into one document was meant to enhance the effectiveness of 

terrorism investigations by applying to these investigations the concepts and 

standards that effectively governed the FBI’s racketeering enterprise 

investigations.108

The Smith Guidelines introduced a new type of investigation called 

the “criminal intelligence investigation,” which had a broader organizational 

focus than a general crimes investigation and authorized the FBI to 

investigate certain enterprises which sought “either to obtain monetary or 

commercial gains or profits through racketeering activities or to further 

political or social goals through activities that involve criminal violence.”109 

In addition to retaining the racketeering enterprise investigation carried 

forward from the Civiletti Guidelines, the Smith Guidelines provided for a 

“domestic security/terrorism investigation,” whose purpose is “to obtain 

information concerning the nature and structure of the enterprise . . . with a 

view to the longer range objective of detection, prevention, and prosecution 

of the criminal activities of the enterprise.”110 A domestic security/terrorism 

investigation could lawfully collect information regarding “(i) the members of 

the enterprise and other persons likely to be knowingly acting in 

 

105 Press Release, Department of Justice (March 7, 1983), reprinted in 1983 Senate 

Subcommittee Hearing on Smith Guidelines at 47. The Smith Guidelines can be found at 

FBI Domestic Security Guidelines: Oversight Hearings Before the Subcommittee on Civil 

and Constitutional Rights of the House Committee on the Judiciary, 98th Cong. 67-85 

(1983) (hereafter “1983 House Oversight Hearings on Domestic Security Guidelines”). 

106 Press Release, Department of Justice (March 7, 1983), reprinted in 1983 Senate 

Subcommittee Hearing on Smith Guidelines, at 47. 

107 Id. at 48. 

108 Id. 

109 1983 House Oversight Hearings on Domestic Security Guidelines, at 75 (Smith 

Guidelines § III). There were two types of criminal intelligence investigations depending on 

the objective of the enterprise: a racketeering enterprise investigation and a domestic 

security/terrorism enterprise investigation. 

110 Id. at 80 (Smith Guidelines § III.B.2). The Smith Guidelines brought the Civiletti 

Guidelines’ category of “racketeering enterprise investigations” under the rubric of “criminal 

intelligence investigations.” Id. at 76 (Smith Guidelines § III.A). 
48

furtherance of its criminal objectives, provided that the information 

concerns such persons’ activities on behalf of or in furtherance of the 

enterprise; (ii) the finances of the enterprise; (iii) the geographic dimensions 

of the enterprise; and (iv) past and future activities and goals of the 

enterprise.”111

FBI Director Webster characterized the changes to the Guidelines as 

“evolutionary,” “not revolutionary,” stating that the Guidelines needed to 

adjust as the FBI learned more about organized crime and criminal 

enterprises. According to Webster, the revisions allowed agents to address 

the needs of the time, particularly those posed by terrorist organizations 

that were becoming more fluid with inconsistent structure and varied 

personnel composition.112

The Smith Guidelines also lowered the evidentiary thresholds for 

initiating full domestic security/terrorism investigations, requiring the FBI 

to identify “facts or circumstances reasonably indicat[ing] that two or more 

persons are engaged in an enterprise for the purpose of furthering political 

or social goals wholly or in part through activities that involve force or 

violence and a violation of the criminal laws of the United States.”113 This 

replaced the “specific and articulable facts” standard in the Levi Guidelines. 

The Smith Guidelines provided that the “reasonable indication” standard 

required an objective, factual basis for initiating the investigation, but did 

not require specific facts or circumstances indicating a past, current, or 

impending violation.114 The Smith Guidelines also filled a gap in the Levi 

Guidelines by permitting “low-level” monitoring of dormant groups even 

though they did not appear to be an immediate threat.115

The Smith Guidelines restricted the scope of the “preliminary inquiry” 

tool in domestic security investigations. While the Levi Guidelines permitted 

preliminary inquiries in domestic security investigations to determine if 

there was a factual predicate for opening a full investigation, the Smith 

Guidelines eliminated the use of preliminary inquiries in domestic security 

 

111 Id. at 81 (Smith Guidelines § III.B.3). 

112 1983 Senate Subcommittee Hearing on Smith Guidelines, at 13. 

113 1983 House Oversight Hearings on Domestic Security Guidelines, at 79 (Smith 

Guidelines § III.B.1). 

114 Id. Don Edwards, Chairman of the House Subcommittee on Civil and 

Constitutional Rights, and others continued to urge the passage of restrictive charter 

legislation for the FBI after the Smith Guidelines were issued. See Letter to The Honorable 

William H. Webster, April 12, 1983, reprinted in 1983 House Oversight Hearings on 

Domestic Security Guidelines, at 141-44.

115 1983 House Oversight Hearings on Domestic Security Guidelines, at 82 (Smith 

Guidelines § III.B.4.d). 
49

investigations, leaving the technique available only for general crimes 

investigations.116 Under both the Levi and Smith Guidelines, neither 

informants nor mail covers could be used during preliminary inquiries. The 

Smith Guidelines extended the duration of preliminary inquiries from 60 to 

90 days, permitting extensions by FBI Headquarters upon “a written request 

and statement of reasons why further investigative steps are warranted 

when there is no ‘reasonable indication’ of criminal activity.”117

The Smith Guidelines cautioned that investigations could not be 

initiated solely on the basis of an individual’s exercise of First Amendment 

rights, a restriction that has remained in place for over 20 years and is in 

effect today. See General Crimes Guidelines § I (General Principles). In 

addition, the Smith Guidelines instructed agents to consider, in evaluating 

the use of various law enforcement techniques, the use of “less intrusive 

means.”118 With respect to use of the undercover technique, the Smith 

Guidelines required FBI Headquarters’ approval with notification to the DOJ 

if the FBI initiated “undisclosed participation in the activities of an 

organization by an undercover employee or cooperating private individual in 

a manner that may influence the exercise of rights protected by the First 

Amendment.”119

One key member of Congress observed that the Guidelines were 

“instrumental in curtailing intelligence abuse by the FBI” and should not be 

changed “without careful Congressional and public scrutiny to assure that 

[the Smith Guidelines are] not a retreat.”120

The following year, coinciding with the House Subcommittee’s final 

year of hearings on FBI undercover operations discussed above, the FBI 

instituted an internal review of undercover operations. On February 8, 

1984, the FBI’s Office of Program Evaluation and Audits (OPEA) in the 

Inspection Division released a study of FBI undercover operations which 

concluded that the FBI was doing an effective job in undercover 

 

116 Id. at 71 (Smith Guidelines § II.B and III.B). According to a 1976 GAO report, 

preliminary inquiries were used to open investigations of all black student leaders and in 

other political intelligence investigations in the 1960s. See General Accounting Office, FBI 

Domestic Intelligence Operations: Their Purpose and Scope: Issues That Need to be 

Resolved, GGD-76-50 (Feb. 24, 1976). 

117 1983 House Oversight Hearings on Domestic Security Guidelines, at 71 (Smith 

Guidelines § II.B.3). 

118 Id. at 82 (Smith Guidelines § IV.A). 

119 Id. at 83 (Smith Guidelines § IV.B.3). 

120 Leslie Maitland, Eased F.B.I. Curbs Touch Off Dispute, The New York Times, 

May 14, 1983, § 1 (remarks by Rep. Don Edwards, Chairman, Subcommittee on Civil and 

Constitutional Rights, House Committee on the Judiciary). 
50

investigations in the criminal field. In terms of management controls, the 

report concluded that the Criminal Undercover Operations Review 

Committee (CUORC), the Undercover and Special Operations Unit (USOU), 

and the Undercover Guidelines improved centralized control of undercover 

activities.121

Also during 1983 and 1984, Congress debated a bill which would 

subject undercover operations to congressional control. The Undercover 

Operations Act would require that before the FBI could initiate an 

undercover operation, federal law enforcement agencies would have to 

establish a factual predicate of “probable cause” or “reasonable 

suspicion.”122 Director William Webster did not support the entire bill, 

arguing that it would not allow agents to effectively perform investigations. 

Director Webster cited the effectiveness of the Attorney General Guidelines, 

which set thresholds and guidance for undercover operations.123 Director 

Webster also stated that the flexibility in the Guidelines allowed “responses 

in specific situations which arise in the context of the investigative field,” 

while adhering to regulatory requirements.124

D. The Thornburgh Guidelines – 1989 

In September 1981, the FBI opened a criminal investigation of the 

Committee in Solidarity with the People of El Salvador, or “CISPES,” a 

United States-based group that opposed the Reagan Administration’s 

policies in Central America.125 According to the FBI, the investigation was 

opened to determine if CISPES had violated the Foreign Agents 

 

121 The OPEA report, FBI Undercover Operations in Criminal Matters, made 

recommendations to refine the FBI’s undercover training program, improve agent selection, 

initiate a debriefing program for lengthy undercover operations, improve national 

coordination of operations, and increase the fiscal flexibility for undercover operations. 

122 See Undercover Operations Act: Hearing Before the Senate Subcommittee on 

Criminal Law of the Senate Committee on the Judiciary, 98th Cong. 9 (1984). The bill was 

never brought to a vote. 

123 See id. at 173-77. 

124 Id. at 175-76. With the exception of a number of modifications to the Undercover 

Guidelines that were made in 1992 by Attorney General William Barr, the Guidelines were 

not changed again until the May 2002 revisions described infra in Chapter Four. The 1992 

revisions included changes to the definition of certain “sensitive circumstances,” limited the 

applicability of the Guidelines to only those cases where an undercover agent was involved, 

authorized SACs to delegate approval authority to designated ASACs, and allowed SACs to 

authorize nonsensitive UCOs for up to one year. 

125 Senate Select Committee on Intelligence, 101st Cong., The FBI and CISPES 11 

(Comm. Print 1989) (hereafter “The FBI and CISPES”). At the time of the CISPES 

investigation, the FBI’s authorities were governed by the Attorney General’s Foreign 

Counterintelligence Guidelines. Id. 
51

Registration Act, 22 U.S.C. § 611-621. The FBI closed the investigation in 

February 1982, but continued to collect information about CISPES from 

an informant who claimed that the group was involved in international 

terrorism. Under the auspices of its Counterterrorism Program, the FBI 

thereafter opened an international terrorism investigation in March 1983 

pursuant to the Foreign Counterintelligence Investigations (FCI) 

Guidelines, during which it conducted surveillance of CISPES and allied 

groups. Finding no evidence to support the informant’s claims, the FBI 

closed the investigation in June 1985. 

In January 1988, the CISPES investigation was brought to public 

attention when the Center for Constitutional Rights released material it had 

obtained under the Freedom of Information Act (FOIA).126 CISPES later 

alleged that the FBI investigated the group, its members, and affiliated 

groups solely because of its political views, and that the investigation 

violated the First Amendment and the constitutional rights of various 

individuals and organizations.127

After consultations with the Congress in early 1988, FBI Director 

William S. Sessions ordered an independent inquiry into the FBI’s handling 

of the CISPES investigation to determine if the FBI had broken any laws, 

violated any Attorney General Guidelines or rules, regulations or policy, or 

used poor judgment in the course of the investigation. The inquiry also 

examined whether the requisite evidentiary threshold had been established 

to initiate the investigation, whether the investigation remained opened for 

the appropriate period of time, whether DOJ oversight was sufficient, 

whether the initial informant was reliable, and whether the FBI’s practice of 

“indexing” information obtained from the investigation was proper.128

The FBI’s May 27, 1988, report concluded that the FBI had conducted 

an appropriate investigation for the initial period, but that its objectives 

became overly broad when FBI Headquarters directed all offices to treat 

each of the estimated 180 chapters of CISPES as subjects of the 

investigation. The report also concluded that FBI Headquarters and the 

Dallas Field Office had inadequately supervised the investigation, principally 

by their failure to conduct a background check of the informant who 

prompted the investigation, failing to continually ensure that the informant 

 

126 Id. at 15. 

127 Committee in Solidarity With The People of El Salvador (CISPES) v. Sessions, 929 

F.2d 742, 743-44 (D.C. Cir. 1991). 

128 General Accounting Office, International Terrorism: FBI Investigates Domestic 

Activities to Identify Terrorists, (hereafter “GAO Report, International Terrorism: FBI 

Investigates Domestic Activities to Identify Terrorists”) GAO/GGD-90-112, at 28 (Sept. 7, 

1990), available at: http://161.203.16.4/d22t8/142382.pdf. 
52

was reliable and accurate, and failing to adequately supervise and direct the 

informant.129

With respect to the Attorney General’s FCI Guidelines, the report 

found 31 separate violations, including: 

• conducting inquiries beyond what was permitted without opening 

an investigation; 

• receiving information about individuals’ mail without obtaining 

proper authority; and 

• initiating investigations without an adequate evidentiary 

predicate.130

The Senate’s Select Committee on Intelligence also investigated the 

CISPES matter. On September 14, 1988, FBI Director Sessions told the 

Committee that “the investigation should never have been initiated,” but 

denied that the FBI had acted illegally in conducting the inquiry.131 Director 

Sessions notified the Committee that several agents had been disciplined 

and that internal procedures had been revised to ensure that such errors 

would not recur.132

Although the Senate Committee concluded that the FBI’s CISPES 

investigation did not reflect “significant FBI political or ideological bias,” it 

concluded that its activities “resulted in the investigation of domestic 

political activities protected by the First Amendment that should not have 

come under governmental scrutiny.”133 The Committee also stressed the key 

role FBI policy and, particularly, the Attorney General Guidelines play in 

constraining the FBI’s investigative authorities: 

Federal laws do not regulate most of the FBI’s standard 

investigative methods, including photographic and visual 

surveillance, trash checks, the use of informants and 

undercover agents, attendance at meetings and infiltration of 

 

129 The FBI and CISPES at 58. 

130 Id. at 6, 89-91, 101, 120. 

131 Id. at 103. 

132 Id. 

133 The FBI and CISPES at 3, 103. The Committee report that concluded: 

 “[T]he FBI’s international terrorism investigation of CISPES was initiated primarily 

on the basis of allegations that should not have been considered credible; it was broadened 

beyond the scope justified even by those allegations; and it continued after the available 

information had clearly fallen below the standards required by the applicable guidelines.” 

Id. at 1. 
53

groups, interviews of individuals and their employers and 

associates, and checks of various law enforcement, license, 

utility, and credit records. Investigations such as the CISPES 

case using these methods are governed by internal FBI policies 

and by guidelines issued by the Attorney General. Violations 

are normally punishable only by internal disciplinary action. 

The CISPES investigation demonstrated the vital importance of 

adherence to policies and guidelines that keep the FBI from 

making unjustified inquiries into political activities and 

associations.134

The controversy surrounding the CISPES investigation ultimately led 

to the establishment of a DOJ working group which proposed changes to 

the Attorney General’s FCI Guidelines. Those revisions, which became 

effective in September 1989, provided more guidance to FBI field offices 

about reporting on international terrorism investigations.135

In the wake of the CISPES disclosures, the House Judiciary 

Committee asked the General Accounting Office (GAO) to review the FBI’s 

international terrorism program. The GAO sampled closed cases and used a 

questionnaire to develop a profile of international terrorism cases. In its 

September 1990 report, “International Terrorism: FBI Investigates Domestic 

Activities to Identify Terrorists,” the GAO found that: 

• the FBI closed approximately 67 percent of its investigations 

because it did not develop evidence indicating that the subjects 

were engaging in international terrorist activities; 

• United States citizens and permanent resident aliens were the 

subject of 38 percent of the 18,144 cases opened during January 

1982 – June 1988; 

• mosques were among the religious institutions targeted in the 

1980s investigations; and 

• the FBI monitored First Amendment-related activities in about 

11.5 percent of those cases; indexed information about individuals 

 

134 The FBI and CISPES at 12. 

135 The Guidelines revisions issued in March 1989 were relatively minor. They 

clarified that the use in preliminary inquiries of investigative techniques that require 

approval by a Supervisory Special Agent (SSA) must comply with the Guidelines’ provisions 

that govern investigative techniques generally, authorized criminal intelligence 

investigations against enterprises engaged in narcotics trafficking, and specified that the 

use of trap and trace devices and access to stored wire and electronic communications and 

transactional records must be in accordance with Title 18 of the U.S. Code. The revisions 

were entitled, “The Attorney General’s Guidelines on General Crimes, Racketeering 

Enterprise and Domestic Security/Terrorism Investigations.” 
54

who were not subjects of FBI investigations in about 47.8 percent 

of the cases; and indexed information about groups which were not 

subjects of the investigations in about 11.6 percent of the cases.136

However, the GAO stated that because it was not afforded access to 

full case files, it could not determine if the FBI violated First Amendment 

rights of the individuals and groups which were monitored or if the FBI had 

the requisite basis to monitor the activities of these individuals and groups. 

According to the GAO Report, while the FBI declined the opportunity to 

provide written comments on its report, “GAO discussed the report with FBI 

officials who generally agreed with the facts.”137

In addition to the CISPES inquiry, another informant controversy 

arose in the late 1980s. After a 3-year investigation by the Department of 

Labor’s Office of the Inspector General and DOJ into charges of labor fraud 

by Teamsters President Jackie Presser, the Department of Justice ended the 

investigation in the summer of 1985. At the time, Presser’s uncle, Allen 

Friedman, and a Cleveland organized crime leader, John Nardi, Jr., had 

already been convicted of receiving unauthorized payments while serving as 

“ghostworkers” for the Teamsters. It later came to light that Presser’s FBI 

contact agent or “handler,” Robert S. Friedrick, admitted during an internal 

FBI investigation that Presser had been authorized by the FBI to employ the 

“no-show” employees.138

The decision to drop the Presser investigation prompted a 

congressional inquiry by the Senate Permanent Subcommittee on 

Investigations.139 Following hearings, the Committee staff published a 

report that focused on whether DOJ was motivated by improper reasons not 

to prosecute Presser and what problems prompted the declination 

decision.140 The Committee staff concluded that DOJ’s decision not to 

 

136 GAO Report, International Terrorism: FBI Investigates Domestic Activities to Identify 

Terrorists, supra n.128, at 3. 

 We discuss in Chapter Five our concerns about the FBI’s current inability to track 

the utilization of its broad authorities under Part VI of the General Crimes Guidelines, 

including its authority to visit public places and attend public events for the purpose of 

detecting or preventing terrorist activities. 

137 Id. at 5. 

138 United States v. Friedrick, 842 F.2d 382, 385 (D.C. Cir. 1988) (affirming 

suppression of statements made to DOJ attorneys in prosecution for false statements in 

previous interviews). Friedrick subsequently recanted his admission that the FBI had 

authorized the “no show” employees. The FBI’s OPR later concluded that Friedrick had 

concocted the authorization defense after the fact to protect Presser as a valued informant. 

Id. at 388. 

139 Senate Subcommittee Hearing on the Jackie Presser Ghostworkers Case. 

140 Senate Staff Study on Jackie Presser Investigation, supra n.74. 
55

prosecute “was based on its evaluation of the impact of the agents’ 

authorization claims,” but the report did not reach a conclusion as to the 

evidence that the agents’ authorization statements were untrue.141 The 

report noted that the Levi Guidelines made only passing reference to 

authorized criminal acts by informants or others. Those Guidelines 

provided that an informant may not participate in criminal activities “except 

insofar as the FBI determines that such participation is necessary to obtain 

information needed for purposes of federal prosecution.”142 The report noted 

that the Civiletti Guidelines, by contrast, addressed the issue in some detail, 

requiring a written determination by an FBI supervisor that: 

(a) the conduct is necessary to obtain information or evidence 

for paramount prosecutive purposes, to establish and 

maintain credibility or cover with persons associated with 

criminal activity under investigation, or to prevent or avoid 

the danger of death or serious bodily injury; and 

(b) this need outweighs the seriousness of the conduct 

involved.143

Moreover, the Civiletti Guidelines required SAC approval for participation in 

“extraordinary” illegal activities, defined as those actions presenting a 

significant risk of “severe financial loss to a victim.” DOJ stated that the 

basic agreement with Presser predated the Levi Guidelines and because 

there was no retroactive requirement to report either pre- or post-Guidelines 

authorization of illegal informant activity, there was no violation of DOJ or 

FBI policy embodied in the Guidelines. 

The Committee staff also examined the role DOJ attorneys played in 

questioning Presser’s handlers and their supervisors about Presser’s 

informant relationship. Although DOJ was not at the time required either to 

approve or monitor the types of activities Presser was involved in, the Senate 

staff report expressed concern that the DOJ was not exercising adequate 

oversight of the FBI in informant matters. 

E. The Reno Guidelines – 2001 

On February 26, 1993, terrorists drove a truck loaded with explosives 

into a garage at the World Trade Center Tower in Manhattan, resulting in 

the death of 6 and injuring more than 1,000 people. On April 19, 1995, a 

massive fertilizer bomb destroyed the Alfred P. Murrah federal building in 

Oklahoma City, killing 168 people, including 19 children, and wounding 

 

141 Id. at 87. 

142 Id. at 101 (internal quotes omitted). 

143 Id. (citing the Civiletti Informant Guidelines). 
56

674 others. The terrorist attacks prompted renewed congressional concerns 

about the adequacy of the FBI’s tools to prevent and detect terrorism. In 

1995, a Subcommittee of the House Judiciary Committee held a hearing on 

terrorist threats.144 In response to a suggestion by several lawmakers to 

rewrite the Attorney General Guidelines addressing domestic security 

investigations and terrorism, FBI Director Louis Freeh testified that the 

current Guidelines afforded the authorities and flexibilities needed to 

investigate terrorist groups.145 FBI Director Freeh also testified that prior to 

the Oklahoma City bombing, he and Attorney General Reno discussed the 

“necessity of reviewing with an objective of changing the interpretation of 

the guideline to give [the FBI] not broader authority, but more confidence to 

use the authority already articulated in the guidelines.”146

On November 1,1995, the FBI circulated to each of its field offices the 

reinterpretation of the domestic security/terrorism investigations and 

preliminary inquiry provisions of the Attorney General’s Guidelines on 

General Crimes, Racketeering Enterprise and Domestic Security/Terrorism 

Investigations issued in March 1989, restating that the “reasonable 

indication” standard for opening a full investigation is “substantially lower 

than probable cause” and that a preliminary investigation could be opened 

on a lesser showing.147 With respect to the initiation of domestic security 

investigations, the 1989 version of the Guidelines provided: 

A domestic security/terrorism investigation may be initiated 

when the facts or circumstances reasonably indicate that two or 

more persons are engaged in an enterprise for the purpose of 

furthering political or social goals . . . through activities that 

involve force or violence and a violation of the criminal laws of 

the United States. 

The FBI’s practice had been to construe the “reasonable indication” 

standard as requiring evidence of an imminent violation of federal law. After 

the Oklahoma City bombing, the Guidelines were reinterpreted to justify the 

investigation of domestic groups that advocate violence provided that they 

have the ability to carry out violent acts that may violate federal law.148

 

144 Combating Domestic Terrorism: Hearing before Subcommittee on Crime of the 

House Judiciary Committee, 104th Cong. (1996) (hereafter “1995 House Subcommittee 

Hearing”). 

145 1995 House Subcommittee Hearing, at 13. 

146 Id. at 27. 

147 Advice to Field Offices Regarding Domestic Security/Terrorism Investigations and 

Preliminary Inquiries Under the Attorney General’s Guidelines on General Crimes, 

Racketeering and Domestic Security/Terrorism Investigations, November 1, 1995. 

148 Id. 
57

The most extensive revisions to the Confidential Informant Guidelines 

occurred in January 2001, just before the end of Attorney General Reno’s 

tenure. The Confidential Informant Guidelines had not been modified since 

Attorney General Civiletti issued the second set of Informant Guidelines in 

December 1980. 

The Reno review of the Guidelines was spurred in large part by the 

FBI Boston Field Office’s mishandling of informants James “Whitey” Bulger 

and Stephen “The Rifleman” Flemmi. In 1995, the Government indicted 

Bulger and Flemmi on multiple charges of racketeering, including acts of 

extortion, murder, bribery, loan sharking, and obstruction of justice.149 

Bulger was tipped off to his pending arrest and remains a fugitive on the 

FBI’s Ten Most Wanted List. Flemmi allegedly was tipped off but was 

arrested, later pled guilty, and is in prison serving a life sentence. The FBI’s 

relationship with both Bulger and Flemmi was not acknowledged by the 

Government until court proceedings following their initial indictment.150

We provide in Chapter Three a detailed description of the FBI’s 

association with Bulger and Flemmi. Evidence presented during pretrial 

hearings in the Government’s case against Flemmi revealed misconduct and 

criminal activity by the FBI agents who handled the two mobsters. For 

example, agents accepted money and exchanged presents with them, hosted 

them for dinners, and provided intelligence on planned law enforcement 

activity targeted at their criminal operations, including identifying the 

location of electronic surveillance and the identities of informants. In one 

case, agents told Bulger and Flemmi that another FBI informant had 

implicated them in a murder. The informant was killed as he exited a 

restaurant in South Boston approximately one week after his request to be 

placed in the Government’s Witness Protection Program was denied. In 

another matter, agents intervened with prosecutors and succeeded in 

having Bulger and Flemmi omitted from upcoming indictments. Although 

other law enforcement agencies, such as the Massachusetts State Police and 

the federal Drug Enforcement Administration, had succeeded in charging 

other Winter Hill Gang members, Bulger and Flemmi’s ability to evade 

prosecution for so many years raised suspicions that they were being 

protected by the FBI. 

Following lengthy internal investigations by DOJ and FBI, charges 

were brought against two FBI agents who handled informants in the Winter 

Hill Gang. One FBI Special Agent, John Connolly, the principal handler of 

Bulger and Flemmi, was convicted in April 2002 of multiple counts of 

 

149 United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999). 

150 Id. at 303. 
58

obstruction of justice and sentenced to 10 years in prison.151 The other 

Special Agent, H. Paul Rico, died in jail prior to his trial on murder 

conspiracy charges.152 In addition, approximately 20 civil suits have been 

brought against the FBI and several of its former agents based on the FBI’s 

handling of Bulger and Flemmi. Many of these suits include claims for 

wrongful death brought by the families of victims who were murdered by 

Bulger and Flemmi. 

As a result of the Bulger-Flemmi episode and other problem cases 

involving the FBI’s operation of informants, DOJ formed a working group in 

1999 to recommend revisions to the Confidential Informant Guidelines. The 

working group was initially chaired by Mary Jo White, then U.S. Attorney for 

the Southern District of New York, and later by Jonathan D. Schwartz, 

Principal Associate Deputy Attorney General, and included representatives 

of DOJ investigative agencies and federal prosecutors, including FBI 

Director Mueller, who was then serving as U.S. Attorney for the Northern 

District of California. The group met regularly for two years and submitted 

its recommended changes to Attorney General Reno. 

In January 2001, DOJ issued revised Informant Guidelines 

superseding the 1980 Civiletti Guidelines. The changes included the 

following provisions: 

• prohibiting federal prosecuting offices in specified circumstances 

from withholding informant information from the Department of 

Justice; 

• prohibiting JLEAs from making promises of immunity to informants; 

• establishing the Confidential Informant Review Committee to 

approve and monitor informants who are high level or long-term, 

or who are under the obligation of privilege or confidentiality or 

affiliated with the media; 

• adding greater detail to informant instructions and requiring that 

several of them read verbatim to informants; and 

• imposing notification and information-sharing requirements on 

JLEAs, such as the requirement to notify federal prosecutors in 

circumstances when an informant is the target of a federal 

investigation.153

 

151 United States v. Connolly, 341 F.3d 16, 21 (1st Cir. 2003). 

152 J.M. Lawrence, At 78, Rico Dies Under Guard: Former G-Man Was To Be Tried for 

Murder, Boston Herald, Jan. 18, 2004. 

153 See Department of Justice Guidelines Regarding the Use of Confidential Informants 

(January 8, 2001), available at: http://www.usdoj.gov/ag/readingroom/ciguidelines.htm. 

(continued) 
59

Both the Informant Guidelines and Domestic Security Guidelines 

remained in place without further revision until the events of September 11, 

2001, prompted the reexamination of the existing Guidelines which led to 

issuance of the revised Guidelines on May 30, 2002. 

IV. Conclusion 

Several themes echo throughout the history of the evolution of the 

Attorney General’s Investigative Guidelines that we found to be instructive 

in conducting this review. 

First, Attorneys General and FBI leadership have uniformly agreed 

that the Attorney General Guidelines are necessary and desirable, and they 

have referred to the FBI’s adherence to the Attorney General Guidelines as 

the reason why the FBI should not be subjected to a general legislative 

charter or to statutory control over the exercise of some of its most intrusive 

authorities. 

Second, problems in the FBI’s handling of informants or conducting 

undercover operations have occurred when field supervisors or FBI 

Headquarters, or both, failed to exercise appropriate oversight of field 

activities in accordance with the Guidelines. 

Third, historically, the partnership between the FBI and DOJ in 

making key operational and oversight decisions has promoted adherence to 

the Attorney General Guidelines and allowed the Department to exercise 

critical judgments regarding sensitive FBI investigative activities, 

particularly with respect to its use of confidential informants and 

undercover operations. 

Fourth, oversight by Congress has identified Guidelines violations and 

gaps in the coverage of the Guidelines. 

Below we provide a timeline identifying the Attorney General 

Guidelines issued between 1976 and 2002, and the significant historical 

events associated with the revisions. 

In the balance of our report, we present our findings with respect to 

the FBI’s compliance with the May 2002 revisions to the Guidelines, mindful 

of their historical context and the lessons learned over the last 30 years. 

 

The House Committee on Government Reform held hearings in 2001 and 2002 on the FBI’s 

use of informants in New England, leading to issuance of a report in 2004 entitled, 

Everything Secret Degenerates: The FBI’s Use of Murderers as Informants, H. Rep. No. 108-

414, 108th Cong. (2004), available at: http://www.gpo.gov/hreports/108-414.html. We 

address the Boston informant matters in the next chapter. 
60

Timeline of Events Associated 

with the Attorney General Guidelines 
61

Timeline of Events Associated 

with the Attorney General Guidelines 
62

[BLANK PAGE] 
63

CHAPTER THREE 

THE ATTORNEY GENERAL’S GUIDELINES 

REGARDING THE USE OF CONFIDENTIAL INFORMANTS

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. 

I. Role of Confidential Informants 

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 

 

154 CI Guidelines § I.B.6 at B-8. The full text of the Attorney General’s Guidelines 

Regarding the Use of Confidential Informants is attached at Appendix B.

155 CI Guidelines § I.A.6 at B-7. Sources used in foreign intelligence or foreign 

counterintelligence investigations are operated pursuant to the partially classified Attorney 

General’s Guidelines for National Security Investigations and Foreign Intelligence Collection 

(NSI Guidelines). The unclassified version is available at: 

http://www.usdoj.gov/olp/nsiguidelines.pdf. Informants operated outside the United 

States in connection with extraterritorial criminal investigations are operated pursuant to a 

separate set of Attorney General Guidelines, which are classified. 
64

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

II. The Benefits and Risks of Using Confidential Informants in FBI 

Investigations 

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 

 

156 CI Guidelines § I.B.7 at B-8. 

157 CI Guidelines § I.B.8 at B-9. 

158 MIOG § 137–3. 

159 For a history of the FBI’s informant programs in New England from the 1960s 

through the mid-1990s, see 21st Century Guide to FBI Informants, Congressional 

Investigation and Report on the Use of Murderers as Informants, Witness Protection, 

Federal Bureau of Investigation Memos and Exhibits, Top Echelon Informants, James 

“Whitey” Bulger, J. Edgar Hoover (CD-ROM) (GPO 2004). 
65

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. 

However, the informant is THE with a capital “T” THE most 

effective tool in law enforcement today – state, local, or federal. 

We must accept that and deal with it. 

* * * 

We provide close supervision in the field at the special agent 

level. We have field and headquarters evaluation of what is going 

on in respect to our informants. We have inspectors . . . who 

check each field office to be sure there is compliance with our 

regulations with respect to the use of informants. And we have 

the attorney general’s guidelines on when, and under what 

circumstances, we may use informants, and they are scrupulously 

observed.161 [emphasis added] 

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. 

 

160 House Committee on Government Reform, Everything Secret Degenerates: The 

FBI’s Use of Murderers as Informants, 3rd Report, H.R. Rep. No. 108-414 at 454 (2004), also 

available at: http://www.gov/hreports/108-414.html. 

161 Webster, The Director: Why the FBI Needs Undercover Snoops, Los Angeles Herald 

Examiner, June 2, 1978, at A-21. 
66

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: 

• no more than [SENSITIVE INFORMATION REDACTED] “high level” 

confidential informants, defined as those “who are part of the senior 

leadership of an enterprise that has a national or international 

sphere of activities” or “high significance to the [FBI’s] objectives, 

even if the enterprise’s sphere of activities is local or regional;”162

• approximately [SENSITIVE INFORMATION REDACTED] “long-term” 

confidential informants, defined as those who have been registered 

for more than 6 consecutive years;163 and 

• [SENSITIVE INFORMATION REDACTED] “privileged” informants 

(e.g., attorneys, clergy, or physicians) or media-affiliated 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. 

• A 3-year grand jury investigation into organized crime, drug 

trafficking, and illegal gambling resulted in the dismantlement of a 

criminal enterprise and the conviction of a career criminal and five 

of his criminal associates on racketeering, drug trafficking, money 

laundering, and illegal gambling charges. Seventeen RICO 

predicate crimes were charged in the indictment, including 

 

162 CI Guidelines § I.B.9 at B-9. Officials in the FBI’s Human Intelligence Unit 

explained that when “high echelon” informants were eliminated in the revised Guidelines 

issued by the Attorney General in January 2001 and “high level” informants were 

introduced as a new category, few FBI informants qualified under the new definition. 

163 CI Guidelines § II.A.3.a at B-16. 

164 Statistical accomplishments are entered on standard FBI Form FD-209. See MIOG 

§ 137-16(5). 
67

extortion, witness tampering, obstruction of justice, and mail 

fraud. The prosecution also led to the forfeiture of $500,000. The 

success of the grand jury investigation and the resulting 

prosecution was attributed in significant part to leads and 

information provided by FBI confidential informants. 

• FBI confidential informants provided information to investigators 

which permitted them to identify appropriate targets for the 

investigation of three violent gangs in a northeastern city. The 

investigation resulted in 35 cases involving charges against a total 

of 54 gang members over a 5-year period. According to the FBI, 

the succession of prosecutions was instrumental in bringing about 

a dramatic reduction in acts of violence in that city. 

• An FBI confidential informant played a crucial role in a 2-year 

undercover investigation by participating in over 1,000 

consensually monitored conversations. The consensual 

monitorings lead to the indictment of four Houston City Council 

members, a Houston Port Authority Commissioner, and a lobbyist. 

The confidential informant, later a cooperating witness, testified in 

three lengthy trials that resulted in the conviction of a city council 

member and the Port Authority Commissioner. 

• 2 Yemeni citizens, Mohammed Al Hasan Al-Moayad and 

Mohammed Mohsen Yahya Zayed, were arrested in January 2003 

in Frankfurt, Germany based on criminal complaints issued in 

Brooklyn, New York. They were charged with conspiring to provide 

material support to the Al Qaeda and Hamas terrorist groups. 

According to the complaint, an FBI confidential informant met with 

Al-Moayad in January 2002 and was told by Al-Moayad in 

subsequent conversations that he regularly provided money to 

support Mujahideen fighters in Afghanistan, Chechnya, and 

Kashmir. According to the confidential informant, Al-Moayad also 

stated during this and other conversations that he had supplied 

Al Qaeda with arms and communication equipment in the past, 

delivering more than $20 million to Al Qaeda prior to 

September 11, 2001. Al-Moayad also boasted of several meetings 

with Usama bin Laden and said he personally delivered the $20 

million to bin Laden with much of the money coming from 

contributors in the United States, including Brooklyn.165

 

165 Department of Justice Press Release, March 4, 2003, available at: 

http://www.usdoj.gov/opa/pr/2003/March/03_ag_134.htm. Confidential informants are 

used by the FBI in a variety of domestic and international terrorism investigations where 

(continued) 
68

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.

 

the investigative objective is a criminal prosecution. In March 2005, both defendants were 

convicted of conspiring to provide material support to the Al Qaeda and Hamas terrorist 

groups. 

166 FBI Statutory Charter: Hearings Before the Subcommittee on Administrative 

Practice & Procedure of the Senate Committee on the Judiciary 95th Cong. 40 (1978) 

(Testimony of Philip B. Heymann, Assistant Attorney General, Criminal Division, 

Department of Justice). The complex relationship between the FBI and its informants is 

also described in United States v. Doe, No. 96 Cr. 749 (JG), 1999 WL 243627 (E.D.N.Y. Apr. 

1, 1999). 

167 United States v. Connolly, 341 F.3d 16 (1st Cir. 2002). 
69

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 codefendants, they were indicted for racketeering, conspiracy, extortion, and 

bookmaking charges in 1995. Bulger was tipped off by FBI Special Agent 

 

168 Id. An internal report by the FBI’s Behavioral Sciences & Law Enforcement Ethics 

Unit in June 2000 catalogued instances in which FBI agents were fired between 1986 and 

1999 due to misconduct of various sorts, including cases involving informant-related 

misconduct. Among the types of misconduct chronicled in the report were sexual 

relationships between informants and agents and improper disclosure of information to 

informants. See Deshazor, Behavioral and Ethical Trends Analysis (BETA): A Summary of 

Dismissals of FBI Agents and Egregious Behavior. See also Chapter Seven, which 

catalogues instances in which mishandling of informants may become a misconduct issue 

to be addressed by FBI OPR. 
70

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

 

169 See Staff Study in Overview of Government’s Handling of Jackie Presser 

Investigation: Hearing Before the Permanent Subcommittee on Investigations of the Senate 

Government Affairs Committee, 99th Cong. 75 (1986) (hereafter “Senate Staff Study”). 

 The DOJ Office of Professional Responsibility (DOJ OPR) concluded that Presser 

had no FBI authorization to commit illegal activity. DOJ OPR concluded that the 

authorization story was invented after the fact to protect a highly valued informant, even 

though Presser was deactivated when he became Teamster president in 1983. DOJ 

attorneys also concluded that neither the Levi nor the Civiletti Guidelines were in place 

when Presser’s informant relationship began, and, once the Guidelines were issued, there 

was no retroactive application to informants already serving. Senate Staff Study at 107-08. 

 One of Presser’s FBI handlers, Robert Friedrick, was later indicted for making false 

statements to internal investigators about his role in Presser’s purported authorization by 

the FBI to engage in the scheme. The district court granted Friedrick’s motion to suppress 

all statements made in the interviews on the grounds that they were inadmissible under the 

Fifth Amendment. The court of appeals affirmed the district court’s ruling. United States 

v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988). No additional charges were brought. 
71

Confidential Informant Case Study 1 

FBI Informants James J. “Whitey” Bulger and 

Stephen J. “The Rifleman” Flemmi 

FBI agent John Connolly, Jr. was sentenced in September 2002 to 10 years 

in prison for racketeering, obstruction of justice, and making false statements to 

investigators – all stemming from his handling of two FBI informants, James J. 

“Whitey” Bulger and Stephen J. “The Rifleman” Flemmi, leaders of South Boston’s 

Winter Hill Gang. 

Bulger, Flemmi, and other defendants were indicted in January 1995 and 

charged with multiple counts of racketeering, extortion, and other crimes. Four 

days after Flemmi’s arrest and the day before his indictment, the Special Agent in 

Charge (SAC) of the FBI’s Boston field office notified the U.S. Attorney in the 

District of Massachusetts for the first time that Bulger and Flemmi had been 

informants for the FBI for much of the period covered by the indictment. In 

August 1995, the government disclosed to the presiding magistrate that Flemmi 

had been a confidential informant for the FBI and that Flemmi’s informant file was 

being reviewed by senior DOJ officials to determine whether it contained any 

exculpatory material discoverable under Brady v. Maryland, 373 U.S. 83 (1963), 

and its progeny. 

In a 10-month evidentiary hearing that concluded in October 1998, after 

which the court denied Flemmi’s motion to dismiss the indictment, a federal judge 

heard evidence produced in response to Flemmi’s claim that the indictment against 

him should be dismissed based on “outrageous government misconduct,” 

including a claim that the government promised that he and Bulger would be 

protected from prosecution as long as they continued to cooperate with the FBI 

about La Cosa Nostra. The judge heard evidence that Connolly and FBI 

Supervisory Special Agent John Morris became increasingly close to their 

informants and had filed false reports of information purportedly provided to them 

by the informants, ignored evidence that the informants were extorting others, 

caused the submission of false and misleading applications for electronic 

surveillance, and disclosed other confidential law enforcement information to 

them. Among the district court’s findings of fact in its 661-page opinion was a 

condemnation of the FBI’s failure to follow the Informant Guidelines. The court 

found that: 

• the informants’ handler and supervisors failed to fully inform the FBI 

Director as to why Bulger and Flemmi had been closed as FBI 

informants; 

• Flemmi’s FBI handler failed to tell Flemmi that he was no longer an 

active FBI informant; during the 3-year period when he was 

administratively closed, the handler had over 40 contacts with him; 

• contrary to FBI policy requiring the SAC to consult personally with the 

U.S. Attorney as to whether to authorize extraordinary criminal activity 

involving a “serious risk of violence” and to review all such criminal 

activity at least every 90 days, the SAC delegated this responsibility to 

the informant’s handler and his immediate supervisor; 
72

• the FBI “ignored the essential point of the Attorney General’s Guidelines, 

which required consultation with the Assistant Attorney General for the 

Criminal Division when the FBI learns that an informant has engaged in 

criminal activity but wishes to continue to utilize the informant rather 

than share the pertinent information concerning the illegal activity with 

another law enforcement agency;” and 

• an Assistant Special Agent in Charge in the Boston field office only 

considered the informant’s productivity and failed to weigh critical factors 

in considering the informant’s suitability, including the nature of the 

matter under investigation and the importance of the information being 

furnished as compared to the seriousness of past and contemporaneous 

criminal activity of which the informant may be suspected, or how closely 

the FBI would be able to monitor his activities acting on behalf of the FBI. 

91 F. Supp. 2d at 201, 211, 216, 233, 249. 

The government took an interlocutory appeal of the district court’s ruling that 

the FBI had made an enforceable promise of immunity with respect to the electronic 

surveillance evidence. The First Circuit reversed, holding that: (1) FBI agents lack 

authority to promise immunity to informants, and absent such authority, any 

promise made to Flemmi was unenforceable; (2) no prosecutor ratified the agents’ 

promise of immunity to Flemmi; (3) Flemmi’s reliance on a promise of immunity did 

not warrant suppression of evidence; and (4) any promise of immunity did not render 

Flemmi’s statements in connection with the surveillance involuntary. United States 

v. Flemmi, 225 F.3d 78 (1st Cir. 2000). 

In December 1999, a grand jury convened by a special DOJ Task Force 

returned a RICO indictment against Connolly charging him with protecting Bulger 

and Flemmi through a pattern of obstruction of justice, including leaking to Bulger 

and Flemmi the names of several cooperating individuals who were later killed. 

Flemmi was also charged with racketeering, obstruction of justice, and conspiracy in 

the same indictment along with Bulger, against whom charges were dropped due to 

RICO Double Jeopardy concerns. In September 2001, Bulger and Flemmi were 

charged in a new indictment with committing 19 and 10 murders, respectively, and 

with conspiratorial liability for a total of 21 murders, all committed while they were 

providing information to the FBI. Flemmi pled guilty to the charges in the Connolly 

indictment at the same time he pled guilty in the new case. Connolly was tried and 

convicted in April 2002, the jury finding him guilty of multiple acts of obstruction of 

justice, including tipping Bulger to the 1995 indictment so he could flee. However, 

the jury acquitted Connolly on several of the racketeering acts, including those 

relating to the leaks of the identities of cooperating individuals leading to their 

deaths. Connolly received a 10-year sentence, which he is currently serving and 

which was upheld on appeal. On May 4, 2005, Connolly was indicted in Florida for 

first-degree murder and conspiring with Bulger and Flemmi to kill John Callahan, a 

Florida businessman who was a financial adviser to the Winter Hill Gang. 

In addition, the Tulsa District Attorney’s Office charged another retired FBI 

agent, H. Paul Rico, who had been Flemmi’s original handler, with aiding and 

abetting murder. Rico died of natural causes at age 78 while awaiting trial. 

Bulger remains a fugitive and is on the FBI’s Ten Most Wanted List.
73

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: 

• Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004), in which the 

court affirmed the denial of summary judgment requested by two 

FBI agents in a Bivens action where an informant convicted of 

murder and kidnapping claimed that FBI agents had framed him. 

In January 2005, a jury awarded a $6.6 million judgment in favor 

of the informant. 

• Perri v. United States, 53 Fed. Cl. 381 (2002), in which a former 

FBI informant claimed unsuccessfully that the United States 

breached a promise to pay him 25 percent of any sums forfeited in 

an investigation in which he assisted. 

• McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003), 

and Castucci Estate, 311 F. Supp. 2d 184 (D. Mass. 2004), 

examples of a group of approximately 20 cases in the District of 

Massachusetts seeking damages for the actions of FBI informants 

Whitey Bulger and Stephen Flemmi alleging that murder, 

extortion, and other crimes of violence were committed at FBI 

direction or acquiescence. 

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 

 

170 The CI Guidelines impose other notification requirements in addition to the 

required notifications to the U.S. Attorney’s Office when a CI is being prosecuted by or is 

the target of an investigation, is expected to become such a target, or has engaged in 

(continued) 
74

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 

 

unauthorized illegal activity. CI Guidelines § IV at B-31. These include the requirement to 

notify the U.S. Attorney’s Office when a CI is named as an interceptee or a violator in an 

application for electronic surveillance, id. at § III.D at B-30, and when the FBI “has 

reasonable grounds to believe that: 1) a current or former CI has been called to testify by 

the prosecution in any federal grand jury or judicial proceeding; 2) the statements of a 

current or former CI have been, or will be utilized by the prosecution in any federal judicial 

proceeding; or 3) a federal prosecutor intends to represent to a court or a jury that a 

current or former CI is or was a co-conspirator or other criminally culpable participant in 

any criminal activity.” Id. at § IV.C at B-32. 
75

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 62.171

III. Significant Requirements of the Guidelines 

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. 

A. Suitability Reviews 

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 

 

171 The informer’s privilege is litigated in both civil and criminal proceedings. See, e.g., 

United States v. Gutierrez, 931 F.2d 1482, 1490-91 (11th Cir. 1991) (refusing to order 

disclosure of an informant’s identity because the agent he was with during relevant periods 

could testify instead, and threats had been made against the informant); United States v. 

Mathis, 357 F.3d 1200, 1208 (10th Cir. 2004) (criminal defendant’s speculation about the 

possible relationship between two confidential informants insufficient to warrant 

disclosure); and Cofield v. City of LaGrange, 913 F. Supp. 608, 619 (D.D.C. 1996) (holding 

that defendants in the voting rights case failed to meet their burden to show that revealing 

identities of confidential informants was essential to preparation of their defense in light of 

public interest that weighed against disclosure which would substantially undermine the 

DOJ’s ability to administer its program). 
76

ISR&R addresses 17 different factors, including the person’s age, alien 

status, and the following particulars: 

a. whether the person is a public official, law enforcement officer, 

union official, employee of a financial institution or school, member 

of the military services, a representative or affiliate of the media, or 

a party to, or in a position to be a party to, privileged 

communications (e.g., a member of the clergy, a physician, or a 

lawyer); 

b. the extent to which the person would make use of his or her 

affiliations with legitimate organizations in order to provide 

information or assistance to the [FBI], and the ability of the [FBI] to 

ensure that the person’s information or assistance is limited to 

criminal matters; 

c. the extent to which the person’s information or assistance would 

be relevant to a present or potential investigation or prosecution 

and the importance of such investigation or prosecution; 

d. the nature of any relationship between the CI and the subject or 

target of an existing or potential investigation or prosecution, 

including but not limited to a current or former spousal 

relationship or other family tie, and any current or former 

employment or financial relationship; 

e. the person’s motivation in providing information or assistance, 

including any consideration sought from the government for this 

assistance; 

f. the risk that the person might adversely affect a present or 

potential investigation or prosecution; 

g. the extent to which the person’s information or assistance can be 

corroborated; 

h. the person’s reliability and truthfulness; 

i. the person’s prior record as a witness in any proceeding; 

j. whether the person has a criminal history, is reasonably believed 

to be the subject or target of a pending criminal investigation, is 

under arrest, or has been charged in a pending prosecution; 

k. whether the person is reasonably believed to pose a danger to the 

public or other criminal threat, or is reasonably believed to pose a 

risk of flight; 

l. whether the person is a substance abuser or has a history of 

substance abuse; 
77

m. whether the person is a relative of an employee of any law 

enforcement agency; 

n. the risk of physical harm that may occur to the person or his or 

her immediate family or close associates as a result of providing 

information or assistance to the [FBI]; and 

o. the record of the [FBI] and the record of any other law enforcement 

agency (if available to the FBI) regarding the person’s prior or 

current service as a CI, Cooperating Defendant/Witness, or Source 

of Information, including, but not limited to, any information 

regarding whether the person was at any time terminated for 

cause. 

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: 

• a photograph of the CI; 

• the [FBI’s] efforts to establish the CI’s true identity; 

• the results of a criminal history check for the CI; 

• the Initial Suitability Report and Recommendation; 

• any promises or benefits, and the terms of such promises or 

benefits, that are given a CI by the [FBI] or any other law 

enforcement agency, if available to the [FBI]; 

• any promises or benefits, and the terms of such promises or 

benefits, that are given a CI by a federal prosecuting office or any 

state or local prosecuting office, if available to the [FBI]; and 

• all information that is required to be documented in the CI’s files 

pursuant to the CI Guidelines. 

CI Guidelines § II.B. 

The Guidelines also require that case agents complete and sign a 

Continuing Suitability Report & Recommendation (CSR&R) at least annually 

 

172 During fiscal year 2004, the FBI had approximately [SENSITIVE INFORMATION 

REDACTED] sources in “suitability inquiry status.” The 120-day suitability inquiry period 

requirements are found in the MIOG (§ 137-5(2)), not the Confidential Informant Guidelines. 
78

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. 

CI Guidelines § II.A.2. 

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-term 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 

 

173 CI Guidelines § II.A.3.a at B-16. 

174 CI Guidelines § I.B.9 at B-9. 

175 CI Guidelines § II.D.2 at B-20. Four other categories of informants require special 

approval: federal prisoners, parolees, detainees, and supervised releasees; current or 

former participants in the witness security program; state or local prisoners, probationers, 

parolees, or supervised releasees; and fugitives. CI Guidelines §§ II.D.3 - 6 at B-20-22. 

176 We discuss at greater length in Chapter Seven the operation of the CIRC. 
79

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. 

B. Instructions 

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: 

• information provided by the CI to the FBI must be truthful; 

• the CI’s assistance and the information provided are entirely 

voluntary; 

• the United States Government will strive to protect the CI’s identity 

but cannot guarantee that it will not be divulged; 

• the CI must abide by the instructions of the [FBI] and must not 

take or seek to take any independent action on behalf of the United 

States Government; 

• the CI is not an employee of the United States Government and 

may not represent himself or herself as such; 

• the CI may not enter into any contract or incur any obligation on 

behalf of the United States Government, except as specifically 

instructed and approved by the [FBI]; 

• the [FBI] cannot guarantee any rewards, payments, or other 

compensation to the CI; and 

• in the event that the CI receives any rewards, payments, or other 

compensation from the [FBI], the CI is liable for any taxes that may 

be owed. 

CI Guidelines § II.C.1. 

In addition, if applicable, the case agent must add the following 

instructions: 

• the FBI on its own cannot promise or agree to any immunity from 

prosecution or other consideration by a Federal Prosecutor’s Office 

or a Court in exchange for the CI’s cooperation, since the decision 

to confer any such benefit lies within the exclusive discretion of the 
80

Federal Prosecutor’s Office and the Court. However, the FBI will 

consider, but not necessarily act upon, a request by the CI to 

advise the appropriate Federal Prosecutor’s Office or Court of the 

nature and extent of his or her assistance to the FBI; 

• the CI has not been authorized to engage in any criminal activity 

and has no immunity from prosecution for any unauthorized 

criminal activity; and 

• no promises or commitments can be made, except by the 

Department of Homeland Security, regarding the alien status of 

any person or the right of any person to enter or remain in the 

United States. 

Id. 

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. 

C. Authority to Engage in Otherwise Illegal Activity (OIA) 

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 
81

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 coconspirators 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 

 

177 CI Guidelines § I.B.10 at B-9. 

178 CI Guidelines § I.B.11 at B-10. 

179 For purposes of authorizing OIA, the “appropriate Chief Federal Prosecutor” is the 

Chief Federal Prosecutor that “(i) is participating in the conduct of an investigation by a 

[Justice Law Enforcement Agency] that is utilizing that active CI, or is working with that 

active CI in connection with a prosecution; (ii) with respect to Otherwise Illegal Activity that 

would constitute a violation of federal law, would have primary jurisdiction to prosecute the 

Otherwise Illegal Activity; or (iii) with respect to Otherwise Illegal Activity that would 

constitute a violation only of state or local law, is located where the otherwise criminal 

activity is to occur.” CI Guidelines, § III.C.2. 

180 Before the Levi Guidelines were issued in 1976, an FBI special agent could 

authorize criminal conduct if the agent determined “that such participation is necessary to 

obtain information needed for purposes of federal prosecution.” In a widely publicized 

Kentucky state court case that was brought prior to the Levi Guidelines, an FBI informant, 

Delano Colvin, claimed that his contact agent or “handler,” FBI Special Agent Larry Long, 

authorized him to commit the burglary for which he was charged. The State indicted Long 

as an accomplice to the burglary. After removal to federal court, the court dismissed the 

indictment against Long under the Supremacy Clause, holding that provided Long 

reasonably believed the conduct was necessary and proper and part of his authorized 

duties, he was protected, even if he exercised poor judgment. Kentucky v. Long, 637 

F. Supp. 1150, 1152 & n.5 (W.D. Ky. 1986). The decision was affirmed by the Sixth 

Circuit. See Kentucky v. Long, 837 F.2d 727, 741 (6th Cir. 1988). 
82

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 

(i) is necessary either to 

(A) obtain information or evidence essential for the 

success of an investigation that is not reasonably 

available without such authorization, or 

(B) prevent death, serious bodily injury, or significant 

damage to property, and 

(ii) that in either case the benefits to be obtained from the 

CI’s participation in the Tier 1 or Tier 2 OIA outweigh the 

risks.181

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). 

D. Unauthorized Illegal Activity (UIA) 

[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 

 

181 CI Guidelines § III.C.3.a at B-26. 

182 [SENSITIVE INFORMATION REDACTED] 

183 [SENSITIVE INFORMATION REDACTED] 

184 [SENSITIVE INFORMATION REDACTED] 
83

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 

 

185 See generally, United States v. Salemme, 91 F. Supp. 2d 141, 199-200, 215-16 (D. 

Mass. 1999), rev’d sub nom. United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000). 

186 See, e.g., Commonwealth v. Ricci, 57 Mass. App. Ct. 155, 781 N.E.2d 868, appeal 

denied, 439 Mass. 1102, 786 N.E.2d 395, review denied, 439 Mass. 1102, 786 N.E.2d 395 

(2003). 
84

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. 

 

187 See, e.g., United States v. Robinson, 830 F.2d 885, 890-91 (8th Cir. 1987) (affirming 

armed robbery conviction and rejecting defendant’s claim that government’s conduct was 

so outrageous as to violate Due Process Clause, citing evidence that FBI handlers 

repeatedly told defendant not to engage in criminal activity or commit robberies). 
85

Confidential Informant Case Study 2 

FBI Informant Gregory Scarpa, Sr. and his FBI Handler, 

R. Lindley DeVecchio 

Gregory Scarpa, Sr., who was involved in organized crime for most of his 

life, served as an FBI confidential informant at various times from 1980 until the 

early 1990s. His relationship with the FBI and, in particular, with his sole 

handler, R. Lindley DeVecchio, factored in a number of major prosecutions against 

New York members of La Cosa Nostra (LCN) in the 1990s. In some cases, Scarpa’s 

status as an FBI informant was known during trial; in another, it was not revealed 

until post-conviction motions were filed and Scarpa had died. 

Victor Orena and Pasquale Amato. In two separate federal trials in 1992 

and 1993, juries found Victor J. Orena, the “acting boss” of the Colombo Family, 

and Pasquale Amato guilty of racketeering, conspiracy, and firearms charges. The 

events leading to the convictions of Orena and Amato stemmed from the “Colombo 

Wars,” a power struggle between two Colombo factions, the Persicos and the 

Orenas that lasted from the fall of 1991 through the spring of 1992. At Orena’s 

trial, DeVecchio, who headed the Colombo LCN squad in the FBI’s New York Field 

Office, testified as an expert witness about the nature and structure of organized 

crime. Both defendants were sentenced to life in prison, and the Second Circuit 

affirmed both convictions and sentences. 

Years after their convictions and following exhaustion of all appeals, Orena 

and Amato filed motions for dismissal of their indictments or for new trials alleging 

a violation of the government’s disclosure obligations under Brady v. Maryland, 

373 U.S. 83 (1963). Their motions were based upon DeVecchio’s “questionable 

ethics and judgments” as revealed in proceedings in another case. After learning 

that Scarpa was a long-time FBI informant, Orena and Amato contended that it 

was not they, but DeVecchio, who conspired with Scarpa to instigate the Mafia war 

and caused the killing of their partner and loan shark, Thomas Ocera, one of the 

murders for which Orena and Amato were convicted. 

The trial court denied the post-trial motions. Orena v. United States, 956 

F. Supp. 1071 (E.D.N.Y. 1997). However, the court closely examined the 

relationship between DeVecchio and Scarpa, who rose to the position of a “capo” or 

captain in the Colombo family. According to the trial court, in the 1970s and 

perhaps as early as the 1960s, Scarpa had been regularly in touch with an FBI 

agent. The relationship was broken off until DeVecchio succeeded in renewing 

Scarpa's informant status in December 1980. DeVecchio acted as Scarpa's sole 

FBI handler from that time until Scarpa was finally terminated as an FBI 

informant after the Colombo Wars were over in 1992, despite an FBI protocol 

which required informants to be handled by two agents at a time. 

As a “top echelon” informant, Scarpa initially provided the FBI with 

information pertaining to organizational activity and personnel movements within 

the Colombo Family. After the Colombo Wars commenced in late 1991, he 

provided detailed reports of perpetrators and strategic planning of the opposing 

factions. 
86

The court found that DeVecchio reciprocated by passing along 

unauthorized information to Scarpa. For example, evidence was presented 

indicating that DeVecchio warned Scarpa of his pending arrest on federal credit 

card fraud charges and may have intervened with the sentencing judge to request 

lenient treatment. There also was suspicion that in 1987 DeVecchio leaked to 

Scarpa information that the Wimpy Boys Social Club, a favorite Colombo gathering 

place, was subject to court-ordered electronic surveillance; that he tipped off 

Scarpa to the planned DEA arrest of his son, Gregory Scarpa Jr., and others in 

connection with the criminal activity at the social club; and that, as a result of the 

warning, Gregory Scarpa, Jr. became a fugitive. With respect to the Confidential 

Informant Guidelines, the court also found that: 

• On March 3, 1992, Scarpa was closed as an informant after the ASAC 

of the Criminal Division of the New York FBI Division, Donald North, 

“found credible allegations that Scarpa was involved in planning violent 

criminal activity.” In informal conversations with North, DeVecchio was 

allegedly “adamant” that Scarpa was not involved in violent activity. In 

early April 1992, DeVecchio initiated the process of having Scarpa reopened, and the FBI granted authority to re-open Scarpa on April 8, 

1992, pending completion of a suitability inquiry. On April 22, 1992, 

DeVecchio notified FBI Headquarters that such an inquiry had been 

conducted and that Scarpa was deemed suitable. 

• During the summer of 1992, Special Agent Christopher Favo, who was 

working with DeVecchio during the investigation, became strongly 

suspicious of DeVecchio. Believing that DeVecchio was engaged in 

misconduct and fearing that he might disrupt current investigations, 

Favo began to withhold information from DeVecchio pertaining to 

Scarpa. Other subordinates of DeVecchio's suspected that Scarpa was 

a murderer, but none of them reported their suspicions about Scarpa or 

DeVecchio to superiors or to the United States Attorney despite the fact 

that the Informant Guidelines required agents to report any knowledge 

of an informant committing violent crimes. 

• Scarpa was arrested by the New York City Police in August 1992 on a 

firearms charge. Shortly thereafter, a federal indictment charging 

Scarpa with the commission of the three murders, among other crimes, 

was handed down. Scarpa was released on bail under strict house 

confinement as one of the conditions of release because of failing 

health. In late December 1992, his bail was revoked because of his 

involvement in a shooting. Scarpa was sentenced to ten years in prison 

in December 1993 after pleading guilty to two counts of murder. 

• In January 1994, Favo and other agents approached ASAC North to 

report their concerns about DeVecchio’s relationship with Scarpa. 

Consistent with FBI policy, North immediately submitted a report to the 

FBI’s Office of Professional Responsibility (OPR). OPR determined that 

DeVecchio was appropriately a subject of investigation. In September 

1996, the Public Integrity Section determined that prosecution of 

DeVecchio was not warranted, and the OPR investigation was closed. 

DeVecchio retired from the FBI in October 1996. Scarpa died in a 

federal prison in June 1994. 
87

In its ruling on Orena’s and Amato’s motions for dismissal of their 

indictments or new trials, the district court held that (1) the defendants either 

knew or should have known that a member of the organized crime family to which 

they belonged had acted as an informant, so the government’s failure to disclose 

that fact did not warrant a new trial; (2) evidence that a government agent had 

leaked information to an informant and that a second government agent had 

concerns regarding the relationship between the first agent and the informant was 

not material to the Government’s charges, so the Government’s failure to disclose 

did not warrant relief under Brady; and (3) newly discovered evidence did not 

warrant a new trial. 

On the issue of leaking information to an informant and the relationship 

between DeVecchio and Scarpa, the district court observed that while the CI 

Guidelines provide guidance on “sanctioning criminal conduct on the part of 

informants where necessary ‘to establish and maintain credibility or cover with 

persons associated with criminal activity under investigation,’” the “line between 

the value of an informer and the unreasonable risks of encouraging serious 

criminal activity requires judgment of senior supervisors with sound ethical 

compasses; people in the field are often not in a position to provide the necessary 

direction.” Orena v. United States, 956 F. Supp. 1071, 1102 (E.D.N.Y. 1997). The 

court noted that, according to the Attorney General Guidelines, the FBI does 

exercise control at the supervisory level in Washington and locally. In the case of 

Scarpa, however, “these administrative controls failed to work because DeVecchio 

was not properly supervised locally and because . . . he failed to inform his 

supervisors in Washington of the probability that Scarpa was engaged in violence.” 

Id. at 1103. 

Victor Orena, Jr., John Orena, Thomas Petrizzo, et al. In June 1995, a jury 

acquitted seven reputed associates of the Orena wing of the Colombo family of 

conspiring to murder members of the rival Persico faction of the family. Scarpa’s 

status as an FBI informant became a pivotal issue during the trial. Fellow FBI 

agents testified that they had become suspicious of DeVecchio and were 

particularly concerned that he had fed confidential information to Scarpa which 

helped him to evade arrest. 

Anthony Russo, Joseph Russo and Joseph Monteleone. Scarpa’s 

relationship with the FBI generated post-trial motions in another case following the 

conviction of LCN defendants on murder and conspiracy to murder charges. In 

that case, in March 1997, the trial judge granted a motion for a new trial to 

Anthony Russo, Joseph Russo, and Joseph Monteleone, finding that the 

Government had improperly failed to disclose evidence bearing on Scarpa’s 

credibility. The Court of Appeals reversed that portion of the district court’s order 

that granted a new trial, rejecting the trial court’s conclusion that evidence that 

Scarpa lied to the FBI about his involvement in certain other murders gave rise to 

an inference that he lied to his co-conspirators about the murders in question. 
88

E. Deactivation of Confidential Informants 

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 

 

188 It is not uncommon for the FBI to close an informant, and then open the informant 

months or years later in connection with the same or other investigations in the originating 

field office’s jurisdiction or elsewhere. 

189 MIOG § 137-15(13). 

190 CI Guidelines § V.A at B-33. Delayed notification to the CI is permitted if timely 

notification “might jeopardize an ongoing investigation or prosecution or might cause the 

flight from prosecution of any person.” CI Guidelines § V.B at B-34. 
89

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. 

IV. Major Revisions to the Guidelines 

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 

 

191 According to a prosecutor who reviewed Flemmi’s informant file, the fact that 

Flemmi was a murderer and planned to commit additional murders was not noted in his 

FBI informant file. Flemmi was eventually closed as an informant not because of concerns 

that he would commit additional homicides. Rather, in September of 1965 he was charged 

by state authorities with Assault with a Dangerous Weapon with Intent to Murder after he 

shot another person. The FBI decided to close him as an informant “[i]n view of the fact 

that informant is presently a local fugitive” and “any contacts with him might prove to be 

difficult and embarrassing.” House Committee on Government Reform, Everything Secret 

Degenerates: The FBI’s Use of Murderers as Informants, 3rd Report, H.R Rep. No. 108-414, 

at 17 (2004), available at: http://www.gpo.gov/hreports/108-414.html. 

192 A table illustrating the May 30, 2002, revisions to the Confidential Informant 

Guidelines and the other revised Investigative Guidelines is attached at Appendix C. 
90

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). 

V. The OIG Review of the FBI’s Compliance with the Confidential 

Informant Guidelines 

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 

 

193 Oversight Hearing on Counterterrorism: Hearing Before the Senate Committee on 

the Judiciary, 107th Cong. 187 (2003) (Responses by Robert S. Mueller, III, Director, Federal 

Bureau of Investigation, to Committee’s written questions). 

194 CI Guidelines §§ II.C.1 and II.C.2 at B-19. Agents must, however, continue to 

obtain the informant’s written acknowledgement of instructions relating to authorization for 

otherwise illegal activity and in connection with payments to the informant. CI Guidelines 

§§ III.C.4.b and III.B.6, respectively, at B-28 & B-24. 

195 To accommodate the FBI’s concerns about preserving the identity of its CIs, and 

because the OIG did not need to know the names of the CIs to complete its review, the OIG 

examined copies of documents maintained in the original CI files with the CI’s name and 

other identifying information redacted. To ensure that our compliance findings accurately 

reflected all the data in the original files, FBI Headquarters personnel, working in 

conjunction with Informant Coordinators, confirmed the facts supporting our CI 

compliance findings from our field office visits. 
91

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. 

• Were the Initial and Continuing Suitability reviews of confidential 

informants conducted within the required time period and was the 

required information provided? 

• Were the required instructions or cautions given to CIs at 

registration and periodically thereafter? 

• Were applications to permit confidential informants to engage in 

OIA complete and timely, was the proposed OIA described in 

sufficient detail, and was the requisite approval obtained from the 

U.S. Attorney’s Office? 

• Was unauthorized illegal activity by confidential informants 

reported when required by the SAC to the U.S. Attorney? 

 

196 As noted earlier, the CIRC reviews and approves long-term CIs, high level CIs, and 

CIs who are under the obligation of a legal privilege of confidentiality or are affiliated with 

the media. CI Guidelines §§ II.A.3 and II.D at B-16 & B-19. 

197 We randomly chose between 9 and 11 of the pertinent files to examine in each field 

office, except in offices where there were only a small number of files within a certain 

category of informants, in which case we reviewed all files. We did not pre-select CI files 

that had been identified as non-compliant by internal FBI inspections or other internal 

compliance mechanisms, nor did we base our selection of field offices on the compliance 

record of those field offices or on any other criteria that would produce a bias or skewing of 

the judgmental sample. 

 As is the case, however, with any judgmental sample, one cannot extrapolate with 

statistical certainty that the non-compliance rate of the entire population of FBI 

confidential informant files would be identical to the non-compliance rate we found in our 

sample. 

198 We did not concentrate on compliance issues relating to payments to informants 

because such payments are the subject of multiple layers of oversight by the field divisions, 

HIU, the Finance Unit within CID, and the Inspection Division. As we discuss in Chapter 

Seven, many of the elements we reviewed are also reviewed by the Inspection Division 

during its triennial inspections of each FBI division. 
92

• If confidential 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 OIA, was the OIA authorization revoked 

and the revocation documented? 

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.199 

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 

 

199 MIOG § 137-1(5). Many Confidential Informant Coordinators also provide 

equivalent guidance and support for the operation of the FBI’s assets. 

200 The confidential file room analyst collects and records information and provides 

support for the Criminal Informant Program. Analysts also prepare statistical information 

to evaluate the assistance provided by confidential informants, known as “statistical 

accomplishments.” They also work closely with the Informant Coordinators on the 

paperwork associated with informant operation, promote compliance with the FBI’s policies 

and regulations regarding informants, and bring issues to the attention of the Informant 

Coordinator for resolution. 
93

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

VI. Compliance Findings 

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. 

 

201 We received a 100 percent response rate to our survey of Confidential Informant 

Coordinators. 

202 We received a 98 percent response rate to our survey of Criminal Division Chiefs of 

the U.S. Attorneys’ Offices. We received a 92 percent response rate to our survey of FBI 

Division Counsel. 
94

TABLE 3.1 

OIG Findings on Confidential Informant Guidelines 

Compliance Deficiencies in Select FBI Field Offices 

OIG Selection Criteria203

Files Meeting 

Selection Criteria 

Number of Noncompliant Files Percent Non- compliant 

Suitability Reports & Recommendations (ISR&Rs) – 

ed Elements Not Addressed204

44 15 34% 

ctions 120 59 49% 

sing One Or More Instructions 27 23% 

imely Instructions 33 28% 

uing Suitability Reports & Recommendations 

Rs)

96 74 77% 

sing One Or More Reports 57 59% 

imely Reports 12 13% 

uired Element(s) Not Addressed 20 21% 

ng categories, each file we examined could have one or more deficiencies in a single file: instructions, 

 report and recommendation, otherwise illegal activity, unauthorized illegal activity, and deactivation. The 

nd in the ISR&Rs was the failure to address all required suitability elements.

above, FBI agents proposing to operate confidential informants are required to address various factors bearing 

tability by entering the relevant information on a standardized form called an Initial Suitability Report and 

R&R). The ISR&R must be approved in writing by a field manager. CI Guidelines, § II.A.1 at B-14. 

deficiencies noted in this table for ISR&Rs are either that the field office form did not list all the required 

 did not address one or more elements on the suitability form. 
95

OIG Selection Criteria203

Files Meeting 

Selection Criteria 

Number of Noncompliant Files Percent Non- compliant 

wise Illegal Activity (OIA) 25 15 60% 

 Authorized Prior to Source’s Conversion to CI Status 4 16% 

 1 Not Authorized by USAO 2 2 100% 

Did Not Sign Acknowledgement 7 28% 

ructions Not Timely Provided to CI After 

horization 

 1 4% 

ructions Not Provided to CI Upon Renewal 2 8% 

cription of OIA Not Specific 7 28% 

 Authorized in Advance (Retroactive Authorization) 5 20% 

THORIZED ILLEGAL ACTIVITY 12 5 42% 

fication from FBI - SAC to U.S. Attorney 5 5 100% 

ot at SAC-USA Level205 3 60% ot Provided to USAO 2 40% 

TIVATION 46 17 37% 

fication to CI 16 35% 

o Documentation of Notification to CI 15 33% 

id Not Notify CI 1 2% 

sons Not Documented 1 2% 

Coordination With USAO 1 2% 

L206 120 104 87% 

ency, either the SAC notified someone other than the U.S. Attorney, a subordinate FBI field manager notified 

a subordinate FBI field manager notified someone other than the U.S. Attorney. 

 files, 104 contained 1 or more compliance errors. However, a single file could have more than 1 error. 
96

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. 

A. Initial and Continuing Suitability Reviews 

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 
97

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: 

• 15 of the 44 files, or 34 percent, did not contain documentation of 

at least 1 required suitability factor; 

• the most frequently omitted suitability factors were the extent to 

which the CI’s information or assistance could be corroborated 

(missing in 12 files); the extent to which the CI’s information or 

assistance would be relevant to a present or potential investigation 

or prosecution and the importance of such an investigation or 

prosecution (missing in 11 files); and the nature of any relationship 

between the CI and the subject or target of an existing or potential 

investigation or prosecution (missing in 11 files); 

• at 6 of the 12 field offices we visited, ISR&R field office-generated 

forms called “ponies” did not require documentation of at least 1 of 

the required suitability factors.209

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 

 

207 Other relationships might suggest additional reasons to suspect the confidential 

informant’s motives (e.g., an ex-spouse or former business partner currently involved in 

civil litigation with the target) or present a sensitive circumstance (e.g., a CI who is a 

disbarred attorney but used to represent the target). 

208 We did not review ISR&Rs for the remaining 76 CIs because they were registered 

prior to May 30, 2002, the effective date of the revised Confidential Informant Guidelines. 

209 The ISR&Rs used in 3 field divisions we visited did not list 11 suitability factors in 

their ponies, including questions pertaining to the CI’s reliability and truthfulness. Twelve 

elements were missing from another field offices’ pony, including the same elements 

missing from ponies of the three offices listed above. Ten elements missing from ponies of 

the three offices listed above were also missing from yet another field office’s ISR&R pony. 

Another field office’s ISR&R pony had one missing element. See Table 3.7, infra. 
98

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: 

• 34 of the 96 files, or 35 percent, did not contain 1 required 

CSR&R; 

• 16 of the 96 files, or 17 percent, did not contain 2 required 

CSR&Rs; and 

• 7 of the 96 files, or 7 percent, did not contain 3 required CSR&Rs. 

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

B. Instructions 

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 

 

210 Following our site visits, these two field divisions sent communications to their 

employees reiterating the requirement to conduct continuing suitability reviews. 

211 Our survey revealed that 2 percent of Informant Coordinators said they considered 

insufficiently rigorous suitability determinations to be “somewhat serious,” 4 percent 

regarded this a “very serious” concern, 32 percent said it was “no concern,” and 36 percent 

said it was a “minor concern.” 
99

and must document that the instructions were reviewed with the CI and 

that the CI acknowledged his or her understanding of them. 

CI Guidelines § II.C. 

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: 

• 93 of the 120 files, or 78 percent, contained documentation that all 

required instructions were given and acknowledged; 

• all but 1 file contained documentation that the required 

instructions were given at registration; 

• 22 of the 120 files, or 18 percent, did not contain documentation of 

1 required annual instruction; 

• 3 of the 120 files, or 3 percent, did not contain documentation of 2 

required annual instructions; 

• 1 file did not contain documentation of 3 annual instructions; and 

• 33 of the 120 files, or 28 percent, contained documentation 

indicating that the instructions were given, but were not timely; on 

average, the instructions were given 72 days late, and ranged from 

4 to 270 days late.212

 

212 There were 34 instances in the 33 files of late instructions. Two files had late 

instructions at registration, 30 files had 1 late annual instruction, and 1 file had 2 late 

annual instructions. 
100

The following table illustrates our field office compliance findings with 

respect to documentation of the requirement to provide instructions to 

confidential informants. 

TABLE 3.2 

Compliance with Confidential Informant Guidelines Instruction 

Requirements in Select FBI Field Offices 

 Compliant CI Files Deficient CI Files 

Field Office 

Number of 

CI Files That 

Required 

Instructions 

Number Compliant 

With Instruction 

Requirements 

Number in Which 

at Least One 

Instruction Was 

Missing 

Number in 

Which 

Instructions 

Were Untimely 

Field Office 1 10 5 1 4 

Field Office 2 10 6 2 2 

Field Office 3 10 9 1 

Field Office 4 10 5 4 1 

Field Office 5 10 3 4 3 

Field Office 6 9 4 3 2 

Field Office 7 10 7 3 

Field Office 8 10 4 3 3 

Field Office 9 10 7 3 

Field Office 10 9 2 4 3 

Field Office 11 11 4 4 3 

Field Office 12 11 5 2 5 
101

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. 

TABLE 3.3 

Timeliness of Instructions Given to Confidential Informants 

in Select FBI Field Offices 

DAYS LATE 

FIELD OFFICE 

TOTAL NUMBER 

LATE REGISTRATION ANNUAL 

11 

FIELD OFFICE 1 4 33 108 

178 

38 FIELD OFFICE 2 2 

69 

FIELD OFFICE 3 1 4 

FIELD OFFICE 4 1 29 

10 

21 

86 

FIELD OFFICE 5 4 

144 

45 

FIELD OFFICE 6 2 

64 

36 

FIELD OFFICE 7 3 90 

46 

11 

FIELD OFFICE 8 3 46 

215 

6 

FIELD OFFICE 9 3 19 

97 

4 

FIELD OFFICE 10 3 43 

174 

21 

FIELD OFFICE 11 3 159 

270 

25 

43 

65 

91 

FIELD OFFICE 12 5 

146 
102

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.’ 

DIAGRAM 3.1 

Confidential Informant Coordinators’Views on Field Office 

Compliance with CI Guidelines Requirement to Give Instructions to 

Confidential Informants 

34

62

4

36

61

4

46

52

2

32

66

0

45

27

16

0

10

20

30

40

50

60

70

80

All Cases Majority of Cases Sometimes

Percentage of Informant Coordinators

Special Agents verbally convey and communicate instructions to CIs. 

Special Agents deliver admonishments/instructions in the presence of one other law enforcement

officer.

Special Agents convey the meaning and significance of each admonishment during initial registration.

Special Agents verbally review the written admonishments at least every 12 months with the CI.

Special Agents verbally review with the CI the admonishments whenever it appears necessary or

prudent. 
103

C. Authority to Engage in Otherwise Illegal Activity (OIA) 

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 

 

213 CI Guidelines § III.C.2.a at B-26. 

214 A “senior field manager” is a second-line supervisor, typically a GS-15 rank or 

higher. CI Guidelines § I.B.3 at B-8. A “field manager” is a first-line supervisor, typically a 

GS-14 rank supervisor or higher. CI Guidelines § I.B.2 at B-8. 

215 CI Guidelines § III.C.2.a at B-26. Both Tier 1 and Tier 2 OIA can be renewed. 

CI Guidelines § III.C.8 at B-23. 

216 The Guidelines provide that a CI may be registered only after a field manager has 

approved the source’s suitability. CI Guidelines §§ II.B at B-17. The provisions relating to 

OIA by their terms apply only to CIs. Id. at III.C at B-25. Similarly, the MIOG explicitly 

forbids the FBI from authorizing OIA during the suitability inquiry period: “[T]he CI may 

NOT be authorized to conduct Tier 1 or Tier 2 Otherwise Illegal Activity . . . during the SI 

period.” MIOG I § 137-5.2.c (emphasis in original). 
104

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.

DIAGRAM 3.2 

Confidential Informant Coordinators’Views on Field Office Compliance 

With CI Guidelines Requirements Relating to Authorization to Engage in 

“Otherwise Illegal Activities”

5

7 7

62

29

5 5 9

50

27

11 4 4 4 4

43

36

0

10

20

30

40

50

60

All Cases Majority of

Cases

Sometimes Rarely Never Don't Know

Percentage of Informant 

Coordinators

How often Informant Coordinators believe Special Agents are obtaining the signed

written acknowledgement from Cis.

How often Informant Coordinators believe Special Agents are obtaining the signed

written acknowledgement from Confidential Informants for each specified period (90

days or less) that they are authorized to participage in otherwise illegal authority.

How often Informant Coordinators believe Special Agents are reviewing the immunity

and authorized criminal activity instructions with Cis.

 

217 See MIOG § § 137-2(7) and 137-2(13), respectively. 

218 The instructions are summarized supra, and are set forth in the CI Guidelines 

§ III.C.4 at B-27. 
105

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 

 

219 Of the two CI files we reviewed that contained Tier 1 OIA, one CI was authorized to 

perform both Tier 1 and Tier 2 OIA, while the other was authorized to perform only Tier 2 

OIA. One file indicated that the CI was properly authorized to perform Tier I OIA for only a 

limited period, while the second file indicated that the CI was authorized to perform only 

Tier 2 OIA. We believe the second CI’s OIA activities should have been classified as Tier 1 

OIA for the reasons discussed in the analysis that follows. We believe the field 

characterizations of the Tier 2 activities in the remaining 23 files were appropriate. 
106

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: 

• “Negotiate for, purchase/receive, and possess narcotics, to include 

cocaine, heroin, marijuana, and/or ecstasy;” 

• “Transport, store, and sell drugs; transport drug money, conduct 

counter-surveillance, purchase drug paraphernalia, act as a drug 

broker, facilitate drug purchases, purchase cellular telephones to 

be utilized by drug traffickers, and general money laundering 

activities.”221

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. 

 

220 As noted supra, the Informant Guidelines distinguish between Tier 1 and Tier 2 

OIA based on the criteria set forth in §§ I.B.10 and I.B.11. 

221 In contrast, the descriptions of OIA in the balance of the CI files we examined 

included greater detail about the illegal conduct and typically specified the time, place, and 

manner in which the OIA was to be performed. In drug cases, for example, the OIA 

description often specified the type of drugs, the amount, and the individuals with whom 

the transaction was to take place. In public corruption cases, the OIA description identified 

the particular work to be performed for specified subjects of the investigation. 
107

TABLE 3.4 

Compliance Deficiencies Involving FBI Authorization 

of Otherwise Illegal Activity in Select FBI Field Offices 

Field Office CI 

File Numbers 

OIA 

Authorized 

Prior to 

Conversion 

of Source 

(Number of 

Days) 

OIA 

Authorized, 

but Source 

Never 

Converted 

OIA 

Description 

Not 

Sufficiently 

Specific 

OIA 

Retroactively 

Approved 

(Number of 

Days 

Retroactively 

Authorized) 

Total 

Number of 

Deficiencies 

Field 

Office 1 

8 1 1 

Field 

Office 1 

9 1 1 

Field 

Office 1 

10 1 1 

Field 

Office 1 

11 1 1 (22) 2 

Field 

Office 3 

13 1 1 

Field 

Office 3 

14 1(154) 1 2 

Field 

Office 6 

7 1 1 (63) 2 

Field 

Office 6 

9 1 (63) 1 

Field 

Office 6 

11 1 1 

Field 

Office 6 

15 1 (41) 1 

Field 

Office 10 

6 1 (45) 1 

Field 

Office 12 

8 1 1 

Field 

Office 12 

10 1(66) 1 

Field 

Office 12 

11 1(129) 1 (17) 2 

Total 4 2 7 5 18 

Total Non-compliant Files 14 

Total Number of Files With OIA 25 

Percent Non-compliant Files 56% 
108

D. Unauthorized Illegal Activity (UIA) 

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. 

 

222 Most field offices recorded information regarding unauthorized illegal activity on 

either a Continuing Suitability Report and Recommendation form or a customized 90-day 

file review form. The FBI advised the OIG that FD-302s can also be used to capture such 

information; however, the FBI did not provide FD-302s recording UIA information during 

our field office visits. 
109

E. Deactivation of Confidential Informants 

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: 

• 17 of the 46 files, or 37 percent, contained 1 or more deficiencies; 

• there was no documentation in 15 of the 46 files (33 percent) 

indicating that the CI was notified of the deactivation; 

• in one CI file, there was no documentation that the field office 

coordinated with the Assistant U.S. Attorney assigned to the 

matter regarding the deactivation; and 

• one CI file had no documentation of the deactivation itself.223

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. 

F. Seeking Approval or Concurrence from, and Providing 

Notification to, the United States Attorney’s Office 

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: 

• with respect to the FBI’s obligation to obtain the U.S. Attorney’s 

advance written approval of Tier 1 OIA, the Criminal Division 

Chiefs said they were not aware of any circumstance when the FBI 

failed to comply since May 30, 2002; 

 

223 This CI was arrested on two federal felony drug offenses in November 2003. The 

documentation of the deactivation occurred on June 15, 2004, following notification that 

the OIG had included this file in the list of CI files we wished to review. 
110

• of the 27 percent of surveyed Criminal Division Chiefs who stated 

that confidential informants had been named in electronic 

surveillance affidavits in their field offices since May 30, 2002, 88 

percent told us that U.S. Attorneys’ Offices have been notified in all 

appropriate cases; 

• only 1 Criminal Division Chief cited as a serious concern the FBI’s 

failure to notify the appropriate federal prosecutor of unauthorized 

illegal activity by confidential informants and failure to share 

information with the U.S. Attorney’s Office about confidential 

informants’ activities in investigations in which the U.S. Attorney’s 

Office is participating; and 

• as a group, the Criminal Division Chiefs did not express concerns 

about receiving timely notice of unauthorized illegal activity by CIs 

operated in their Districts since May 30, 2002. However, 35 

percent stated that the impact of unauthorized illegal activity by 

CIs has been either a minor or occasional concern since May 30, 

2002, while 25 percent reported that notice deficiencies have been 

either a minor or occasional concern. In addition, 10 percent of 

the surveyed Criminal Division Chiefs said they believed that FBI 

agents in their District do not have the same understanding as the 

U.S. Attorney’s Office of the Guidelines’ requirement to notify the 

U.S. Attorney of any unauthorized illegal activity by CIs.224

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 

 

224 There were a few exceptions to the overwhelmingly positive assessments by Criminal 

Division Chiefs. For example, one of the Criminal Division Chiefs told us in a survey 

response that, “We receive inadequate information from FBI regarding their use of CIs.” 

 It is important to note that the Criminal Division Chiefs may not know when they 

were not given required notifications. FBI officials and DOJ prosecutors acknowledged to us 

that these types of Guidelines violations likely would not become known unless there was a 

major event disrupting the informant relationship, such as those that are discussed in this 

chapter and in Chapter Two. Even in these situations, however, the U.S. Attorney’s Office 

may not be aware that a problem exists unless the informant issue directly impacts on a case 

being investigated or prosecuted by the U.S. Attorney’s Office. 
111

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. 

TABLE 3.5 

Training and Other Measures Proposed by USAO Criminal Division 

Criminal Chiefs to Promote Adherence to the 

Confidential Informant Guidelines 

Response Number Percent

Provide standardized electronic 

forms related to the Confidential 

Informant Program (CIP) that can be 

completed online 

35 38% 

Create a web site on the FBI 

Intranet displaying all current AG 

Guidelines with automatic e-mail 

notification of updates 

36 40% 

Consolidate all guidance related to 

the CIP (AG Guidelines, MIOG, ECs, 

OGC training) and make available 

online at one Intranet web site 

49 54% 

Hold annual CIP Coordinator 

conferences on the AG Guidelines 30 33% 

Other 3 3% 

a) Originating from FBIHQ 

None of the above 24 26% 

Provide additional training to 

Special Agents and Supervisors by 

the CDCs 

36 40% 

Conduct informal field office reviews 

of confidential informants 23 26% 

Have SAC/ASAC conduct file 

reviews with greater frequency 8 9% 

Other 1 1% 

b) Originating from the 

Field Divisions 

None of the above 44 49% 
112

Response Number Percent

Sponsor periodic cross-training 

within the District with experienced 

agents who regularly participate in 

the CIP program 

46 50% 

Sponsor periodic regional crosstraining with experienced agents 

who regularly participate in the CIP 

program 

22 24% 

Sponsor participation by 

experienced agents who regularly 

participate in the CIP program in all 

appropriate NAC courses that deal 

with confidential informants 

48 52% 

Other 1 1% 

c) Originating from the 

USAOs 

None of the above 26 28% 

Periodically circulate to all FBI Field 

Office “lessons learned” from CIRC 

meetings and training sessions 

49 54% 

Provide standardized letters of 

approval that can be completed 

online 

36 40% 

Other 3 3% 

d) Originating from Main 

Justice 

None of the above 32 36% 

VII. OIG Analysis 

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

 

225 See Testimony of Robert S. Mueller, III, Director, Federal Bureau of Investigation, 

Before the Subcommittee on the Department of Commerce, Justice, and State, the 

Judiciary, and Related Agencies, of the House Appropriations Committee, June 3, 2004, 

available at: http://www.fbi.gov/congress/congress04/mueller060304.htm; Statement of 

Maureen A. Baginski, Executive Assistant Director, Intelligence, Before the Senate 

Committee on the Judiciary, Aug. 19, 2004, available at: 

http://www.fbi.gov/congress/congress04/baginski081904.htm. 
113

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. 

 

226 For example, in responding to our survey, Criminal Division Chiefs of the U.S. 

Attorneys’ Offices said they believe the complexity of the Confidential Informant Guidelines 

may discourage agents from opening CIs. One Criminal Division Chief commented, “The 

heightened rules and procedures have probably caused a reduction in the use of 

confidential informants.” A senior field manager in one of the FBI’s largest field offices 

stated, however, that “no good agent is going to let a good informant slip through the 

cracks because of paperwork.” 
114

DIAGRAM 3.3 

93%

45%

43%

0%

20%

40%

60%

80%

100%

Too Much Paperwork

Communication Breakdown with FBIHQ Regarding Procedural

Changes in the Revised Guidelines

Revealing a Confidential Informant's Identity

Note: multiple responses allowed

The Three Issues Most Frequently Raised by Special Agents Regarding the 

Confidential Informant Guidelines According to Confidential Informant 

Coordinators

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 

 

227 In one field office, the SAC in place during the period of our review retired prior to 

our interviews. We therefore interviewed the ASAC responsible for the Criminal Informant 

Program. In another office, due to an emergency, the SAC was not available and we 

interviewed an ASAC. 
115

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. 

TABLE 3.6 

Views of 12 FBI Senior Field Managers 

on the Confidential Informant Guidelines 

Question Yes No 

Don’t 

Know 

No 

Response 

- Are the CI Guidelines well understood in the field? 10 2 

 > Are the Guidelines workable? 10 0 2 

 > Are the Guidelines too complex? 6 5 1 

- Is the paperwork needed to comply with the CI 

 Guidelines and MIOG too cumbersome? 

8 4 

- Do agents complain about the CI Guidelines? 9 0 3 

- Do you think if Headquarters provided standardized

 forms like they do travel vouchers that could be

 completed on-line, it would make life easier and 

achieve better compliance? 

12 0 

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 noncompliance are: 

1. inadequate administrative support for the Criminal Informant 

Program, including the failure to provide standardized forms, a 

field guide, and Intranet tools; 

2. failure by executive managers to hold first-line supervisors 

accountable for compliance deficiencies and to exercise effective 

oversight of agents operating confidential informants; 
116

3. inadequate training at every level (new agents, probationary 

agents, experienced agents, Confidential Informant Coordinators, 

Supervisory Special Agents, senior field managers, and key 

Headquarters personnel), including periodic training on the 

Guidelines themselves and joint training with the U.S. Attorneys’ 

Offices on appropriate methods to operate confidential informants; 

4. inadequate support of Confidential Informant Coordinators and 

assignment of this responsibility as a collateral duty; 

5. failure to take compliance performance into account in personnel 

and promotion decisions and policies; and 

6. lingering differences between the FBI and DOJ over informant 

issues. 

Below we address each of these issues. 

1. Inadequate Administrative Support. As has been well documented, 

the FBI has struggled to upgrade its antiquated computer systems for many 

years.228 However, we found that a principal reason for the serious 

compliance deficiencies in the Criminal Informant Program is the FBI’s 

failure to use its currently available automated support tools to enable 

agents and their supervisors to complete the necessary paperwork for 

operating their confidential informants on a consistent and timely basis. 

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 

 

228 See OIG Audit Report, The Federal Bureau of Investigation’s Management of the 

Trilogy Information Technology Modernization Project, Report No. 05-07 (Feb. 2005); OIG 

Audit Report, Federal Bureau of Investigation’s Management of Information Technology 

Investments, Report No. 03-09, December 2002; OIG Audit Report, Federal Bureau of 

Investigation’s Implementation of Information Technology Recommendations, Report No. 

03-36, September 2003. 

229 For example, case agents and Headquarters personnel use standardized and 

automated forms to submit applications for consensual recordings and for approval of 

myriad administrative tasks such as leave and expense reimbursement requests. 
117

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

 

230 For example, CI instruction forms or “ponies” used since May 30, 2002, from three 

field offices still required the agent to read the instructions to the CI verbatim, a provision 

that was relaxed in the May 2002 Confidential Informant Guidelines. Also, virtually all field 

offices cite the MIOG exclusively as authority for various requirements in their “ponies,” but 

the MIOG is still not yet fully compliant with the Guidelines, as we document in Chapter 

Eight. 

231 In four of the remaining five field offices, the ISR&R ponies contained all the 

required suitability elements. In the fifth field office, none of the files we examined required 

an ISR&R. 
118

TABLE 3.7 

 Elements Missing from Initial Suitability Reports & Recommendations (ISR&Rs) 

in Select FBI Field Offices 

Extent CI's 

information 

would be 

relevant 

Nature of 

relationship 

between CI & 

investigation's 

subject 

CI's 

motivation 

to provide 

information 

Risk CI might 

have on 

investigation, 

prosecution 

Extent the CI's 

information 

can be 

corroborated 

CI's 

reliability & 

truthfulness 

CI's prior 

record 

as a 

witness 

CI pose 

a danger 

to the 

public or 

risk of 

flight 

CI history 

of 

substance 

abuse 

Does CI have 

relative who is 

a law 

enforcement 

employee 

Any risk of harm to CI 

or family 

due to 

providing 

information 

Any 

record of 

prior or 

current 

CI, CW 

service 

CI's criminal 

history, target 

investigation, 

under arrest or 

charged 

X X X X X X X X √ X X √ √X X X X X X X X X X X √ √X X X X X X X X X X X √ √X X X X X X X X X X X X √X X X X X X X X X X X X √X X X X X X X X X X X X √

√ √ √ √ √ √ √ √ √ √ √ √ √

X √ √ √ √ √ √ √ √ √ √ √ √X X X X X X X X X X X √ √X X X X X X X X X X X √ √X X X X X X X X X X X √ √X X X X X X X X X X X √ √X X X X X X X X X X X √ √

R forms in File Number 12 - one was dated 02/11/02, but the date on the other form was illegible 

the pony 
119

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 

 

232 The MIOG is no substitute for such a manual. The current MIOG provisions 

regarding confidential informants span 67 pages of single-spaced text. Many agents and 

supervisors told us during this review that the MIOG is so unwieldy that it is either not 

used or is not a “user-friendly” tool to find guidance on registering or operating informants. 

233 One other shortcoming in Headquarters’ administrative support deserves mention. 

The file review cover sheets used by the field offices we visited do not consistently provide 

adequate space to capture Guidelines and MIOG violations and do not provide space to 

facilitate follow-up entries to record whether the violations persisted or were resolved. 
120

(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. 

2. Failure by Executive Managers to Hold First-Line Supervisors 

Accountable for Compliance Deficiencies and Exercise Effective 

Oversight of Agents Operating Informants. Headquarters officials, field 

managers, Informant Coordinators, and Division Counsel we interviewed 

identified the first-level supervisor as the linchpin to ensuring FBI agents 

are held accountable for compliance with the Confidential Informant 

Guidelines. Our review indicated, however, that some field supervisors have 

failed to identify risks associated with operating informants. 

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 noncompliance 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), 
121

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 
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administering the admonishments, not administered within the 

authorized time frame, or simply not administered. 

Cause: The assessment identified the following as factors 

contributing to the rate of non-compliance in this area: Lack of 

familiarity with guidelines’ requirement; a deficiency on the part 

of Executive Managers to exercise adherence to and oversight of 

guidelines requirements; and a failure to recognize the 

implications of providing a “blank check” endorsement for a 

source to participate in criminal activity. (Emphasis in 

original). 

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 
123

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. 

3. Inadequate Training at Every Level. We believe that another reason 

for the FBI’s high non-compliance rate with the Confidential Informant 

Guidelines is the absence of regular training of field agents and supervisors 

on the risks of handling confidential informants, failure to identify best 

practices to use in managing informants, and the absence of joint training 

with the U.S. Attorneys’ Offices. 

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: 

I. Compliance 

1. Within 120 days of the approval of these Guidelines by 

the Attorney General, each JLEA shall develop agencyspecific guidelines that comply with these Guidelines, and 

 

234 We were told by field agents and the A/IU that one source of confusion about when 

notification of the U.S. Attorney’s Office is required is the meaning of the phrase 

“participating in the conduct of an investigation that is utilizing that active CI, or is working 

with that active CI in connection with a prosecution” in § IV.B.1 of the CI Guidelines. In its 

November 8, 2004, memorandum, CID acknowledged the confusion and issued clarifying 

guidance stating that the phrase meant “that stage when a prosecutor begins providing 

prosecutorial guidance/direction, and not the stage of an initial investigatory or 

prosecutorial opinion (emphasis in original).” See also Genzler v. Longanbach, 384 F.3d 

1092 (9th Cir. 2004) (affirming district court finding that a prosecutor and investigator were 

not entitled to absolute immunity from § 1983 claims arising from their actions during a 

joint meeting with a witness because they were performing an investigatory rather than an 

advocacy function). 
124

submit such agency-specific guidelines to the AAG for the 

Criminal Division for review. The agency specific 

guidelines must ensure, at a minimum, that the JLEA’s 

agents receive sufficient initial and in service training in 

the use of CIs consistent with these Guidelines, and that 

compliance with these Guidelines is considered in the 

annual performance appraisal of its agents. As part of 

such compliance the JLEA shall designate a senior official 

to oversee all aspects of its CI program, including the 

training of agents; registration, review and terminiation of 

CIs; and notificications to outside entities. 

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. 
125

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. 

DIAGRAM 3.4 

NO

38% YES

62%

Do Coordinators Believe They Need Additional Guidelines Training?

Note: multiple responses allowed

The Type of Training Coordinators Believe Would be Most Useful

Joint training with the U.S. Attorney’s Office 29%

Quantico in-service training 37%

Instructional CD-ROMs available at all field offices 40%

Web-based courses 49%

Post answers to frequently asked questions on the Intranet 57%

Informant Coordinator conferences 91%

Confidential Informant Coordinators’ Views on Need for Training 

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: 

 

235 The first Confidential Informant Coordinator Conference held after the May 2002 

Guidelines was in January 2003. The next conference was in August 2004. 
126

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. 

TABLE 3.8 

Division Counsel’s Views on Need for Training 

on Confidential Informant Guidelines 

Question Response 

Indicate who you believe needs 

additional training in your field 

office for each of the revised 

Guidelines. 

Attorney General’s Guidelines on the Use of 

Confidential Informants (Check all that apply.) 

All Special Agents 30 59% 

All squad supervisors 21 41% 

None 17 33% 

SACs 8 16% 

Other 5 10% 

Indicate the type of additional 

training you believe would be 

most useful in your field office 

for each of the revised 

Guidelines. 

Attorney General’s Guidelines on the Use of 

Confidential Informants (Check all that apply.) 

Virtual Academy Training (Web-Based) 21 41% 

Communications posted on the Intranet 19 37% 

Post FAQs on the Intranet 14 27% 

Training by FBIHQ Program Managers 14 27% 

Training by the CDC/ADC 13 25% 

CD-ROMs available in all field offices 13 25% 

Other 9 18% 

None 8 16% 

Training by FBIHQ OGC 4 8% 

Do you believe that 

CDCs/ADCs now need 

additional training on the 

revised Guidelines? 

Attorney General’s Guidelines on the Use of 

Confidential Informants (Check all that apply.) 

Training by FBIHQ OGC 33 67% 

Communications posted on the Intranet 23 47% 

CD-ROMs available in all field offices 22 45% 

Virtual Academy Training (Web-Based) 20 41% 

Post FAQs on the Intranet 18 37% 

Training by FBIHQ Program Managers 12 24% 

Other 3 6% 

None 1 2% 
127

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. 

• Does the notification requirement triggered by the phrase 

“participating in the conduct of an investigation” in § IV.B of the 

Guidelines relating to unauthorized illegal activity (UIA) apply to 

UIA occurring in the initial investigative stages or only when the 

U.S. Attorney’s Office begins to exert direction and control of the 

investigation? 

• Should CIs who are physicians or in other “privileged” categories 

under § II.D.2 of the Guidelines require Headquarters approval if 

the sole basis for them providing information has nothing to do 

with their privileged status? 

• What controls should be instituted to maximize the reliability of 

online communication with confidential informants? 

• What is the appropriate use of illegal aliens as confidential 

informants? 

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. 

4. Collateral Duties and Inadequate Support of Confidential Informant 

Coordinators. Confidential Informant Coordinators play a critical role in 

ensuring that the Guidelines are followed. However, we learned that 28 of 

56 Informant Coordinators, or 50 percent, perform these duties as a 

“collateral duty” while handling other assignments. A prominent issue that 

arose in our survey was the frustration of some Coordinators with the 

competing demands of these other duties. In our survey, 41 percent of 

Informant Coordinators reported that they do not have sufficient time to 

manage the Criminal Informant Program in their field offices, and 78 

percent of these Coordinators attributed this to “too many collateral duties.” 
128

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 

 

236 Effective September 12, 2003, Informant Coordinators report to the head of the 

Field Intelligence Group (FIG), which consolidates all intelligence capability at the field 

level. In some instances, the head of the FIG is a supervisor who has no criminal 

investigative experience. As a result, some field offices have adopted a dual reporting 

requirement for Informant Coordinators: they report to the FIG for intelligence-related 

duties and to the ASAC-Criminal for informant duties. 

 It was beyond the scope of this review to offer recommendations on the impact of 

this new chain of command on the effectiveness of Informant Coordinators. However, we 

believe that any managerial steps that diminish the attractiveness or importance of the 

position could have an adverse impact on Guidelines compliance. We believe that executive 

managers should, at a minimum, be certain that the Informant Coordinators report to a 

supervisor with adequate experience in the Criminal Informant Program to provide effective 

guidance, oversight, and support. 
129

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

5. Failure to take Account of Compliance Performance in Personnel 

and Promotion Decisions and Policies. The January 2001 revisions to the 

Confidential Informant Guidelines mandated that agency-specific guidelines 

“ensure, at a minimum . . . that ‘compliance with these Guidelines is 

considered in the annual performance appraisal of its agents.’”238 This 

requirement was unchanged in the May 30, 2002, revisions. 

CI Guidelines, § I.I. 

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 

 

237 Because the pool of possible candidates for the Informant Coordinator position is 

often limited, we heard widespread support for the suggestion that the FBI bring back 

retired FBI agents with strong, credible “street” experience in handling informants to serve 

as Informant Coordinators. 

238 January 2001 Informant Guidelines § I.I. 

239 By contrast, 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 ensure compliance with appropriate policies and 

procedures.” 
130

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 

 

240 The performance plan now provides: 

 Critical Element 7: Intelligence 

Performance Standards: 

With appropriate guidance, collects, processes, documents and disseminates 

intelligence related to FBI investigative and national intelligence priorities, in 

accordance with the authorities and mandates governing the intelligence functions of 

the FBI (National Security Act of 1947, Executive Order 12333, Attorney General 

Guidelines, Intelligence Reform and Terrorism Prevention Act of 2004, etc.). 

With proper direction, produces and/or supports the production of appropriate 

intelligence products (e.g., assessments, bulletins, Intelligence Information Reports 

(IIRs)) in accordance with established guidelines, while ensuring the dissemination of 

the products to relevant customers (emphasis added).

241 Effective November 1, 2004 and April 1, 2005, respectively, the rating levels for 

Supervisory Special Agents and Special Agents contain the following gradations: 

outstanding, excellent, fully successful, minimally satisfactory, and unacceptable. 
131

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.

6. Lingering Differences Between the FBI and DOJ Over Informant 

Issues. The revisions to the Confidential Informant Guidelines in January 

2001 introduced wholesale changes into the manner in which informants 

are evaluated, approved, and operated. DOJ’s role became much more 

significant, particularly through the establishment of the joint FBI-DOJ 

Confidential Informant Review Committee (CIRC), which approves certain 

sensitive types of informants. 

As we discuss in Chapter Seven, the confidential informants who are 

vetted by the CIRC undergo thorough scrutiny that assesses the risk-toreward considerations in operating high-level, long term, privileged, mediaaffiliated, and certain other informants. But the CIRC reviews only a small 
132

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 

 

242 A senior Headquarters official said that it makes sense operationally to document 

the occurrence of unauthorized illegal activity but the FBI should not be told by the U.S. 

Attorneys’ Offices to close a source since the source still might be able to obtain quality 

information that would justify opening another investigation. 
133

the FBI’s Criminal Informant Program in accordance with the Confidential 

Informant Guidelines. 

VIII. Recommendations 

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. 
134

(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 
135

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 

 

243 A list of all the OIG’s recommendations made in Chapters Three through Eight of 

the report is attached at Appendix E. 
136

[BLANK PAGE] 
137

CHAPTER FOUR 

THE ATTORNEY GENERAL’S GUIDELINES ON 

FBI UNDERCOVER OPERATIONS 

Our examination of the FBI’s compliance with the Attorney General’s 

Guidelines on Undercover Operations (Undercover Guidelines) produced 

findings that differed markedly from those for the Confidential Informant 

Guidelines.244 In contrast to the many compliance deficiencies we found in 

the Criminal Informant Program, our examination of the FBI’s undercover 

operations identified comparatively few instances of non-compliance with 

the Undercover Guidelines. Although we noted several issues that merit 

further review by the FBI, we found that the FBI’s organization and 

oversight of its undercover operations generally was effective. 

Before discussing our compliance findings and our recommendations, 

we provide an overview of FBI undercover operations, the requirements of 

the Undercover Guidelines, and the May 2002 revisions to those Guidelines. 

I. Role of FBI Undercover Operations 

A. The Need for Undercover Operations 

The Undercover Guidelines describe the importance of FBI undercover 

operations: 

The use of undercover techniques, including proprietary 

business entities, is essential to the detection, prevention, and 

prosecution of white collar crime, public corruption, terrorism, 

organized crime, offenses involving controlled substances, and 

other priority areas of investigation.245

As we detailed in Chapter Two, the Undercover Guidelines were 

revised in 1982 following congressional hearings and press accounts critical 

of the FBI’s ABSCAM undercover operation targeting official corruption in 

the early 1980s. At that time, FBI Director William Webster discussed the 

importance of undercover operations: 

The kinds of crimes the FBI is giving high priority today – 

bribery, gambling, narcotics, theft of technology, other white 

collar violations – often require undercover work. They are socalled consensual crimes. There is a willing participant on each 

 

244 We provide in Appendix B a copy of the Undercover Guidelines. 

245 Undercover Guidelines § I at B-39. 
138

side, so it is difficult to come up with someone willing to be a 

material witness to the crime. . . . 

Undercover operations, usually coupled with a cooperating 

witness or an informant, permit us to get inside a criminal 

apparatus and stay there long enough to find out how it works 

and who the players are. Undercover work is an exceedingly 

cost effective method of getting at problems that could not be 

solved in any other way.246

According to Philip B. Heymann, former Assistant Attorney General in 

charge of the Criminal Division who later served as Deputy Attorney 

General: 

From the prosecutor’s perspective, undercover operations are 

extremely effective in aiding us to identify, prosecute and convict 

the guilty and to reduce the chances that innocent parties will be 

caught up in the criminal process. Undercover operations permit 

us to prove our cases with direct, as opposed to circumstantial, 

evidence. Instead of having to rely on . . . testimony of unsavory 

criminals and confidence men, whose credibility may be 

questionable and, in any event, can often be destroyed on crossexamination by able defense counsel. Instead, through 

undercover techniques, we can muster the testimony of credible 

law enforcement agents, often augmented by unimpeachable 

video and oral taps which graphically reveal the defendant’s 

image and voice engaged in the commission of crime. These 

techniques aid the truth-finding process by generally avoiding 

issues of mistaken identify or perjurious efforts by a witness to 

implicate an innocent person . . . .247

 

246 Why the FBI Uses Undercover Agents, U.S. News and World Report, Aug. 16, 1982, 

at 50. In the early 1980s, the FBI conducted about 400 undercover operations per year. 

The dangers involved in undercover operations are discussed in FBI Undercover Guidelines: 

Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights of the 

House Judiciary Committee, 97th Cong. 33-48 (1981) (“House Judiciary Committee Hearing 

on FBI Undercover Guidelines (1981)”) (Statement of Gary T. Marx, Professor of Sociology, 

Massachusetts Institute of Technology); Hearing Before the Senate Permanent 

Subcommittee on Investigations, Senate Government Affairs Committee, 100th Cong. 13 

(1988) (Statement of Oliver B. Revell, FBI Executive Assistant Director – Investigations) 

(describing undercover operations that were successful in penetrating organized crime). 

247 House Judiciary Committee Hearing on FBI Undercover Guidelines (1981), supra 

n.246 at 130 (statement of Philip B. Heymann, Assistant Attorney General, Criminal 

Division, Department of Justice). 
139

Undercover operations have been especially effective in public 

corruption investigations. The following case study demonstrates the FBI’s 

success in infiltrating one public institution that was notorious for its 

widespread corruption. 

Under the current Undercover Guidelines, the FBI may employ 

undercover operations in preliminary inquiries, general crimes 

investigations, and both types of criminal intelligence investigations: 

racketeering enterprise investigations and terrorism enterprise 

investigations. The FBI may also participate in joint undercover operations 

with other law enforcement agencies, with certain limitations.248

 

248 If a joint undercover operation is under the direction and control of another federal 

agency, the FBI does not need to comply with the Attorney General’s Undercover Guidelines 

provided the other agency’s process with respect to “sensitive operations” is “substantially 

comparable” to the process established under the Guidelines for the review of undercover 

operations by the Criminal Undercover Operations Review Committee (CUORC). 

Undercover Guidelines § III at B-40. 

Case Study 4.1: Operation Greylord 

The benefits of FBI undercover operations were illustrated in a case that 

targeted corruption in the Cook County, Illinois, court system. The impetus for 

the operation, code named “Greylord,” began when the State’s Attorney for Cook 

County received complaints indicating that criminal cases were being “fixed” in 

the Circuit Court of Cook County. These complaints were supported by a pattern 

of acquittals in cases involving particular judges and attorneys. After the U.S. 

Attorney was notified, the FBI initiated plans to conduct an undercover operation 

regarding these allegations. The ensuing investigation, which lasted nearly four 

years, uncovered extensive corruption. 

FBI agents who were licensed attorneys assumed roles as county 

prosecutors and private practitioners. In addition, the FBI recruited a state 

prosecutor and a judge from southern Illinois who were temporally assigned to 

Cook County to deal with the backlog of cases there. During the probe, more 

than 100 manufactured crimes were channeled to the Court. Equipped with 

electronic surveillance devices, the undercover agents were able to record 

hundreds of incriminating conversations with judges and attorneys which 

revealed that judges routinely accepted bribes to dismiss cases and received 

kickbacks from attorneys for assigning cases to them. By its conclusion, 15 

judges and 49 lawyers were convicted as a result of the Greylord undercover 

operation for bribery or tax-related offenses and served time in prison. 
140

B. The Benefits and Risks of the Undercover Technique in FBI 

Investigations 

As with confidential informants, the FBI’s use of undercover 

operations offers the potential for significant investigative benefits but also 

involves various risks. The Guidelines acknowledge that, “these techniques 

inherently involve an element of deception and may require cooperation with 

persons whose motivation and conduct are open to question, and so should 

be carefully considered and monitored.”249

Evaluation of the benefits and risks associated with undercover 

operations can involve important legal and ethical issues, and can also 

impact prosecutorial decisions. The Undercover Guidelines therefore 

contain a requirement that DOJ perform a cost/benefit analysis prior to 

consenting to sensitive undercover operations. Section IV.F.2.b of the 

Undercover Guidelines states that the “appropriate Federal prosecutor” 

must furnish a letter in support of the Group I application to FBI 

Headquarters that “should include a finding that the proposed investigation 

would be an appropriate use of the undercover technique and that the 

potential benefits in detecting, preventing, or prosecuting criminal activity 

outweigh any direct costs or risks of other harm.” 

As described in Chapter Two, the Senate Select Committee to Study 

Undercover Activities of Components of the Department of Justice, convened 

in the wake of the ABSCAM investigation, highlighted the competing 

considerations associated with use of undercover operations: 

The Select Committee finds that undercover operations of the 

United States Department of Justice have substantially 

contributed to the detection, investigation, and prosecution of 

criminal activity, especially organized crime and consensual 

crimes such as narcotics trafficking, fencing of stolen property, 

and political corruption. In this era of increasingly powerful 

and sophisticated criminals, some use of the undercover 

technique is indispensable to the achievement of effective law 

enforcement. . . . 

The Select Committee also finds that use of the undercover 

technique creates serious risks to citizens’ property, privacy, 

and civil liberties, and may compromise law enforcement itself. 

Even when used by law enforcement officials with the most 

honorable motives and the greatest integrity, the undercover 

 

249 Undercover Guidelines § I at B-39. 
141

technique may on occasion create crime where none would 

otherwise have existed.250

After the Senate’s report on ABSCAM in 1982, the FBI strengthened 

its controls on undercover operations. As we discuss in Part V of this 

chapter, our review found that the FBI regularly conducts undercover 

operations in substantial compliance with applicable FBI regulations. 

The FBI uses the undercover technique in a broad array of cases, as 

the following examples illustrate. 

• In an investigation of gang-related homicides in New England, 

undercover employees infiltrated a motorcycle gang and purchased 

cocaine, methamphetamine, and stolen guns, motorcycles, and 

vehicles. The undercover operation resulted in 17 convictions, the 

solving of a homicide, and the recovery of 11 stolen vehicles and 17 

motorcycles. 

• In an investigation of organized crime, 32 defendants were indicted 

in March 2005 and charged with numerous racketeering crimes 

and other offenses committed over more than a decade, including 

violent assault, extortion, loansharking, union embezzlement, 

illegal gambling, trafficking in stolen property and counterfeit 

goods, and mail fraud. Most of the defendants were members or 

associates of the Gambino Organized Crime Family of La Cosa 

Nostra, including its acting boss and underboss. Evidence 

developed during the investigation resulted from the undercover 

activities of an FBI agent who infiltrated the crime organization 

and was offered induction as a “made member.” 

• In a white collar crime investigation, the FBI targeted a warehouse 

facility which packaged and shipped approximately $500,000 in 

illegally diverted pharmaceutical drugs. The undercover employee 

posed as a business person who was able to obtain drugs 

fraudulently and sell them to national wholesalers at less than 

market value. The undercover operation resulted in 15 convictions 

and fines of more than $22 million. 

• In a child pornography investigation, an undercover employee 

identified e-mail groups that were posting and exchanging child 

pornography. The initial phase of the ensuing enforcement action 

resulted in charges against 86 individuals in more than 25 states. 

 

250 See Final Report of the Senate Select Committee to Study Undercover Activities of 

Components of the Department of Justice, S. Rep. No. 97-862, at 11 (2d Sess. 1982). 
142

While the FBI has achieved significant benefits through undercover 

operations, the potential risks are also present.251 The Undercover 

Guidelines require the FBI and DOJ to routinely address risk factors in 

undercover operations such as: 

• agent safety; 

• damage to public institutions through manipulation of, or 

interference with, political and administrative processes; 

• injury to the targets of undercover operations by, for example, 

needlessly harming their reputations; 

• improper execution of the undercover operation that establishes a 

defense to prosecution, such as entrapment or outrageous 

government conduct;252 and 

• damage to third parties, such as financial loss and criminal 

victimization caused by the undercover operation’s generation of 

crime. 

A recently litigated case illustrates how an FBI undercover operation 

can adversely affect third parties. As explained in Case Study 4.2 below, in 

Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999), the Court 

expressed its disapproval for what it perceived as the FBI’s insensitivity to 

the interests of innocent bystanders to the undercover operation. 

 

251 See also FBI Undercover Operations: Final Report of the Subcommittee on Civil and 

Constitutional Rights, Committee on the Judiciary, 98th Cong. 14-35 (1984) (discussing the 

dangers of undercover operations). 

252 With entrapment, defendants claim that the undercover agents induced them to 

commit crimes for which they were not predisposed. Undercover Guidelines § V.A at B-54. 

A defense of outrageous government conduct typically is based on the defendant’s right to 

due process. 
143

Case Study 4.2: Operation “Lightning Strike” 

The litigation in Brown resulted from an FBI undercover operation called 

“Lightning Strike,” which was initiated in 1991 to investigate contract procurement fraud 

and other illegal activity in the aerospace industry. In 1992, the FBI contacted three 

Houston businessmen about forming a partnership with a Maryland-based company, 

Eastern Tech Manufacturing Company, to secure contracts with NASA and its 

contractors. The businessmen themselves were not targets of the FBI undercover 

operation; instead, the FBI wanted to use them to gain access to the aerospace industry. 

188 F.3d at 583. As the undercover operation unfolded, the FBI offered one of the 

businessmen a job as Chief Financial Officer and Vice President of Marketing of another 

company, Space Inc., and promised multi-million dollar loans to all three in support of 

their existing businesses. During 1992 and 1993, the businessmen were extensively 

involved in the preparation of bids for Space, Inc., and introduced FBI agents to 

managers at NASA and many leading aerospace manufacturers. According to the Court, 

the businessmen “were unaware that they and their companies were being set up by the 

FBI as tools of deception in an undercover operation.” Id. at 583. 

At the end of 1992, the FBI offered one of the businessmen, Brown, an 

opportunity to develop an exclusive resort in the Bahamas. After he dissolved his 

business relationship with his partners and made arrangements to sell his home, the FBI 

tried to persuade Brown to become an unpaid informant. The FBI directed one of his 

associates to deliver a sealed envelope to him with “entertainment funds” with 

instructions to meet another party at a hotel. Brown complied, and the FBI recorded the 

transaction. In its opinion, the Court stated: 

Attempting to convince Brown to work as an unpaid undercover 

informant to set up stings, the FBI agents physically and psychologically 

intimidated Brown. On numerous occasions throughout August and 

September, 1993, the agents questioned Brown for multiple hours 

without the presence of an attorney and detained him against his will. 

Brown was threatened with prosecution of twenty-one different crimes, 

which could result in sixty years imprisonment and over a million dollars 

in fines. 

Id. 

In 1994, the FBI shut down Lightening Strike. Brown was later indicted for one 

count of offering a $500 bribe to a public official. His trial on that charge resulted in a 

mistrial. The government declined to prosecute the case further and subsequently 

dismissed its indictment against Brown. 
144

As explained later in this Chapter, our review found no undercover 

operations that involved the sort of adverse consequences described by the 

court in Brown. Our inquiries with the FBI Office of the General Counsel 

found that FBI undercover operations rarely have resulted in civil litigation. 

II. Significant Requirements of the Undercover Guidelines 

The Undercover Guidelines prescribe the authority level and approval 

process for FBI undercover operations based upon the type of undercover 

In 1996, Brown and his two associates filed suit against the FBI in U.S. District 

Court alleging violation of the Federal Tort Claims Act and malicious prosecution, as well as 

Bivens claims against the FBI agents for due process and Fifth Amendment violations. The 

district court dismissed the action, and the plaintiffs appealed. Although the Court of 

Appeals affirmed the district court’s dismissal, it included the following analysis addressing 

the qualified immunity defense to Bivens claims: 

No court has addressed the particular issue presented by this case: the 

specific limits on federal agents’ authority in undercover operations. The 

district court found no limits on the power of federal agents operating under 

cover, reasoning that if Appellants are allowed to pursue state law causes of 

action it would ‘effectively stop’ federal undercover operations because, ‘by 

their very nature [they] seek to invade the privacy of those who violate the 

law.’ . . . The district court should have asked whether it was 

constitutionally permissible for federal agents to inflict damages on 

innocent non-targets during an undercover operation and refuse them 

compensation. Because the Fifth Amendment due process guarantee 

against conscience-shocking injury imposes clear limits on law enforcement 

conduct, we conclude that it was neither necessary nor proper for the 

defendants in this case to destroy the lives and businesses of innocent nontargets in the name of law enforcement. . . . [W]e conclude that the FBI 

made decisions which harmed the Plaintiffs after ample opportunity for cool 

reflection. In fact, they invested almost two years and thousands of man 

hours in developing the sting operation. Thus, the due process clause 

protects the Plaintiffs from any harm that arose from the officers’ deliberate 

indifference. The facts, as pleaded, establish at least that level of federal 

agent culpability as Operation Lightening Strike evolved into a disastrous 

boondoggle. We therefore hold that Hodgson’s [another plaintiff] allegations 

that federal agents inflicted damages on him, an innocent non-target, 

during this particular undercover operation and refused him compensation 

states a claim under Bivens. However, because we address today for the 

first time the parameters of due process protections afforded innocent third 

parties injured by law enforcement sting operations run amok, . . . we 

cannot say that the due process rights claimed by Hodgson were clearly 

established during 1992-94. 

188 F.3d at 590-92. 
145

operation being proposed. As described below, there are two types of 

undercover operations: Group I and Group II.253

A. Group I Undercover Operations 

Group I undercover operations, known as “Group I UCOs,” must be 

approved by FBI Headquarters and Group I UCOs involving “sensitive 

circumstances” must be approved by the joint FBI-DOJ Criminal 

Undercover Operations Review Committee (CUORC). We provide a detailed 

description of the operations of the CUORC in Chapter Seven. The major 

categories of Group I UCOs are those in which there is a reasonable 

expectation of involving either “sensitive circumstances” or “fiscal 

circumstances.” The types of operations that involve “sensitive 

circumstances” are:

• investigations of possible criminal conduct by any elected or 

appointed official, or political candidate for a judicial, legislative, 

management, or executive-level position of trust in a federal, state, 

or local governmental entity or political subdivision thereof; 

• investigations of any public official at the federal, state, or local 

level in any matter involving systemic corruption of any 

governmental function; and 

• investigations of possible criminal conduct by any foreign official or 

government, religious organization, political organization, or the 

news media. 

In addition, the following activities constitute sensitive circumstances: 

• engaging in activity having a significant effect on or constituting a 

significant intrusion into the legitimate operation of a federal, 

state, or local governmental entity; 

• establishing, acquiring, or operating a proprietary business; 

• providing goods or services that are essential to the commission of 

a crime and that are reasonably unavailable to a subject of the 

investigation except from the government; 

• activity by an undercover employee that is proscribed by federal, 

state, or local law as a felony or that is otherwise a serious crime; 

 

253 The Undercover Guidelines do not use the terms “Group I” and “Group II” but, 

instead, refer to operations that do or do not require FBI Headquarters approval. The 

Group I/Group II designation is found in the FBI’s Field Guide for Undercover and 

Sensitive Operations (FGUSO). 
146

• activities involving a request to an attorney, physician, member of 

the clergy, or other persons for information that would ordinarily 

be privileged, or to a member of the news media concerning an 

individual with whom the news media is known to have a 

professional or confidential relationship; and 

• activities that present a significant risk of violence, risk of financial 

loss, or a realistic potential for significant claims against the 

United States.254

The types of activities that qualify as “fiscal circumstances” are those 

in which there is a reasonable expectation that the operation will: 

• require the purchase or lease of property, equipment, buildings, or 

facilities; the alteration of buildings or facilities; or prepayment of 

more than one month’s rent; 

• require the deposit of appropriated funds or proceeds generated by 

the undercover operation into banks or other financial institutions; 

• use the proceeds generated by the undercover operation to offset 

necessary and reasonable expenses of the operation; 

• require a reimbursement, compensation, or indemnification 

agreement with cooperating individuals or entities for services or 

losses incurred by them in aid of the operation; or 

• exceed the limitations on duration or commitment of resources 

established by the FBI Director for operations initiated in the 

field.255

The Undercover Guidelines specify the issues that must be addressed 

in any application to conduct a Group I UCO. The application must 

include: a description of the proposed objective, scope, duration, and cost of 

the operation; how, if the operation involves “sensitive circumstances,” the 

operation merits approval in light of the involvement of “otherwise illegal 

activity” (OIA), if any; procedures to minimize the acquisition, retention, and 

dissemination of any information which does not relate to the matter under 

investigation; and an explanation of how potential constitutional or other 

legal concerns are being addressed. In addition, the proposing field office 

must include with its application a letter from the appropriate U.S. Attorney 

 

254 The complete list of “sensitive circumstances” is at Undercover Guidelines § IV.C.2 

at B-44. 

255 The complete list of “fiscal circumstances” is at Undercover Guidelines § IV.C.1 at 

B-43. 
147

indicating that he or she has reviewed the proposed operation, agrees with 

the proposal and that it is legal, will prosecute any meritorious cases, and 

has made a finding that the proposed investigation “would be an 

appropriate use of the undercover technique, and that the potential benefits 

in detecting, preventing, or prosecuting criminal activity outweigh any direct 

costs or risks of other harm.” Undercover Guidelines § IV.F.2.b. Most FBI 

field offices employ a field division CUORC to evaluate both Group I and 

Group II UCO proposals. 

The Guidelines also specify the limited circumstances in which an 

undercover employee may participate in OIA, defined as “any activity that 

would constitute a violation of Federal, state, or local law if engaged in by a 

private person acting without authorization.” Undercover Guidelines 

§ IV.H.256 An FBI Assistant Director must approve certain types of OIA after 

review by the CUORC. Id. § III.H.5. 

To avoid entrapment of innocent persons caught up in undercover 

operations, the Guidelines require that any undercover activities that 

involve an inducement to engage in crime be authorized only upon a finding 

that the illegal nature of the activity is reasonably clear to potential 

subjects; the nature of the inducement is justifiable in view of the character 

of the illegal transaction; there is a reasonable expectation that offering the 

inducement will reveal illegal activity; and there is either a reasonable 

indication that the subject is engaging, has engaged, or is likely to engage in 

the proposed or similar illegal activity, or the opportunity for illegal activity 

has been structured so that there is reason to believe that any persons 

drawn to the opportunity or brought to it are predisposed to engage in the 

contemplated illegal conduct.257 Undercover Guidelines § V.B. 

With respect to applications for the extension or renewal of a Group I 

UCO, the Guidelines require an explanation of the expected results to be 

obtained from the operation or an explanation of any failure to obtain 

significant results. At the end of 2004, the FBI had [SENSITIVE 

INFORMATION REDACTED] open Group I undercover operations that were 

governed by the Undercover Guidelines. 

 

256 See parallel discussion in Chapter Three of “otherwise illegal activity” by FBI 

confidential informants. 

257 According to the Guidelines, entrapment occurs “when the Government implants in 

the mind of a person who is not otherwise disposed to commit the offense the disposition to 

commit the offense and then induces the commission of the offense in order to prosecute.” 

Undercover Guidelines § V.A at B-54. See also United States v. Jacobson, 503 U.S. 540, 

548-554 (1992). 
148

B. Group II Undercover Operations 

Undercover operations that may be approved by the Special Agent in 

Charge (SAC) in FBI field offices without FBI Headquarters’ review are 

known as Group II undercover operations, or “Group II UCOs.” A Group II 

UCO is defined as an undercover operation that does not involve either 

“sensitive circumstances” or “fiscal circumstances.” Currently, SACs have 

the authority to approve Group II UCOs involving the expenditure of up to 

$100,000 (or $150,000 in drug cases of which a maximum of $100,000 is 

for operational expenses) for up to 6 months, and to renew the operation for 

one additional 6-month period, not to exceed 1 year.258 Thereafter, 

extensions or renewals must be approved by FBI Headquarters following 

review by the CUORC. The Guidelines provide that a copy of all approvals 

for the establishment, extension, or renewal of undercover operations must 

be sent to FBI Headquarters. Undercover Guidelines § IV.B. 

In approving the establishment, extension, or renewal of a Group II 

UCO, the SAC must make a written determination referencing the facts and 

circumstances indicating that initiation of the investigative activity is 

warranted under departmental guidelines; the proposed undercover operation 

appears to be an effective means of obtaining evidence or necessary 

information; the operation will be conducted with minimal intrusion 

consistent with the need to collect evidence or information in a timely and 

effective manner; approval for the use of confidential informants has been 

obtained pursuant to the relevant Guidelines; any foreseeable participation by 

an undercover employee in illegal activity that can be approved by the SAC is 

justified by the pertinent factors; and there is no present expectation of the 

occurrence of any of the sensitive or fiscal circumstances that would render 

the operation a Group I UCO. Undercover Guidelines § IV.B. At the end of 

2004, the FBI had [SENSITIVE INFORMATION REDACTED] open Group II 

undercover operations that were governed by the Undercover Guidelines.

III. Major Revisions to the Guidelines 

The May 2002 revisions to the Undercover Guidelines broadened the 

FBI’s authority to use undercover techniques in a wider variety of 

investigations, increased monetary limits, expanded SAC approval authority 

 

258 The SAC’s authority to establish, extend, or renew a Group II UCO can be delegated 

to designated Assistant Special Agents in Charge (ASACs). The delegation must be in 

writing. Undercover Guidelines § IV.B.3 at B-42. 

 On April 29, 2004, the Criminal Investigative Division issued an internal electronic 

communication stating that confidential expenditure approval limits for Group II UCOs 

were increased effective immediately from $50,000 to $100,000 for Assistant Directors in 

Charge and Special Agents in Charge. 
149

for Group II UCOs, and clarified several terms in the previous Guidelines. 

The major changes were: 

Counterterrorism-related Revisions

• emphasizing the “prevention of terrorism” as a permissible 

objective of undercover operations; 

• making explicit and emphasizing the FBI’s authority to use 

undercover techniques to further the objectives of both types of 

criminal intelligence investigations: racketeering enterprise 

investigations and terrorism enterprise investigations; 

• authorizing SACs to grant emergency approval for the initiation of 

terrorism-related Group I UCOs if the SAC determines that the 

UCO is necessary to avoid the loss of a “significant investigative 

opportunity;” 

• adding “potential constitutional concerns” as a factor the SAC 

must consider in approving any Group II UCO and requiring an 

explanation of how such concerns have been addressed in an 

application for a Group I UCO involving the infiltration of a group 

as part of a terrorism enterprise or recruitment of an informant 

from such a group; 

Other Revisions

• clarifying that only substantive contacts with an undercover 

employee, as distinguished from incidental or passive contact, 

count toward the rule defining a “series of related undercover 

activities” as three or more substantive contacts with the 

individual(s) under investigation; 

• clarifying the FBI’s authority to participate in joint operations with 

other federal agencies by authorizing the FBI’s participation 

without complying with the Attorney General’s Guidelines on FBI 

Undercover Operations as long as the lead agency’s sensitive case 

review process is substantially comparable to the FBI’s CUORC 

review process; 

• raising from $40,000 to $50,000 the operational expenditure limits 

for Group II UCOs which may be approved at the field level; 

• clarifying that felony activity by an FBI undercover employee and 

potential civil actions against FBI employees under Bivens is a 

“sensitive circumstance,” thereby requiring CUORC approval; 
150

• extending the authority of SACs to approve low-level money 

laundering not to exceed five transactions and $1 million without 

requiring Group I authority from the CUORC; 

• authorizing SACs to approve the continuation of covert online 

contact with subjects for a 30-day period pending approval of a 

Group I UCO at FBI Headquarters if necessary to maintain 

credibility or to avoid permanent loss of contact; and 

• requiring that the FBI immediately notify the Deputy Attorney 

General whenever FBI Headquarters disapproves an application for 

approval of an undercover operation and whenever the CUORC is 

unable to reach consensus concerning an application. 

IV. The OIG Review of the FBI’s Compliance with the Undercover 

Guidelines 

The focus of our review of the Undercover Guidelines was on two of 

the three substantive Guideline sections: Authorization of Undercover 

Operations (Part IV), and Monitoring and Control of Undercover Operations 

(Part VI). We did not directly examine the third substantive section, 

Entrapment (Part V), because it largely addresses authorization issues that 

we analyzed through examination of the Guidelines’ general authorization 

provisions. 

During our visits to 12 FBI field divisions, we examined 83 undercover 

operations, of which 22 were Group I UCOs and 61 were Group II UCOs. 

We collected Guidelines-related data on more than 75 variables for Group I 

UCOs that we evaluated, and 50 variables for Group II UCOs that we 

evaluated.259 As part of this assessment we examined the following 

questions. 

• Was the initiation of the undercover operation authorized? 

• Was authority to extend the undercover operation obtained? 

• Was authority to conduct interim or emergency undercover 

operations obtained in accordance with the Guidelines? 

 

259 We examined undercover operations that either were pending on May 1, 2002, or 

opened after that date. In the few field divisions that had more than ten undercover 

operations that met this criterion, we evaluated ten undercover operations that included 

both Group I and Group II UCOs drawn from various FBI programs (e.g., Cyber Crime, 

White Collar Crime, and Violent Crime and Major Offenders). The FBI applied the revised 

Undercover Guidelines to undercover operations initiated after May 1, 2002. 
151

• Were unforeseen “sensitive circumstances” that developed during 

the undercover operation addressed? 

• Was written authorization from the appropriate federal prosecutor 

obtained as necessary? 

• Was otherwise illegal activity (OIA) properly authorized and 

adequately described? 

• Did FBI management adequately supervise the undercover 

operation? 

• Were undercover employees prepared in accordance with the 

Guidelines? 

• Did the SAC review the conduct of the undercover employees as 

required? 

In addition to our evaluation of the FBI’s undercover operations, we 

also examined the results of the FBI’s undercover operation audits. These 

included FBI Inspection Division reports and the CID’s Undercover and 

Sensitive Operation Unit’s (USOU) periodic on-site evaluations. The USOU, 

which we discuss in greater detail in Chapter Seven, provides programmatic 

and operational support to the FBI’s undercover operations. Finally, we 

surveyed the FBI’s Undercover Coordinators and Division Counsel regarding 

the operation of the undercover program.260

V. Compliance Findings 

Of the 83 undercover operations we examined during our field work, 

we identified authorization-related errors in 10 cases, or 12 percent. Eight 

undercover operations, or 10 percent, had a single violation of the 

Undercover Guidelines, and 2 undercover operations had 2 violations. In 

three cases, the available documentation shows that the undercover 

operation continued beyond the established expiration date.261 Three cases 

involved task force undercover operations in which the FBI was 

participating with state and local law enforcement; in these cases, the 

undercover operations exceeded the scope of the FBI’s authorization for its 

 

260 Undercover Coordinators are the field divisions’ on-site experts concerning 

undercover matters, and they perform duties such as evaluating proposals for undercover 

operations, maintaining familiarity with all policies and requirements that apply to 

undercover operations, and working with USOU. FGUSO § 10.1 (2). 

261 See Undercover Guidelines §§ IV.B.2 & IV.G at B-42 & B-49, which set forth the 

applicable authorization periods. 
152

agents’ participation.262 In two cases, the undercover operation was 

approved by an FBI manager who lacked authority to do so.263 Finally, in 

two cases FBI Headquarters approval was not obtained for matters involving 

“sensitive circumstances” within the meaning of § IV.C.2 of the Undercover 

Guidelines. These two violations both occurred in public corruption cases – 

one involving the payment of a bribe without following Headquarters’ review 

procedures, and the other involving the “systemic corruption of [a] 

governmental function.”264

The results of our field work are comparable to the findings of the 

USOU on-site reviews that we examined, which found authorization-related 

errors in roughly 12 percent of the undercover operations. 

In addition to these Guidelines deficiencies, we identified 17 

undercover operations with 19 documentation-related errors that were 

connected to the FBI’s Undercover Guidelines compliance responsibilities. 

As discussed in detail below, the issues in these matters concerned the lack 

of or insufficient documentation addressing the SAC’s review of undercover 

employee conduct, authorizations of OIA, and certain required elements of 

U.S. Attorney authorizations for Group I UCOs. We also identified 

inconsistencies relating to the evaluation of the risk of violence in 

undercover operations, a “sensitive circumstance” within the meaning of 

§ IV.C.2 of the Undercover Guidelines. 

Similar to many USOU on-site reviews, our field work identified lapses 

relating to the documentation of the SAC’s review of the conduct of 

undercover employees. Section VI.A of the Undercover Guidelines requires 

the SAC or Supervisory Special Agent (SSA) to meet with the undercover 

employees and to discuss their expected conduct during the undercover 

 

262 Section III of the Undercover Guidelines states: “The FBI may participate in joint 

undercover activities with other law enforcement agencies. . . . Joint undercover operations 

are to be conducted pursuant to these Guidelines.” See Undercover Guidelines § III at 

B-40. These matters also met the definition of “Joint Undercover Operation” provided in 

Section II of the Guidelines. Undercover Guidelines § II.F at B-40. 

263 In one field division, the approving ASAC authorized two undercover operations 

without obtaining a written delegation of authority from the SAC as required by the 

Undercover Guidelines § IV.B.3 at B-42. 

264 The determination whether a public corruption matter will be presented to the 

CUORC can depend upon decisions made by FBI managers outside of USOU. The Field 

Guide provides: “There are some circumstances involving officials in, judicial-, legislative-, 

management-, or executive-level positions which may logically be considered non-sensitive. 

In such instances, the Section Chief, Integrity Government/Civil Rights Section, CID, 

FBIHQ, who is a member of the CUORC and has a national perspective on matters 

involving public officials, must be consulted for a determination as to whether the 

undercover operation should be presented to the CUORC.” FGUSO § 3.2.A(3). 
153

operation and provide instructions included in the Guidelines. Section VI.B 

requires the SAC to review the conduct of the undercover employees “from 

time to time.” Neither Section requires documentation of these meetings 

and reviews. The Unit Chief of USOU explained to the OIG that he favored 

documenting all reviews required by §§ VI.A and B in order to demonstrate 

compliance with the Guidelines, and that this could be satisfied simply by 

having the case agent or supervisor include an e-mail in the case file.265 

However, the FBI’s Field Guide for Undercover and Sensitive Operations 

(Field Guide or FGUSO) requires documentation only of meetings with 

undercover employees whose undercover responsibilities require them to 

work outside field division offices.266 Field Guide §10.1(1)A. 

Of the 83 undercover operations we examined, 21 lacked 

documentation of the SAC’s review of the undercover employees’ conduct. 

In addition, neither the Group I nor Group II standard authorization forms 

used by the FBI includes a certification that the instructions required by 

Undercover Guidelines § VI.A have been given, though both forms require 

the Undercover Coordinator to certify that he or she has “apprised the 

members of the undercover operation investigative team . . . of undercover 

program policy.” Our survey of Undercover Coordinators revealed that 51 

percent of those responding reported that their office did not maintain 

records related to the required instructions.267

As we found with respect to the FBI’s use of its authority to approve a 

confidential informant’s participation in OIA in the Criminal Informant 

Program, we identified deficiencies in the sufficiency of the descriptions of 

OIA authorized for undercover employees. In six Group II undercover 

operations, the OIA was inadequately described. This occurred primarily in 

drug-related undercover operations where basic information about the 

anticipated drug transactions (such as the type and general estimate of the 

quantity of drugs) was not specified. For example, in one undercover 

operation the quantity of drugs that was authorized for purchase was 

identified as “that which will be needed to maintain sufficient leverage on 

 

265 Our references to the Unit Chief of USOU refer to the SSA who served in that 

position through January 2005. 

266 The FBI presently does not require documentation of compliance with § VI.B of the 

Undercover Guidelines for undercover employees who are not required to work outside field 

division offices. Our review identified 15 undercover operations where we were unable to 

verify from the case files whether the SAC had reviewed the conduct of undercover 

employees who were working from FBI offices. The current Unit Chief of USOU told the 

OIG that USOU will henceforth require SACs to meet with all undercover employees at least 

once during each authorization period and to document the meeting. 

267 We received responses from 54 of the 58 Undercover Coordinators or 93 percent. 
154

the subjects in order to persuade them to cooperate with law enforcement.” 

In another matter, the authorization was “[to] gather sufficient evidence 

against the aforementioned targets to prosecute on Federal Criminal 

Narcotics Trafficking charges.” Two successive Unit Chiefs of USOU 

disagreed as to whether such descriptions of OIA were adequate. 

We also identified six Group I UCOs where the required letter from 

DOJ did not satisfy § IV.F.2.b of the Undercover Guidelines. As noted 

above, that Section requires that applications to FBI Headquarters for 

approval of undercover operations include a letter from a U.S. Attorney or 

Section Chief in the Criminal Division of the DOJ that indicates that he or 

she: 

1. has reviewed the proposed operation, including any sensitive 

circumstances reasonably expected to occur; 

2. agrees with the proposal and its legality; 

3. finds that the proposed investigation would be an appropriate use 

of the undercover technique; 

4. believes that the potential benefits in detecting, preventing, or 

prosecuting criminal activity outweigh any direct costs or risks of 

other harm; and 

5. will prosecute any meritorious case that is developed. 

Four of the letters omitted two or more factors. All of the letters omitted 

factor number four. 

We also did not find a consistent practice of highlighting in the 

proposal materials the potential risk of violence or physical harm that could 

result from the undercover operations. Neither the Group I nor Group II 

proposal form generated by USOU specifically solicits information on this 

issue.268

The following table summarizes these findings. 

 

268 The Group I proposal form requires an explanation of any “sensitive 

circumstances.” The Guidelines definition of sensitive circumstances includes “a 

significant risk of violence or physical injury to individuals.” Undercover Guidelines 

§ IV.C.2.m at B-45. 
155

TABLE 4.1 

OIG Compliance Findings from 83 Group I and Group II Undercover 

Operations in Select Field Offices 

Authorization-Related Errors 

Number 

of Group 

I 

Number 

of Group 

II 

Total 

The undercover operation continued beyond the 

established expiration date 1 2 3 

Task Force undercover operations exceeded the 

scope of the FBI’s authorization for its 

participation 

1 2 3 

The undercover operation was approved by an 

FBI manager who lacked authority to do so -- 2 2 

FBI Headquarters approval was not obtained for 

matters involving “sensitive circumstances” 1 1 2 

Documentation-Related Errors 

Number 

Of Group 

I 

Number 

Of Group 

II 

Total 

The undercover operation lacked 

documentation of the SAC’s review of the 

undercover operation 

2 4 6 

The required letter from USAO or DOJ did not 

address all required issues 6 -- 6 

The OIA was described inadequately -- 6 6 

In addition to our field work, we also examined the results of USOU’s 

on-site evaluations. The USOU’s evaluations found comparatively few 

violations of the Undercover Guidelines. Of [SENSITIVE INFORMATION 

REDACTED] on-sites conducted by USOU from May 2002 through October 

2004, the following Guidelines-related deficiencies were identified: 

• in seven undercover operations, agents failed to obtain proper 

authorization for undercover activity; 

• in two undercover operations, division management failed to meet 

with undercover employees and in five other undercover operations 

documentation of such meetings was lacking;269 and 

• in one undercover operation, a financial transaction was 

conducted in violation of the Guidelines. 

 

269 These seven undercover operations were in different field divisions. 
156

Our review of other USOU documents revealed other Guidelines 

violations. The CUORC’s fiscal year 2003 report noted the lack of proper 

authorization in one undercover operation, and a USOU electronic 

communication to the field in 2003 described the failure of certain field 

divisions to provide prompt notification to FBI Headquarters of the approval 

of Group II UCOs, a requirement of the Undercover Guidelines. Undercover 

Guidelines § IV.B.4. However, USOU reports do not summarize or include 

violations found in the Inspection Division’s audits on undercover 

operations. According to the Unit Chief of USOU, the Inspection Division 

does not routinely share its undercover inspection findings with USOU. The 

Assistant Director of the Inspection Division stated that she believes the 

Inspection Division should share this information with USOU. 

Our review of Inspection Division audits of undercover operations 

conducted from May 2002 through October 2004 identified four Guidelines 

violations. In one field division, a Group II UCO continued for more than a 

year without Headquarters approval, while Headquarters twice was not 

properly notified by another field division when two undercover operations 

were initiated. Another violation involved a fiscal circumstance that was not 

presented to FBI Headquarters for review.

VI. OIG Analysis 

We believe that several factors account for the generally favorable 

compliance findings for the FBI’s undercover operations. First, the FBI’s 

use of undercover operations is not as widespread as its use of confidential 

informants. For example, many of the largest FBI offices had only a few 

undercover operations operating at any time, and some field offices had 

none. According to the Unit Chief of USOU, the small number of 

undercover operations allows the FBI to devote sufficient resources and 

attention to supervising them. Second, unlike with the confidential 

informant program, USOU has developed a field guide, standardized forms, 

and a user-friendly web site to assist with administration of undercover 

operations. The Field Guide addresses many issues covered by the 

Undercover Guidelines, such as consultations with DOJ and a discussion of 

entrapment. The standardized forms provided by FBI Headquarters also 

address Guidelines issues such as the presence of “sensitive 

circumstances.” The web site includes such resources as the current 

version of the Guidelines, the undercover operation field guide, and answers 

to frequently asked questions concerning undercover operations. With few 
157

exceptions, we did not detect significant confusion in the field regarding 

Undercover Guidelines’ requirements and procedures.270

Third, according to the Unit Chief of USOU, field agents are able to 

draw upon the expertise of personnel assigned to USOU, Undercover 

Coordinators, and experienced undercover-certified agents to promote 

compliance with FBI and DOJ requirements. We found that Undercover 

Guidelines compliance has been significantly aided by the leadership of the 

Unit Chief of USOU who was in place for the majority of our review. During 

his tenure, which ended in March 2004, he took several actions to 

significantly improve the operation of USOU and promote compliance with 

the Guidelines. These included reinstituting preparation of the annual 

report of the CUORC, improving the USOU on-site review process, 

 

270 One noteworthy exception is the handling of undercover operations in international 

terrorism cases. Our review noted significant confusion in the field regarding the approval 

procedures for international terrorism undercover operations. In early 2004, 51 percent of 

the Undercover Coordinators we surveyed stated that there was confusion over which 

division at FBI Headquarters supervises such operations. When asked to identify the 

Headquarters division which is the initial point of contact to review criminal international 

terrorism undercover operations, 43 percent of the surveyed Undercover Coordinators failed 

to identify the Counterterrorism Division (CTD). Since November 2003, however, the CTD 

has been responsible for reviewing all proposals for undercover operations in matters 

involving counterterrorism activities. Depending on whether the scope of the operation 

primarily is criminal prosecution or intelligence gathering, the CTD determines whether 

review is most appropriate by the CUORC, or the Undercover Operation Review Committee 

(UORC). 

 As explained by one Coordinator, “[u]nder the current arrangement there is lack of 

communication and lack of cooperation between CID and CTD. There is also confusion in 

the field, since there is a great deal of overlap between the two investigative entities. Many 

of the crimes being investigated could fall into either or both categories.” Our survey 

revealed that 81 percent of Undercover Coordinators believed that it would be beneficial to 

have one operating division at FBI Headquarters approve all aspects of undercover 

operations, regardless of which substantive program is involved. 

 According to the USOU Unit Chief, the FBI has made progress since our survey to 

standardize review procedures for undercover operations and to integrate aspects of the 

undercover program between the CID and CTD. In September 2004, the two Divisions, 

along with the Cyber Division, completed the first unified certification course for 

undercover employees, and in the spring of 2005 USOU relocated to new offices where CTD 

staff could share space. According to the Unit Chief, with the addition of CTD staff, the 

personnel assigned to this new space would function in practical terms as an undercover 

operations center, allowing the field to resolve questions with a single call to Headquarters. 

However, the OIG learned in August 2005 that this integration was delayed due to a 

reorganization associated with the creation of a National Security Service within the FBI. 

The Unit Chief also explained that work is nearly complete on a standardized undercover 

operation proposal form that will be available to agents electronically. 
158

identifying Guidelines compliance issues in Unit reports, and promptly 

rewriting the Field Guide to account for the May 2002 Guidelines revisions. 

Fourth, USOU’s on-site review process reinforces for the field the 

importance of adherence to the Guidelines. Although the focus of the onsite reviews is operational success and safety, the reviews include 

assessments of compliance issues that assist with the identification and 

correction of Undercover Guidelines violations. 

With regard to the causes of the limited Undercover Guidelines 

violations that we identified in our field work, the violations involved errors 

that we believe could have been avoided had there been closer coordination 

between the undercover investigative teams and the Undercover 

Coordinators and Chief Division Counsel. The failure to obtain or to 

maintain proper authorization for undercover activities was the most 

significant Guidelines compliance violation we found. These included 

continuing undercover activities beyond the approved authorization period, 

failing to obtain FBI Headquarters approval because of a misinterpretation 

of “sensitive circumstances,” and participating in task forces that exceed 

FBI undercover operation authorizations. Although the frequency of these 

violations was not as common as for other kinds of Guidelines noncompliance identified during this review, it nonetheless occurred in 10 to 12 

percent of the cases examined by the OIG and USOU. According to the 

USOU Unit Chief, the cause of the non-compliance is simply lack of 

knowledge by agents regarding the Guideline requirements.

Our surveys of Undercover Coordinators and Division Counsel 

revealed two significant findings regarding oversight and assistance to FBI 

undercover operations.271 First, many Undercover Coordinators believe that 

they are too encumbered by other duties to devote appropriate attention to 

the undercover program. Second, the matters on which Division Counsel’s 

advice is sought with regard to undercover operations varies considerably by 

field division. 

 

271 We received a 92 percent response rate to our survey. A total of 79 Chief Division 

Counsel or Assistant Division Counsel responded to the survey. 
159

The diagram below indicates that more than one-third of the 

Undercover Coordinators we surveyed said they believe that they have 

insufficient time to coordinate undercover operations in their field offices. 

Nearly two thirds of those Coordinators stated that the reason is that they 

have too many other responsibilities.272

DIAGRAM 4.1 

Undercover Coordinators’ Views on Their Duties 

Our survey of Division Counsel also revealed that a large percentage 

of these attorneys are not consistently briefed by field agents regarding 

important developments in undercover operations. 

 

272 In addition, 40 percent of the surveyed Undercover Coordinators said that they 

have inadequate administrative support. 

Are Your Current Duties as Undercover 

Coordinators Collateral Duty?

Collateral 

Duty

89%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Undercover Coordinators

Insufficient 

Time

38%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Undercover Coordinators

Why? 

65% of Coordinators 

said they have “too 

many collateral 

duties.” 

Do You Have Sufficient Time to Manage

 the Criminal Undercover Program in Your

 Field Office? 
160

DIAGRAM 4.2 

Division Counsel’s Views on Frequency of Field Agents’ Consultation 

on Select Issues Concerning Undercover Operations 

Status of Pending Undercover Operations

38%

17%

31%

8%

6%

0% 20% 40% 60% 80% 100%

All Operations

Majority of Operations

Sometimes

Rarely

Never

Planned Investigative Approaches

27%

35%

9%

3%

27%

0% 20% 40% 60% 80% 100%

All Operations

Majority of Operations

Sometimes

Rarely

Never

Anticipated Legal Problems 

51%

24%

3%

3%

19%

0% 20% 40% 60% 80% 100%

All Operations

Majority of Operations

Sometimes

Rarely

Never

In addition, we found significant agreement concerning the lack of 

consultation among Division Counsel assigned to the same field office.273 

We found that 40 percent of the offices to which these attorneys were 

assigned are not regularly briefed on the status of pending undercover 

operations, 33 percent are not regularly briefed on planned investigative 

approaches, and 27 percent are not regularly briefed on anticipated legal 

problems with the undercover operations. Moreover, Division Counsel in 

the five field divisions that had at least two cases of authorization-related 

 

273 Fifteen field offices had more than one Division Counsel reply to our survey. 

Frequency of Field 

Agents Briefing 

Division Counsel 

Frequency of Field 

Agents Briefing 

Division Counsel

Frequency of Field 

Agents Briefing 

Division Counsel

Percentage of Division Counsel 

Reporting Being Briefed by Field Agents 

Percentage of Division Counsel 

Reporting Being Briefed by Field Agents 

Percentage of Division Counsel Reporting 

Being Briefed by Field Agents 
161

errors reported that they were not regularly briefed on the status of pending 

undercover operations. 

Our interviews with FBI personnel also indicated that some field 

divisions need more frequent and consistent interactions by Undercover 

Coordinators and Division Counsel with undercover teams.274 The Unit 

Chief of USOU emphasized this point, stating “the mistakes that I have 

seen since being the Unit Chief of this Unit, if the Undercover Coordinator 

would have been involved, it probably wouldn’t have happened.” He also 

stated that “the CDC is first line of legal defense,” and if agents are not 

working with legal counsel as part of a team effort both in the formulation 

and implementation of the undercover operation, “you are asking for 

problems.” In addition, an electronic communication which USOU issued to 

all field offices during our review emphasized the importance of the 

Undercover Coordinator, the need for greater consultation with the 

Coordinator, and the problems that turnover in the Undercover Coordinator 

position was having on the undercover program. 

FBIHQ has seen an increase in the turnover rate in the 

[Undercover Coordinator] position. Since January 2001, 29 of 

56 UCCs have been replaced. While a UCC may be promoted or 

transferred thus making a change necessary, efforts should be 

made to ensure continuity by selecting a candidate who will 

remain in the position for a period of time. Such continuity will 

be mutually beneficial to the field office and the FBI’s 

undercover program. . . . It has also been noticed that 

[Undercover Coordinators] have not been fully utilized as 

reflected in the fact that several undercover proposals have 

been submitted to FBIHQ without the careful review by the 

[Undercover Coordinator]. 

We also learned that the SSAs who exercise day-to-day supervision 

over the agents participating in the undercover operations are not required 

to receive training on undercover operations or compliance issues. 

Our review further revealed that the absence of guidance addressing 

undercover operations in which task forces participated contributed to some 

of the Guidelines violations we found. In one case a local law enforcement 

 

274 The General Counsel of the FBI, Valerie Caproni, stated that in those offices where 

Division Counsel reported that they were not being consulted agents may be seeking advice 

from Assistant U.S. Attorneys (AUSAs). She stated it would assist her if the Inspection 

Division surveyed not only CDCs to determine whether they believe that they are being 

consulted properly, but also agents to determine where they are seeking legal advice and 

why. 
162

task force member made drug purchases using FBI funds on behalf of an 

FBI agent who previously had participated in the undercover operation, even 

though the FBI’s authorization for the undercover activity had expired 

weeks earlier. Although the Field Guide includes a section on joint 

operations, it does not address many compliance issues that are unique to 

task forces, such as the need to identify in the FBI proposal documentation 

all task force officers who will participate in the undercover operation. The 

USOU Unit Chief explained that the FBI has not developed guidance for 

undercover operations involving task forces. 

We also identified some confusion concerning the scope of “sensitive 

circumstances” in the Undercover Guidelines. Our survey of FBI 

Undercover Coordinators revealed that 43 percent of those responding 

believed that determining whether “sensitive circumstances” are present in 

a case is one of the three most difficult issues to resolve in the course of 

initiating and conducting undercover operations.275 Our field work also 

noted compliance issues associated with the interpretation of “systemic 

corruption” in § IV.C.2.b and the “significant risk of violence or physical 

injury to individuals” in § IV.C.2.m.276 For example, we identified an 

undercover operation in which law enforcement officers from two agencies 

were engaged in illegal conduct, and the target of the investigation had 

consulted with the head of one of the agencies about some of these 

activities. After we questioned the field division’s application of § IV.C.2.b 

(systematic corruption) in this case and its decision to treat the undercover 

operation as a Group II, we conferred with the Chief of the Investigative Law 

Unit of the FBI Office of the General Counsel who described a framework for 

analyzing when a governmental function has been systemically corrupted. 

The USOU has not incorporated this type of guidance into its Field Guide or 

other guidance, however. We believe that guidance would assist field agents 

and promote consistency in interpretation. 

In addition, we reviewed a number of Group II UCO proposals 

originating from Violent Crime and Major Offender and Drug Units which 

contained little information about the risks of violence. Our discussions 

with FBI personnel revealed a wide range of opinions concerning what 

 

275 The other two issues were: 1) avoiding liability in the course of conducting an 

undercover operation (55 percent), and 2) satisfying the stipulations placed on undercover 

operations by the FBI Headquarters CUORC (43 percent). 

276 Sections IV.C.2.b and IV.C.2.m concern, respectively, investigations “of any public 

official at the Federal, state, or local level in any matter involving systemic corruption of any 

governmental function,” and investigations that involve “a significant risk of violence or 

physical injury to individuals.” (emphasis in original). 
163

qualifies as a “significant risk of violence or physical injury to individuals” 

within the meaning of § IV.C.2.m.277

With respect to compliance violations regarding the documentation 

concerning reviews required under Part VI of the Undercover Guidelines, 

descriptions of OIA, and the contents of DOJ authorization letters for 

Group I UCOs, our discussions with FBI personnel indicated that a lack of 

awareness of the need for the documentation or for greater specificity in 

such material appeared to be the primary cause of the deficiencies. The 

USOU Field Guide currently does not list the required contents of DOJ 

authorization letters. With regard to oversight of undercover employees, 

§ VI.B of the Undercover Guidelines requires the SAC to review “from time to 

time” the conduct of undercover employees.278 According to the Unit Chief of 

USOU, the case agents and their supervisors have the responsibility to 

document meetings with the SAC. 

With respect to the lack of specificity found in some OIA 

authorizations, the USOU Unit Chief stated that “it is a common sense 

approach. [You should identify] the activity that you are going to be 

engaging in as best as you can at the time.” According to one USOU Unit 

Chief, the kind of general descriptions that we found in several of the OIA 

authorizations, such as “that which will be needed to maintain sufficient 

leverage on the subjects in order to persuade them to cooperate with law 

enforcement,” does not provide sufficient guidance or indicate the likely 

limitations that the SAC intended to impose on the scope of the OIA. 

Another USOU Unit Chief told us that the referenced descriptions were 

adequate. 

 

277 As described in Chapter Three, we noted the same issue in the suitability reports 

for confidential informants. 

278 According to USOU, this responsibility may not be delegated, even in 

circumstances where the SAC has delegated responsibility for approving undercover 

operations to ASACs. We believe this interpretation is sound given that § IV.B.3 of the 

Undercover Guidelines limits delegation authority to the establishment, extension, and 

renewal of undercover operations. Consistent with the Field Guide, however, both the 

USOU and Inspection Division undercover operation checklists require verification that “the 

SAC, or in the SAC’s absence, the ASAC, has met with undercover employee(s) that [sic] do 

not come into the field office at a location away from the office at least once every period of 

authorization.” (Emphasis added.) Neither checklist requires verification of meetings with 

undercover employees who do not work outside the field office. Because the SAC’s 

responsibility to review the progress of the undercover operation may not be delegated, 

ASAC review is not a substitute for SAC review under the Guidelines. Moreover, the 

Guidelines’ requirement of the SAC’s review of undercover employee conduct applies to all 

such employees, and is not limited to those who work away from the field office. 
164

VII. OIG Recommendations 

Our review of the FBI’s undercover program revealed that, with some 

exceptions, FBI undercover operations typically adhered to the Undercover 

Guidelines. We believe this generally favorable record is attributable to the 

availability of information about the requirements, including a field guide, 

standardized forms, and a user-friendly web site, and the contributions of 

experienced FBI personnel in ensuring adherence to the Guidelines. Our 

review nonetheless identified authorization-related deficiencies in 12 percent 

of the undercover operations that we examined, an outcome that is 

consistent with the results of USOU’s on-site reviews over the last two years. 

We believe that these violations, while not high in number, are important to 

rectify, especially because of the risks that undercover operations present 

for the participating agents, the FBI, and the public. 

To ensure that undercover operations are properly authorized and 

conducted in accordance with the Guidelines, we believe that the FBI 

should encourage greater utilization of its Undercover Coordinators and 

Division Counsel. We recommend that the FBI evaluate the Undercover 

Coordinator position in the same way we have recommended for the 

Confidential Informant Coordinator position. Given the demands placed on 

Undercover Coordinators in certain field divisions, it may be appropriate to 

afford senior field managers the option of elevating the post to the GS-14 

supervisory level. We also concur with the view of the USOU Unit Chief that 

the FBI should assess whether it should “formalize [the position] so that the 

Coordinator is put in a position where you do have to go through them and 

do have to consult with them.” He explained that Undercover Coordinators 

should be consulted at the early stages of planning for any covert activity, 

not just undercover operations. 

We also believe that the FBI should encourage Undercover 

Coordinators to conduct their own progress reviews of the undercover 

operations within their field division. We were advised by the Unit Chief of 

USOU that Undercover Coordinators presently do not have this 

responsibility but that he favored Coordinators performing “mini on-sites” of 

their undercover operations. We believe this function is especially 

important for Group II UCOs since they are rarely examined by USOU in its 

on-site reviews and are not reviewed by the COURC. Our survey of 

Coordinators also found support for this work. We asked the Undercover 

Coordinators which actions field divisions should take to enhance 

compliance with the revised Guidelines. Of the surveyed Coordinators, 51 

percent responded that informal field office reviews of undercover operations 

should be conducted. In addition, highlighting the important role of the 

Chief Division Counsel, 62 percent responded that they should provide 

additional training to agents and supervisors. 
165

Our survey of Undercover Coordinators also revealed another 

consideration that is relevant to oversight of undercover operations: nine 

percent of the surveyed field divisions reported that they did not have a local 

CUORC to review undercover operation proposals. Local CUORCs typically 

review both Group I and Group II undercover operation proposals. After 

observing the operations of the Headquarters CUORC, we believe that there 

are significant benefits from vetting undercover operation proposals for 

discussion before a group that includes experienced FBI agents and 

managers. Most FBI’s field divisions – 90 percent – have a local CUORC. 

We believe that those field divisions that do not have a CUORC should be 

required to establish a local CUORC or specify written internal review 

procedures for both Group I and Group II UCOs that ensure proper 

consideration of the undercover operation approval standards set forth in 

§ VI.A of the Undercover Guidelines. 

Two other factors are also important to ensure full compliance with 

the Undercover Guidelines: 1) supervising agents and undercover 

employees should be adequately trained in undercover procedures; and 

2) adequate technology should be employed to monitor undercover operation 

authorizations. As described earlier, currently, SSAs who supervise 

undercover employees are not required to have received training on 

undercover procedures and compliance issues. We recommend that all 

agents who supervise undercover employees should have training on these 

topics. We also believe that, absent exigent circumstances, undercover 

employees should receive compliance training before engaging in undercover 

operations. The Unit Chief of USOU suggested that it is feasible to develop a 

training CD-ROM to meet these needs. 

Technology also can support compliance efforts. According to the 

USOU Unit Chief, the FBI will soon be able to use a database to monitor 

undercover operation authorizations and other compliance issues 

nationwide.279 This system will automatically send electronic notifications to 

users and to USOU of upcoming deadlines and requirements. USOU 

expects its database to greatly assist with many administrative and 

compliance matters. 

In addition, we believe that the likelihood of finding Guidelines 

violations of the sort we identified during our field work would be reduced if 

the FBI issued guidance or supplemented the USOU Field Guide with 

 

279 Among other capabilities, the database is expected to track the scheduling of onsite reviews, assist with locating appropriate undercover employees through storage of 

biographical and skill data, and track and store undercover inventory information (e.g., 

weapons and computer equipment). 
166

information addressing compliance issues associated with task forces and 

the interpretation of sensitive circumstances set forth in §§ IV.C.2.b and 

IV.C.2.m of the Undercover Guidelines. As described earlier, several of the 

Undercover Guidelines violations we found involved the failure to obtain 

proper authorization for activities undertaken in undercover operations that 

were conducted in conjunction with task forces. We also noted compliance 

issues associated with the interpretation of “systemic corruption” in 

§ IV.C.2.b and the “significant risk of violence or physical injury to 

individuals” in § IV.C.2.m. We believe that the FBI should adopt a 

consistent interpretation of “sensitive circumstances” in both ordinary and 

task force settings and require its undercover operations proposals to 

identify facts that will allow FBI supervisors to determine whether such 

circumstances, including the risk of violence, are present and to what 

degree. 

With regard to the § VI meetings and consultations with undercover 

employees, the Unit Chief of USOU explained that an e-mail documenting 

the meetings can be included in the FBI’s records and that a formal 

electronic communication is not necessarily required. Authorization letters 

from U.S. Attorneys’ Offices approving Group I UCOs should address all the 

factors set forth in § IV.F.2.b of the Undercover Guidelines, and the 

descriptions of otherwise illegal activity can be modified in the same fashion 

as we have recommended in Chapter Three with respect to otherwise illegal 

activity authorized for confidential informants. 

In sum, we recommend that the FBI take the following steps. 

Enhance the Role of Undercover Coordinators and Division Counsel

(10) Evaluate the grade level of Special Agents who serve as 

Undercover Coordinators and consider allowing Undercover Coordinators to 

be elevated to a GS-14 supervisory level, particularly in larger field offices 

where executive management deems it necessary to be a full-time position. 

(11) Encourage regular consultation between members of the 

undercover investigative team and the Undercover Coordinator during the 

formulation and conduct of the undercover operation. 

(12) Evaluate ways for the Undercover Coordinator to perform 

progress reviews at least every 90 days on undercover operations, a 

component of which should include an evaluation by senior managers, in 

consultation with Division Counsel and the Undercover Coordinator, of 

compliance with the Undercover Guidelines. The FBI should also create 

standardized forms to conduct these reviews. 
167

(13) Establish policies that promote more consistent Division Counsel 

involvement in the development and implementation of undercover 

operations, and ensure that Division Counsel are advised of anticipated 

legal problems in undercover operations.

Improve Guidance and Training

(14) Because neither the MIOG nor FBI field guides adequately 

address the issues below, provide guidance on the following: 

• the meaning of “sensitive circumstances” relating to “systemic 

corruption” of governmental functions, and the “significant risk” of 

violence or physical injury to individuals pursuant to Undercover 

Guidelines Sections IV.C.2.b and IV.C.2.m, respectively; 

• how to limit the scope of authorizations for otherwise illegal activity 

in undercover operations; and 

• special concerns and compliance issues associated with task force 

participation. 

(15) Identify ways to enhance Undercover Guidelines compliance 

training for field supervisors and undercover employees, including use of 

instructional CD-ROMs, web-based courses, and joint training with the U.S. 

Attorneys’ Offices. Absent exigent circumstances, either as part of the 

certification of undercover employees or otherwise, the FBI should require 

undercover employees to complete undercover operation compliance 

training before participating in undercover operations. The FBI should also 

ensure that all field supervisors who provide guidance pursuant to 

Section VI.A of the Guidelines regarding preparation of undercover 

employees are familiar with undercover techniques, compliance 

requirements, and the Field Guide for Undercover & Sensitive Operations. 

Improve Internal Controls

(16) As part of the Undercover Coordinator’s certification currently 

provided for Group I and II undercover operation proposals, add a 

certification that the instructions set forth in Section VI.A.2 of the 

Undercover Guidelines regarding lawful investigative techniques have been 

given to each undercover employee. 

(17) Amend the Group I and Group II undercover operation proposals 

forms that currently provide information regarding the expected execution of 

the undercover operation to include a section: “Facts Pertinent to Violence 

Risk Assessment.” 
168

(18) Require field offices seeking approval of Group I undercover 

operations to obtain concurrence letters from U.S. Attorneys’ Offices that 

meet the requirements of Section IV.F.2.b of the Undercover Guidelines and 

amend Section 4.8(5) of the Field Guide for Undercover & Sensitive 

Operations accordingly. 

(19) Ensure that the Undercover and Sensitive Operations Unit has 

access to the Inspection Division’s undercover operation audits. 
169

CHAPTER FIVE 

ATTORNEY GENERAL’S GUIDELINES ON 

GENERAL CRIMES, RACKETEERING ENTERPRISE AND 

TERRORISM ENTERPRISE INVESTIGATIONS 

Of the four Investigative Guidelines, the Guidelines on General 

Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations 

(General Crimes or GCI Guidelines) have the broadest scope. They govern 

the FBI’s investigation of general crimes, racketeering enterprises, and 

terrorism enterprises. Below we describe the various levels of investigative 

activity permitted under the General Crimes Guidelines, the two types of 

investigations they authorize: 1) general crimes investigations and criminal 

intelligence investigations, and 2) the new anti-terrorism authorities that 

were added after September 11, 2001. We also provide our compliance 

findings and recommendations for each of these Guidelines activities and 

provisions. 

I. Levels of Investigative Activities 

The General Crimes Guidelines authorize three graduated levels of 

investigative activity. These activities are the checking of initial leads, 

preliminary inquiries, and full investigations. With limited exceptions, the 

General Crimes Guidelines provide that any lawful investigative technique 

may be used in preliminary inquiries and full investigations. General 

Crimes Guidelines, Introduction, A.280

One level of investigative activity is the checking of initial leads, which 

can be undertaken after receipt of information indicating that some follow 

up regarding the possibility of criminal activity is warranted. Following up 

on such leads often is for the purpose of determining whether further 

investigation (either a preliminary inquiry or a full investigation) should be 

conducted. 

The next level of investigative activity is a preliminary inquiry. 

According to the General Crimes Guidelines, a preliminary inquiry is 

appropriate when information or an allegation indicates the possibility of 

criminal activity and responsible handling requires further scrutiny beyond 

checking initial leads. General Crimes Guidelines, Introduction, A. A 

preliminary inquiry allows the FBI to determine whether a full investigation 

should be opened. 

 

280 We provide a copy of the General Crimes Guidelines in Appendix B. 
170

The range of investigative techniques in a preliminary inquiry is 

broad, with the Guidelines prohibiting only mail openings and 

nonconsensual electronic surveillance. General Crimes Guidelines, 

Introduction, A. The Guidelines state that the FBI should not hesitate to 

use any lawful techniques in a preliminary inquiry, even if “intrusive,” 

where “the intrusiveness is warranted in light of the seriousness of the 

possible crime or the strength of the information indicating its existence or 

future commission.” Id. § II.B.4. 

The Guidelines define full investigations as either general crimes 

investigations or criminal intelligence investigations. General crimes 

investigations may be opened where facts or circumstances reasonably 

indicate that a federal crime has been, is being, or will be committed. GCI 

Guidelines, Introduction, B. The standard for initiating a general crimes 

investigation is “substantially lower than probable cause” and may be 

satisfied when the objective of the investigation is to prevent future criminal 

activity, as opposed to investigating a completed criminal act. Id. § II.C.1. 

The second type of full investigation defined by the General Crimes 

Guidelines is a criminal intelligence investigation. There are two types of 

criminal intelligence investigations: racketeering enterprise investigations 

(REIs) and terrorism enterprise investigations (TEIs). According to the 

General Crimes Guidelines, a racketeering enterprise investigation may be 

initiated when facts or circumstances reasonably indicate that two or more 

persons are engaged in a pattern of racketeering activity as defined in the 

Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. 

§ 1961(5). Id. § III.A.2.a. A terrorism enterprise investigation may be 

initiated when facts or circumstances reasonably indicate that two or more 

persons are engaged in an enterprise for the purpose of: 1) furthering 

political or social goals wholly or in part through activities that involve force 

or violence and a federal crime, 2) engaging in terrorism as defined in 

18 U.S.C. §§ 2331(1) or (5) that involves a federal crime, or 3) committing 

any offense described in 18 § U.S.C. 2332b(g)(5)(B). Id. § III.B.1.a. 

We describe below the requirements of the General Crimes Guidelines 

relating to preliminary inquiries, general crimes and criminal intelligence 

investigations, and the new counterterrorism authorities, followed by our 

compliance findings and recommendations. 

II. Preliminary Inquiries 

A. Significant Requirements 

The General Crimes Guidelines state that the opening of a preliminary 

inquiry must be based on an allegation or other information that is recorded 

in writing and authorized by an FBI supervisor. In “sensitive criminal 

matters,” the FBI must notify the U.S. Attorney or an appropriate 
171

Department of Justice (DOJ) official of the basis for an inquiry as soon as 

practicable after its opening, and must create a record of the notification.281 

GCI Guidelines § II.B.2. 

Preliminary inquiries may be authorized for up to 180 days. A Special 

Agent in Charge (SAC) may grant up to two 90-day extensions if the inquiry 

has failed to yield a “reasonable indication” of criminal activity and further 

investigative steps are warranted. Additional extensions require approval by 

FBI Headquarters. Id. § II.B.3. 

When a preliminary inquiry fails to develop sufficient information to 

justify a full investigation, the FBI must end the inquiry and record its 

closing. In sensitive criminal matters, the FBI must notify the U.S. Attorney 

of the closing and record the fact of the notification in writing. Id. § II.B.7. 

B. Major Revisions to the Guidelines 

The revised General Crimes Guidelines altered authorization 

procedures and time limits for preliminary inquiries to provide agents with 

greater flexibility to respond to terrorist and criminal activity. The major 

revisions to the preliminary inquiry provisions of the Guidelines were: 

• extending from 90 to 180 days the period for initial authorizations; 

• authorizing SACs to grant the first 2 extensions for preliminary 

inquiries and lengthening the duration of these extensions from 30 

to 90 days; 

• permitting the use of mail covers during a preliminary inquiry;282

• authorizing initiation of preliminary inquiries to determine whether 

grounds exist to initiate a racketeering enterprise or terrorism 

enterprise investigation; and 

• emphasizing that the FBI should not hesitate to use any lawful 

techniques consistent with the Guidelines, even if intrusive, where 

the intrusiveness is warranted in light of the seriousness of the 

possible crime or the strength of the information obtained. 

 

281 A “sensitive criminal matter” is “any alleged criminal conduct involving corrupt 

action by a public official or political candidate, the activities of a foreign government, the 

activities of a religious organization or a primarily political organization or the related 

activities of any individual prominent in such an organization, or the activities of the news 

media; and any other matter which in the judgment of a Special Agent in Charge (SAC) 

should be brought to the attention of the U.S. Attorney or other appropriate official in the 

Department of Justice, as well as FBI Headquarters.” GCI Guidelines § II.A.2 at B-70. 

282 A mail cover is the recording of any data appearing on the outside cover of any 

class of mail. Manual of Investigative Operations and Guidelines (MIOG) II § 10-6.2. 
172

C. The OIG Review of Preliminary Inquiries 

The focus of our review was on the Guidelines’ requirements for 

predication to initiate or extend the preliminary inquiry, and notifications to 

appropriate DOJ officials of the initiation and closing of sensitive criminal 

matters. 

In our visits to 12 FBI field divisions, we reviewed a sample of 46 

preliminary inquiries at 9 FBI field office locations. From a list of over 

60,000 preliminary inquiries provided to us by the FBI, we requested 6 

inquiries from each of 12 field offices.283 Three offices did not identify any 

preliminary inquiries in general crimes cases, while others provided fewer 

than six. We examined key requirements of the preliminary inquiry 

provisions of the General Crimes Guidelines. We focused on whether the 

field office had complied with the following notifications and authorizations. 

• Did the SAC authorizing the preliminary inquiry ensure that the 

allegation or other information justifying the inquiry was recorded 

in writing? 

• If the preliminary inquiry remained open longer than 180 days, did 

the SAC timely authorize extensions? 

• Was the U.S. Attorney or appropriate DOJ official notified of the 

opening and closing of preliminary inquiries involving sensitive 

criminal matters? 

D. Compliance Findings 

All but one of the preliminary inquiry files we examined contained the 

written allegation or information justifying the inquiry. Nineteen of the 

preliminary inquiries extended past the initial 180-day authorization period, 

of which 13 continued more than 270 days and required a second 

extension. Of these 19 preliminary inquiries, 10 (53 percent) did not 

contain the necessary documentation authorizing the extensions, closings, 

or conversions to full investigations. Ten of the 13 files (77 percent) for 

preliminary inquiries that extended over 270 days contained no 

documentation authorizing a second extension, closing, or conversion. 

Thus, of the 32 instances when an extension, conversion to full 

investigation, or closing was appropriate, we found authorization 

documentation missing in 20 instances or 63 percent. The following table 

summarizes these findings. 

 

283 We requested a list of preliminary inquiries that were open on or opened after 

May 30, 2002. 
173

TABLE 5.1 

OIG Compliance Findings from 46 Preliminary Inquiries 

in Select FBI Field Offices 

Preliminary inquiries that extended past the 

initial 180-day authorization period 19 

• Preliminary inquiries extending past the 

initial 180-day authorization period that did 

not contain necessary documentation of 

authorization for extensions, closings, or 

conversions to full investigations 

10 (53%) 

Preliminary inquiries that extended past the 

first extension period 13 

• Preliminary inquiries extending past the first 

extension period that did not contain 

necessary documentation of authorizations 

for second extensions, closings, or 

conversions to full investigations 

10 (77%) 

Our review also identified six preliminary inquiries involving sensitive 

criminal matters. We found that all appropriate notifications to the U.S. 

Attorneys were made in each of these cases. 

E. OIG Analysis and Recommendations 

Preliminary inquiries allow FBI agents to investigate information that 

is ambiguous or incomplete. The limitations on the duration of preliminary 

inquiries ensure that a determination whether to end the inquiry or 

continue with a full investigation is made in a reasonable period of time. 

As we discuss in Chapter Two, abuses of the FBI’s investigative 

authorities in conducting domestic intelligence investigations led to the first 

set of Attorney General Guidelines issued in 1976. Among the abuses 

documented by the Church Committee were the FBI’s extensive use of 

preliminary inquiries to collect information about students, civil rights 
174

groups, and war protestors, among others.284 The 1976 Guidelines 

eliminated the use of certain intrusive techniques in preliminary inquiries, 

including the recruiting of new informants and the use of mail covers. The 

revisions to the Domestic Security Investigation Guidelines in 1983 

eliminated preliminary inquiries in domestic security investigations, 

permitting them to be used only in the conduct of general crimes 

investigations. 

In light of the extended time periods for preliminary inquiries and the 

devolution of significant authority to field managers in the May 2002 

revisions of the General Crimes Guidelines, we believe our findings 

regarding the FBI’s failure to develop adequate controls to ensure that 

authorizations for extensions, conversions, and closings of preliminary 

inquiries are obtained and documented in case files merit corrective action. 

We recommend that the FBI take the following step. 

(20) Ensure compliance with the General Crimes Guidelines’ 

requirements to obtain and document authorizations for the extension, 

conversion to full investigation, and closing of preliminary inquiries. 

III. General Crimes Investigations 

A. Role of General Crimes Investigations 

The FBI has jurisdiction to investigate federal crimes except where 

such responsibility is specifically assigned by statute or otherwise to 

another federal investigative agency. General Crimes Guidelines Preamble; 

see generally 18 U.S.C. § 533 (2002). 

The FBI’s general crimes investigations address a broad range of 

criminal conduct and account for the majority of FBI criminal 

investigations. From May 2002 through March 2004, the FBI had over 

62,000 open general crimes investigations. The FBI categorizes these 

investigations in program classifications such as Domestic Terrorism, 

Organized Crime, Drug Program, White Collar Crime, Civil Rights, and 

Violent Crime and Major Offenders. MIOG Introduction, § 2-1.285

 

284 See “Final Report of the Select Committee to Study Governmental Operations with 

Respect to Intelligence Activities” (hereafter “Church Committee”), Book III, Supplementary 

Detailed Staff Reports on Intelligence Activities and the Rights of Americans, at 527. 

285 Domestic terrorism cases are divided between general crimes (acts of terrorism) and 

criminal intelligence (enterprises) investigations, which are discussed in the following 

section. 
175

B. Significant Requirements 

The General Crimes Guidelines impose requirements for both the 

predication needed to open a full investigation and the authorization 

process that the FBI must follow. Under the Guidelines, “[a] general crimes 

investigation may be initiated when facts or circumstances reasonably 

indicate that a federal crime has been, is being, or will be committed.” 

General Crimes Guidelines § II.C.1. The Guidelines explain that information 

justifying the opening of an investigation “must [have] an objective factual 

basis” and that “a mere hunch is insufficient.” Id. In making the 

determination whether to open a general crimes investigation, the FBI “may 

take into account any facts or circumstances that a prudent investigator 

would consider.” Id. 

The approval process to open an investigation under the General 

Crimes Guidelines is similar to the process for opening a preliminary 

inquiry. The FBI supervisor authorizing an investigation must ensure that 

facts or circumstances satisfy the reasonable indication standard described 

above and that this information is recorded in writing. Id. § II.C.3. In 

“sensitive criminal matters,” written notification must be provided to the 

U.S. Attorney or an appropriate DOJ official, as well as to FBI Headquarters, 

as soon as practicable after the investigation commences. Id. When that 

investigation is terminated, the FBI must notify the appropriate federal 

prosecutor within 30 days. Id. § II.C.4. 

The Guidelines also contain procedures for disseminating information 

regarding general crimes. With limited exceptions, in circumstances where 

the FBI obtains credible information concerning serious criminal activity not 

within its investigative jurisdiction, the Guidelines require the relevant FBI 

field office to promptly transmit the information, or to refer the complainant, 

to the law enforcement agencies having jurisdiction. Id. § II.C.6. Where full 

disclosure is not made to these agencies within 180 days, the FBI field office 

is required to notify FBI Headquarters in writing of the facts and 

circumstances concerning the criminal activity. Id. 

C. Major Revisions to the Guidelines 

The May 2002 revisions to the General Crimes Guidelines did not 

alter the scope of general crimes investigations. As described above, the 

most significant changes concerning general crimes investigations involved 

preliminary inquiries, not full investigations. These changes were in 

addition to revisions that expressly recognized the fundamental shift in the 

FBI’s focus to the detection and prevention of terrorist attacks. 
176

D. The OIG Review of General Crimes Investigations 

To examine the FBI’s compliance with the general crimes provisions of 

the General Crimes Guidelines, we reviewed 72 general crimes files at 12 

field offices. Initially, we requested that each field office provide 

documentation on six “sensitive criminal matters” within the meaning of 

§ II.A.2 of the Guidelines. However, many of the case files identified by the 

FBI did not involve circumstances that met this definition, and we were 

advised that it was not practicable to isolate qualifying cases from the FBI’s 

many general crimes files during our site visits. In total, we examined 32 

files involving sensitive criminal matters, which accounted for 44 percent of 

all the general crimes files we reviewed. 

With respect to the Guidelines’ requirements in general crimes cases, 

we focused on the following issues. 

• Was the opening basis, including predication, in writing? 

• In sensitive criminal matters, did the FBI provide required opening 

notifications to the U.S. Attorney’s Office or DOJ and to FBI 

Headquarters? 

• Did the FBI provide required closing notifications to the U.S. 

Attorney’s Office or DOJ? 

• Did the FBI appropriately disseminate investigative information 

outside DOJ? 

E. Compliance Findings 

Of the 72 general crimes files we reviewed, we determined the 

following. 

• 71 of the 72 files identified the predication in the case opening or 

ancillary documentation. 

• Of the 32 sensitive criminal matters we examined, the FBI notified 

the U.S. Attorney’s Office or the DOJ in all investigations for which 

such notification was required, although 5 of the case files did not 

contain the written notification mandated by the Guidelines.286 In 

one of the sensitive criminal matters, it was not evident that FBI 

Headquarters was notified of the case opening. 

• 22 of the sensitive criminal matters were still pending at the time 

of our site visits. Of the 10 sensitive criminal matters that had 

 

286 In these five instances, the notifications were evident from other documentation 

contained in the investigative file. 
177

closed, the FBI notified the U.S. Attorney’s Office or DOJ of the 

case closing within the required time in nine instances.287

• When disseminating information regarding these general crimes 

investigations to other law enforcement agencies, the FBI 

consistently documented an adequate basis to do so, in conformity 

with the Guidelines. 

Predication in Opening Documentation

We found only one matter where it was not possible to determine the 

predication in the opening documentation. This case was investigated in 

concert with another DOJ component. Later entries in the file, however, 

established that there was reasonable indication that a crime had been 

committed and that the basis for the investigation was sound.

Notifications in Sensitive Criminal Matters

(i) Opening Notifications 

The General Crimes Guidelines require that in sensitive criminal 

matters, the predication for investigations be recorded in writing and 

provided to both DOJ and FBI Headquarters as soon as practicable after 

commencement of the investigation.288 Although we found that the U.S. 

Attorney, or DOJ, was consistently notified of the basis for sensitive criminal 

matter openings, in 5 of these 32 cases the written notification required by 

the Guidelines was not included in the case file. We therefore had to find 

evidence of the notification from other information in the file (such as an 

FBI internal memorandum indicating field discussions with a prosecutor). 

In one of these instances, we were unable to locate the written notification 

to FBI Headquarters and could not determine from other case file 

documentation that the notification was made. 

(ii) Closing Notifications 

Closing notifications were contained in every case file where 

appropriate.289

 

287 The Guidelines provide that “[i]n every sensitive criminal matter, the FBI shall 

notify the appropriate federal prosecutor of the termination of an investigation within 30 

days of such termination.” GCI Guidelines § II.C.4 at B-73. 

288 GCI Guidelines § II.C.3 at B-72. 

289 However, in one instance DOJ was not notified of the case closing until 40 days 

after closure – 10 days beyond the required time limit. 
178

Dissemination of Information to Other Law Enforcement Agencies

Our review examined 16 instances where the FBI disseminated 

information developed in general crimes investigations to other law 

enforcement agencies pursuant to § II.C.6 of the General Crimes Guidelines. 

We determined in each case that the FBI adhered to the applicable 

Guidelines’ requirements. 

F. OIG Analysis and Recommendations 

Our review found that the FBI generally is complying with the 

requirements of the General Crimes Guidelines governing general crimes 

investigations. 

IV. Criminal Intelligence Investigations 

A. Role of Criminal Intelligence Investigations 

In contrast to general crimes investigations, which target individuals 

and specific criminal acts, the focus of criminal intelligence investigations is 

on a group or enterprise. The purpose of these investigations is to obtain 

information concerning the nature and structure of an enterprise – 

including information relating to its membership, finances, geographical 

dimensions, past and future activities, and goals – with a view toward 

detecting and preventing the enterprise’s criminal activities and prosecuting 

those responsible for them. There are two types of criminal intelligence 

investigations: racketeering enterprise investigations (REIs) and terrorism 

enterprise investigations (TEIs). GCI Guidelines, Introduction, B. 

Terrorism enterprise investigations, which can develop intelligence to 

help prevent terrorist acts, are classified as either domestic or 

international.290 Domestic terrorism investigations involve U.S. persons 

 

290 The “Uniting and Strengthening America by Providing Appropriate Tools Required 

to Intercept and Obstruct Terrorism Act of 2001” (USA PATRIOT ACT) incorporates a new 

definition of “domestic terrorism,” in order to correspond to the existing definition of 

“international terrorism.” Domestic terrorism is defined to mean activities occurring 

primarily within the territorial jurisdiction of the United States involving acts dangerous to 

human life that are a violation of the criminal laws of the United States or any state and 

appear to be intended to intimidate or coerce a civilian population, influence the policy of a 

government by intimidation or coercion, or affect the conduct of a government by mass 

destruction, assassination, or kidnapping. 18 U.S.C. § 2331(5). 

 International terrorism involves violent acts or acts dangerous to human life that 

are a violation of the criminal laws of the United States or any state, or that would be a 

criminal violation if committed within the jurisdiction of the United States or any state. 

These acts appear to be intended to intimidate or coerce a civilian population, influence the 

policy of a government by intimidation or coercion, or affect the conduct of a government by 

(continued) 
179

residing in the United States who are not acting on behalf of a foreign 

power, and who may be conducting criminal activities in support of terrorist 

objectives. International terrorism investigations involve U.S. persons or 

foreign nationals in the United States who are targeting national security 

interests on behalf of a foreign power.291 After the issuance of the revised 

Investigative Guidelines on May 30, 2002, and until a new FBI investigative 

classification was established effective October 1, 2003, that combined 

criminal and intelligence international terrorism investigations, the FBI 

conducted a limited number of international terrorism investigations under 

the terrorism enterprise investigation Guidelines.292 Since October 2003, 

however, the FBI has elected to use the terrorism enterprise provisions of 

the General Crimes Guidelines solely to investigate domestic terrorism 

matters, while international terrorism investigations are conducted under 

the Attorney General’s Guidelines for FBI National Security Investigations 

and Foreign Intelligence Collection (NSI) Guidelines.293

B. Significant Requirements 

Racketeering Enterprise Investigations

The General Crimes Guidelines authorize the initiation of racketeering 

enterprise investigations “when facts or circumstances reasonably indicate 

that two or more persons are engaged in a pattern of racketeering activity as 

defined in the RICO statute, 18 U.S.C. § 1961(5).” General Crimes 

Guidelines § III.A.2.a. The Guidelines state that “[t]he standard of 

‘reasonable indication’ is identical to that governing the initiation of a 

general crimes investigation.” Id. 

Racketeering enterprise investigations must be approved by the SAC 

with notification to FBI Headquarters and must be based upon a written 

 

mass destruction, assassination, or kidnapping, and occur primarily outside the territorial 

jurisdiction of the United States or transcend national boundaries in terms of the means by 

which they are accomplished, the persons they appear intended to intimidate or coerce, or 

the locale in which their perpetrators operate or seek asylum. 18 U.S.C. § 2331(1). 

291 See FBI Publication #0308, Terrorism 2000/2001, at iii. 

292 To formalize the merger of intelligence and criminal operations, the FBI abandoned 

separate case classifications for criminal international terrorism investigations and 

intelligence international terrorism investigations, consolidating them into a single 

classification for international terrorism. This reclassification officially classifies an 

international terrorism investigation as one that can employ intelligence tools as well as 

criminal processes and procedures. 

293 As noted in the Introduction to this report, the Attorney General issued the revised 

NSI Guidelines on October 31, 2003. 
180

recommendation indicating that the standard for opening the investigation 

is satisfied. Id. § III.A.5.a. The FBI also must notify the Organized Crime 

and Racketeering Section of DOJ’s Criminal Division and any affected U.S. 

Attorney’s Office of the initiation of the investigation. Id. § III.A.5.b. The 

first authorization period may not exceed one year, and renewals may be 

obtained for additional periods also not to exceed one year. Renewal 

authorization is obtained from the SAC, with notification to FBI 

Headquarters and the Organized Crime and Racketeering Section of DOJ’s 

Criminal Division. Id. § III.A.5.c. The SAC must review the investigations 

on or before the expiration of the period for which the investigation and each 

renewal is authorized. Id. § III.A.5.d. 

Terrorism Enterprise Investigations

The standard for initiating a terrorism enterprise investigation also 

incorporates the “reasonable indication” threshold. The General Crimes 

Guidelines provide: 

A terrorism enterprise investigation may be initiated when facts 

or circumstances reasonably indicate that two or more persons 

are engaged in an enterprise for the purpose of: (i) furthering 

political or social goals wholly or in part through activities that 

involve force or violence and a violation of federal criminal law, 

(ii) engaging in terrorism as defined in 18 U.S.C.§§ 2331(1) or 

(5) that involves a violation of federal criminal law, or 

(iii) committing any offense described in 18 U.S.C. 

§ 2332b(g)(5)(B). 

Id. § III.B.1.a. As with racketeering enterprise investigations, the Guidelines 

provide that terrorism enterprise investigations must be authorized by the 

SAC with notification to FBI Headquarters, and they must be based upon a 

written recommendation.294 The FBI also must notify the Counterterrorism 

Section of DOJ’s Criminal Division, DOJ’s Office of Intelligence Policy and 

Review (OIPR), and any affected U.S. Attorney’s Office of the opening of a 

terrorism enterprise investigation.295 General Crimes Guidelines § III.B.4.a. 

Authorization periods and procedures in these investigations are the same 

as for racketeering enterprise investigations. Id. § III.B.4.b and c. The FBI 

is required to report to DOJ’s Counterterrorism Section and OIPR the 

 

294 The MIOG, however, provides that a full investigation of domestic terrorism may be 

authorized by a SAC only with concurrence of FBI Headquarters. MIOG § 100-2.3(3). This 

inconsistency between the Guidelines and the MIOG is discussed in Chapter Eight.

295 The Terrorism and Violent Crime Section of the DOJ was renamed the 

Counterterrorism Section. 
181

progress of terrorism enterprise investigations within 180 days of their 

initiation and the results at the end of each year the investigation continues. 

Id. § III.B.4.f. 

C. Major Revisions to the Guidelines 

The revisions to the criminal intelligence provisions of the General 

Crimes Guidelines emphasized the reduction of administrative requirements 

by devolving approval authority to FBI field offices, extending authorization 

periods, and expanding the scope of terrorism enterprise investigations. 

Major changes to the Guidelines included: 

• authorizing the SAC rather than FBI Headquarters to approve the 

initiation and renewal of criminal intelligence investigations; 

• extending from 180 days to 1 year the period for initial 

authorizations and renewals; and 

• expanding the scope of TEIs to include certain kinds of 

racketeering activity with a terrorism nexus. 

D. The OIG Review of Criminal Intelligence Investigations 

Racketeering Enterprise Investigations

To examine the FBI’s compliance with key provisions of the 

racketeering enterprise investigation provisions of the General Crimes 

Guidelines, we reviewed all REIs at the 12 FBI field offices we visited. 

Because 4 of the offices had no REIs, we reviewed the 14 available REI 

investigative files at the remaining 8 offices. The FBI provided the OIG with 

a list of all REIs that were open on or after May 30, 2002, which listed a 

total of 37 such investigations nationwide. Our review primarily focused on 

whether the field offices obtained the necessary authorizations and provided 

appropriate notifications. Specifically, we examined the following 

authorization and notification requirements. 

• Did the SAC authorize an investigation after finding that the facts 

or circumstances in the written recommendation reasonably 

indicated that two or more persons were engaged in a pattern of 

racketeering activity as defined in the RICO statute, 18 U.S.C. 

§ 1961(5)? 

• Did the SAC notify FBI Headquarters of the opening of the 

investigation? 

• If the investigation remained open longer than one year, did the 

SAC review the investigation on or before the expiration of the 

period for which the investigation was authorized or renewed? 
182

• Did the SAC notify FBI Headquarters when extensions of the REIs 

were authorized? 

In addition, we determined whether there was evidence that the FBI notified 

the Organized Crime & Racketeering Section of the DOJ Criminal Division 

and any affected U.S. Attorney’s Office of the opening of the investigation. 

Terrorism Enterprise Investigations

We asked the FBI to identify 6 terrorism enterprise investigative files 

for each of the 12 field offices we visited. Only 4 of the 12 offices had any 

TEIs, and, together, they had 5 TEIs. Our review focused on the following 

documentation and notification requirements. 

• Did the SAC authorize the terrorism enterprise investigation after 

finding that the facts and circumstances in the written 

recommendation reasonably indicated that the standard for 

opening such an investigation was satisfied? 

• Did the SAC notify FBI Headquarters of the opening of the 

terrorism enterprise investigation? 

• Was there evidence that the FBI notified the Counterterrorism 

Section of the DOJ Criminal Division, OIPR, and any affected U.S. 

Attorney’s Office of the opening of the investigation? 

• Did the FBI report to the Counterterrorism Section of the DOJ 

Criminal Division and OIPR the progress of the investigations not 

later than 180 days after initiation, and the results at the end of 

each year that the investigation continued? 

• If the investigation remained open longer than one year, did the 

SAC review the investigation on or before the expiration of the 

period for which the investigation was authorized or renewed? 

• Did the SAC notify FBI Headquarters when extensions of the TEIs 

were authorized? 

E. Compliance Findings 

Racketeering Enterprise Investigations

We found that documents in each of the 14 REI case files adequately 

stated the reasons for opening these investigations and that the 

authorizations were properly provided by the SAC. 

With respect to notifications of case openings, the investigative files 

contained documentation that the field office notified FBI Headquarters in 

12 of the 14 cases, or 86 percent of the time. According to the MIOG, the 

initiation of a racketeering enterprise must be followed by notification, 
183

including all supporting documentation, to FBI Headquarters within 14 

calendar days of receiving authorization by the SAC.296 The FBI also must 

notify the Organized Crime & Racketeering Section of the DOJ Criminal 

Division and any affected U.S. Attorney’s Office. We found no evidence of 

notifications to DOJ in 10 of the files we examined (71 percent), while 12 of 

the 14 files (86 percent) lacked evidence of notification to a U.S. Attorney’s 

Office. One field office told us that once it notifies FBI Headquarters of the 

opening of a REI, it relies upon Headquarters to notify the U.S. Attorney’s 

Office and/or the Organized Crime & Racketeering Section of DOJ. This 

practice may account in at least some instances for the missing 

documentation of opening notifications. 

Notifications of renewals also were problematic. The files associated 

with four of the five investigations that continued beyond the initial 

authorization period did not contain documentation of notification to FBI 

Headquarters or evidence of review by the SAC on or before expiration of the 

initial authorization period. The table below summarizes our findings with 

regard to Guidelines-related documentation for racketeering enterprise 

investigations. 

 

296 MIOG § 92-6(2) (imposing 14-day notification requirement). The General Crimes 

Guidelines require notification to FBI Headquarters but do not specify a deadline. See GCI 

Guidelines § III.A.5.a at B-76. 
184

TABLE 5.2 

Documentation of Racketeering Enterprise Investigation Predication 

and Field Office Notifications to DOJ, USAOs, and FBIHQ 

umber 

f REIs 

viewed 

Sufficient 

Predication 

in Opening 

Document 

Field 

Notified 

FBIHQ 

of 

Opening

Documentation 

of Opening 

Notification to 

DOJ OCRS 

Documentation 

of Opening 

Notification to 

USAOs 

Number 

Lasting 

More 

Than 1 

Year 

SAC 

Reviewed 

Before 

Expiration

Field 

Notified 

FBIHQ re: 

Extensions

2 2 2 2 1 1 0 0 4 4 4 0 0 1 0 0 

2 2 1 1 0 0 N/A N/A 1 1 1 0 0 0 N/A N/A 

1 1 1 0 0 1 1 1 

2 2 1 0 0 1 0 0 

1 1 1 0 1 0 N/A N/A 

1 1 1 1 0 1 0 0 

14 14 12 4 2 5 1 1 
185

Terrorism Enterprise Investigations

We found that documents in the five FBI case files adequately stated 

the reasons for opening these investigations and that the authorizations 

were properly provided by the SAC. However, the files we reviewed did not 

consistently contain evidence of required notifications and reports. 

Opening Basis Adequately Meets Guidelines’ Criteria

A SAC may authorize a TEI (subject to FBI Headquarters’ 

concurrence) after assuring that the facts or circumstances contained in a 

written recommendation reasonably indicate the existence of an enterprise 

as described in the Guidelines. General Crimes Guidelines § III.B.1.a. We 

found that all five TEIs satisfied the standard to open a terrorism enterprise 

investigation.

Notifications to FBI Headquarters

The General Crimes Guidelines require notice to FBI Headquarters 

after a SAC authorizes a terrorism enterprise investigation. Id. § III.B.4.a. 

We found that in all five cases we examined FBI Headquarters was 

appropriately and promptly notified of the case initiations. 

Notifications to the Department of Justice.

The General Crimes Guidelines require that the FBI notify the DOJ 

Criminal Division’s Counterterrorism Section, OIPR, and any affected U.S. 

Attorney’s Office of the opening of a terrorism enterprise investigation. Id. 

We found that evidence of these notifications was not consistently present in 

the case documentation. Only one office’s files contained notification to the 

U.S. Attorney’s office for a case initiation. We did not find evidence of 

notification to the Counterterrorism Section for three of the five case 

initiations and to OIPR for four of the five cases. Officials from one field 

office told us that once it notifies FBI Headquarters of the opening of a TEI, 

it relies upon Headquarters to notify OIPR. This practice may account – in 

at least some instances – for the absence of documentation of opening 

notifications. 

Progress Reports to the Department of Justice

The General Crimes Guidelines require that the FBI report to the DOJ 

Criminal Division’s Counterterrorism Section and OIPR the progress of TEIs 

no later than 180 days after their initiation, and the results at the end of 

each year the investigation continues. Id. § III.B.4.f. The MIOG states that 

the results of the investigation must be furnished within 180 days to FBI 

Headquarters with a cover communication setting forth the status of the 

investigation, and the memoranda must arrive at FBI Headquarters at least 

ten days before the due date. MIOG § 100-3.1.1. We did not find 

documentation of this progress report in three of the four investigations that 
186

continued beyond 180 days, including one TEI that extended beyond one 

year. Moreover, the single field office that drafted a progress report 

submitted its report 39 days late. 

Investigations Extending Beyond One Year

A TEI may be authorized initially for up to one year and may be 

continued for additional periods each not to exceed one year. General 

Crimes Guidelines § III.B.4.b. Of the five cases we reviewed, only one 

continued for more than one year. The SAC authorized this investigation 

with FBI Headquarters’ concurrence for periods less than one year and had 

approved seven extensions. In accordance with the General Crimes 

Guidelines, the SAC reviewed the case prior to the expiration of each 

extension and submitted all required authorization documentation to FBI 

Headquarters. However, the file did not contain evidence of either the 

180-day progress report or the yearly progress reports to DOJ. 

F. OIG Analysis and Recommendations 

With respect to compliance with the criminal intelligence provisions of 

the General Crimes Guidelines, our review found that the FBI has not 

ensured that: 

• all required notifications to U.S. Attorneys, DOJ, and FBI 

Headquarters were timely made and documented in the case files; 

• reviews by SACs were documented; and 

• reports to DOJ were timely completed and included in the case 

files. 

Opening notifications to DOJ and U.S. Attorneys’ Offices were not 

evident in many of the files for REIs (71 percent and 86 percent, 

respectively), and notifications of TEIs to DOJ’s Counterterrorism Section 

did not appear in 60 percent of the files. Notifications for both OIPR and the 

U.S. Attorneys’ Offices did not appear in 80 percent of the files. Although 

only a few files (14 percent) lacked documentation of opening notifications to 

FBI Headquarters, we found a general lack of consistency in the FBI’s 

documentation practices and supervisory reviews. The MIOG does not 

specify what procedures should be followed in providing notifications to 

DOJ and U.S. Attorneys’ Offices, or whether such notifications should be 

documented. 

We also identified compliance deficiencies with respect to renewals 

and reporting. In REIs, documentation of SAC reviews was missing in 80 

percent of the case files we examined, as were renewal notifications to FBI 

Headquarters. Progress reports to DOJ in terrorism enterprise 

investigations were missing in 75 percent of the case files. 

In addition, our review identified a discrepancy between the 

requirements of the General Crimes Guidelines and the MIOG. One of the 
187

most significant changes to the criminal intelligence provisions of the 

General Crimes Guidelines in May 2002 was the devolution of approval 

authority from FBI Headquarters to SACs to initiate and renew criminal 

intelligence investigations. With respect to terrorism enterprise 

investigations, the Guidelines provide: 

A terrorism enterprise investigation may be authorized by the 

Special Agent in Charge, with notification to FBIHQ, upon a 

written recommendation setting forth the facts or 

circumstances reasonably indicating the existence of an 

enterprise. . . . 

Renewal authorization [for terrorism enterprise investigations] 

shall be obtained from the SAC with notification to FBIHQ. 

General Crimes Guidelines §§ III.B.4.a and b (emphasis added). When the 

revised General Crimes Guidelines were issued, the Attorney General 

described the rationale for the change: 

[U]nnecessary procedural red tape must not interfere with the 

effective detection, investigation, and prevention of terrorist 

activities. To this end, the revised guidelines allow Special 

Agents in Charge of FBI field offices to approve and renew 

terrorism enterprise investigations, rather than having to seek 

and wait for approval from headquarters. I believe this 

responds to a number of concerns we have heard from our field 

agents. . . . These major changes will free field agents to 

counter potential terrorist threats swiftly and vigorously without 

waiting for headquarters to act.297

The FBI, however, amended the MIOG to require not only notification 

to FBI Headquarters, but also concurrence by FBI Headquarters. Effective 

April 30, 2004, the MIOG provides: 

With regard to full-field terrorism enterprise investigations of 

domestic terrorism, it is hereby the policy of the CTD 

[Counterterrorism Division] that, consistent with the revised 

[Attorney General Guidelines] on General Crimes, Racketeering 

Enterprise and Terrorism Enterprise Investigations, a full-field 

terrorism enterprise investigation may be authorized by an SAC 

only with concurrence of the Domestic Terrorism Operations 

Section in CTD, FBIHQ. 

MIOG § 100-2.3(3) (emphasis added). In light of the Attorney General’s 

stated reasons for the revision of §§ III.B.4.a and b of the General Crimes 

 

297 Prepared Remarks of Attorney General Ashcroft Regarding the Attorney General 

Guidelines (May 30, 2002). 
188

Guidelines, the current MIOG provision regarding authorization of terrorism 

enterprise investigations appears to be inconsistent with the requirements 

of those Guidelines and, in practice, may undercut the rationale underlying 

this Guidelines revision. 

Therefore, we recommend that the FBI take the following steps. 

(21) Institute measures to ensure consistency in meeting and 

documenting the notification and reporting requirements provided in 

§§ III.A.5 and III.B.4 of the General Crimes Guidelines, including requiring 

FBI field offices to maintain in the relevant investigative file documentation 

of the notice of the opening of criminal intelligence investigations to DOJ’s 

Counterterrorism, Organized Crime and Racketeering Sections, Office of 

Intelligence Policy and Review (OIPR), and the relevant U.S. Attorneys’ 

Offices as required in racketeering enterprise investigations and terrorism 

enterprise investigations. The FBI should also ensure that progress reports 

required by the Guidelines in terrorism enterprise investigations are 

provided to OIPR, DOJ’s Counterterrorism Section, and FBI Headquarters. 

(22) Discuss with DOJ how to reconcile § 100-2.3(3) of the MIOG, 

requiring Headquarters’ concurrence with the initiation and renewal of 

terrorism enterprise investigations, with §§ III.B.4.a and b of the General 

Crimes Guidelines, which authorize field level initiation and renewal of these 

investigations. 

V. Part VI of the General Crimes Guidelines: Counterterrorism 

Activities and Other Authorizations 

A. Rationale for the New Part VI Authorities 

As we discussed earlier in this report, following the September 11 

terrorist attacks the Attorney General ordered a comprehensive review of the 

Attorney General Guidelines. In remarks accompanying the announcement 

of the revised Guidelines, the Attorney General explained that the 

Investigative Guidelines “bar[red] FBI field agents from taking the initiative 

to detect and prevent future terrorist acts unless the FBI learns of possible 

criminal activity from external sources.” His remarks focused on the 

absence of clear authority to be proactive in preventing terrorist attacks: 

Under the current guidelines, FBI investigators cannot surf the 

web the way you or I can. Nor can they simply walk into a 

public event or a public place to observe ongoing activities. 

They have no clear authority to use commercial data services 

that any business in America can use. These restrictions are a 

competitive advantage for terrorists who skillfully utilize 

sophisticated techniques and modern computer systems to 
189

compile information for targeting and attacking innocent 

Americans.298

These restrictions led the Attorney General to conduct a reevaluation 

of the Investigative Guidelines and the Guidelines governing foreign 

intelligence and foreign counterintelligence investigations.299 Two of the four 

guiding principles for the Guidelines revisions identified by Attorney General 

Ashcroft focused on measures to enhance the FBI’s authority to proactively 

investigate terrorist threats by, among other means, visiting public places, 

attending public events, and “surfing” the Internet. Specifically, the 

Attorney General stressed that “even absent specific investigative 

predicates,” FBI agents were now “empowered to scour public sources for 

information on future terrorist threats.” In addition, he noted that the FBI 

“will also be able to enter and observe public places and forums just as any 

member of the public might.”300

FBI Director Mueller also addressed the need for proactive authority 

to access public information in his July 2002 testimony before Congress: 

 

298 Prepared Remarks of Attorney General Ashcroft Regarding the Attorney General 

Guidelines (May 30, 2002). 

 A staff statement issued by the National Commission on Terrorist Attacks Upon 

the United States also stated that the pre-September 11 Guidelines were understood by 

some in the FBI as restricting their ability to access public places and public resources: 

The guidelines limited the investigative methods and techniques 

available to agents conducting preliminary investigations of potential 

terrorist activities or connections. They prohibited the use of publicly 

available source information, such as that found on the Internet, 

unless specified criteria were present. 

These restrictions may have had the unintended consequence of 

causing agents to even avoid legitimate investigative activity that might 

conceivably be viewed as infringing on religious liberties or lawful 

political protest. 

Agents we interviewed believed these limitations were too restrictive 

and adversely affected their intelligence investigations. 

National Commission on Terrorist Attacks Upon the United States, Staff Statement No. 9: 

Law Enforcement, Counterterrorism, and Intelligence Collection in the United States Prior to 

9/11, at 8 (April 13, 2004). 

299 The FCI Guidelines governing foreign intelligence and foreign intelligence 

investigations were revised effective October 31, 2003, and were renamed the Attorney 

General’s Guidelines for FBI National Security Investigations and Foreign Intelligence 

Collection. 

300 Prepared Remarks of Attorney General Ashcroft Regarding the Attorney General 

Guidelines (May 30, 2002). See also Statement of The Honorable John Ashcroft Attorney 

General United States Department of Justice before the Senate Judiciary Committee, July 

25, 2002, available at: 

http://www.usdoj.gov/ag/testimony/2002/072502agtestimony.htm. 
190

The changes in the Attorney General Guidelines . . . are 

designed to increase the ability of our field agents to gather the 

intelligence we need to prevent terrorist attacks. To that end, 

they reduce some of the bureaucratic hurdles requiring 

Headquarters’ approval for certain steps, and in the provision 

that has gotten a great deal of attention, they permit FBI agents 

to go to public places where anyone else, except FBI agents, 

including state and local police and non-Justice Department 

law enforcement agents, were always free to go. 

Remember, though, that they may do so solely for the purpose 

of detecting and preventing terrorist activities, and there are 

strict limits on record-keeping in such instances. 

Now [sic] information obtained from such visits may be retained 

unless it relates to potential criminal or terrorist activity, and I 

must say and emphasize, as an institution we are and must be 

and continue to be deeply committed to the protection of 

individuals’ constitutional and statutory rights. Nothing in the 

amended guidelines changes that.301

Our review examined the steps the FBI took to implement the new 

and expanded authorities in Part VI of the General Crimes Guidelines, 

particularly as they relate to the FBI’s authority to visit public places and 

attend public events for the purpose of detecting and preventing terrorist 

activities. We describe our findings on the FBI’s use of these authorities 

and the internal controls in place to ensure that predication standards and 

record retention constraints are observed, and conclude with our 

recommendations. In Chapter Eight, we analyze and evaluate the FBI’s 

steps for implementing these measures, along with other authorities 

contained in the revised Investigative Guidelines. 

B. New Authorities Added to the General Crimes Guidelines 

Part VI of the General Crimes Guidelines, entitled “Counterterrorism 

Activities and Other Authorizations,” states that the FBI needs to be 

proactive in preventing terrorist acts against the United States by 

authorizing a number of activities “which can be carried out even in the 

absence of a checking of leads, preliminary inquiry, or full investigation.” 

The new authorizations include activities specifically focused on terrorism 

(Subpart A) and other tools that are available to obtain information about 

both terrorism and non-terrorism-related crimes (Subpart B). 

 

301 Oversight Hearing on Counterterrorism: Hearing Before the Senate Committee on 

the Judiciary, 107th Cong. 11 (2002) (Statement of Robert S. Mueller, III, Director, Federal 

Bureau of Investigation). 
191

Subpart A of Part VI authorizes the FBI to engage in two types of 

“counterterrorism activities”: 1) utilizing information systems, which the 

FBI may operate or participate in, to identify and locate terrorists and alien 

supporters of terrorist activity; and 2) visiting public places and events on 

the same terms and conditions as members of the public “for the purpose of 

detecting or preventing terrorist activities.” 

In Subpart B, the FBI is authorized to conduct topical research, use 

online resources, and prepare reports and assessments “for purposes of 

strategic planning or in support of investigative activities.”302

C. The OIG Review of the FBI’s Use of Part VI Authorities 

As with other Investigative Guidelines, we first identified significant 

requirements of Part VI of the General Crimes Guidelines that could be 

tested. We focused on the following questions. 

• How frequently has the FBI utilized the authority to visit public 

places and attend public events for the purpose of detecting or 

preventing terrorist activities? 

• What internal controls are in place in the field or at FBI 

Headquarters to ensure that minimum predication standards and 

record retention guidance are followed? 

Neither the General Crimes Guidelines themselves nor the MIOG 

require that agents obtain supervisory approval of or document activities 

carried out pursuant to Part VI. In advance of our visits to 12 FBI field 

offices from May to August 2004, we sought to determine what data is 

collected about the FBI’s utilization of Part VI authorities. We therefore 

asked the 12 field offices to provide us with documentation reflecting field 

office policies and procedures regarding the use of these authorities and 

their document retention policies pertaining to information derived from use 

of the authorities. 

In addition, we collected relevant guidance issued from FBI 

Headquarters, chiefly from the Office of the General Counsel, the Criminal 

Investigative Division, and the Counterterrorism Division; surveyed Division 

Counsel; reviewed a sample of communications between the OGC’s newly 

established point of contact on constitutional and privacy issues and 

Division Counsel; examined relevant FBI and DOJ congressional testimony; 

conducted interviews of Headquarters officials and relevant field personnel 

 

302 An OGC guidance memorandum dated October 7, 2002, suggests that the FBI may 

have had certain of these authorities prior to the May 2002 revisions. For example, the 

guidance states that the Part VI authorities “enhance the FBI’s ability to visit public places 

and attend public events . . .”; “expand” its ability to gather investigative information from 

the Internet; and that the provision addressing the FBI’s ability to conduct general topical 

research “serves to clarify pre-existing policy” (emphasis added). 
192

during our visits to 12 FBI field offices; and, in March 2005, conducted 

interviews of the 12 SACs of those field offices. 

D. Compliance Findings 

1. The FBI’s Use of Part VI Authorities Since May 30, 

2002, and the FBI’s Implementing Guidance 

Our effort to collect data from investigative files comparable to those 

we reviewed in connection with the Confidential Informant Guidelines, the 

Undercover Guidelines, the Consensual Monitoring Guidelines, and the 

General Crimes Guidelines was unsuccessful. Apart from the various 

guidance memoranda issued by FBI Headquarters that we discuss below, 

none of the 12 field offices we visited provided information in response to 

our request for documentation reflecting established procedures governing 

visits to public places and events. We found no forms generated by FBI 

Headquarters or any of the 12 field offices we visited for recording the fact of 

a visit to a public place or attendance at a public event pursuant to this new 

authority. The FBI may not retain information derived from such activities 

“unless it relates to potential criminal or terrorist activity.”303 If the 

information does not relate to criminal or terrorist activities, the only 

information that can be retained is documentation of the fact of the visit, 

which, according to OGC guidance, should be maintained in a noninvestigative or “zero” file. 

However, FBI policy on the maintenance and review of zero files is 

different from the highly regimented rules pertaining to investigative files. 

Zero files are created for each FBI classification number to enable the FBI to 

maintain information relating to that classification that does not, at the 

time, meet the requirements for initiating an investigation or that does not 

relate to an ongoing investigation.304 However, zero files must be reviewed 

by a supervisor at 120-day intervals, rather than every 90 days in the case 

of investigative files, or more frequently if deemed appropriate by the SAC.305 

 

303 GCI Guidelines § VI.A.2. See also FBI Office of the General Counsel, Guidance to 

the Field: New Attorney General Guidelines on General Crimes, Racketeering Enterprise and 

Terrorism Enterprise Investigations, at 5 (October 7, 2002). 

304 See MAOP 2-4.1(2). For example, if the FBI were to receive information on a 

possible criminal civil rights violation (classification 44), but the required threshold to open 

an investigation were not present, the information would be placed in a 44-0 file and 

indexed for future retrieval. All information related to possible civil rights violations in that 

field office would be entered in this file, the hard copy of which contains cumulative 

information, filed chronologically, on all possible civil rights violations. In conducting a file 

review of the 44-0 file, it is more difficult for supervisors to evaluate at one time the related 

bits of information scattered in many separate files than when reviewing a discrete 

investigative file. 

305 See MAOP § 1-1.4(2). 
193

We were told that program coordinators are also supposed to review zero 

files. In addition, during the Inspection process every three years, the 

Inspection Division reviews zero files to ensure they do not contain work of a 

higher priority than other matters being addressed by the field office. 

The number of times that the FBI has used the Part VI authorities is 

difficult to determine. The Department of Justice advised the House 

Judiciary Committee in May 2003, that the FBI does not maintain 

centralized statistics on how many times agents attend public meetings.306 

The Department further stated that fewer than 10 of the 45 field offices the 

FBI had informally surveyed reported that they had conducted investigative 

activities at mosques since September 11, 2001, and only one of the 

investigative activities was conducted pursuant to Part VI authorities of the 

General Crimes Guidelines.307

We asked the FBI Director whether he knew how frequently these 

authorities are utilized. He reiterated that the FBI does not require agents 

to obtain supervisory approval or send a form to Headquarters, and 

therefore it is difficult to determine to what extent these authorities have 

been used. 

In addition, before our visits to 12 FBI field offices, we surveyed the 

FBI’s Division Counsel on a variety of topics related to the Investigative 

Guidelines, including the subjects about which they have been consulted on 

Part VI authorities.308 Our survey showed that 65 percent of surveyed 

Division Counsel had been consulted regarding the authority to visit or 

attend public events. Of these inquiries, 96 percent said they were 

consulted about whether it is permissible to conduct surveillance of or 

attend such events and 86 percent also stated that they had been consulted 

about record retention issues. 

Our survey also revealed a need for more guidance on the appropriate 

use of the new authorities. For example, when we asked whether Division 

Counsel encountered ambiguities or interpretive questions about the 

General Crimes Guidelines, 23 percent of surveyed Division Counsel 

responded “yes.” Of that number, 83 percent stated that the authority to 

 

306 Letter from Jamie E. Brown, Acting Assistant Attorney General, Office of Legislative 

Affairs, Department of Justice, to F. James Sensenbrenner, Jr., Chairman, House 

Committee on the Judiciary (May 13, 2003) (Responses to Committee’s Questions on U.S. 

PATRIOT ACT Implementation and Related Matters) (hereafter May 13, 2003 DOJ Written 

Responses to House Judiciary Committee Questions). 

307 The Department of Justice stated that the remaining visits were conducted 

pursuant either to preliminary inquiries or full investigations. May 13, 2003, Department of 

Justice Written Responses to House Judiciary Committee Questions.

308 The role of Division Counsel in the FBI’s 56 field offices is discussed in Chapter 

Three. 
194

visit public places or attend public events generated questions, while 72 

percent stated that the permissibility of disseminating the information to 

law enforcement agencies and others generated questions. 

The responses of Division Counsel to our survey questions regarding 

Part VI authorities are presented below. 

TABLE 5.3 

Division Counsel’s Views on Consultation 

Regarding Part VI Authorities of the General Crimes Guidelines 

Question Response 

17. Since May 30, 2002, have you 

been consulted regarding the 

authority to visit or attend any 

events for the purpose of detecting 

or preventing terrorist activities in 

the absence of leads, a preliminary 

inquiry, or a full investigation? 

[AGG Section VI.A.2.] 

Yes 51 65%

No 28 35%

a. Were you consulted as to whether 

it was permissible to conduct 

surveillance of, or attend, public 

events? 

Yes 50 96%

No 1 2%

b. Have you been consulted 

regarding the propriety of retaining 

information derived from 

surveillance of, or attendance at, 

public events? 

Yes 44 86%

No 7 14%

b-1. Describe the subject matter of 

the consultation you had regarding 

the propriety of retaining 

information derived from the 

surveillance of or attendance at 

public events. (Check all that 

apply.) 

Retaining the information 43 98%

Placing the information in a file 40 91%

Indexing the information 32 73%

Uploading the information into ACS 26 59%

19. An EC dated 03/27/03 from 

FBIHQ OGC notified all field offices 

of the designation of one attorney 

at FBIHQ OGC as the point of 

contact to coordinate OGC 

guidance and assistance on 

investigative, operational and 

policy matters that may have an 

impact on, or be perceived as 

having an impact on, individual 

rights and liberties (e.g., First 

Amendment or privacy issues). 

a. What is your role in advising the Special Agents 

and supervisors in your field office on individual 

rights and liberties? (Check all that apply.) 

I have provided advice regarding visits 

to any place and the attendance at 

any event open to the public for 

the purpose of detecting or 

preventing terrorist activities. 

71 90%

I have provided advice on issues 

involving the intrusiveness of 

various investigative 

techniques. 

67 85%

I have provided advice regarding 

online search activity and 

51 65%
195

Question Response 

accessing online sites and forums. 

I have provided advice regarding 

general topical research. 

48 61%

I have provided advice regarding the 

operation and participation in 

identification, tracking, and 

information systems regarding 

terrorist activities. 

34 43%

I have provided advice regarding the 

preparation of general reports and 

assessments concerning terrorism 

or other criminal activities for 

purposes of strategic planning. 

25 32%

Other 6 8%

b. In light of the 03/27/03 EC from FBIHQ OGC, 

how would you characterize the adequacy of 

available guidance on privacy and other civil 

liberties issues that arise in your field office as 

they relate to the revised Guidelines? 

Fully satisfactory 29 37%

Somewhat satisfactory 27 34%

Have not encountered 9 11%

Neither satisfactory nor unsatisfactory 7 9%

Somewhat unsatisfactory 4 5%

Not satisfactory 3 4%

c. Have you consulted the FBIHQ OGC attorney 

designated in the 03/27/03 EC on privacy and 

civil liberties issues? 

Yes 40 51%

No 39 49%

28. Have you encountered any 

ambiguities or interpretative 

questions involving the Attorney 

General’s Guidelines on General 

Crimes, Racketeering Enterprise 

and Terrorism Enterprise 

Investigations? 

Yes 18 23%

No 61 77%

a. With respect to ambiguities or 

interpretative issues arising under 

the Attorney General’s Guidelines 

on General Crimes, Racketeering 

Enterprise and Terrorism 

Enterprise Investigations, what 

aspect of the revised Guidelines 

generated the question? (Check all 

that apply.) 

Visits to any place and attendance at 

any event open to the public to 

detect or prevent terrorist 

activities and retention of 

information obtained 

(AGG Section VI.A.2.) 

15 83%

Permissibility of disseminating 

information to law enforcement 

agencies and others 

(AGG Section V.) 

13 72%

Circumstances related to public 

demonstrations under which a 

8 44%
196

Question Response 

terrorism enterprise investigation 

may be initiated 

(AGG Section III.B.1.c.) 

Circumstances under which operation 

or participation in identification, 

tracking, and information systems 

are permitted (AGG Section VI.A.1.) 

6 33%

Performing general topical research 

(AGG Section VI.B.1.) 

5 28%

Conducting online search activity and 

access to online sites and forums 

(AGG Section VI.B.2.) 

5 28%

Other 2 11%

The choice of investigative techniques 

in preliminary inquiries 

(AGG Section II.B.4.) 

1 6%

The Division Counsel survey indicates that 21 months after the 

effective date of the revised Guidelines, field personnel continued to struggle 

with questions about the use of these authorities. Only 37 percent of the 

survey respondents stated that they found fully satisfactory the guidance 

regarding privacy and other civil liberties issues that arose in their field 

offices in connection with use of the new Guidelines. 

2. Internal Controls Regarding Predication for the 

Exercise of Part VI.A.2 Authorities 

Under the General Crimes Guidelines, the FBI must have 

particularized information to justify the checking of leads or initiating a 

preliminary inquiry or a full investigation. By contrast, the Part VI.A.2 

authorities permit the FBI to visit public places or attend public events “on 

the same terms and conditions as members of the public” and only “for the 

purpose of detecting and preventing terrorist activities.” General Crimes 

Guidelines § VI.A.2. 

The FBI relied upon OGC and its Headquarters operating divisions to 

develop guidance on the Investigative Guidelines. We therefore reviewed the 

guidance memoranda sent to the field from FBI Headquarters. The following 

memoranda, which we describe in more detail below, address the 

predication required for using these authorities. 

• October 7, 2002, guidance summarizing the revised General 

Crimes Guidelines (OGC – “Guidance to the Field: New Attorney 

General Guidelines on General Crimes, Racketeering Enterprise 

and Terrorism Enterprise Investigations”). 

• March 27, 2003, guidance establishing a Headquarters Point of 

Contact (OGC – “Point of Contact for Guidance on Constitutional 
197

Rights and Privacy Issues Arising in FBI 

Investigations/Operations”). 

• March 19, 2004, guidance emphasizing FBI policy regarding the 

protection of civil liberties in connection with use of authorities 

under both the Investigative Guidelines and the NSI Guidelines 

(OGC - “Protection of Civil Liberties”). 

• April 26, 2004, guidance clarifying the standards for collecting, 

retaining, and disseminating information in connection with the 

FBI’s “Special Events” responsibilities (CTD – “Guidance to Atlanta, 

Boston and New York Divisions Concerning Information Collection, 

Maintenance, and Dissemination for G-8, DNC and RNC Special 

Events, 2004”). 

• September 1, 2004, guidance emphasizing the limitations on the 

Part VI authorities and specifying how to collect, maintain, and 

disseminate the information collected in connection with protest 

activity (CTD – “Law Enforcement Monitoring of Protest Groups for 

Indications of Criminal or Terrorist Activity”). 

While discussing recurring questions about predication, the guidance 

memoranda encourage, but do not require, supervisory approval for FBI 

agents to attend a public event. For example, the October 7, 2002, OGC 

memorandum states: 

If time permits, an agent should obtain his or her supervisor’s 

approval before visiting a public place or attending a public 

event to detect or prevent terrorist activity. This policy will help 

to ensure that the attendance is for a law enforcement purpose 

authorized by this section, and reflects the appropriate balance 

between law enforcement and First Amendment concerns. In 

assessing the use of this law enforcement technique, a 

supervisor may want to consider, for example, factors such as 

the potential to detect or prevent terrorist activity, and the 

potential chilling effect on First Amendment protected activity. 

Good judgment and discretion are essential to ensure that this 

investigative technique is in fact effective while at the same time 

protecting constitutional rights. 

In the March 27, 2003, guidance memorandum, the OGC designated 

an Assistant General Counsel as the point of contact at Headquarters to 

“coordinate guidance and assistance to FBI Headquarters and Field Offices 

on investigative, operational and policy matters that may have an impact 

on, or be perceived as having an impact on, constitutional and privacy 
198

rights and interests.”309 Among the topics about which field agents were 

encouraged to consult the point of contact was “attendance at meetings and 

public gatherings of religious, political or other groups/organizations.”310

The Counterterrorism Division’s September 1, 2004, guidance 

addressed the use of Part VI authorities in the context of attending and 

surveilling protest events. With respect to predication, it stated: 

Attendance and Surveillance at Public Events. – Agents 

may not conduct surveillance of individuals or groups solely for 

the purpose of monitoring the exercise of rights protected by the 

First Amendment. . . . The second broad investigative basis for 

attendance and surveillance is found under Part VI of the 

General Crimes Guidelines. Under this section, agents may 

attend a public event or visit a public place on the same terms 

as the general public. Under this authority, however, such 

attendance may be undertaken for the purpose of detecting 

or preventing terrorism, or assessing a threat to national 

security. Further, although the revised Guidelines permit such 

attendance even if neither a preliminary inquiry nor a full 

investigation is open, agents are reminded that this authority is 

limited to matters observable and obtainable in a public forum. 

Undercover activity, surreptitious entry into a private gathering 

at these events, and certain other investigative techniques (e.g., 

consensual recording of conversations) are not permitted under 

this authority. (Emphasis in original). 

We also examined a sampling of the communications between OGC’s 

point of contact and the field divisions. We noted that OGC has urged 

caution with respect to use of Part VI authorities and suggested that the FBI 

is on firmer footing if it obtains “individualized justification” prior to visiting 

pubic places. The OGC guidance also reiterated the Privacy Act prohibitions 

against including names in the FBI’s records systems based solely on the 

exercise of First Amendment rights. 

In a response to Congress, the Department also articulated the 

considerations the FBI weighed in evaluating whether to require supervisory 

approval prior to permitting agents to visit public places or attend public 

events pursuant to Part VI.A.2: 

Question. The GAO Report reflects that “FBI headquarter [sic] 

officials are currently considering whether to require mandatory 

supervisory approval prior to allowing an agent to enter a public 

 

309 Office of the General Counsel, Point of Contact for Guidance on Constitutional Rights 

and Privacy Issues Arising in FBI Investigations/Operations (March 27, 2003). 

310 Id. at 3. 
199

place or attend a public meeting.” Have you made any final 

decisions on this matter? What is the possible downside of 

requiring supervisory approval of this easily abused 

investigative technique? 

Response: In implementing this provision of the Guidelines, 

existing FBI policy states that, unless time does not permit 

seeking such approval, an agent should obtain his or her 

supervisor’s approval before visiting a public place or attending 

a public event to detect or prevent terrorist activity. No final 

decisions have been made as to whether such prior approval 

should be mandatory. In considering whether such a 

requirement would be appropriate, the FBI does not want to 

discourage the effective use of this provision in the primary 

mission of detecting and preventing terrorism. The Guidelines 

are intended to “enable Agents of the FBI to perform their duties 

with greater certainty, confidence and effectiveness,” while 

providing the American people with “a firm assurance that the 

FBI is acting properly under the law.” (Guidelines, Preamble.) 

Any policies or procedures that are adopted must conform to 

this intent.311

In our April 2005 interview of Director Mueller, he emphasized that he 

balanced the need to encourage use of the proactive Part VI authorities with 

the desire to be able to measure and evaluate their use. He said he had 

expected the Virtual Case File System would have been implemented and 

would have had features that facilitated notification to FBI Headquarters of 

the use of Part VI authorities. The Director stated that had that capability 

been available, he was prepared to require the “relatively modest imposition” 

on field agents of sending notice to Headquarters. However, in light of the 

problems in implementing the Virtual Case File, the Director said he would 

have to revisit the question whether to require supervisory approval and 

some form of documentation beyond the entries in zero files. 

Finally, it is important to remember that the FBI has multiple sources 

of authority to enter public places pursuant to the Investigative Guidelines, 

the NSI Guidelines, and other authorities. 

 

311 Letter from William E. Moschella, Assistant Attorney General, Department of 

Justice, to Orrin G. Hatch, Chairman, Senate Committee on the Judiciary (March 4, 2004) 

(Responses to Questions Posed to Robert S. Mueller, III, Director of the FBI, Before the 

Committee on July 23, 2003) (hereafter March 4, 2004, FBI Director Mueller’s Responses to 

House Judiciary Committee Questions). The General Accountability Office report referenced 

in the question is FBI Reorganization: Progress Made in Efforts to Transform but Major 

Challenges Continue (hereafter “GAO Report on FBI Reorganization”), June 18, 2003, GAO03-759T, at 29, available at: http://www.gao.gov/new.items/d03759t.pdf. 
200

3. Internal Controls for Record Retention Relating to the 

Exercise of Part VI.A.2 Authorities 

Part VI contains strict limitations on the FBI’s authority to retain 

information derived from its visits to public places and events, stating, “No 

information obtained from such visits shall be retained unless it relates to 

potential criminal or terrorist activity.” General Crimes Guidelines VI.A.2. 

In addition to the OGC memorandum dated October 7, 2002, noted above, 

we identified several guidance memoranda distributed by the FBI that 

restate the prohibition against improperly retaining information derived 

from these authorities. 

However, due to the manner in which FBI field offices record and 

maintain information regarding the exercise of Part VI.A.2 authorities and 

the absence of centrally retrievable data, we were unable to determine 

whether the FBI is retaining information derived from these activities in 

conformity with the General Crimes Guidelines and implementing guidance. 

OGC guidance has noted the distinction between what the FBI may 

retain in full investigations and what it may retain from the exercise of 

Part VI authorities. On March 19, 2004, OGC guidance entitled “Protection 

of Civil Liberties” stated that information derived from the surveillance of 

subjects in the course of an open investigation “should be collected, 

maintained in FBI records, and disseminated in compliance with the Privacy 

Act and departmental policy.”312 On the other hand, personal identifying 

information may only be retained from the surveillance of persons under 

Part VI authorities if the information is “relevant to an existing investigation 

or preliminary inquiry; by itself or in combination with other known 

information, justifies a new inquiry or investigation; or relates to another 

law enforcement activity the FBI is authorized by law or regulation to 

conduct.”313

 

312 The guidance stated that information retained from such surveillance should be 

maintained in an appropriate control file but may not contain “identifying information 

about individuals or groups in attendance, absent a valid law enforcement basis.” An OGC 

official told the OIG that the guidance memorandum should have referred to a “zero file” 

rather than a “control file.” Control files are different from “zero files” in that information 

contained in control files is captured in the FBI’s Automated Case Support (ACS) system, 

and leads may be assigned from control files. See MAOP § 2-4.1.5. 

313 The distinction between what the FBI is permitted to retain in the course of routine 

investigative activities and what it is permitted to retain when utilizing the Part VI 

authorities was reiterated in the Counterterrorism Division’s September 1, 2004, guidance, 

Law Enforcement Monitoring of Protest Groups for Indications of Criminal or Terrorist Activity. 

Similar guidance was issued by the Counterterrorism Division on April 26, 2004, Guidance 

to Atlanta, Boston and New York Division Concerning Information Collection, Maintenance, 

and Dissemination for G-8, DNC and RNC Special Events, 2004. This guidance stated that 

information “which does not rise to the level of predication for a preliminary inquiry or full 

investigation” should be placed in a special control file, as distinguished from an 

(continued) 
201

Similarly, in responding to congressional concerns about record 

retention issues related to Part VI authorities, Director Mueller stated that 

“if information obtained during the visit rises to the level of a lead, such 

information should be properly documented, including a statement 

describing how the information is related to potential criminal or terrorist 

activity, and then filed accordingly.”314

The following diagram provides FBI Division Counsel’s views regarding 

Part VI consultations and the clarity of guidance issued by FBI 

Headquarters concerning retention of information derived from use of 

Part VI.A.2 authorities during the period May 2002 to February 2004.315 

Our survey indicated that 65 percent of Division Counsel were consulted 

about the FBI’s authority to visit or attend public events under Part VI 

authority. Of that number, 96 percent said they were consulted about the 

permissibility of surveilling or attending public events, 86 percent said they 

were consulted about the propriety of retaining information derived from 

these visits, and 63 percent stated that they did not believe FBI guidance on 

information retention was clear when the revised Guidelines were issued.

 

investigative file, created specifically for information relating to the special event. At the 

end of the special events, agents were instructed to close the administrative file for the 

event but could distribute information collected in it “to the extent that it is pertinent to 

that office’s special event responsibilities.” 

314 March 4, 2004, Responses to House Judiciary Committee Questions. 

315 As noted above, FBI Headquarters issued additional guidance since this survey was 

conducted which addresses some recurring issues arising in the exercise of Part VI 

authorities. 
202

DIAGRAM 5.1 

Since May 30, 2002, have you 

been consulted regarding the 

authority to visit or attend any

events for the purpose of detecting 

or preventing terrorist activities in 

the absence of leads, a preliminary 

inquiry, or a full investigation?

Division Counsel’s Views on Consultation Regarding 

Part VI.A.2 Authorities of the General Crimes 

Guidelines and Clarity of Related FBI Guidance

Have you been consulted 

regarding the propriety of 

retaining information derived 

from surveillance of, or 

attendance at, public events?

YES

86%

Were you consulted as to 

whether it was permissible to 

conduct surveillance of, or 

attend, public events?

YES

96%

When the revised Guidelines 

were issued, did you believe 

there was clear guidance from 

FBIHQ as to whether 

information derived from 

surveillance of, or attendance at, 

public events may be retained if 

the results were negative?

NO

63%

Do you believe guidance on

this issue is clear today?

NO

55%

Yes

65%

E. OIG Analysis and Recommendations 

The FBI has provided significant guidance to the field about the highly 

sensitive Part VI authorities. The FBI does not require advance supervisory 

approval or documentation of the use of the authority to visit public places 

or attend public events, and agents do not open a discrete investigative or 

administrative file in the absence of a preliminary or full investigation. 

Some SACs we interviewed in the 12 field offices said they require approval 

by or notification of a first line supervisor of an agent’s use of the authority 

to visit public places or attend public events. However, because of the 

limited amount of information we were able to obtain from FBI 

Headquarters or field offices about their utilization of the Part VI authorities, 

it is unclear, even with respect to the 12 field offices we visited, how often 

these authorities have been used or whether the FBI is using these 

authorities in conformity with the Guidelines. That said, we did not find 

indications that these authorities are used extensively. Field agents, their 

supervisors, and Headquarters personnel repeatedly told us that given the 

many leads, inquiries, and active investigations that they must pursue, 

visiting public places and events absent an indication of unlawful conduct 

or threat potential is not a priority. 
203

As discussed above and in Chapter Eight, over the last three years 

since the revised Guidelines were issued, the Office of the General Counsel 

and the Counterterrorism Division have generated guidance addressing the 

distinctions between record retention in preliminary inquiries or full 

investigations, on the one hand, and the stricter limitations imposed on 

retaining information collected in the course of monitoring protest activities 

or in connection with the FBI’s “special event” responsibilities, on the other. 

In our interviews of FBI Headquarters managers, our surveys of Chief 

Division Counsel, and our field interviews, FBI employees expressed 

recognition of the FBI’s obligation to protect civil liberties. The FBI 

personnel we questioned about the Part VI authorities – from new agents 

through the Director – exhibited awareness of the FBI’s past lapses in the 

area of domestic political investigations and surveillance of protesters. 

Specifically with respect to the authority to visit public places and attend 

public events, field and Headquarters personnel we interviewed said they 

are acutely sensitive to the need to exercise these authorities carefully and 

responsibly. 

What is missing, however, in the FBI’s implementation of the Part VI 

authorities is the capability to retrieve and analyze information about when 

and how these authorities are used; whether information derived from 

visiting public places and attending public events is being inappropriately 

retained, indexed, or disseminated; and, for at least the first two years since 

the Guidelines were in effect, clear, easily accessible guidance on these 

authorities. Nearly two-thirds of Division Counsel who responded to our 

survey said they believed the guidance was unclear when the Guidelines 

were issued, and more than half believed the guidance was still unclear 21 

months later when they responded to our survey. In our view, in light of the 

minimal predication standards and the potential for abuse, the FBI should 

reconsider whether advance supervisory approval and easily retrievable 

documentation should be required when Part VI authority is used. 

In evaluating the sufficiency of the Guidelines’ provisions and related 

FBI guidance on Part VI.A authorities, we compared the internal controls for 

predication in the FBI’s use of Part VI authorities with the FBI’s parallel 

authorities under the NSI Guidelines. Effective October 31, 2003, the NSI 

Guidelines introduced a new investigative activity called “threat 

assessments.” The NSI guidelines permit the FBI to visit public places and 

attend public events for the: 

proactive collection of information concerning threats to the 

national security, including information on individuals, groups, 

and organizations of possible investigative interest, and 

information on possible targets of international terrorist 

activities or other national security threats. . . . This is 

comparable to the authorization under Part VI of the Attorney 

General’s Guidelines on General Crimes, Racketeering 
204

Enterprise and Terrorism Enterprise Investigations to engage in 

information collection for counterterrorism or other law 

enforcement purposes without any more specific investigative 

predication . . . . 

NSI Guidelines, Introduction, § A.1.316 While the FBI’s specific requirements 

for approval of threat assessments and documentation of information 

derived from the exercise of this authority are classified, we believe that the 

FBI should require at least equivalent measures for supervisory approval 

and documentation as are required for threat assessments under the NSI 

Guidelines. 

Particularly with respect to our analysis of the Part VI authorities and 

throughout this review, we have been mindful of the leading priority of the 

FBI: to “develop intelligence about terrorist activity and use that intelligence 

to disrupt their plans.”317 We agree with the sentiments expressed by 

Director Mueller that a careful balance must be struck between the 

objectives of encouraging proactive use of the Part VI authorities and having 

the assurance that at least a field supervisor has approved their use. 

However, we believe that the FBI should reevaluate – now and in 

conjunction with its ongoing plans for technology improvements and 

contemplated revisions of the Attorney General Guidelines – its guidance 

with respect to the authority to visit public places and attend public events, 

and for retaining, indexing and disseminating information derived from 

those activities. 

First, the FBI’s other authorities in the NSI, and investigative portion 

of the General Crimes Guidelines to visit public places such as religious 

sites are subject to layers of supervisory approval and documentation 

requirements. For example, a preliminary inquiry or full investigation of a 

religious site or its leadership under the NSI Guidelines’ counterterrorism 

classification requires SAC approval with notice to FBI Headquarters and 

the DOJ. Comparable investigative activity under the General Crimes 

Guidelines is a “sensitive criminal matter” requiring approval by the SAC 

with notice to FBI Headquarters and either the U.S. Attorney’s Office or the 

DOJ. These approvals would have to be obtained before an agent entered 

the religious site. A covert entry of a religious site by an undercover agent 

would also be classified as a sensitive circumstance under both the NSI 

Guidelines and the General Crimes Guidelines, requiring in either case FBI 

Headquarters approval. Likewise, before a source operating at the express 

 

316 The unclassified portions of the NSI Guidelines are available at: 

http://www.usdoj.gov/olp/nsiguidelines.pdf. 

317 Testimony of Robert S. Mueller, III, Director, Federal Bureau of Investigation, 

Before the Senate Judiciary Committee, May 20, 2004, available at: 

http://www.fbi.gov/congress/congress04/mueller052004.htm. 
205

direction of the FBI could enter a religious site, and before the FBI could 

open a source who is already a member of a religious organization, the SAC 

would have to approve the activity, as it would be classified a “sensitive 

circumstance” under both the Confidential Informant Guidelines and the 

NSI Guidelines. 

We appreciate that the new authorities to visit public places and 

attend public events for the purpose of detecting or preventing terrorist 

activities are designed to be used proactively and should not be encumbered 

with layers of supervisory approval. We therefore are not recommending 

that supervisory approval and notification for Part VI authorities be the 

same as that required for preliminary and full investigations. In the 

absence of exigent circumstances, however, we believe a field supervisor’s 

judgment should be brought to bear on the exercise of these new 

authorities. In addition, we believe the FBI’s use of these authorities should 

be documented in an easily retrievable fashion. 

Second, the FBI has already acknowledged in guidance distributed by 

OGC and in its response to congressional inquiries that when time permits 

agents should obtain supervisory approval before exercising Part VI.A.2 

authorities and that documentation should be maintained in some 

retrievable fashion. The FBI recognizes the value of this and encourages its 

agents to do so. However, we believe a uniform requirement to obtain such 

approval, absent exigent circumstances, should be implemented. 

Third, we believe that the FBI’s practice of retaining information 

derived from visiting public places or events in zero files does not provide 

the FBI with centrally retrievable information about the use of these 

authorities and does not facilitate compliance with the Guidelines’ 

constraints on record retention and dissemination. A simple, standardized 

form or an e-mail template could be used to capture when and why these 

authorities are used. Such a record would serve several purposes: 1) it 

would enable field supervisors to conduct meaningful “file reviews” every 

120 days, even in the absence of an investigative “file”; 2) it would assist the 

Inspection Division in performing the audit we recommend in Chapter 

Seven; and 3) it would also allow checks on whether the authorities are 

used appropriately. Since OGC has already issued guidance recommending 

that agents should document their attendance at public events pursuant to 

Part VI authorities, we believe the incremental burden of requiring 

standardized and easily retrievable documentation is reasonable and not 

significantly burdensome. 

Fourth, the added burden on case agents is not likely to be 

substantial. We were told in many field offices we visited that agents do not 

have time to visit public places or attend public events other than in 

connection with checking a lead, a preliminary investigation, or a full 

investigation. Consequently, requiring supervisory approval and easily 
206

retrievable documentation when these authorities are used should not be 

onerous. 

Fifth, the FBI’s information architecture is under a period of 

fundamental transformation.318 The FBI has the opportunity now to build 

into its technology systems the ability to identify the source of all 

information it collects, stores, and disseminates. Incorporating 

documentation requirements for the Part VI authorities should be 

considered now, as the FBI upgrades its information technology systems. 

Whether the information is collected as evidence for a criminal trial or as 

part of the FBI’s intelligence base, the FBI needs to be able to identify the 

source of information it collects and retains and be certain that field agents 

follow appropriate guidance with respect to the intended uses of the 

information.

We therefore recommend that the FBI take the following steps. 

(23) Require field level supervisory approval prior to the exercise of 

Part VI.A.2 authorities to visit public places or attend public events for the 

purpose of detecting or preventing terrorist activities, absent exigent 

circumstances. 

(24) Develop a standardized form or a short e-mail template to be 

completed by case agents to document their use of the Part VI.A.2 

authorities. 

(25) In light of the survey responses of Division Counsel, consider 

whether (a) field office practices since May 30, 2002, regarding predication, 

collection, record retention, indexing, and dissemination of Part VI.A 

information, and the practices regarding utilization of “zero files” or other 

files to capture Part VI.A information, are in conformity with the Guidelines 

and FBI guidance; (b) there is a need for further guidance on predication, 

collection, record retention, indexing, dissemination, or other issues; and 

(c) FBI Headquarters managers should have access to data reflecting use of 

Part VI.A.2 authorities in order to be satisfied that these authorities are 

used in conformity with the Guidelines. 

 

318 See Office of the Inspector General of the Department of Justice, Audit Report 

No. 05-07, The Federal Bureau of Investigation’s Management of the Trilogy Information 

Technology Modernization Project, Feb. 2005, available at: 

http://www.usdoj.gov/oig/audit/FBI/0507/final.pdf. 
207

CHAPTER SIX 

PROCEDURES FOR LAWFUL, WARRANTLESS 

MONITORING OF VERBAL COMMUNICATIONS 

(CONSENSUAL MONITORING) 

In this chapter we discuss the role of consensual monitoring in FBI 

investigations, the requirements of the Consensual Monitoring Guidelines, 

the May 2002 revisions to the Guidelines, and the results of our compliance 

review of consensual monitoring files in FBI field offices. We then provide 

our analysis and recommendations based on those findings and on our 

surveys and interviews of Headquarters and field personnel. 

I. Role of Consensual Monitoring 

Consensual monitoring is the interception by an electronic device of 

any wire, oral, or electronic communication where one of the parties to the 

communication has given prior consent to the monitoring or recording. A 

warrant is not required to conduct consensual monitoring, and the party 

providing consent may be a government agent. See 18 U.S.C. § 2511, 

(2) (c) – (e) (2002). 

The Attorney General Guidelines governing consensual monitoring 

cover only non-telephonic consensual monitoring.319 The types of 

monitorings addressed by these Guidelines include the use of body 

recorders and transmitting devices. To supplement the Guidelines, the FBI 

imposes detailed administrative and management controls on the use of 

both non-telephonic and telephonic consensual monitoring. MIOG II 

 § 10-10. 

Non-telephonic consensual monitoring is one of many electronic 

surveillance techniques available to investigators. Other techniques include 

dialed number recorders, “trap and trace” devices, and wiretaps. Dialed 

number recorders, sometimes called “pen registers,” capture electronic 

impulses generated by a telephone line. The data includes call information 

such as the telephone numbers dialed, date and time of the activity, and 

other special services subscribed to by the target through the telephone 

company, such as caller-ID, call forwarding, conference calls, and call 

waiting. A “trap and trace” device records the originating phone numbers of 

all incoming calls on a particular phone line. A wiretap is the interception 

of oral, wire, and electronic communications.320 While all of these 

 

319 We provide a copy of the CM Guidelines in Appendix B. 

320 Title III of the Omnibus Crime Control and Safe Streets Act, 18 USC §§ 2510-2522, 

enacted in 1968, established the basic law for federal and state law enforcement 

interceptions performed for the purpose of criminal investigations. A wiretap is commonly 

referred to as a “Title III.” 
208

techniques require a warrant or court order, only wiretaps provide 

investigators with the record of the conversation. The advantage of 

consensual monitoring over the methods described above is that no warrant 

is required and the investigator can obtain a record of the conversation. 

II. Significant Requirements 

In this section we summarize the requirements of the Consensual 

Monitoring Guidelines, including those relating to authorizations, 

application requirements, and recordkeeping. 

The Consensual Monitoring Guidelines establish separate 

authorization procedures for consensual monitorings that require written 

approval from the DOJ, those that may be authorized by an FBI Special 

Agent in Charge (SAC) or Assistant Special Agent in Charge (ASAC), and 

those that may be authorized in emergency situations. 

Section II.A of the Consensual Monitoring Guidelines requires DOJ 

approval for monitorings that concern certain categories of public officials 

and others, such as members of Congress and state Governors.321 When an 

investigation relates to such persons, requests for authorization must be 

approved in writing by the Director or Associate Director of the Office of 

Enforcement Operations of the Criminal Division of DOJ.322 In addition, the 

FBI requires that a SAC or ASAC must approve requests to conduct nontelephonic consensual monitoring in both sensitive and non-sensitive 

matters, as described below. MIOG II §§ 10-10.3(1) and (3). 

The Guidelines specify that the application to conduct consensual 

monitoring must address eight factors: 1) the reasons for the monitoring; 

2) if the monitoring is for investigative purposes, a citation to the principal 

criminal statute involved; 3) the nature of any danger to the consenting 

party if the monitoring is designed for protection; 4) the location of the 

monitoring device; 5) the location and primary judicial district where the 

monitoring will take place; 6) the length of time needed for the monitoring, 

 

321 “Sensitive” individuals are listed in Part II.A of the Guidelines and include members 

of Congress, federal judges, and the Governor, Lieutenant Governor, or Attorney General of 

any state. See CM Guidelines § II.A at B-90. For certain categories of individuals, DOJ 

approval is required when the monitoring relates to an investigation in which the sensitive 

person is a target of the investigation (e.g., a Governor). Section II.A of the Guidelines also 

identifies persons for whom the monitoring request must be approved by DOJ only when 

they are a party to the monitored communication (e.g., a member of the diplomatic corps). 

322 Authority to engage in consensual monitoring where written DOJ approval is 

required may also be given by the Attorney General, the Deputy Attorney General, the 

Associate Attorney General, the Assistant Attorney General or Acting Assistant Attorney 

General in charge of the Criminal Division, or a Deputy Assistant Attorney General in the 

Criminal Division. CM Guidelines III.C at B-93.
209

but in no event more than 90 days from the day the monitoring is scheduled 

to begin; 7) the names of the persons, if known, who will be monitored; and 

8) whether the facts of the surveillance have been discussed with the U.S. 

Attorney, Assistant U.S. Attorney, or DOJ attorney responsible for a 

particular investigation, and that the attorney advises that the consensual 

monitoring is appropriate under the Guidelines. Requests for renewal of 

such authorizations must contain all the information required for the 

original application and must explain why the additional monitoring is 

needed. Consensual Monitoring Guidelines § III.A(1)-(9). 

The authorization procedures for consensual monitorings that do not 

require DOJ approval (non-sensitive monitorings) are set forth in Section V 

of the Guidelines. That section states that permission for such monitorings 

must come from the head of the agency or his or her designee. In the case 

of the FBI, this may be a SAC or ASAC. As with sensitive monitorings, the 

FBI must obtain advice from a U.S. Attorney, Assistant U.S. Attorney, or 

DOJ attorney responsible for the investigation that the proposed monitoring 

is legal and appropriate. Consensual Monitoring Guidelines § V. 

The Guidelines further require that agencies maintain records for all 

consensual monitorings that they have conducted. Id. The FBI has 

developed Form FD-759, captioned “Notification of SAC/ASAC Authority 

Granted for Use of Telephonic and/or Nontelephonic Consensual Monitoring 

Equipment in Criminal Matters Only,” to document approval by a SAC or 

ASAC for the use of consensual monitoring equipment in both sensitive and 

non-sensitive matters. Form FD-759 addresses the eight factors listed 

above. In addition, for sensitive monitorings, this form must be 

accompanied by a letterhead memorandum that addresses the same eight 

factors. MIOG II § 10-10.3(9). 

The Guidelines do not identify the requirements necessary to obtain 

approval for non-sensitive monitorings. Part V does, however, require that 

records for non-sensitive monitorings must be maintained that contain all 

the information required for sensitive monitorings, including the time 

needed for the monitoring and documentation of the required attorney 

advice.323

 

323 MIOG II § 10-10.3(1). Section 10-10.1(4) addresses the maintenance of monitoring 

records: 

Separate control files – one for telephonic consensual monitoring 

and another for nontelephonic consensual monitoring (body recorders 

and/or transmitting devices) should be established in each field office. 

Documents relative to the authorization and utilization of these 

techniques should be retained in the appropriate control file. These 

control files will be for the purpose of the SAC’s administrative control 

and for use during the inspection. 

(continued) 
210

The Guidelines also provide authorization procedures for monitoring 

requests in emergency situations. Emergency requests in cases in which 

DOJ approval is required may be made by telephone to the DOJ Criminal 

Division and later reduced to writing as soon as practicable after 

authorization has been obtained. The Guidelines require that oral requests 

include all the information contained in written requests, and that 

documentation relating to the oral authorization be maintained in an 

appropriate filing system. Consensual Monitoring Guidelines § III.B. The 

MIOG provides that emergency requests for sensitive monitorings may be 

authorized verbally by DOJ. MIOG Part II, § 10-10.3(1). In addition, the 

Guidelines state that “each department or agency shall establish procedures 

for emergency authorizations in cases involving non-sensitive circumstances 

similar to those that apply with regard to cases that involve . . . sensitive 

circumstances . . . .” Consensual Monitoring Guidelines § V. The MIOG, 

however, does not contain provisions that implement this requirement. 

The duration of authorizations for sensitive monitorings is addressed 

in § III.A.6 of the Guidelines, which requires monitoring requests to state 

the amount of time needed to perform the monitoring and limits monitoring 

periods to no more than 90 days. Extensions for additional periods of up to 

90 days may be obtained provided a demonstration is made of the need for 

continued monitoring. Consensual Monitoring Guidelines § III.A.6. 

Section V of the Guidelines requires records for non-sensitive monitorings to 

contain all the information required for sensitive monitorings, including the 

time needed for the monitoring. 

The MIOG restates the Guidelines’ language regarding authorization 

periods for sensitive monitorings. MIOG II §10-10.3(9)(f). For non-sensitive 

monitorings, the MIOG provides that non-telephonic consensual monitoring 

(NTCM) in criminal matters may be approved by the SAC for the duration of 

the investigation. Id. §§ 10-10.3(1) and (3). 

III. Major Revisions to the Consensual Monitoring Guidelines 

The May 2002 revisions to the Consensual Monitoring Guidelines 

relaxed administrative requirements associated with the authorization of 

consensual monitoring. The most significant revisions included the 

following. 

 

The MIOG further provides that: 

SAC approval for nonsensitive NTCM [nontelephonic consensual 

monitoring] usage is to be documented on Form FD-759. . . . [and] is to 

be typewritten, completed in its entirety and forwarded to the 

appropriate FBIHQ entities within seven workdays of the date authority 

is granted as indicated on Item 5 of the form. 

MIOG II § 10-10.3(1). 
211

• Removing the requirement to obtain concurrence or authorization 

from a federal prosecutor for consensual monitorings. Instead, the 

prosecutor must advise that the proposed monitoring is legal and 

appropriate.324 When the attorney cannot provide this advice for 

reasons unrelated to the legality or propriety of the monitoring, the 

required advice may be obtained from a designated attorney in the 

DOJ’s Criminal Division. 

• Allowing delegations of authority to approve monitorings to ASACs 

in certain circumstances, such as monitorings that do involve 

sensitive persons or circumstances. 

At the time the Guidelines were revised, trial attorneys were 

sometimes constrained by state ethics rules from providing advice regarding 

monitorings that were legally appropriate.325 An additional concern was that 

the existing requirement of obtaining approval by a SAC for consensual 

monitorings could “result in a loss of investigative opportunities because of 

an overly long approval process,” and hence it was necessary to delegate 

authority to ASACs to “facilitate FBI investigative operations.”326 

IV. The OIG Review of the FBI’s Compliance with the Consensual 

Monitoring Guidelines 

To assess the FBI’s compliance with the Consensual Monitoring 

Guidelines, we reviewed the documentation supporting 103 consensual 

monitoring “overhears” (i.e., the recorded verbal communication captured by 

the monitoring device) in 11 field offices. For each monitoring we examined 

the following key requirements of the Guidelines. 

• Was the monitoring approved before the recording began? 

• Did the FBI obtain written approval from the DOJ when the 

monitoring involved “sensitive” individuals identified in the 

Consensual Monitoring Guidelines? 

 

324 Memorandum from FBI Office of the General Counsel, Revised Department of 

Justice Procedures for Lawful Warrantless Monitoring of Verbal Communications, July 5, 

2002. 

325 Id. This change was prompted by the so-called “McDade Amendment,” which 

subjects federal attorneys to state laws and rules governing the practice of law. 28 U.S.C. 

§ 530B (1999). Because many state ethics rules prohibit attorney contact with represented 

parties, prosecutors risked violation of these rules when authorizing consensual 

monitorings. 

326 Memorandum from Attorney General John Ashcroft, Procedures for Lawful, 

Warrantless Monitoring of Verbal Communications, May 30, 2002, at 2. 
212

• Did the FBI document that the facts of the surveillance were 

discussed with the responsible prosecutor and that the prosecutor 

advised that the consensual monitoring was legal and appropriate? 

• Did the FBI renew the monitoring when appropriate? 

V. Compliance Findings 

As noted above, the MIOG requires that FBI Special Agents request 

authorization to conduct non-telephonic consensual monitorings on Form 

FD-759. Because this Form collects information on all of the Guidelines 

issues we examined, including required written approval from SACs or 

ASACs, our review concentrated on the information provided on the Form. 

We found the following. 

• Overhear recordings were made in 9 of the 103 monitorings prior 

to the authorization date on Form FD-759. 

• 2 of the 103 monitorings required written DOJ approval because 

they involved the monitoring of “sensitive” individuals. The file 

relating to one of these monitorings did not contain documentation 

indicating that DOJ had been contacted for approval. 

• Agents recorded that an Assistant U.S. Attorney had advised that 

the monitorings were legal and appropriate in each of the 103 

monitorings.327

• One of the 103 overhear recordings, which related to the 

investigation of a “sensitive” individual, occurred over 90 days after 

approval by the SAC or ASAC, but no documentation was included 

in the file indicating that an extension was requested.328 

Recording Overhears Prior to SAC or ASAC Approvals

The Guidelines require that a SAC or ASAC authorize monitoring 

requests in circumstances where the Guidelines do not require written DOJ 

approval (i.e., when monitoring non-sensitive persons). In addition, the 

 

327 The most recent version of Form FD-759 states that the Assistant U.S. Attorney 

has advised that the monitoring is legal and appropriate, consistent with the May 2002 

Guidelines changes. The earlier version of Form FD-759 stated that the Assistant U.S. 

Attorney concurred in the use of the technique. 

328 We also found that 27 non-sensitive monitorings, or 26 percent of the 103 overhear 

recordings, occurred over 90 days after approval by the SAC or ASAC and lacked 

documentation in the file indicating that extensions were requested. However, as we 

explain below, we believe that the Guidelines are ambiguous with respect to the permissible 

duration of authorizations for non-sensitive monitorings. 
213

MIOG requires SAC or ASAC approval in addition to DOJ authorization in 

sensitive monitorings. 

Ten of the FD-759s we reviewed recorded approval dates by the SAC 

or ASAC after the first overhear was recorded. This number does not 

include those instances when the Form FD-759 contained a notation that 

approval was granted verbally prior to the first recording. The recording of 

overhears occurred from between 1 and 59 days prior to receiving approval 

by the SAC or ASAC, as shown below. 

TABLE 6.1 

OIG Compliance Findings on Consensual Monitorings Conducted 

Without Written Authorization in Select FBI Field Offices 

Number of 

Violations 

Number of Days From 

First Overhear to 

First Authorization Field Office 

2 1 Field Offices 5 & 6 

1 3 Field Office 3 

1 24 Field Office 4 

1 25 Field Office 12 

1 27 Field Office 12 

1 56 Field Office 12 

1 58 Field Office 1 

1 59 Field Office 1 

According to our interviews of field office personnel, when recordings 

were made within a few days of the approvals by the SAC or ASAC, the case 

agents received oral approvals from the managers prior to the recordings. 

However, the oral approvals were not noted on the Form FD-759, and we 

were provided no other evidence of the approvals in response to our request 

for documentation. 

Monitorings Requiring DOJ Approval

Section II.A of the Consensual Monitoring Guidelines requires written 

authorization by the DOJ Criminal Division’s Office of Enforcement 

Operations for consensual monitoring of “sensitive” persons. To implement 

this provision, the MIOG requires that, in addition to the submission of the 

Form FD-759, the field office must provide a memorandum to FBI 

Headquarters for transmission to DOJ describing the information required 
214

by the Guidelines. Our review found that of two monitorings we reviewed 

that required DOJ approval, one was supported by documentation 

indicating that such approval had been received and the other was not. 

Attorney Advice

Our review of consensual monitoring files revealed that case agents 

always recorded information regarding their receipt of advice that the 

proposed monitoring was legal and appropriate. We did not encounter any 

instances in which an Assistant U.S. Attorney refused to provide advice 

based on concerns related to the McDade law.329

Length of Time Authorized for Monitoring

Section III.A of the Consensual Monitoring Guidelines lists the 

information that must be included in any request to monitor an oral 

communication that requires written DOJ approval. Section III.A.6 provides 

that the request must state the length of time needed for the monitoring and 

that an initial authorization may be granted for up to 90 days from the day 

the monitoring is scheduled to begin. Extensions for additional periods of 

up to 90 days also may be granted. Section V of the Guidelines, which 

addresses monitorings that do not require DOJ approval, requires that 

monitoring records include the information set forth in Section III.A, 

including the length of time needed for the monitoring. 

Our review of consensual monitoring records found that for those 

monitorings that did not require DOJ approval, the FBI was making blanket 

authorizations for the duration of its investigations rather than specifying 

the time needed for the monitoring.330

Twenty-eight of the overhears we reviewed occurred over 90 days after 

approval by the SAC or ASAC. One of these occurred in a sensitive 

 

329 The FBI's Office of the General Counsel (OGC) reports that it continues to receive 

requests from field offices to help overcome some prosecutors’ reluctance to approve FBI 

requests to consensually record a subject who is represented by counsel. The reluctance is 

based on the concern that approval may violate the state Bar disciplinary rules that 

typically prohibit contact with represented parties. Federal prosecutors have been subject 

to these state rules since 28 U.S.C. § 530B, the McDade law, became effective in 1999. 

This reluctance continues to arise despite extensive legal research by DOJ’s Professional 

Responsibility Advisory Office (PRAO) and FBI OGC which clarifies that pre-indictment 

covert approaches by a cooperator or undercover agent to a subject does not violate the 

"represented party" rule according to the prevailing appellate case law. 

 FBI OGC typically advises field offices to ask the reluctant prosecutors to discuss 

with their USAO professional responsibility advisor, their criminal chief, and, if need, be the 

DOJ PRAO. 

330 Form FD-759 includes a check box under the “Duration of proposed use” that 

provides: “For the duration of investigation.” 
215

monitoring. The last overhear date in this matter was 101 days after the 

initial approval by the SAC or ASAC and 93 days after the first overhear. 

Representatives from the field office that conducted this monitoring 

explained that they had inadvertently missed the 90-day deadline, and, in 

any event, the operational rule they follow is that consensual monitoring 

authority for sensitive matters begins with the first monitoring. The 

overhears in the other 27 monitorings were in non-sensitive matters. The 

last overhears in these matters, which were approved by a SAC or ASAC, 

occurred from 98 to 764 days after approval. 

VI. OIG Analysis and Recommendations 

Our review of the FBI’s compliance with the Consensual Monitoring 

Guidelines found that the FBI was generally in compliance with the 

Guidelines, although we identified notable deficiencies, particularly with 

regard to the Guidelines’ requirements for authorization. Although the 

MIOG’s implementing provisions for the Guidelines require written 

authorization for all non-telephonic consensual monitorings that are not 

conducted in emergency situations, in 10 percent of the recorded overhears 

we examined, supervisory approval post-dated the first overhear, in most 

cases by more than 3 weeks. The FBI did not provide any documentation 

from case agents, technicians, or managers demonstrating that the approval 

was granted prior to recording overhears in these cases. Thus, it appears 

that, contrary to FBI requirements, agents were not following proper 

approval procedures in these cases. Our review of FD-759 Forms and 

ensuing discussions with FBI personnel, including electronic surveillance 

technicians, established that the Guidelines’ requirements for obtaining 

necessary approvals were not followed in these instances. 

We also found that in monitorings that do not involve the “sensitive” 

persons identified in Section II.A of the Consensual Monitoring Guidelines, 

the FBI is construing the Guidelines to permit a single approval to authorize 

consensual monitoring for the duration of its investigations. After 

consulting with the Office of Enforcement Operations in the DOJ Criminal 

Division, we believe that the FBI’s interpretation of the Guidelines may be in 

error. Section V of the Guidelines requires that monitoring records include 

the information set forth in Section III.A.6, which provides that the request 

must “state the length of time needed for the monitoring” and establishes a 

90-day authorization period (emphasis added). The MIOG provides, 

however, that in non-sensitive consensual monitorings, the SAC or ASAC 

may approve the monitoring “for the duration of the investigation.” MIOG 

Part II, §10-10.3. This has become a routine practice at the FBI and is 

incorporated in the standardized FD-759 Forms used to secure approvals. 

We believe that the FBI and DOJ should discuss the proper interpretation of 

Section V of the Consensual Monitoring Guidelines and that the FBI should 

issue clarifying guidance. 
216

In sum, we recommend that the FBI take the following steps. 

(26) Ensure that required authorizations for consensual monitoring 

are obtained in advance and are appropriately documented. 

(27) For monitorings that do not require DOJ approval, consult with 

DOJ to resolve whether the Consensual Monitoring Guidelines should be 

interpreted to authorize monitoring for more than 90 days (including up to 

“the duration of the investigation” as currently provided on Form FD-759), 

or whether the authorization is limited to 90 days. The resulting 

interpretation should be incorporated in the FBI’s MIOG and communicated 

to the field. 
217

CHAPTER SEVEN 

FBI AND DOJ COMPLIANCE OVERSIGHT AND 

ENFORCEMENT MECHANISMS 

The FBI relies upon various oversight and enforcement mechanisms 

to ensure compliance with the Attorney General Guidelines. These include 

two joint FBI-DOJ review committees that approve certain undercover 

operations and confidential informants, the FBI’s Inspection Division, and 

the employee disciplinary process. In addition, certain FBI program offices 

conduct field evaluations to gauge the performance of FBI operations. The 

evaluative criteria employed in such reviews often include requirements that 

are based on the Attorney General Guidelines. Below we describe how each 

of these oversight and enforcement mechanisms functions and their 

respective roles in promoting the FBI’s adherence to the investigative 

standards and authorities set forth in the Guidelines. 

I. FBI-DOJ Committees that Approve and Monitor Certain 

Undercover Operations and Confidential Informants 

We discuss below the committee with authority to approve, fund, 

modify, extend, or expand the focus of Group I undercover operations, and 

the committee with authority to approve certain categories of confidential 

informants. 

A. Criminal Undercover Operations Review Committee 

(CUORC) 

When the first Attorney General Guidelines on FBI undercover 

operations were issued in 1981, FBI field offices or Headquarters Divisions 

proposing to initiate certain types of high-risk undercover operations were 

required to secure the approval of FBI Headquarters and the FBI Director. 

Since 1978, Headquarters approval has included both the operational unit 

overseeing the operation (e.g., violent crimes, public corruption) and the 

Criminal Undercover Operations Review Committee (CUORC). The CUORC 

is one of the key internal controls employed by the FBI and DOJ to review, 

approve, modify, and monitor Group I undercover operations involving 

“sensitive circumstances.” In 1979, three voting members from the DOJ 

were added to the Committee.331

 

331 Initially called the Undercover Operation Review Committee when it was 

established in September 1978, the Committee consisted of seven voting members from FBI 

Headquarters. Three DOJ voting representatives were added in 1979 when DOJ attorneys 

voiced concerns about certain undercover operations and suggested forming a separate 

review committee from which the FBI’s Undercover Operation Review Committee would 

need to secure approval. The DOJ members added to the CUORC at that time were the 

Chief of the DOJ Criminal Division’s Public Integrity Section and the Assistant Chiefs of the 

(continued) 
218

Under the May 2002 Guidelines, the CUORC is composed of FBI 

employees, designated by the FBI Director, and DOJ attorneys designated 

by the Assistant Attorney General in charge of the Criminal Division.332 The 

CUORC chair is a designee of the FBI Director. 

The CUORC’s members are: 

1. the FBI’s Deputy Assistant Director of the Criminal Investigative 

Division (Chairman); 

2. FBI Section Chiefs of the Technology Operations Section, 

Violent Crimes and Major Offenders Section, Counterterrorism 

Division, Operational Support Section, Cyber Division; Financial 

Crimes Section, Transnational Criminal Enterprise Section, 

Integrity in Government/Civil Rights Section, International 

Terrorism Operations Section 1, Americas Criminal Enterprise 

Section, and the Domestic Terrorism/Counterterrorism 

Planning Section; 

3. FBI Unit Chiefs of the National Backstopping/Safeguard Unit, 

Asset/Informant Unit, Confidential Services Unit, Undercover & 

Sensitive Operations Unit, Civil Litigation Unit, and the 

Investigative Law Unit, and the Assistant General Counsel, Civil 

Litigation Unit II; 

4. DOJ’s Director of the Office of International Affairs; and 

5. DOJ Criminal Division Chiefs of the Narcotic and Dangerous 

Drug Section, Counter Espionage Section, Public Integrity 

Section, Fraud Section, Domestic Security Section, Organized 

Crime and Racketeering Section, Child Exploitation and 

Obscenity Section, Asset Forfeiture and Money Laundering 

Section, Counterterrorism Section, and Computer Crime and 

Intellectual Property Section. 

The CUORC meets bi-monthly. Its charge is to review, approve, and 

provide continuing oversight of certain criminal undercover operations 

conducted in the course of general crimes and criminal intelligence 

investigations. In particular, upon receipt of a field office’s or Headquarters’ 

recommendation, the Committee is responsible for assessing the risks and 

benefits of proposed criminal undercover operations involving “sensitive 

 

Criminal Division’s Organized Crime and Fraud Sections. A history of the early versions of 

the Undercover Guidelines and the Undercover Operation Review Committee can be found 

in the Final Report of the Select Committee to Study Undercover Activities of Components of 

the Department of Justice, 97th Cong. 49-55 (1982). 

332 Undercover Guidelines § IV.D.1 at B-46. 
219

circumstances.”333 These include investigations of public corruption or 

other criminal conduct by elected or appointed officials; operations with a 

substantial risk of violence, physical injury, or financial loss; activities 

having a significant effect on or constituting significant intrusion into the 

legitimate operation of a governmental entity; participation in 

communications between an individual and his or her lawyer, physician, or 

clergyman; and undercover operations in which undercover agents may 

participate in felonious activities.334 Such operations are referred to as 

“Group I Undercover Operations” or “Group 1 UCOs.”335

The following table illustrates the type of Group I UCOs approved by 

the CUORC: 

TABLE 7.1 

Group I Undercover Operations Approved 

During FY 2003 

Program Total 

Cyber [SENSITIVE INFORMATION REDACTED 

Organized Crime/Drug [SENSITIVE INFORMATION REDACTED

Violent Crimes & Major Offenders [SENSITIVE INFORMATION REDACTED

White Collar Crime [SENSITIVE INFORMATION REDACTED

Domestic Terrorism [SENSITIVE INFORMATION REDACTED

International Terrorism [SENSITIVE INFORMATION REDACTED

1. The CUORC Review Process 

When an FBI field office or Headquarters Division seeks to initiate, 

extend, change the focus of, or request additional funding for a Group I 

UCO, the SAC of the field office must first submit a proposal to the FBI 

 

333 FBI Headquarters must approve a second category of special circumstances in 

undercover operation proposals. These undercover operations involve “fiscal 

circumstances,” defined in § IV.C.1 of the Undercover Guidelines, at B-43. 

334 Undercover Guidelines § IV.C.2 at B-44. 

335 Undercover operations that do not involve either sensitive or fiscal circumstances 

are called “Group II UCOs” and do not initially require FBI Headquarters approval. 

Undercover Guidelines § IV.B at B-41. Group II UCOs may be initiated and, within certain 

limitations, extended under the authority of the Special Agent in Charge (SAC). See Field 

Guide for Undercover and Sensitive Operations (FGUSO) § 2.1(1) (July 25, 2003). We 

learned that most field offices establish a field office-level review committee to evaluate all 

Group II proposals, although they are not required to do so. 
220

Headquarters’ section handling the investigation.336 The proposal sets forth 

the specific details regarding the background, objectives, scenario, and 

justification of the investigation, the subjects of the undercover operation, 

the proposed use of informants, and the sensitive or fiscal circumstances 

involved. The application also contains information on the requested budget 

for the operation, the investigative team, and any requests for exemptions 

from the Guidelines (e.g., to lease space or establish a proprietary business). 

The application must be accompanied by a signed statement from the SAC, 

the office’s Undercover Coordinator, and its Chief Division Counsel 

acknowledging that they have reviewed and support the proposal. The U.S. 

Attorney in the District where the operation will be conducted or a Section 

Chief in the Criminal Division of the DOJ must also submit a letter of 

support. 

FBI Headquarters has a specialized unit within the Operational 

Support Section of the Criminal Investigative Division (CID) that, among 

other duties, works with field offices and FBI Headquarters operational 

units on Group I proposals that are to be submitted to the CUORC for 

approval. The Undercover and Sensitive Operations Unit (USOU) addresses 

problems with the proposals and anticipates questions the CUORC may ask 

at its periodic meetings. It also publishes the Field Guide for Undercover 

and Sensitive Operations (Field Guide), which contains a step-by-step 

explanation of the documentation that must accompany applications for 

undercover operations, including the paperwork needed to administer and 

to close down an operation. The Field Guide was revised twice since the 

May 2002 Guidelines were issued, most recently in July 2003. 

We learned from our interviews of its managers that USOU has from 

time to time discovered and corrected Guidelines violations. These 

included, for example, an instance where a field division was operating an 

undercover operation as a Group II UCO, when it clearly should have been 

classified as a Group I UCO. In another instance, USOU identified a 

Guidelines violation when it reviewed an undercover operation that was 

targeting a terrorist group, a subject requiring CUORC approval as a 

Group I UCO. 

After approvals by the pertinent Headquarters’ operational managers 

(Section Chief and Deputy Assistant Director) and the Section Chief of the 

Operational Support Section (which includes USOU), the application is sent 

to the CUORC for consideration. A representative from the FBI 

Headquarters’ operational section typically presents the proposed 

 

336 Undercover operations proposed as part of the programs supervised by CID must 

be approved by its Assistant Director. Undercover operations proposed as part of other 

programs must be approved by both the Executive Assistant Director of the particular 

program and the Assistant Director of CID. FGUSO § 4.3 (July 25, 2003). 
221

undercover operation to the CUORC and answers questions posed by the 

Committee’s members. The CUORC members may also consult with U.S. 

Attorneys, SACs, and other personnel when necessary. When the CUORC 

approves the proposal, the application is sent to the FBI Director or 

designated Assistant Director for final approval. Upon final approval, the 

USOU sends a letter to the field office informing it of the decision. If the 

CUORC is not satisfied with the proposal or is unwilling to approve it in the 

form originally submitted, stipulations may be attached to the application 

that will constrain various aspects of the undercover operation, including 

stipulations to reduce the risk of harm to persons or property and to 

minimize the risk of entrapment or other legal defenses in the event of a 

prosecution. Support personnel from USOU record the stipulations and 

minutes of all CUORC meetings. 

The DOJ CUORC members stated that since the May 2002 revisions, 

FBI Headquarters is doing a better and more proactive job in answering 

their questions both before and during the meetings. The DOJ members of 

the Committee told us they are not aware of any problems with the 

CUORC’s operation and did not suggest any changes to the scope of the 

Committee’s activities or the information provided to members prior to their 

meetings. 

2. The CUORC’s Activities from October 2003 to March 

2005 

We attended 18 CUORC meetings during the period October 2003 to 

March 2005. We observed that by the time the CUORC met on a particular 

undercover operation – whether in the context of a new proposal or a 

proposal to extend, expand, or change the focus or increase the budget of an 

existing undercover operation – the proposal usually had been well vetted. 

Members of the CUORC had already reviewed the paperwork and had 

discussed in advance any major issues concerning the proposal. The 

presenters from FBI Headquarters typically were very well prepared and 

knowledgeable about the details of the undercover operation and responded 

effectively to questions posed by committee members. 

We also reviewed the official minutes of CUORC meetings from May 

2002 to March 2005. Issues and topics that frequently were discussed at 

CUORC meetings include: 

1. whether appropriate measures were being taken to ensure the 

safety of confidential informants and cooperating witnesses during 

undercover operations; 

2. whether appropriate steps had been taken to ensure that privileged 

informants [e.g., lawyers or clergy] used in the undercover 

operation were cognizant of the nature of the information gathered 

and would avoid the acquisition of privileged information; 
222

3. whether steps were being taken to reduce the likelihood of third 

party liability, including the addition of stipulations to operations 

that involved the purchase of property, the operation of a 

proprietary business, the targeting of products or substances that 

are subject to federal regulation for health and safety reasons, or 

the transfer of property in which members of the public could be 

affected; 

4. whether the procedures used to limit the possibility of violence in 

connection with an undercover operation were sufficient; 

5. whether the elements of the federal crimes being investigated were 

likely to be established by the undercover operation and 

encouraging close coordination with the pertinent U.S. Attorney’s 

Office; and 

6. ensuring that operations that touch on First Amendment-protected 

activity were carefully vetted (such as operations involving 

legislation or other governmental processes). 

We also reviewed the CUORC’s Annual Reports to the Attorney 

General and its reports to the Congress since 2002. The Reports reflect the 

variety of sensitive undercover operation matters the Committee reviewed. 

Cases reviewed by the CUORC during this period included: 

• a white collar crime investigation targeting health care fraud in 

which the CUORC strongly urged the SAC of the field office 

investigating the case to consult with the U.S. Attorney to ensure 

that anticipated criminal charges would merit prosecution. In the 

same matter, the CUORC was assured that the undercover 

employees would not be submitting false testimony or affidavits in 

court proceedings because all claims would be settled prior to that 

stage in the proceedings; 

• a Computer Crime-Intellectual Property Rights Program 

undercover operation targeting the purchase and sale of “gray” 

market computers in which the FBI instituted procedures at the 

suggestion of the CUORC to identify the manufacturer of stolen 

property. These steps were taken to allay concerns regarding 

potential third-party liability if the stolen property was passed 

through the undercover operation to subjects intending to sell the 

items to the general public (as opposed to being purchased by the 

undercover operation and held as evidence); 

• an Organized Crime undercover operation targeting operations in a 

large U.S. city in which the FBI addressed the CUORC’s concerns 

about the undercover employee’s expected involvement in a 

conspiracy to violate bribery, gambling, and prostitution laws. The 

CUORC ultimately concluded that the undercover employee’s 
223

participation was necessary to obtain evidence to prosecute more 

serious crimes, and that the undercover employee had not and 

would not initiate any criminal activity, but would only monitor the 

criminal acts of others; and 

• a White Collar Crime-Health Care Fraud operation which was 

modified so that the undercover employee would not have access to 

confidential patient records and would not interview patients and 

physicians. 

We found in our review of CUORC records that nearly all undercover 

operations brought to the CUORC were approved, some with modifications. 

However, the CUORC rejected or tabled several proposals for undercover 

operations during fiscal years 2002 and 2003. These included a proposed 

undercover operation targeting illegal gambling that was turned down 

because of the Committee’s concerns about the relationship of a cooperating 

witness with the FBI, the cooperating witness’s intent to solicit others to 

commit criminal acts, and potential civil liability issues. The Committee 

also rejected a proposed undercover operation targeting a paramilitary 

operation due to questions relating to the predication of the subjects, the 

safety of the operation, potential liability issues, and an inadequate plan for 

the arrest of the subjects. 

3. FBI Undercover Coordinator Survey Responses 

We surveyed Undercover Coordinators regarding perceptions of the 

CUORC.337 Undercover Coordinators are well positioned to provide insights 

on the CUORC’s effectiveness, at least with respect to the Group I UCOs 

that it sees. We received survey responses from 54 of the FBI’s 56 

Undercover Coordinators. 

Seventy-two percent of the Undercover Coordinators who responded 

to our survey said they believe that the CUORC is providing effective 

oversight of the approval and administration of undercover operations in 

their field offices.338 Only two Undercover Coordinators said they did not 

believe the CUORC provided effective oversight. The reasons Undercover 

Coordinators cited as to why the CUORC has provided effective oversight, or 

has not done so, are summarized in Diagram 7.1. 

 

337 As we discuss in Chapter Four, Undercover Coordinators are the FBI Field 

Divisions’ on-site experts concerning undercover matters. 

338 Twenty four percent said they were not in a position to answer the question. As we 

discuss later in this chapter, by comparison, only 46 percent of Confidential Informant 

Coordinators said they believe that the FBI-DOJ Confidential Informant Review Committee 

(CIRC) is providing effective oversight of the Criminal Informant Program. 
224

DIAGRAM 7.1 

NOT 

EFFECTIVE

4%

EFFECTIVE

72%

NOT IN A 

POSITION 

TO 

EVALUATE

24%

Why Is CUORC Effective?

79% of Undercover Coordinators who believe the CUORC’s oversight is “EFFECTIVE” said that 

the stipulations sometimes placed on undercover operations are important measures to help 

ensure a lawful operation.

67% of Undercover Coordinators who believe the CUORC’s oversight is “EFFECTIVE” said that 

the CUORC process is reasonably efficient and does not cause serious delays in the approval or 

renewal of undercover operations.

Undercover Coordinators’ Views on the Effectiveness of 

CUORC Oversight of Undercover Operations

4. OIG Analysis and Recommendations 

We found that during the period of our review, the CUORC played a 

vital role in reviewing, approving, and monitoring the most sensitive FBI 

undercover operations. Its members fulfilled their responsibilities both 

through informal exchanges before undercover proposals were submitted for 

approval and in formal discussions at the Committee’s bi-monthly meetings. 

Both the FBI and DOJ members of the Committee appeared to work well 

together, often collegially and by consensus, and we observed a full 

exchange of information when undercover proposals were presented for 

initial approval, extensions, budget enhancements, or changes in targeting 

or scope. When questions were asked about proposed or ongoing 

operations, FBI personnel provided responses at the CUORC meeting or 

promptly thereafter. 

From our observations of its meetings over an 18-month period, we 

believe that the CUORC is operating effectively in accordance with its 

mission to ensure undercover proposals adhere to the Undercover 

Guidelines, other legal mandates, and internal FBI mandates, and that 

those supervising the operations from Headquarters and in the field are 

promptly made aware of the Committee’s concerns. It is also clear that the 

Committee has strong support in the field, as evidenced by the positive 

observations in response to our surveys of FBI Undercover Coordinators. 

We believe the CUORC’s impact is attributable in part to the critical 
225

supporting role played by the Undercover and Sensitive Operations Unit at 

FBI Headquarters. 

However, we believe that CUORC members would be better informed 

and provide more effective oversight of undercover operations if they 

received additional pertinent information. As we discuss later in this 

chapter, the Inspection Division generates triennial Inspection reports that 

document the nature and extent of certain Guidelines violations. In 

addition, USOU conducts periodic on-site reviews of ongoing undercover 

operations that generate valuable information about the operational and 

administrative aspects of the operations. We believe the facts and insights 

contained in these reports concerning undercover operations and in the 

after-action reports for UCOs approved by the CUORC should be provided to 

members of the CUORC as they become available. 

We also believe the FBI could make more effective use of the extensive 

experience of the CUORC’s members by periodically aggregating the “lessons 

learned” from CUORC reviews and making them available in training and in 

USOU’s periodic publications. 

We therefore recommend that the FBI take the following steps. 

(28) Provide CUORC members, upon request, with access to copies of 

Inspection reports concerning undercover operations, the Undercover and 

Sensitive Operations Unit on-site reviews, and after-action reports of 

undercover operations. 

(29) Consider ways for the Undercover and Sensitive Operations Unit 

to develop more complete information for the CUORC and other FBI 

components, such as conducting a periodic analysis of the patterns and 

trends found in its on-site reports, informing the CUORC members of any 

persistent Guidelines violations, and providing copies of its semi-annual 

report to all FBI Headquarters’ operating Divisions, the Office of the General 

Counsel, and the Training Division. 

B. Confidential Informant Review Committee (CIRC) 

One of the major changes introduced by the January 2001 revisions 

of the Confidential Informant Guidelines was the requirement that the FBI 

and other Department of Justice Law Enforcement Agencies (JLEAs) 

establish within 30 days a Confidential Informant Review Committee 

(CIRC).339 The CIRC was directed to review three major types of confidential 

informants: 

 

339 CI Guidelines § I.I.2 at B-13. There were no changes to the jurisdiction or 

membership of the CIRC when the Confidential Informant Guidelines were revised in May 

2002. Prior to the January 2001 revisions, DOJ had no role in the initial approval of 

confidential informants. 
226

• Long Term Confidential Informants, defined as those who are 

registered with the JLEA for more than six consecutive years; 

• High-level Confidential Informants, defined as those who are part of 

the “senior partnership of an enterprise that (a) has (i) a national 

or international sphere of activities, or (ii) high significance to the 

JLEA’s national objectives, even if the enterprise’s sphere of 

activities is local or regional; and (b) engages in, or uses others to 

commit” certain enumerated acts including acts of violence, 

corrupt conduct, and drug trafficking; and 

• Privileged Confidential Informants, defined as those who are under 

the obligation of a legal privilege of confidentiality or are affiliated 

with the media. Individuals who are under the obligation of a legal 

privilege of confidentiality include attorneys, licensed physicians, 

and members of the clergy. 

The Confidential Informant Guidelines define the CIRC as “a 

committee, created for . . . purposes of reviewing certain decisions relating 

to the registration and utilization of CIs.” The Guidelines specify that the 

chair of the CIRC should be a person at or above the level of an FBI Deputy 

Assistant Director. The Guidelines also provide that the CIRC’s membership 

should include two representatives designated by the Assistant Attorney 

General in charge of the Criminal Division: a Deputy Assistant Attorney 

General for the Criminal Division and an Assistant U.S. Attorney.340

The FBI Director designated the Deputy Assistant Director for the CID 

to serve as chair of the Committee. Other FBI members of the CIRC are the 

Unit Chief and a Supervisory Special Agent in the CID’s Asset/Informant 

Unit (A/IU) (whose functions were transferred to the Human Intelligence 

Unit (HIU) as of November 2004), the Chief and Assistant Chief of the CID’s 

Criminal Intelligence Section, and a representative from the Office of the 

General Counsel. 

The DOJ Criminal Division members of the CIRC are the Principal 

Deputy Assistant Attorney General, a Senior Litigation Counsel, and the 

Chief of the Organized Crime & Racketeering Section. In addition, a U.S. 

Attorney and an Assistant U.S. Attorney serve on the Committee. 

The three categories of confidential informants reviewed by the CIRC 

constitute only a small percentage of informants operated by the FBI. 

However, under the Guidelines these informants require scrutiny by the 

CIRC because they present greater risks of potential liability, intrusion into 

governmental processes, and other adverse consequences. 

 

340 CI Guidelines § I.B.13 at B-11. 
227

1. The CIRC Review Process 

The CIRC generally meets monthly. From its inception in 2001 

through September 2004, it has approved 391 confidential informants.341 Of 

this total, 333 were long term confidential informants; 48 were confidential 

informants under the obligation of a legal privilege of confidentiality; 3 were 

confidential informants affiliated with the news media; and 7 were high-level 

confidential informants. 

As soon as the CIRC was established, its charge to review all “long 

term” confidential informants created an immediate backlog. To deal with 

the backlog, beginning in 2003 the CIRC reviewed approximately 40 

informants per meeting. Once the CIRC completed its review of the 

backlogged long term confidential informants, it reviewed an average of 

10 – 20 informants per meeting. 

To evaluate whether to approve or disapprove a long term, high-level, 

privileged, or media-affiliated confidential informant, the CIRC uses a 

6-page form called Initial (or Continuing) Confidential Informant Suitability 

Report and Recommendation (SR&R).342 Pursuant to Section II.A.1 of the 

Confidential Informant Guidelines, the field office or Headquarters’ Division 

proposing use of such a confidential informant completes the Initial 

Suitability Report & Recommendation (ISR&R) form.343 If the CIRC 

authorizes use of the informant, the office or division handling the 

informant must complete a Continuing Suitability Report & 

Recommendation (CSR&R) form, usually annually or when changed 

circumstances warrant.344 By the time the CSR&R gets to the CIRC, the 

information contained in it has already been evaluated and approved by FBI 

field office management. The CIRC then reviews the information contained 

in the suitability reports to decide whether, and under what conditions, the 

person should be utilized as a confidential informant. 

 

341 FBI Asset/Informant Unit Statistics (Sept. 28, 2004). 

342 Suitability Reports and Recommendations are also used for field office approval of 

lower-level confidential informants who are not required to be approved by the CIRC. We 

discuss in Chapter Three our findings regarding the FBI’s compliance with the key 

provisions of the Confidential Informant Guidelines. 

343 The Guidelines require the confidential informant’s contact agent to address in the 

ISR&R such factors as the person’s reliability and truthfulness; the investigative relevance 

of the information to be provided; the person’s motivation for providing information; and 

complete information on the person’s age, alien status, and criminal history, if any. A 

complete list of the suitability factors is provided in Chapter Three. 

344 CI Guidelines, § II.A.2 at B-15. As we discuss in Chapter Three, in the 12 FBI field 

offices we visited during this review, we found that 59 percent of the confidential informant 

files did not contain one or more of the required CSR&Rs. 
228

If the source has been opened as a confidential informant for over a 

year, the case agent must complete and sign a CSR&R. In addition to the 

factors addressed in the ISR&R, the report must specify the length of time 

the person has been registered as a confidential informant and the length of 

time the person has been handled by the same agent or agents.345

Approximately two weeks prior to each scheduled CIRC meeting, the 

A/IU sends a binder to each CIRC member. The binder includes the 

suitability report and a 6-page analysis of the confidential informant’s 

suitability based on the sponsoring field office’s responses to 26 questions 

asked by the A/IU.346 We found a considerable amount of communication 

about the proposed confidential informants prior to the CIRC meeting. Both 

the A/IU and DOJ members of the CIRC sometimes raise questions about 

the proposed informant based on information contained in the suitability 

reports. The Committee members’ questions are forwarded by A/IU to the 

originating field office, and the answers are discussed at the CIRC meeting. 

After the Committee makes a decision, the A/IU sends a communication to 

the field advising the sponsoring agents that the requested action was 

approved, disapproved, or in some instances tabled until the next CIRC 

meeting because more information was needed about the proposed or 

already-registered informant. 

2. The CIRC’s Activities from August 2003 to April 2005 

We attended 12 CIRC meetings from August 2003 to April 2005. Our 

review found that members of the CIRC invest a considerable amount of 

time and effort evaluating the benefits and risks of each confidential 

informant. The questions asked by the FBI and DOJ members addressed 

virtually all the factors in the Initial and Continuing Suitability Reports and 

Recommendations form. Some of the most frequently asked questions are 

below. 

1. How is the person in a position to obtain relevant information 

(Factors 4 and 9)? 

2. Have there been allegations that the person was engaged in any 

act of violence or crimes (Factor 13)? 

3. What type of crimes has the person committed and when 

(Factor 12)? 

 

345 CI Guidelines § II.A.2.a at B-15. 

346 In October 2004, A/IU modified the suitability report to include two additional 

questions frequently posed by CIRC members regarding the relevance of the person’s 

information and how the person is in a position to obtain relevant information. 
229

4. How can a confidential informant associated with organized 

crime for the past 20 to 30 years not be involved with any illegal 

activity (Factor 12)? 

5. Has the information the person provided led to indictments or 

convictions (Factor 5)? 

6. What special reporting or control measures can be employed to 

minimize the risk of violent or serious crimes committed 

(Factor 16)? 

7. What is the specific nature of the person’s assistance to the FBI 

(Factor 6)? 

As described below, the CIRC members also frequently inquired about 

informants’ participation in otherwise illegal activity, the length of time 

agents have handled informants, and other topics relevant to the 

Guidelines. During our attendance at CIRC meetings, we observed that the 

DOJ CIRC members were very active in posing questions on a variety of 

topics. 

Otherwise Illegal Activity

An important issue the CIRC members address in preparation for and 

during meetings is the subject of “otherwise illegal activity” (OIA). As we 

discussed in Chapter Three, authorization for OIA permits registered 

confidential informants to commit acts which would otherwise be considered 

prosecutable crimes.347 Authorization for OIA is broken down into two 

categories. Tier 1 OIA entails the most serious criminal activity, defined as 

any activity that 1) would constitute a misdemeanor or felony under federal, 

state, or local law if engaged by a person acting without authorization; and 

2) involves the commission, or the significant risk of the commission, of 

certain specified conduct, including acts of violence or public corruption. 

Tier 2 OIA 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. 

 

347 Under the Confidential Informant Guidelines, authority to engage in OIA is closely 

supervised by FBI field office and FBI Headquarters managers and U.S. Attorneys’ Offices, 

in addition to the oversight provided by the CIRC for certain defined categories of 

confidential informants. Confidential informants who operate outside the limits imposed 

on their OIA are subject to prosecution. 

 Otherwise illegal activity is distinguished from unauthorized illegal activity. The 

Guidelines impose special notice requirements on FBI personnel who have reason to believe 

that confidential informants have engaged in unauthorized illegal activity. See CI 

Guidelines § IV.B at B-31. 
230

During the meetings we attended, the CIRC members often asked for 

additional information pertaining to the confidential informant’s 

involvement in OIA. Their requests on this topic included inquiries about 

the period of authorization for OIA, the specific nature of the authorized 

illegal activities, and whether Tier 1 OIA was authorized by the U.S. 

Attorney.348 They also requested information necessary to distinguish Tier 1 

from Tier 2 OIA and resolve apparent inconsistencies in an SR&R as to the 

informant’s authorization to engage in otherwise illegal activity. 

Informant Handled by the Same Case Agent for Extensive Period

The CIRC closely examines long term informants because this 

category of informants historically has generated problems during 

investigations and prosecutions. During some CIRC meetings we attended, 

questions focused on whether it was prudent to have the same FBI agent 

handle an informant for five years or more. At the suggestion of a DOJ 

CIRC member, the CIRC ultimately required the SACs in such cases to 

provide a written finding that in his or her judgment the agent should 

continue to handle the informant. 

Other Questions Raised at CIRC Meetings

During meetings we observed, CIRC members also raised questions 

not specifically addressed in the suitability reports but which are 

nonetheless directly related to the Guidelines. Some of the common 

questions are below. 

• How much has the person been paid? 

• What is the person’s legitimate source of income? 

• When the person testified, was the Assistant U.S. Attorney notified 

of the person’s status as a confidential informant? 

• In cases where the confidential informant had recently been 

arrested, how did the field office reach its conclusion that the 

arrest does not adversely affect the confidential informant’s 

suitability? Did any law enforcement official intercede on the 

confidential informant’s behalf following the arrest? 

In addition to observing meetings of the CIRC, we interviewed 10 

current or former members of the CIRC. All of the CIRC members we 

interviewed said that the scope, quality, and tenor of interaction within the 

Committee has evolved since its inception. According to the CIRC members 

we interviewed, in the first year of the CIRC the relationship between the 

FBI employees and DOJ members was contentious. The DOJ Committee 

 

348 Only Tier 1 OIA must be approved by the U.S. Attorney. 
231

members we interviewed attributed the early difficulties to three factors: a 

general wariness within the FBI about sharing highly sensitive information 

regarding confidential informants with non-FBI personnel; a belief that the 

January 2001 Attorney General Guidelines were an overreaction to the 

Bulger-Flemmi informant episode and other instances of errant informants; 

and, to some degree, the personalities of several of the initial CIRC members 

from both the FBI and DOJ. By all accounts, the level of confidence and 

interaction between A/IU and FBI field offices, on the one hand, and 

between the FBI and the DOJ members of the CIRC, on the other, has 

steadily improved since that first year. 

All of the FBI and DOJ members of the CIRC we interviewed said they 

believe that while field office supervisors are the critical personnel to enforce 

the Confidential Informant Guidelines, the CIRC serves as an important 

mechanism to promote adherence to the Guidelines. They also told us that 

the vast majority of the proposals presented to the Committee do not 

provoke special concerns or questions. 

Several DOJ members of the CIRC, however, voiced two major 

concerns. First, they said that although the information flow has improved 

since the CIRC began in 2001, the suitability reports provided in advance to 

the Committee members are still inadequate. For example, these members 

said that the standard question on the suitability report, “Is there any 

negative information about the CI?” has not produced a single affirmative 

response, even in circumstances where confidential informants have been 

arrested. The DOJ committee members also said they have repeatedly 

asked for the suitability evaluation that is required upon the occurrence of 

unauthorized illegal activity, such as an arrest or illegal activity unrelated to 

the investigation, yet they have received only oral responses instead of hard 

copies of the required evaluations.349 They also said that responses to other 

routine questions on the suitability reports tend to be unhelpful, rote 

answers that are used in every suitability form and are not tailored to the 

particular informant. 

Second, these DOJ members said that the FBI CIRC members and 

particularly the A/IU have been increasingly responsive and cooperative in 

answering questions that arise during CIRC meetings. They stated, 

 

349 CIRC members also told us that when the CIRC was formed, DOJ members did not 

always have clear and concise copies of the informants’ criminal history checks when 

reviewing their SR&Rs. As a result, questions arose about the dates an informant 

committed crimes, the types of crimes, and the disposition of the charges. CIRC members 

said that in the last year, the FBI has distributed copies of the informants’ criminal records 

in advance of CIRC meetings. CIRC members told us that this advance distribution has 

improved the situation but that some DOJ members of the Committee – all of whom are 

experienced prosecutors – sometimes have difficulty deciphering the federal or state or local 

law enforcement codes used to detail the informants’ criminal histories. 
232

however, that the need to ask the same types of routine but important 

questions about confidential informants at each meeting, such as those 

highlighted above concerning suitability, has slowed the process down. 

They commented that spending time on routine questions has prevented the 

committee members from focusing on more subtle and complex but 

potentially more important issues at its monthly meetings. 

3. OIG Survey of Confidential Informant Coordinators 

Regarding the CIRC 

As part of this review, we conducted a survey of Confidential 

Informant Coordinators in the FBI’s 56 field offices. The survey asked a 

wide range of questions concerning training on the Attorney General 

Guidelines, evaluation of internal controls, recordkeeping and information 

technology issues, frequently asked questions regarding the Guidelines, 

impediments to compliance with the Guidelines, measures to promote 

compliance with the Guidelines, and special issues arising under the 

Guidelines. We obtained a 100 percent response rate to the survey. 

Several survey questions focused specifically on the operation of the 

CIRC. Informant Coordinators told us that 86 percent of FBI field offices 

have sought CIRC authority for long term confidential informants, and 52 

percent have sought CIRC approval for high-level, privileged, or mediaaffiliated confidential informants. The key survey findings regarding the 

CIRC are illustrated in the following diagram. 

DIAGRAM 7.2 

Confidential Informant Coordinators’ Views on the 

Effectiveness of CIRC Oversight of Confidential Informants

NOT IN A 

POSITION TO 

EVALUATE

38%

EFFECTIVE

46%

NOT 

EFFECTIVE

16%

Why CIRC Is Not Effective

89% of Coordinators who responded “NOT 

EFFECTIVE” believe that the CIRC does not 

provide feedback on individual applications in a 

way that is useful for future reference.

Why CIRC is Effective

69% of Coordinators who 

responded “EFFECTIVE” believe 

that the CIRC is reasonably 

efficient and does not cause 

serious delays in the approval or 

renewal of confidential informants.

46% of Coordinators who 

responded “EFFECTIVE” believe 

that the CIRC asks questions that 

are not routinely addressed at the 

field office.

46% of Coordinators who 

responded “EFFECTIVE” also 

believe that the CIRC has members 

with expertise that is needed in 

reviewing Confidential Informants 

issues.
233

As Diagram 7.2 depicts, almost half of the Informant Coordinators 

responded that they believe the CIRC has provided effective oversight over 

the administration of confidential informants in their field office.350 Sixteen 

percent of the respondents said they do not believe the CIRC provides 

effective oversight, while 38 percent said they were not in a position to 

evaluate the CIRC’s effectiveness because either they had had little or no 

contact with the CIRC or had not served as Informant Coordinator long 

enough to make a judgment. 

Of the survey respondents who said they believe the CIRC’s oversight 

is effective, 69 percent said they believe the CIRC process is reasonably 

efficient and does not cause serious delays in the approval or renewal of 

confidential informants. In addition, 46 percent said they believe the CIRC 

members have expertise that is needed in reviewing confidential informant 

issues, and that CIRC members ask questions that are not routinely 

addressed at the field office. 

Our survey also found that the most frequently asked questions of 

Informant Coordinators (or the agents they work with) by CIRC members 

include questions regarding the informant’s suitability (57 percent), how the 

proposed CI will be in a position to provide relevant information (66 

percent), and questions pertaining to notification or approval issues 

involving the USAOs (20 percent). 

Of the 16 percent of the survey respondents who said they believe the 

CIRC does not provide effective oversight of the Criminal Informant 

Program, 89 percent said that the CIRC does not provide feedback on 

individual applications in a way that is useful for future applications to the 

CIRC. Seventy-eight percent of these respondents commented that the 

questions raised by the CIRC were routinely addressed in the field and that 

the CIRC process is too slow and cumbersome. 

C. OIG Analysis and Recommendations 

Based on our review, we believe that although there has been some 

reluctance within the FBI to share information about its informants with 

anyone outside the FBI, the persistence of CIRC members, backed by 

support from senior management of the FBI and the DOJ, and effective 

supervisory personnel in A/IU, has made the CIRC a vital tool for promoting 

adherence to the Confidential Informant Guidelines. Over the last four 

years, the CIRC has provided meaningful oversight of many of the 

confidential informants who present the greatest risks and potential 

 

350 The 46 percent effective assessment for the CIRC compares to the Undercover 

Coordinators’ 79 percent effective assessment of the CUORC, discussed earlier in this 

chapter. 
234

rewards for the FBI’s top priorities, including counterterrorism, national and 

transnational criminal enterprises, public corruption, health care and other 

types of fraud, and white collar crime. 

However, we believe the effectiveness of the CIRC can be improved. 

As described above, some CIRC members expressed concerns regarding 

missing or incomplete information in the suitability reports, ranging from 

rote and unhelpful answers on some suitability forms to the failure to 

provide continuing suitability reports when an informant commits 

unauthorized illegal activities. These members stated that the need to 

pursue answers before or during CIRC meetings to questions that the 

proposing agents should already have provided slows down the functioning 

of the committee and prevents it from focusing on potentially more 

important issues. Similarly, our survey revealed that Informant 

Coordinators who are unsatisfied with the CIRC have criticized the process 

as being too slow. 

In addition, the principal complaint of Informant Coordinators who 

stated the CIRC is ineffective was that the CIRC does not provide feedback 

on individual applications in a way that is useful for future reference. We 

believe this is a valid observation. We found that the questions asked at 

CIRC meetings fall into familiar patterns based on the experience of the 

members in spotting circumstances that have proven over the years to be 

predictors of confidential informant problems. However, the insights from 

the CIRC’s decisions are neither memorialized nor communicated to field 

personnel at FBI Headquarters or the DOJ. 

The purpose of the following recommendations is two-fold: 1) to make 

critical information about the confidential informants reviewed by the CIRC 

available to all members prior to their meetings, thereby reducing the need 

for time-consuming interaction between the field and the CIRC’s members; 

and 2) to use the lessons learned from the CIRC to educate field personnel 

on a regular basis and to provide more focus to the training of case agents 

and supervisors about the Criminal Informant Program.351

We therefore recommend that the FBI take the following steps. 

(30) To assist CIRC members in evaluating the confidential 

informants within its purview and assist field and Headquarters managers 

in their supervisory responsibilities in overseeing the Criminal Informant 

Program, require that the Initial and Continuing Suitability Reports and 

 

351 Effective November 15, 2004, the FBI Director moved the function of the 

Asset/Informant Unit in CID to the new Intelligence Directorate. We believe our 

recommendations are important no matter where the FBI Headquarters function for 

supervising confidential informants is located. 
235

Recommendations contain more thorough answers to the suitability 

questions, such as: 

• a description of the confidential informants’ legitimate source of 

income; 

• the confidential informants’ statistical accomplishments, including 

the number of indictments, convictions, Title III wiretap 

applications, and other indicia of informants’ contributions; 

• details on how confidential informants are in a position to obtain 

relevant information; 

• details on the nature of any unauthorized illegal activity committed 

by confidential informants, including informants’ criminal history 

records and the continuing suitability reports required to be 

completed in accordance with Section II.A.2.b of the Confidential 

Informant Guidelines; and 

• the informant records of any confidential informants who have 

been previously deactivated for cause by the FBI, including the 

reasons for deactivation and the field division operating the 

informants. 

(31) Consider having the Human Intelligence Unit draft “lessons 

learned” from the CIRC’s decisions, periodically communicate these lessons 

to field personnel, and incorporate them into training on the Confidential 

Informant Guidelines. 

(32) Make available to CIRC members, upon request, copies of the 

Inspection Division’s audits of the Criminal Informant Program (including 

any reinspection reports) and evaluations performed by the Human 

Intelligence Unit of compliance with the Confidential Informant Guidelines. 

II. Inspection Division 

Of all the oversight and enforcement mechanisms employed by the 

FBI, the Inspection Division has the broadest mandate to investigate and 

evaluate Attorney General Guidelines compliance issues. According to the 

Inspection Division’s 2004 Program Plan, “[the Inspection Division] has a 

vital role within the FBI providing the Director independent and thorough 

performance assessments of all aspects of FBI operations and ensuring that 

performance deficiencies are resolved in a timely manner.”352 Our review, 

including an interview with the Director, confirmed the significance of the 

Inspection Division’s work to the FBI’s compliance with the Attorney 

General Guidelines. 

 

352 Inspection Division Program Plan (2004) at 1. 
236

In this Section of the Report we examine: 1) the functions of the 

Inspection Division, including its mission, organization, and inspection 

procedures; 2) what Guidelines’ provisions the Inspection Division examines 

and how this has changed since May 2002; 3) Inspection Division findings 

regarding the Guidelines’ compliance; and 4) the OIG’s analysis and 

recommendations regarding the inspection process. 

To conduct our review, we examined numerous Inspection Division 

documents, including inspection reports and supporting electronic 

communications for 41 FBI field offices from May 2002 to October 2004. 

We also interviewed Inspection Division personnel and senior FBI executives 

about the work of the Division and inspection procedures. 

A. Background on the Inspection Function 

Below we describe the organization of the Inspection Division, how 

inspections are performed, and the issues addressed during inspections, 

including those concerning the Attorney General Guidelines. 

1. Organization of the Inspection Division 

The Inspection Division divides its work among three main 

components: the Office of Inspections; the Audit, Evaluation, and Analysis 

Section; and the Internal Investigations Section. The Inspection Division 

reports directly to the Director and Deputy Director of the FBI and is not 

located within the Bureau’s five directorates. The organizational chart 

below identifies the structure of the Inspection Division. 

DIAGRAM 7.3 

DIRECTOR

AND 

DEPUTY DIRECTOR 

OF THE FBI

INSPECTION 

DIVISION 

OFFICE 

OF 

INSPECTIONS 

(OI)

AUDIT,

EVALUATION, AND 

ANALYSIS SECTION 

(AEAS)

INTERNAL

INVESTIGATIONS 

SECTION (IIS) 

Organization of the Inspection Division
237

The Office of Inspections, which is the principal focus of this section 

of the report, is managed by a Chief Inspector and includes an inspection 

staff comprised of various inspectors, Inspectors-in-Place, Team Leaders, 

and Assistant Inspectors-in-Place. It has two units: the Inspection 

Management Unit and the Audit Unit.353 As of November 2004, the Office of 

Inspections had 8 Inspectors, 8 Assistant Inspectors, 12 Team Leaders, and 

approximately 80 Inspectors in Place and 300 Assistant Inspectors in Place, 

to perform its inspections.354 The Inspection Management Unit provides 

logistical assistance, pre-inspection analysis, and post-inspection 

compliance monitoring. The Audit Unit conducts financial and Information 

Systems audits. 

2. How Inspections Are Conducted 

The Inspection Division performs two kinds of evaluations: 

performance audits and on-site inspections.355 Performance audits evaluate 

particular programs across the FBI using audit standards such as the 

Government Accountability Office’s Government Auditing Standards, 2003 

Revision, and the Office of Management and Budget’s Performance 

Assessment Rating Tool (PART). Inspections are conducted by the Office of 

Inspections at field offices, Headquarters, and Legal Attaché offices (Legats) 

on a rotating basis every three years. These inspections evaluate 

compliance with rules, regulations, policies, and procedures, as well as 

operational performance. In addition, in conjunction with FBI operational 

divisions, the Inspection Division has developed program reviews for use by 

field offices. Field offices conduct program reviews to examine whether field 

office goals and objectives are consistent with the FBI’s national strategy 

and evaluate how well field offices are implementing the FBI’s strategic plan. 

The results of these reviews are analyzed by program managers at FBI 

Headquarters.356 

 

353 Inspectors in Place and Assistant Inspectors in Place are FBI Agents stationed 

outside the Inspection Division. Inspectors in Place typically are ASACs, who are assigned 

to field offices, or Section Chiefs, who are assigned to FBI Headquarters. Assistant 

Inspectors in Place have either served a minimum of two years as a field supervisor or one 

year as a field supervisor with at least two years prior service at FBI Headquarters. 

354 Inspections work is important to career advancement in the FBI. To become an 

Assistant Special Agent in Charge (ASAC), an agent must obtain inspection certification. 

This requires the agent to participate in at least five inspections and one OPR investigation. 

355 FBI Strategic Plan (2004-2009), App. C at 129, available at: www.fbi.gov at 

Reports and Publications. 

356 Program managers administer “substantive” offices (divisions, sections, units) at 

FBI Headquarters in areas such as cyber, criminal, and counterterrorism. 
238

a. The Inspection Process 

The Office of Inspections inspects each FBI field office, Headquarters 

Division, and Legat Office once every three years. These inspections have 

three distinct phases: pre-inspection, on-site inspection, and postinspection. 

During the pre-inspection phase, personnel from the Office of 

Inspections collect data and information about the office to be inspected in 

preparation for on-site activity. Approximately 120 days prior to the on-site 

visit, the field office receives interrogatories requesting information on 

compliance, performance, and related administrative issues. Identification 

of Guidelines compliance deficiencies is requested in a limited number of 

program interrogatories, but is not requested in squad interrogatories. The 

Office of Inspections also solicits information from Headquarters Divisions 

and other FBI entities that have had contact with the office. After this 

information is collected, a pre-inspection analysis is prepared that 

summarizes statistical accomplishments, management data, program 

strengths and weaknesses, and prior inspections findings, including how 

those findings were resolved. 

The on-site inspection typically is conducted over a period of up to 

three weeks by a team of Inspectors, Inspectors in Place, and their 

assistants working under the supervision of an SES-level Inspector in 

Charge. For example, a recent inspection of the Miami Division involved 

approximately 75 FBI personnel. While on-site, the inspection team 

examines hundreds of paper files. Routing slips may be sent to agents 

requesting an explanation of any deficiencies identified in the files. More 

than 25 separate FBI programs are subject to “compliance audits” during 

inspections. These include the Criminal Informant Program, undercover 

operations, electronic surveillance activities, training matters, and the 

functioning of executive management.357 See Table 7.2. The Inspection 

Division has prepared detailed checklists for each type of audit to ensure 

consistency in the information that is collected in each office. In addition, 

the inspection team interviews FBI employees in the field office and 

representatives of agencies and organizations with which the office 

interacts, including other law enforcement agencies and the U.S. Attorney’s 

Office. 

At the conclusion of the on-site inspection, the inspection team 

prepares a draft written report for review by the field office. In 

circumstances where 1) detailed data and information must be conveyed to 

 

357 According to the Inspections Guidebook, an important component of Inspection 

Division audits is to determine whether the inspected “entity has complied with significant 

laws and regulations applicable to the program.” Inspections Guidebook at 20 (2000). 
239

support proposed corrective actions or 2) the findings in question must be 

disseminated to entities other than the office inspected, the inspection staff 

prepares a separate electronic communication or memorandum in addition 

to the findings contained in the written report. The draft report and 

electronic communication are then discussed at a closing conference held 

on the last day of the inspection with members of the inspection team and 

personnel from the field office. 

Inspection reports typically contain six substantive sections and two 

appendices that are presented in the following order: 1) an inspection 

summary; 2) background information about the office, its staff, and events 

that affected the office during the inspection period; 3) an evaluation of the 

performance of executive management; 4) a summary of the various 

compliance audits conducted; 5) a summary of the performance appraisals 

for the various investigative programs, squads, and other units evaluated; 

6) an analysis of investigative support services; 7) an appendix of the 

inspection’s findings; and 8) an abbreviation appendix. With respect to the 

third and fifth sections, the report will specify whether the entity inspected 

was “effective” and “efficient.”358 Any deficiencies noted are followed by 

recommendations or instructions designed to eliminate the identified 

compliance deficiencies. 

Within 30 days from the close of the on-site inspection, the field office 

must furnish responses to the Office of Inspections for each finding, 

instruction, and recommendation contained in the draft report. The Office 

of Inspections finalizes the report during this period and distributes a 

summary to senior FBI management, including the Director, who reviews 

the inspection results with the senior executive manager of the office or 

division. 

After the inspected field office provides its written response to the 

inspection report, the Office of Inspections evaluates the submission and 

determines whether appropriate action has been taken to remedy the 

deficiencies identified in the report. The Inspection Management Unit is 

responsible for ensuring that the office complies with each instruction 

contained in the report. When a field office fails to respond adequately to a 

finding and instruction, the Inspection Management Unit prepares an 

electronic communication requesting additional information or action. The 

Office of Inspections considers findings resolved when the office has 

reported actions necessitated by the findings, which often occurs in the 

 

358 According to the Inspections Guidebook, “effective” means “adequate to accomplish 

an intended purpose; producing the intended or expected result.” “Efficient” means 

“performing or functioning in the best possible and least wasteful manner; having and 

using requisite, [sic] knowledge, skill, and industry; competent; capable.” Inspections 

Guidebook at 44-45 (2000). 
240

office’s written response to the inspection report. When all findings have 

been resolved, usually within a few months from completion of the 

inspection, the Inspection Management Unit notifies the office by electronic 

communication. The Inspection Management Unit does not attempt to 

monitor implementation of remedies between on-site inspections. Recurring 

deficiencies identified in a subsequent inspection may lead to a finding 

directed to executive management in the office. 

In addition to the planned triennial inspections described above, the 

Office of Inspections has supervised field office “self-inspections” as well as 

“reinspections,” both of which may examine Guidelines compliance issues. 

During a self-inspection, the Office of Inspections furnishes audit forms that 

are completed by the field office and then returned for examination by 

analysts in the Inspection Management Unit. The self-inspection allows the 

field office to identify and correct problems prior to its triennial inspection. 

If a self-inspection is completed for a particular audit (e.g., an audit of the 

Victim Witness Assistance Program), the Office of Inspections staff 

determines during the triennial on-site inspection if the audit was properly 

conducted. Prior to June 2004, self-inspections typically occurred at the 

midpoint of an office’s regularly scheduled inspection cycle. Inspection 

Division management stated, however, that it has halted this practice and 

that future self-inspections likely will be conducted nationwide by program, 

not at the midpoint of an office’s inspection cycle. 

In rare circumstances, the Inspection Division also has participated in 

“reinspections” of particular field offices or programs if the results of the 

regular inspection are unsatisfactory or if an event indicates that prompt 

intervention is necessary. According to the FBI’s former Chief Inspector, 

Robert Grant, a program that receives anything less than an “Effective and 

Efficient” rating is at risk of being reinspected. The decision to conduct a 

reinspection is made by the Assistant Director of the Inspection Division in 

consultation with the Deputy Director and Director of the FBI. Depending 

on the nature of the deficiency, the reinspection may be conducted with a 

Headquarters program office working in conjunction with the Inspection 

Division. 

b. The Inspection Division’s Efforts to Improve 

Inspection Procedures Through Technology and 

Reengineering Initiatives 

Our interviews with Inspection Division management and review of 

inspection files revealed that the Division is seeking to upgrade its use of 

technology and to reengineer many of its current procedures. As explained 

to the OIG, these initiatives are being undertaken to address weaknesses 

that hinder the Division’s ability to provide timely and comprehensive 

compliance and performance information to FBI management, including 

Guidelines compliance issues. 
241

Our review found that the Inspection Division’s use of information 

technology tools currently is quite limited. Much of the data collection, 

analysis, and reporting performed by the Office of Inspections is not 

collected or recorded electronically. For example, we learned during our 

review that when offices responded to inspection reports, the Office of 

Inspections collected the paper copy of the response to each finding, collated 

them with a paper copy of the inspection finding, and retained the 

information in a cardboard file. According to one former senior Inspection 

Division official, the Division is “nowhere near where we should be or need 

to be to make [the inspection process] efficient.” 

The Inspection Division has identified the following problems resulting 

from the inadequate state of its technology: 

• delays in incorporating new performance measures and policies 

into the FBI’s information systems; 

• long delays in the detection of deficiencies as a result of the 

inspection cycle; 

• an inadequate process to evaluate the appropriate operation and 

management of quality human sources; and 

• an inadequate system to identify individual component and 

nationwide compliance deficiencies between on-site inspections.359

3. What is Inspected 

The Inspection Division’s decisions concerning the extent of its 

compliance data gathering occur primarily in two ways: 1) by identifying 

the programs and initiatives that are subject to compliance audits; and 

2) by specifying the particular kinds of information that will be collected 

during the audits. 

The Inspection Division’s Inspections Guidebook (2000) identifies the 

various audits that are conducted during on-site inspections. These are set 

forth in the table below. 

 

359 Inspection Division Program Plan (2004) at 2. 
242

TABLE 7.2 

Audits Conducted During Inspection Division 

On-Site Inspections 

Alias/False Identification (AFID) 

Assets 

Automotive Fleet Management (AA) 

Community Outreach Program (COP) 

Criminal Informant Program (CIP) 

Communications Security (COMSEC) 

Drug Deterrence Program (DDP) 

Electronic Surveillance (ELSUR) 

Employee Assistance Program (EAP) 

Equal Employment Opportunity (EEO) 

Ethics Program (EPA) 

Evaluation of Internal Controls (EC-B) 

Evidence Program (EVP) 

Executive Management (EM) 

Financial Management (FM) 

Foreign Intelligence/Counterintelligence Audit FICA) 

Foreign Language Program (FL) 

Intelligence Oversight Board (IOB) 

Merit, Promotion & Placement Plan (MPPP) 

National Crime Information Center (NCIC) 

Program Administration and Agent 

Complement (PA/A) 

Public Affairs and Media (PM) 

Radio Maintenance (RM) 

Security Program 

Management (SPM) 

Support Services Section (SSS) 

Technically Trained Agents (TTA) 

Training Matters (TM) 

Undercover Operations (UCO) 

Utilization of Aircraft (UA) 

Victim Witness Assistance 

Program (VWAP) 

The types of audits that the Office of Inspections performs change 

over time. Over the last four years, the Division has added three audits to 

the list above (Computer Analysis Response Team Field Examiner Program, 

Information Systems, and Foreign Intelligence/Counterintelligence) and 

dropped one audit (Foreign Intelligence/Counterintelligence). In addition, 

the emphasis that the Inspection Division places on particular audits varies 

over time. For example, according to a former Chief Inspector, the 

importance of the Security Program audit increased dramatically after the 

espionage activities of former FBI agent Robert Hanssen were discovered. 

With respect to administrative compliance measures, Inspection 

Division management stated that the electronic surveillance, evidence, and 

Criminal Informant Programs currently are the most pressing priorities. We 

were told by a former Chief Inspector that the rationale for this emphasis is 

that these programs directly affect investigations and the testimony of FBI 

agents, and affect the reputation of the FBI with the U.S. Attorneys’ Offices, 

the courts, and other law enforcement agencies. 

Of the audits identified in Table 7.2, four are pertinent to the Attorney 

General Guidelines: Criminal Informant Program, Electronic Surveillance, 

Undercover Operations, and Executive Management. The Inspections 

Guidebook also identifies procedures to evaluate the performance of 

investigative programs and squad/resident agencies, both of which are 

subject to requirements found in the Guidelines. Of the four Investigative 

Guidelines, we did not find comparable audit coverage of the core activities 

and authorities authorized pursuant to the General Crimes Guidelines. For 

example, we did not identify any audits that attempt to gauge the FBI’s 

compliance with the new or expanded authorities of the General Crimes 
243

Guidelines that implicate civil rights and civil liberties concerns, such as 

how authorities to “surf” the Internet or visit public places and events were 

utilized, or how information gleaned from those activities is retained or 

disseminated.360

In addition to selecting the kinds of audits it conducts, the Inspection 

Division defines the scope of its information gathering by identifying the 

particular data that is collected during audits. The Inspection Division has 

developed detailed checklists that inspection personnel use during audits to 

collect compliance data.361 These are updated by Inspection Management 

Unit personnel, who consult formally at least annually with FBI divisions 

concerning revisions. Each division in the FBI is assigned an Inspection 

Management Unit analyst to monitor policy changes. 

Despite this work, our review of the checklists and worksheets that 

relate to the Guidelines revealed that most are not comprehensive on 

Guidelines issues.362 For example, the checklists for investigative programs 

and squads/Resident Agencies contain little or no compliance 

information.363 Although the checklist for informants employed by the FBI 

during the period of our review (generally May 2002 to May 2004) states 

that its purpose is “to determine if an informant has been operated in 

compliance with current policy and instructions.” it does not contain 

various items that are important to making such a determination, such as 

the following items required by the Confidential Informant Guidelines: 

 

360 See General Crimes Guidelines § VI at B-83. 

361 The Inspection Division uses interrogatories and worksheets to collect 

information concerning investigative programs and squads/Resident Agencies. 

362 The exceptions to this finding are the checklists for undercover operations and 

electronic surveillance. We note, however, the checklist for undercover operations does not 

address whether the undercover operation complies with all applicable CUORC 

stipulations. We recommend that the Inspection Division consider adding this question to 

its undercover operation checklist. We also suggest that the Inspection Division include in 

its undercover operation checklist language comparable to the following from the 

Undercover and Sensitive Operation Unit’s undercover operation checklist: “The Group II 

UCO does not fall into any of the sensitive circumstances, requiring FBIHQ approval, as 

delineated in Paragraphs A and B of the Attorney General Guidelines on FBI undercover 

operations. [AGG Section IV, Paragraph C] By my signature, this confirms that no 

sensitive circumstances exist in this UCO. _____________________ [Signature of USOU 

Representative]” (emphasis in original). 

363 For example, although each checklist includes sections on “Program 

Management,” the squad/RA checklist only seeks compliance information concerning the 

supervisory file review required by the MIOG. As we noted in Chapter Three, FBI 

Headquarters and field officials we interviewed stated that first-line supervisors are 

uniquely positioned to ensure adherence to the Guidelines. Notwithstanding that 

widespread view, the Inspection Division squad/RA checklists do not currently capture 

compliance performance data regarding any of the Attorney General Guidelines. 
244

• whether the continuing suitability report and recommendation was 

completed by the Special Agent; 

• whether indices checks were performed as required; 

• whether Tier 2 Otherwise Illegal Activity was properly 

characterized;364

• whether proper informant deactivation procedures were followed; 

and 

• whether authorization was obtained for ongoing contacts with 

informants deactivated for cause.365

In addition, our review of the inspection data collection materials 

revealed that they do not consistently seek information concerning the 

causes of the deficiencies that are found during the inspections. For 

example, the Criminal Informant Program checklist states that: “‘No’ 

answers [entered on the checklist] usually indicate non-compliance and may 

require further inquiry.” In contrast, the undercover operation checklist 

provides: “‘No’ answers indicate non-compliance and require an 

explanation.” Our review of the completed checklists that were used in the 

field offices with the worst Criminal Informant Program compliance records, 

for example, showed that inspectors rarely entered information setting forth 

the field office’s explanation for the deficiencies. Instead, notations typically 

were made that allowed the inspector to verify the fact of the noncompliance. In some cases, inspectors sent routing slips to agents and 

others requesting confirmation of the deficiencies identified in the case files. 

While these generated important information concerning the circumstances 

surrounding the violation, the questions posed by the inspectors typically 

were not formulated to solicit information regarding the cause of the 

deficiency. Director Mueller stated during our interview of him that he 

believes the Inspection Division should collect information on the causes of 

identified deficiencies. 

 

364 For example, the Confidential Informant Guidelines include “the commission, or 

the significant risk of the commission, of any act of violence by a person or persons other 

than the Confidential Informant” in the definition of Tier I activity. CI Guidelines § I.B.10 at 

B-9. Our review failed to ascertain any consistent standard by which the FBI was applying 

this definition, and the Criminal Informant Program checklist does not address this risk 

assessment. 

365 The Criminal Informant Program checklist was revised in August 2004 to 

address several issues identified by the OIG, although it was not employed consistently 

during the remainder of 2004. We found that while the updated checklist was used in an 

inspection of the Baltimore Field Office in September 2004, the May 2003 version was used 

in inspections of Sacramento, Boston, and Cincinnati in October and November 2004. We 

were advised by the Inspection Division that it was not until February 2005 that it began to 

use the revised checklist in all inspections. 
245

The Inspection Division’s written interview procedure does not remedy 

these shortcomings. Guidance provided to Division personnel does not 

expressly mention compliance performance as a topic of inquiry. Rather, 

the Inspections Guidebook recommends, for example, that Supervisory 

Special Agents (SSAs) be interviewed on “investigative responsibility, specific 

investigations, initiatives, special projects, investigative techniques, task 

forces, liaison, prevailing crime problems, goals and objectives, the IB 

[intelligence base], and accomplishments.” Further, the Inspection 

Division’s guidance does not require that interviews be conducted to isolate 

the causes of compliance deficiencies. We were advised by Inspection 

Division personnel, however, that information regarding the causes of 

deficiencies frequently is collected during inspections. 

We also noted that Inspection Division reports do not weight or 

categorize the seriousness of the deficiencies that are identified during 

inspections. Although a former Chief Inspector confirmed that the Office of 

Inspections historically has not undertaken this task, he explained that his 

office recently was attempting to institute changes that would characterize 

the gravity of any problems that the Inspection Division discovers. The 

current Assistant Director for the CID also noted this issue in his interview 

with the OIG. He stated that “[w]e count [the compliance deficiencies] all the 

same when we go out and do our audits. An error is an error is an error. We 

see these pretty high error rates when we do our compliance audits. 

Somehow we have to figure out a way to weight these things so that you get a 

real sense of where agents are [having problems]. . . . It doesn’t stand the test 

of logic that we weight them all the same.” 

Our examination of 41 final inspection reports issued between May 1, 

2002, and October 31, 2004, found that their content typically reflected the 

limitations of the data collection practices described above. The reports 

tended to itemize the various violations with little or no analysis and did not 

include the views or explanations expressed by supervisors or executive 

management during the inspection concerning their compliance 

performance. See Case Study 7.1 below. The reports also did not attempt 

to compare the results/findings with the performance records of other 

offices. Moreover, non-compliance in the Criminal Informant Program 

typically was not explained with reference to supervision deficiencies 

identified in particular squads or by individual performance lapses. 

In contrast, during the recent informant reinspections conducted by 

the Inspection Division in conjunction with A/IU, the inspection team not 

only identified noncompliant conduct in their reports, it identified the 

squads and supervisory agents responsible for the conduct. As the case 

study below of one FBI Field Division shows, this degree of detail is not 

common in Inspection Division inspection reports. 
246

Case Study 7.1: FBI Inspection Division Audit 

of a Field Division’s Criminal Informant Program 

In January 2004, the Inspection Division conducted an inspection of an FBI 

Field Division, including an audit of its Criminal Informant Program. The period under 

review was from September 2000 to January 2004. After completing the inspection, 

the Inspection Division prepared a separate electronic communication to the office and 

the Criminal Investigative Division at FBI Headquarters summarizing its findings. The 

electronic communication explained that the audit “included a review of pertinent 

documentation, interviews with appropriate management personnel, SAs, support 

personnel, as well as review of selected pending and closed informant files.” According 

to the electronic communication, Inspection staff examined 29 percent of the Division’s 

source files during the audit and found that 88 percent had errors and 65 percent had 

multiple errors. Of the 21 categories of errors identified, 9 were recurring deficiencies 

from the 2000 inspection and included the following: failure to advise the source of the 

Attorney General Guidelines; failure to obtain proper authorization prior to a source’s 

participation in otherwise illegal activity failure to notify FBI Headquarters of a source’s 

participation in criminal conduct; and failure to follow special provisions concerning 

the operation of sensitive sources. 

Inspection staff also identified in the electronic communication the managers of 

the Division’s Criminal Informant Program and the duties of certain support staff. With 

respect to the Criminal Informant Program Coordinator, the electronic communication 

explained as follows: 

Review of confidential informants/cooperative witness/CSs files and 

records maintained by the Criminal Informant Program Coordinator 

determined [that he] utilized ticklers and e-mails to remind agents and 

supervisors of compliance issues. Furthermore, the Criminal Informant 

Program forms were made available on a shared drive for all agents and 

supervisors to access. [The Criminal Informant Program Coordinator] 

provided individual training session [sic] to SAs and regularly 

disseminated policy communications received from the Asset/Informant 

Unit. 

No information was included in the electronic communication concerning the 

action or inaction of other members of senior management, such as the ASACs who 

had supervised the program during the inspection period, or an explanation of their 

interpretation of why, given the apparent adequacy of the Criminal Informant Program 

Coordinator’s efforts, this Division had one of the highest Criminal Informant Program 

non-compliance rates in the FBI. The electronic communication concluded without 

analysis that the Division’s Criminal Informant Program was “in substantial noncompliance with Criminal Informant Program rules and procedures” and set forth the 

following instruction and recommendation: (1) the “SAC should ensure cited 

deficiencies are corrected, where possible, and administrative controls are strengthened 

to preclude recurrence of these deficiencies,” and (2) the “SAC should ensure all 

compliance issues brought to the attention of squad/RA supervisors by the Criminal 

Informant Program Coordinator are promptly handled in an effort to minimize 

violations of policy and procedure.” No explanation was provided concerning how this 

should be done or why the Inspection Division believed these general recommendations 

would eliminate the many recurring deficiencies that were subject to similar postinspection remedies four years earlier. 
247

B. Changes in the Inspections Process After the May 2002 

Revisions of the Attorney General Guidelines 

According to a former Chief Inspector, one of the major challenges 

facing the Inspection Division is keeping pace with FBI programmatic and 

policy changes as they occur. He explained that this task is difficult 

because of the volume of new policy and guidance that is generated at the 

FBI. To address this issue, the Inspection Division’s 2004 Program Plan 

identified as an “action item” the establishment of a “system that ensures 

timely notification of the [Inspection Division] on program and policy 

changes.” The Inspection Division’s standard practice is for Inspection 

Management Unit personnel to consult in mid-summer with the various FBI 

divisions concerning needed revisions to the Division’s inspection 

documents. We were informed, however, that not all Divisions adequately 

share information regarding changes to policy and procedures. 

Moreover, we found that changes in policies do not always result in 

timely changes to Inspection Division practices. For example, the 

modification of the Attorney General Guidelines in May 2002 did not prompt 

comprehensive revisions to the Inspection Division’s checklists or 

interrogatories.366 Although written Continuing Suitability Reports and 

Recommendations have been required since 2001, Inspection Division 

checklists did not address this important requirement for three and a half 

years after the Guidelines revisions.367 According to the FBI’s Chief 

Inspector in May 2002, consistent with its standard practice, during the 

summer of 2002, the Inspection Division solicited feedback from 

Headquarters divisions as well as the Criminal Informant Program 

concerning revisions to the Division’s Criminal Informant Program 

checklists. Although the CID recommended a limited number of alterations 

to the confidential informant checklist, the one in use in 2003 contained the 

gaps described in Section I.A above. 

C. Inspection Division Findings Regarding Attorney General 

Guidelines Compliance 

Our review of 41 Inspection Division inspection reports and 

supporting documentation issued between May 1, 2002, and October 31, 

2004, revealed that FBI inspectors often discovered Guidelines violations. 

 

366 We are not suggesting that the nature of the Guidelines revisions alone 

necessitated extensive rewriting of the checklists. Rather, the changes to the Guidelines 

could have refocused attention on the content of the checklists and resulted in the filling of 

important information gaps that existed at the time. 

367 In the course of this review, A/IU generated a revised checklist for use by the 

Inspection Division that addresses the CSR&R requirement. As explained supra, it was not 

used consistently by the Inspection Division until February 2005. 
248

However, the frequency of identification of these violations varied between 

programs and often was significantly less than what the OIG identified 

during its field work. While we identified few violations in the Inspection 

Division reports with regard to the Undercover Operations, General Crimes, 

and Consensual Monitoring Guidelines, violations in the Criminal Informant 

Program were commonplace. Although the Inspection Division identified 

many Guidelines violations in the administration of the Criminal Informant 

Program, it found violations related to the Confidential Informant Guidelines 

at less than half the rate identified during our visits to 12 FBI field offices. 

Below we summarize inspection report findings for each of the four 

Investigative Guidelines. 

1. Criminal Informant Program 

Between May 1, 2002, and October 31, 2004, the Inspection Division 

examined 3,434 Criminal Informant Program files in 41 of the FBI’s 56 field 

divisions. Of the files examined, Inspection Division documentation shows 

that approximately 34 percent indicated a violation of the Confidential 

Informant Guidelines during the relevant inspection period. The table below 

ranks these 41 FBI field divisions according to the percentage of inspected 

Criminal Informant Program files that contained one or more compliance 

deficiencies (which include violations of MIOG requirements as well as of the 

Attorney General Guidelines). As shown below, nearly one in three field 

divisions identified in Table 7.3 had a file non-compliance rate at or above 

40 percent and thus qualified for an additional inspection (a “reinspection”) 

conducted by Inspection Division personnel in conjunction with the 

Headquarters-based Asset/Informant Unit. 

When the rates above are compared with those obtained during 

inspections before May 2002, we found that over the last two inspection 

cycles (1999 to present) non-compliance recurred in certain offices. Of the 

13 field divisions identified above with a Criminal Informant Program noncompliance rate at 40 percent or more, 6 divisions had a non-compliance 

rate during the preceding inspection that exceeded 30 percent, along with a 

high number of recurring deficiencies. Other divisions had a significant 

worsening of compliance performance as measured by the Inspection 

Division. For example, the Albany Field Division’s non-compliance rate rose 

from 11 percent in 2001 to 68 percent in 2004. In contrast, a number of 

field divisions maintained rates below 15 percent for the last two 

inspections, while others showed marked improvement. Table 7.4 presents 

these findings for select field divisions. 
249

TABLE 7.3 

Percentage of Criminal Informant Program Files with 

Compliance Deficiencies Identified by the Inspection Division 

(May 2002 – October 2004) 

Field Division Non-compliance 

Rate Field Division Non-compliance 

Rate 

Columbia, SC 88% Anchorage, AK 27% 

Buffalo, NY 85% Atlanta, GA 26% 

Albany, NY 68% Minneapolis, MN 25% 

Norfolk, VA 65% Denver, CO 25% 

Milwaukee, WI 63% Las Vegas, NV 24% 

St. Louis, MO 59% El Paso, TX 22% 

San Diego, CA 58% Charlotte, NC 21% 

Omaha, NE 56% Chicago, IL 21% 

Cleveland, OH 56% Memphis, TN 20% 

San Francisco, CA 56% Sacramento, CA 20% 

Jacksonville, FL 53% Oklahoma City, OK 19% 

Salt Lake City, UT 52% Springfield, IL 18% 

Mobile, AL 43% Albuquerque, NM 15% 

New Orleans, LA 39% Newark, NJ 14% 

Indianapolis, IN 37% Little Rock, AR 12% 

New York, NY 35% Seattle, WA 13% 

Dallas, TX 29% San Juan, PR 13% 

Baltimore, MD 29% Knoxville, TN 6% 

Pittsburgh, PA 28% Kansas City, MO 4% 

Miami, FL 27% Jackson, MS 0 

Louisville, KY 27% 

Bold = Exceeds threshold for the Asset/Informant Unit reinspection 
250

TABLE 7.4 

Inspection Division Deficiency Data for 

Criminal Informant Program in Select Field Offices 

Field Division 

Non-compliance Rates 

Pre-2002 Post-2002 

Inspection Inspection 

Number Of 

Recurring 

Deficiencies

Persistent Non-compliance 

(consistently above 30%) 

Columbia, SC 47% 88% 9 

Milwaukee, WI 47% 63% 8 

St. Louis, MO 60% 59% 10 

San Francisco, CA 52% 56% 7 

Jacksonville, FL 31% 53% 5 

Salt Lake City, UT 32% 52% 6 

Worsening Non-compliance Rate 

(from below 30% to significantly above 30%) 

Buffalo, NY 29% 84% 7 

Albany, NY 11% 68% 3 

Norfolk, VA 25% 65% 3 

San Diego, CA 15% 58% 3 

Cleveland, OH 11% 56% 1 

Omaha, NE 25% 56% 2 

Mobile, AL 15% 43% 3 

Improved or Consistently Low 

Non-compliance Rate (below 15%) 

Jackson, MS * 0% 3 

Kansas City, MO 31% 4% 3 

Knoxville, TN 10% 6% 3 

Little Rock, AK 28% 12% 3 

San Juan, PR 16% 13% 2 

Seattle, WA Minor* 13% * 

Newark, NJ 10% 14% 2 

*Inspection Division report did not itemize deficiencies or report percentage error rate. 
251

Although each of the above field divisions that experienced persistent 

non-compliance received an instruction from the Inspection Division during 

the inspection preceding May 2002 to prevent the recurrence of Criminal 

Informant Program deficiencies, and each responded to the inspection 

report in a way that led the Division to close out its findings and terminate 

its oversight, the Criminal Informant Program compliance problems in these 

divisions persisted, and in some instances worsened substantially. 

When Criminal Informant Program problems are discovered, the 

Inspection Division typically requires that “internal controls be 

strengthened,” which, according to a former Chief Inspector, is a directive 

targeted at the Confidential Informant Coordinator, the ASAC who 

supervises that person, and the SSAs. The former Chief Inspector explained 

that after issuing its Criminal Informant Program directives, the Inspection 

Division frequently finds that field offices adopt remedies that include 

reminding supervising agents of their responsibilities and providing FBI 

personnel with enhanced training opportunities. Our review of field division 

responses to Criminal Informant Program inspection findings confirmed this 

often occurred, and that generally the divisions responded in a detailed 

fashion describing their completed and proposed corrective actions. 

However, as evidenced by the field divisions identified in Table 7.4 with 

persistent Criminal Informant Program non-compliance, the practice of 

delivering reminders, creating training opportunities, and issuing directives 

to enhance administrative supervision was inadequate in some cases. See 

Case Study 7.2 below. 

Because Inspection Division oversight usually terminates shortly after 

the field division responds to the inspection report, field divisions that 

require greater supervision historically have been allowed to operate their 

Criminal Informant Programs in non-compliance until the next inspection 

three years later. For example, even though the Inspection Division’s 

inspection of the St. Louis Field Division’s Criminal Informant Program in 

2001 identified 23 different types of non-compliance and an overall noncompliance rate of 60 percent, by 2004 the Program had improved its noncompliance rate by only 1 percent – to 59 percent.368

The experience of the San Francisco Criminal Informant Program also 

illustrates the practice of allowing field divisions to operate their Criminal 

Informant Programs in violation of FBI and DOJ rules and regulations. 

 

368 A self-inspection of the St. Louis Criminal Informant Program in 2003 found a 

non-compliance rate of 58 percent. The 2004 inspection revealed that during the 2001-04 

inspection period, the St. Louis Criminal Informant Program had five different program 

managers and three different Informant Coordinators, the last of whom reported that he 

was only able to devote five percent of his time to the Program due to his extensive 

collateral duties. 
252

Case Study 7.2: The San Francisco 

Criminal Informant Program 

Despite five inspections over the past decade [three triennial, a selfinspection, and a reinspection], the San Francisco Field Division consistently has 

maintained one of the worst Criminal Informant Program (CIP) compliance rates 

in the FBI. For the inspection period ending in 1996, the Inspection Division 

documented compliance errors in 58 percent of the CIP files examined. 

Compliance was little improved by 2000, with 52 percent of the CIP files failing to 

comply with FBI mandates. The Inspection Division’s inspection in 2003 

revealed a non-compliance rate of 56 percent, which followed a field officeinitiated self-inspection of the CIP in 2002 that found an error rate of nearly 49 

percent. The self-inspection had reported that “the Informant Program was in 

substantial compliance with regulations and Bureau policy.” 

In light of its June 2003 findings, the Inspection Division and the 

Asset/Informant Unit (A/IU) conducted a reinspection in December 2003 of every 

pending CIP file in the San Francisco Field Division. Despite a recommendation 

from the Inspection Division that the “SAC, San Francisco ensure all pending 

confidential informants\CS\CW files are reviewed and brought into compliance 

prior to the A/IU on-site review,” and approximately 6 months prior warning of 

the upcoming reinspection, the Inspection Division and the A/IU identified 

compliance errors in 70 files, or 22 percent of those inspected, with 19 of these 

having multiple errors. The reinspection analyzed compliance performance by 

squad and specifically noted that a lack of accountability among SSAs 

contributed to the Division’s failings. The report explained: 

One contributing factor for a majority of the deficiencies identified 

during this re-inspection was the failure of the San Francisco 

SSAs to ensure personnel under their direct supervision were 

correcting identified CIP deficiencies. For example, the reinspection determined that many of the errors cited in this report 

were the result of SSAs failing to follow-up on issues identified by 

the San Francisco CIC [Informant Coordinator]. This reinspection reviewed numerous routing slips, e-mails, and 

reminders from the CIC which were placed in the confidential 

informant/CW/CS files to assist the SSAs and SAs with 

management of their files. In many instances these notations 

were ignored by the SSAs and SAs, resulting in compliance errors 

documented during this re-inspection. In some instances SSAs 

noted deficiencies on consecutive file reviews which were ignored 

by the SA with no follow-up by the SSA. 

The A/IU reinspection report also discussed several other factors that 

contributed to the Division’s CIP problems, including lack of consistency in 

standardized forms and specific topics on which agents required training. The 

report concluded that the San Francisco CIP is “adequate,” though “closer 

administrative oversight was needed.” 
253

Our review also revealed that field divisions that experienced a 

substantial deterioration in their non-compliance rate often had a lack of 

continuity in the support provided by the Criminal Informant Program’s 

management. For example, of the field divisions identified in Table 7.4 with 

worsening non-compliance rates, one had five different Confidential 

Informant Coordinators during the inspection period, not counting a sevenmonth period when the Confidential Informant Coordinator position was 

vacant. A second division had three different Criminal Informant Program 

managers in two and a half years. In another field division, the Inspection 

Division found that the Confidential Informant Coordinator had too many 

collateral duties, and in two other divisions the Confidential Informant 

Coordinator was found deficient in the performance of his duties, leading to 

the removal of one Coordinator. 

Our review of the written performance appraisals of the SSAs, ASACs, 

and SACs in divisions with Criminal Informant Programs that had 

significant compliance problems indicated that the appraisals did not reflect 

the deficient Criminal Informant Program compliance performance.369 This 

was in contrast to what the FBI Director and the Assistant Director for the 

CID told us should occur. Both of them stated that high rates of noncompliance in the Criminal Informant Program should be taken into 

account in the performance appraisals of field office managers. 

In contrast, our interviews with Confidential Informant Coordinators 

from field divisions that had consistently good or significantly improved 

Inspection Division inspection performances revealed that management of 

the Criminal Informant Program typically had less personnel turnover and 

employed a number of best practices that, in the opinion of the 

Coordinators, contributed to their divisions’ favorable compliance record. 

These included the use of standardized forms, computer-generated 

reminders by the Confidential Informant Coordinators or confidential file 

room analysts to case agents to meet upcoming deadlines, intensive file 

reviews, compliance checklists for SSAs to assist them with their file 

reviews, and adequate training, especially for SSAs.370 Two Confidential 

Informant Coordinators we interviewed even developed a Criminal Informant 

Program handbook for use in educating agents. 

 

369 In response to a draft of this report, the FBI correctly noted that its performance 

appraisal process for Special Agents, SSAs, and ASACs does not allow for narrative 

evaluations and, according to the FBI, “[t]herefore, there is little ability by which to 

distinguish superior compliance performance in an employee’s Performance Appraisal 

Report (PAR). . . . [D]eficient compliance performance would only be reflected if it was 

sufficiently significant to warrant a rating of ‘Does Not Meet Expectations’ for the critical 

element which pertains to compliance performance.” 

370 For a description of the role of the confidential file room analyst, see discussion 

supra at n.200. 
254

Moreover, support for the Criminal Informant Program by the 

Division’s executive management in these offices also was described as very 

important. In one field division, executive management implemented an ad 

hoc “three strike policy” that required the informant file to be closed 

administratively if an agent received more than three notifications of 

compliance deficiencies on the same informant. 

In addition, our interviews with FBI personnel confirmed the impact 

that high-performing Criminal Informant Coordinators can have on the 

functioning of the Criminal Informant Program, an observation that we also 

found in Inspection Division inspection reports and Criminal Informant 

Program electronic communications. These described several instances 

where the performance of an individual, such as the Confidential Informant 

Coordinator, accounted for the rehabilitation of an otherwise deficient 

Criminal Informant Program. For example, the most recent inspection 

report for the Cleveland Field Division described the work of the Confidential 

Informant Coordinator as substantially improving the Program: 

Cleveland’s Criminal Informant Program improved substantially 

during the second half of the inspection period. This coincided 

with the appointment of SA [name deleted] as the Criminal 

Informant Coordinator in February 2002. [The Criminal 

Informant Coordinator] implemented a 90-day compliancy 

review of the pending files and began reporting findings to the 

SSA responsible for conducting the file reviews. [The Criminal 

Informant Coordinator] conducted file reviews for all pending 

Cleveland Division confidential informants and cooperative 

witnesses prior to the scheduled SSA file reviews. 

Prior to the assignment of [the Criminal Informant Coordinator], 

the former coordinator had not implemented new policies 

regarding 137s [i.e., confidential informants] and a large 

number of files were delinquent regarding SI status and 

Attorney General Guidelines. [The Criminal Informant 

Coordinator] implemented most of the 137 procedures and 

made improvements to address delinquencies. Those 

improvements were apparent from the Criminal Informant 

Program Audit, as well as from a review [sic] the tracking 

systems in place in [the Criminal Informant Coordinator’s] 

office. As of August 4, 2003 the pending files were almost 100 

percent compliant in these areas. 

The Inspection Division’s inspection of the Kansas City Criminal 

Informant Program also highlighted the positive work of the Criminal 

Informant Coordinator: 

This audit indicated that the management team closely 

monitored the Criminal Informant Program throughout this 
255

inspection period. They personally reviewed confidential 

informants/cooperative witness files on a regular basis and met 

frequently with SSAs and SAs regarding informant matters. . . . 

[The Criminal Informant Coordinator] was intimately involved in 

every aspect of the Criminal Informant Program and she 

personally reviewed all confidential informants/cooperative 

witness files on a semiannual basis. She coordinated directly 

and frequently with case agents regarding compliance issues 

and she operated a weekly tickler system to ensure timely 

response. [The Criminal Informant Coordinator] implemented 

an aggressive Criminal Informant Program training program for 

the division and regularly educated Kansas City personnel 

regarding policy and program changes in the Criminal 

Informant Program. Further, she implemented a 

comprehensive self-inspection program. 

The incidence of Criminal Informant Program deficiencies described 

above is not the only indicator of problems in the program. The nature of 

the violations that the Inspection Division identified also is highly 

significant. Table 7.5 summarizes the types of Criminal Informant Program 

non-compliance most commonly identified by the Inspection Division from 

May 2002 through October 2004, including the section of the Confidential 

Informant Guidelines violated, the number of files in which violations were 

found, and the share that each violation represents in relation to the 

Confidential Informant Guidelines deficiencies itemized below.371

 

371 The “frequency” of violations described here understates the actual number of 

violations contained in the files reviewed by the Inspection Division. In some cases, the 

Inspection Division did not identify in its report or supporting Criminal Informant Program 

electronic communication the number of files that contained deficiencies. For example, in 

the Cleveland Criminal Informant Program audit several categories of deficiencies were 

described as “inveterate,” meaning they appeared in every applicable file reviewed. Such 

information is not captured in Table 7.5. In addition, the Inspection Division often reports 

that multiple errors are contained in a single file, which may include multiple errors of the 

same type. Table 7.5 represents these as a single file violation. 
256

TABLE 7.5 

Types of Confidential Informant Guidelines Violations 

Identified by the Inspection Division (May 2002 – October 2004) 

Violations 

CI 

Guidelines 

Violated 

Frequency 

(Number of 

Files) 

Percentage 

of all CI 

Guidelines 

Deficiencies 

Failure to Timely Provide AGG 

Instructions 

CI AGG II.C 229 44% 

Failure to Include Photograph of CI 

in File 

CI AGG II.B 80 15% 

Failure to Convert CI to Operational 

Status Prior to Use, or to Extend or 

Close SI Period 

CI AGG II.B 58 11% 

Failure to Obtain Authorization of 

OIA 

CI AGG III.C 38 7% 

Failure to Document Background 

Information (e.g., criminal history) 

CI AGG II.A 34 7% 

Failure to Report Unauthorized 

Illegal Activity 

CI AGG IV.B 18 3% 

Failure to Obtain Authorization for 

Privileged or Sensitive Sources 

CI AGG II.D 15 3% 

Failure to Maintain Proper Payment 

Documentation 

CI AGG III.B 13 3% 

Failure to Follow Special Provisions 

When Operating Sensitive CIs/CWs 

CI AGG II.D 11 2% 

Failure to Notify FBI Headquarters 

of Conversion of Sensitive Source to 

Operational Status 

CI AGG II.D 

8 2% 

Failure to Have Two Witnesses to 

Payment of CI 

CI AGG III.B 3 1% 

Maintaining Ongoing Contact with 

Closed Source 

CI AGG V.C 3 1% 

Failure to Prevent the Use of CI to 

Obtain Privileged Information 

CI AGG III.C 1 .2% 

Use of Faulty Instructions CI AGG II.C occurred NA 

Other Related Violations 

(non-AGG) 

Share of All CIP 

Deficiencies 

Failure to Conduct Timely File 

Reviews 

MIOG 137-4 348 21% 

Failure to Document Upon Closing 

Whether Identity of CI was Revealed 

Outside the FBI 

MIOG 137-15 

14 1% 

Failure to Obtain Proper 

Authorization to Disclose the 

Identity of the CI 

MIOG 137-9 

13 1% 
257

As explained in Chapter Three of this report, these findings were 

comparable to the results of the OIG’s field work with respect to those 

Guidelines violations that the Inspection Division evaluated. 

2. Inspection Division Audits of Undercover Operations 

and Consensual Monitoring 

In contrast to the high number of deficiencies that the Inspection 

Division identified with the Criminal Informant Program, its audits of 

undercover operations and consensual monitoring found few Guidelines 

violations. Of the four violations that the Inspection Division identified 

during its audits of undercover operations from May 2002 through October 

2004, one involved a Group II UCO that continued for more than a year 

without Headquarters approval, while in another division, Headquarters was 

not properly notified after two undercover operations were initiated. The 

fourth violation involved a failure to present a fiscal circumstance to FBI 

Headquarters for review.372 The Inspection Division’s inspection reports 

identified violations of the Consensual Monitoring Guidelines in six field 

divisions. In each case, proper authorization was not obtained and 

documented prior to the start of the monitoring, contrary to the Guidelines’ 

requirement. By comparison, we found in our review approximately 10 

percent of the undercover operations and consensual monitoring files 

contained authorization-related errors. 

3. General Crimes, REIs, and TEIs 

Although the Inspection Division’s data collection instruments for the 

Criminal Informant Program, Undercover Operations, and electronic 

surveillance (ELSUR) audits address many key provisions of the Attorney 

General Guidelines, we did not find comparable coverage for the authorities 

contained in the General Crimes Guidelines. For example, Part VI of the 

General Crimes Guidelines constrains the expanded authorities to create 

information systems, “surf” the Internet, visit public places and attend 

public events, as well as instructions for complying with the Privacy Act. 

We were advised by the FBI, however, that the Inspection Division does not 

audit information pertaining to the FBI’s attendance or monitoring of public 

events or its record retention practices relating to those activities. Despite 

the limited coverage of the authorities contained in the General Crimes 

Guidelines, our review of inspection reports issued since May 2002 

identified a limited number of General Crime Guidelines' violations. These 

included the continuation of a preliminary inquiry for more than one year 

without obtaining proper authorization, and several instances of agents 

 

372 Undercover operations that involve any of the “fiscal circumstances” enumerated at 

§ IV.C.1 of the Undercover Guidelines require special approvals. 
258

failing to provide the requisite notifications regarding the opening of 

investigations into sensitive criminal matters. 

D. OIG Analysis 

Inspection Division management and other FBI officials recognized the 

importance of the Inspection Division’s role in ensuring compliance with the 

Attorney General Guidelines. For example, a former Inspection Division 

Assistant Director stated that “[the Director] depends on us to measure 

those things that matter most,” and, “we are required to ensure that all 

Attorney General Guidelines are complied with. We cannot have an 

Attorney General Guidelines’ violation.” A former Chief Inspector also 

commented on the importance of perceptions regarding the Inspection 

Division’s priorities to actions in the field, observing that the conduct of 

agents is heavily influenced by what the Division chooses to monitor. 

We concluded that the Inspection Division’s efforts to assess 

performance of all investigative and support operations could be improved 

in three critical respects: 1) increasing the scope of inspections to better 

assess compliance with the Guidelines; 2) better promoting accountability 

for adherence to the Guidelines; and 3) shortening the time to detect 

violations and incorporating information technology tools to make its work 

more efficient and its findings more useful.373 With regard to the Inspection 

Division’s substantive inspection findings, we found systemic Criminal 

Informant Program deficiencies, including widespread violation of certain 

Attorney General Guidelines’ requirements and persistent non-compliance 

in some field divisions. The seriousness of these violations varies widely, 

from documentation errors to failing to report unauthorized illegal activities 

by confidential informants. This conclusion is consistent with the findings 

of our field work, which we described in Chapter Three. 

1. Scope of On-site Inspections 

Our analysis of the Inspection Division’s inspection reports indicates 

that the Division should increase the scope of its audits to include more 

information concerning Guidelines compliance and implementation. We 

believe that both the types of audits performed by the Inspection Division 

during its on-site inspections as well as the information collected from the 

current audits should be expanded to provide better oversight of Guidelines 

issues. The Inspection Division also should focus its audits on areas that 

are deemed priorities or that have been identified as problems from prior 

inspections, and make its reporting more comprehensive by collecting 

reliable information on the causes of deficiencies and categorizing the 

gravity of deficiencies that are found. 

 

373 Inspection Division Program Plan (2004) at 1. 
259

As explained above, several of the checklists used by the Inspection 

Division to collect data on topics addressed in the Attorney General 

Guidelines, including those for the Criminal Informant Program, squads, 

and programs are not sufficiently comprehensive. For example, we believe 

the Inspection Division’s failure to include Continuing Suitability Report & 

Recommendations (CSR&R) preparation on the Criminal Informant Program 

checklist was a significant contributor to the high non-compliance rate we 

discovered for that requirement. At the time of our visits, two field divisions 

had not completed any CSR&Rs, even though the requirement to do so has 

plainly been set forth in the Confidential Informant Guidelines since 2001. 

As a former Chief Inspector observed, “people do what they are measured 

by.” 

We also recommend adding an evaluation of the FBI’s compliance 

with key provisions contained in Part VI of the General Crimes Guidelines. 

During our review we asked the FBI to provide us with information relating 

to its exercise of Part VI authorities and were advised by the Inspection 

Division that it was not practicable to locate the information since it was not 

separately retained in FBI files. Because we repeatedly have been told by 

field personnel that agents typically do not have time to visit public places 

and events due to the press of other business, we believe the burdens 

associated with the review and analysis of the information should not be 

great. Moreover, with respect to visiting public places and events, the FBI 

already has recommended documentation requirements. FBI OGC 

Guidance explains that “[a]ttendance by an agent under Part VI of the 

General Crimes Guidelines . . . should be documented in some retrievable 

fashion.”374 We do not believe that the addition of Inspection Division 

oversight should add significantly to agent administrative burdens. 

Although we believe that the Inspection Division should expand its 

information collection in some areas, our review also revealed that the 

Division would benefit by targeting a greater proportion of its on-site 

inspection resources to priority and problem areas. Division management 

stated that its priority audits are the Criminal Informant Program, ELSUR, 

and Evidence. However, the Inspection Division does not identify these 

programs for more frequent on-site inspections or reinspections. Some 

programs may warrant inspection every four years of a relatively small 

sample of files; others may require inspection every year of every file. We 

believe the Inspection Division should focus its inspection resources on 

programs that are priorities or are identified with chronic or persistent 

problems, and should work with Headquarters program divisions to 

enhance inspection oversight in these areas. The Inspection Division also 

should continue to supplement its work with field-initiated self-inspections. 

 

374 See Electronic Communication from the FBI General Counsel, March 19, 2004. 
260

Specifically, we believe it should initiate a simultaneous self-inspection or 

limited reinspection of the Criminal Informant Program for field divisions 

identified as having significant compliance problems. 

The scope of the Inspection Division inspection reports and 

supporting electronic communications should be expanded to include: 

1) collection of data suggesting the causes of the identified compliance 

deficiencies and an analysis of the explanations provided by field personnel 

for the inspection results, and 2) an assessment of the gravity of the 

compliance deficiencies based on information gathered from revised 

checklists. Currently, the inspection reports itemize violations with little or 

no supporting analysis, and they do not address the field office’s version of 

events. We believe this creates two problems. 

First, itemizing the violations and announcing a non-compliance 

percentage based on the number of files that contain one or more errors can 

mask important performance information and lead to the misallocation of 

reinspection resources. For example, a Criminal Informant Program in 

which agents failed to include a photograph of the confidential informant in 

the file due to lack of training might have a 100 percent non-compliance 

rate, while another Informant Program might have a much lower noncompliance rate but have more significant deficiencies associated with the 

commission of unauthorized illegal activity by informants whose handlers 

ignore Guidelines’ requirements and the instructions of their SSAs and 

Confidential Informant Coordinator. Our review of the Inspection Division’s 

inspection reports suggests that the latter circumstance would not receive 

the greater remedial attention it deserves. The causal factors associated 

with compliance performance and the field office’s explanation of its 

performance should be more fully described in the reports. This should 

include providing information comparing an office’s performance with other 

FBI components and specifically identifying deficiencies as Guidelines 

violations when they are found. 

These recommendations are especially relevant to the Criminal 

Informant Program. Before the suspension of reinspections in November 

2004, the standard employed to trigger reinspection of noncompliant 

Criminal Informant Programs was based on Inspection Division findings 

concerning the percentage of informant files that contained one or more 

errors. Criminal Informant Programs with a file error rate that exceeded 40 

percent were eligible for a reinspection by personnel from A/IU. However, 

the gravity of the violations found did not influence whether this percentage 

threshold was exceeded; it was a purely statistical computation. We believe 

that there are better ways for the Inspection Division to analyze and 

compare Criminal Informant Program compliance performance, and that the 

Inspection Division and HIU should work together to develop new measures 

that determine when inspection resources should be targeted on problems 

of special concern in the field. The Inspection Division Assistant Director 
261

agreed that the 40 percent threshold for reinspections should be replaced 

with a standard that accounts for the frequency and gravity of the violations 

found during inspections. 

Below we provide an example of how the FBI could assess field office 

compliance with key Informant Guidelines and MIOG requirements. To 

illustrate such an approach, we utilized a matrix that weights violations of 

these requirements and accounts for both the frequency and severity of 

Criminal Informant Program deficiencies identified during inspections. 

Application of such a matrix could also be used to develop a standard for 

conducting reinspections. We recommend that the FBI determine what 

considerations best capture noteworthy performance issues, how to weight 

various compliance deficiencies, and what should be reported by the 

Inspection Division. 

To demonstrate how use of a matrix can change the evaluation of the 

Criminal Informant Program, below are comparisons of Inspection Division 

non-compliance percentages and the scores generated for select field 

divisions from the matrix which we developed. Using this model, the 

deficiency score for San Diego is noteworthy because it is significantly lower 

than scores for divisions with comparable non-compliance percentages. The 

reason for this is straightforward: more than 80 percent of San Diego’s 

deficiency points were generated from deficiencies such as failing to include 

a photograph of the CI in the informant file and failing to provide annual 

instructions to CIs, which are weighted as less severe in the matrix than 

deficiencies such as failing to obtain authorization for a source’s 

participation in illegal activity and failing to notify FBI Headquarters of a 

source’s participation in unauthorized illegal activity, which accounted for 

more of the compliance deficiencies found in other field offices. 

TABLE 7.6 

Comparison of Deficiency Measures for 

Select FBI Field Office Criminal Informant Programs 

Field 

Division 

Inspection Division

Non-compliance 

Percentage 

Deficiency 

Matrix 

Score 

Newark 14% 3.1 

Jacksonville 53% 24.0 

San Diego 58% 11.8 

Albany 68% 37.0 

Columbia 88% 46.0 
262

Besides masking important information about compliance 

performance, a second disadvantage of itemizing violations in the inspection 

reports with little or no qualitative assessment or supporting analysis 

concerning causation is that it makes it more difficult to evaluate the 

sufficiency of the remedies proposed by the field division in response to the 

report.375 Ideally, these remedies would address the causes of the 

deficiencies identified by the Inspection Division. Field divisions should 

explain in their responses how their remedies will effectively address the 

causes of the identified deficiencies. 

2. Promoting Accountability 

Our review indicates that the Inspection Division can and should do 

more to promote accountability for compliance performance. Too often we 

found in the inspection reports and their supporting electronic 

communications instances of recurring non-compliance with insufficient 

corrective response to the conduct of those who were responsible for it. We 

believe that if a particular squad or individual is responsible for a 

disproportionate share of a field division’s compliance deficiencies, this fact 

should be stated explicitly in the inspection report. The reinspection reports 

generated by the Inspection Division and A/IU for the Columbia, Omaha, 

and San Francisco Criminal Informant Programs are examples of how 

accountability can better be reinforced through inspection findings. These 

reports analyze Criminal Informant Program compliance performance by 

squad. 

We believe that inspection findings should be accounted for in agent 

performance appraisals, which was not done, for example, in field offices 

with seriously noncompliant Criminal Informant Programs.376 The 

Inspection Division Assistant Director agreed that significant deficiencies 

noted during inspections should be accounted for in employee performance 

appraisals. 

The Inspection Division also should modify its squad and investigative 

program checklists to note areas where compliance performance is 

inadequate. Information collected from these documents can assist 

 

375 It also makes it more difficult to determine whether the remedies should involve 

referral to the FBI’s Internal Investigations Section. Without knowing the cause of a 

deficiency, it is not possible to evaluate whether it was performed knowingly or recklessly. 

See e.g., OPR offense codes 1.5 and 1.8 which address the knowing or reckless failure to 

abide by an FBI or DOJ operational guideline or policy. 

376 The Informant Guidelines require the FBI to establish procedures that ensure “that 

compliance with these Guidelines is considered in the annual performance appraisal of its 

agents.” Informant Guidelines, § I.I. See also discussion supra Chapter Three describing 

the FBI’s failure to account for compliance with the Informant Guidelines in these 

appraisals. 
263

inspectors to better identify the causes of deficiencies. These checklists 

should include cross-references to the findings in other data collection 

instruments. For example, excessive deficiencies in a squad’s Criminal 

Informant Program compliance performance should require examination of 

the findings from the squad/RA audit worksheet that address 

“Communication Capacity” and “Personnel Management and 

Administration,” among other topics. 

In addition, we believe that the Inspection Division can better promote 

accountability and Guidelines compliance through more effective follow-up 

on inspection instructions, recommendations, and findings. At present, 

even in circumstances where serious deficiencies are found during an 

inspection, the Inspection Division’s involvement rarely continues more than 

a few months beyond the period during which offices respond to the 

inspection report. In our view, this practice has allowed the persistent noncompliance identified in Table 7.4. When a program is identified as having a 

poor compliance record, the Inspection Division should evaluate the 

feasibility of sending at least one Assistant Inspector in Place back to the 

office at periodic intervals until the problem is resolved and compliance 

verified. Comprehensive reinspections by the relevant Headquarters 

program office can be a substitute for this process, as occurred in a limited 

number of field offices with deficient Criminal Informant Programs. We also 

suggest that the Inspection Division provide commentary on the findings 

and indicate whether further reinspection work is needed. 

We also recommend that where egregious non-compliance is 

discovered, the violation be elevated to a finding directed to executive 

management in the inspection report and not wait until a recurring 

deficiency is noted three years later during the next inspection cycle.377 In 

our view, the practice of deferring prompt elevation of serious problems has 

contributed to delays in remedying them. 

3. The Timing of Inspections and Better Use of 

Technology 

The amount of time it takes the Inspection Division to detect 

Guidelines violations is problematic. At present, the Inspection Division’s 

standard practice is to conduct on-site inspections every three years. 

Reinspections are rare and self-inspections were cancelled as of June 2004, 

although we understand that the Inspection Division may reinstitute selfinspections in a different form in the future. We believe that investing 

resources to identify violations that occurred more than two to three years 

 

377 Inspection reports contain a section that describes the inspection’s findings 

concerning the performance of the field division’s executive managers, including whether 

they are “effective” and “efficient.” 
264

in the past is of limited utility, especially when technology is available that 

would allow the Inspection Division to identify violations with greater 

frequency and to monitor performance trends and indicators. With such a 

long delay between inspections, by the time inspectors arrive on-site the 

cause of the deficiencies identified during the inspection may have changed 

or ceased altogether. Moreover, problems may persist much longer than 

might be the case with a shorter period between inspections. 

Former Assistant Director Steve McCraw, former Chief Inspector 

Grant, and the former Deputy Assistant Director of the Inspection Division, 

Michael Clemens, all emphasized to us the importance of changing the focus 

of the Division from identifying past mistakes to improving future 

performance. To realize this goal, they, along with current Assistant 

Director Thornton, told the OIG that a key component in any reform of the 

inspection process must include automation of the collection of compliance 

data. A recent Inspection Division program plan identified the limited state 

of the Division’s technology.378 In our view, shifting the orientation of the 

Inspection Division, and the associated resources, from compliance 

detection to compliance enforcement and assistance would enhance support 

for Guidelines compliance. The current inspection process and technology 

limitations, however, are obstacles to the implementation of such a shift in 

orientation. 

To more quickly and efficiently identify instances of Guidelines noncompliance, we believe that the FBI should seek to automate that part of the 

inspection process that involves the manual review of paper case files for 

compliance errors. We saw from our own experiences in extracting 

compliance information from the FBI’s files that the methods currently 

available to obtain this information are inadequate. The FBI continues to 

rely too heavily on paper file reviews to document its compliance 

performance. 

We recognize that the completion of the work above is a long term goal 

that will take several years to achieve. However, with respect to monitoring 

of the Criminal Informant Program we believe a technology upgrade is 

necessary now and that an interim solution should be devised to assist with 

compliance oversight. Specifically, we believe the FBI should consider 

developing a standard Criminal Informant Program “tickler system” that can 

 

378 The Program Plan stated: 

The Division is sorely lacking advanced automation and information technologies. 

This has hampered its ability to efficiently perform inspections, audits, and 

evaluations. . . . Inasmuch as information is the primary product of the Division, 

automation and information technology is foremost to success. 

Inspection Division Program Plan (1999-2003) at 6-7. 
265

be deployed in all field divisions and that will enable A/IU (now the HIU) and 

the Inspection Division to monitor compliance trends. Depending on the 

conduct at issue, computer-generated notifications should be set for ASACs, 

SACs, HIU, and the Inspection Division. We were advised by an FBI 

supervisory agent with experience in creating computer databases that the 

software to complete this work is commercially available and can be 

operational within 12 months. 

E. Recommendations 

We recommend that the Inspection Division take the following steps. 

(33) Revise Inspection Division checklists and interrogatories to 

increase inspection coverage of Attorney General Guidelines-related issues. 

(34) As part of the Inspection Division’s triennial inspections of field 

and Headquarters’ divisions, establish an audit examining the collection of 

information obtained from exercise of counterterrorism authorities pursuant 

to Section VI.A.2 (Visiting Public Places and Events) of the General Crimes 

Guidelines. 

(35) Provide more thorough and timely reporting of Attorney General 

Guidelines’ violations by identifying in inspection reports the causes and 

gravity of compliance deficiencies; developing summary statistics to assist in 

determining when reinspections are appropriate; and automating key 

components of the inspection process. 

(36) Increase inspections for the Criminal Informant Program and 

other programs that are priorities or experiencing significant problems by 

performing more frequent inspections at irregular intervals. The Inspection 

Division should also develop a standard for reinspections that accounts for 

the frequency and seriousness of the Attorney General Guidelines’ 

deficiencies identified during the regular inspection and develop a standard 

for determining when reinspections should be conducted that accounts for 

both the number and gravity of the deficiencies found. The Inspection 

Division and the Human Intelligence Unit should reinstate its Criminal 

Informant Program reinspection process. 

(37) Address in employee performance appraisals the findings from 

Inspection Division inspections that identify either superior or deficient 

Attorney General Guidelines’ compliance performance. 

(38) Elevate egregious non-compliance with Attorney General 

Guidelines to an executive management finding in the inspection report 

rather than deferring that action until the next three-year inspection 

contingent on the detection of recurring, serious deficiencies. 
266

III. On-site Reviews by Program Offices 

In addition to Inspection Division inspections, various program offices 

at FBI Headquarters participate in field office reviews of activities in their 

program specialty. In conjunction with the Inspection Division, the 

Asset/Informant Unit has conducted reinspections of Criminal Informant 

Programs with high non-compliance rates. Certain undercover operations 

also are evaluated by USOU with assistance from Headquarters operational 

program offices. Because the field evaluations performed by A/IU and 

USOU sometimes address Guidelines compliance issues, we studied these 

additional efforts to assess their role in promoting adherence to the 

Guidelines. 

A. Undercover & Sensitive Operations Unit On-site Reviews 

From May 2002 through October 2004, USOU conducted on-site 

reviews of 60 undercover operations, of which 59 were Group I operations. 

In accordance with procedures set forth in the FBI Field Guide for 

Undercover Operations, Group I UCOs receive an on-site review from FBI 

Headquarters during their initial stages, generally within the first year. The 

Field Guide explains that “[a]n on-site review is not considered an 

inspection; but, rather an oversight procedure designed to facilitate the 

implementation of the undercover operation in a minimum amount of time 

and in compliance with applicable FBI rules and regulations.” Undercover 

operations that continue for more than one year after the initial USOU onsite may be reviewed periodically by the operational Headquarters section 

and USOU. According to the Unit Chief of USOU, the need for a second onsite review is rare because most undercover operations terminate before the 

need arises. 

Personnel participating in the on-site review include a supervisor from 

USOU, a Headquarters supervisor from the substantive program involved in 

the undercover operation, and an auditor from the Inspection Division. The 

on-site typically lasts two to three days, during which time the review team 

examines the following: 1) program and operational issues, such as 

investigative strategy, accomplishments, and evidence-handling; 

2) compliance and safety issues; and 3) financial issues. The USOU 

supervisor is responsible for conducting the compliance and safety review, 

which, according to guidance prepared by USOU, includes an examination 

of the undercover operation’s compliance with the Undercover Guidelines 

and CUORC stipulations. 

Unlike A/IU, USOU does not use Inspection Division checklists during 

its on-site visits. Instead, it has developed its own checklist which, as of 

December 2004, was being substantially revised. Our review of both the 

revised draft and preceding versions of USOU’s checklist revealed that it 

does not seek information on several important Guideline issues, such as 

entrapment, OIA, and whether joint undercover operations are carried out 
267

in accordance with the Undercover Guidelines. For example, the checklist 

evaluates neither the authorization nor implementation of OIA. 

According to guidance prepared by USOU, Group II UCOs (which may 

be initiated without Headquarters approval) also are subject to on-site 

reviews under the following conditions: 1) the undercover operation has 

been extended beyond the initial six-month period of authority granted by a 

designated Assistant Director; 2) the undercover operation has expended 

more than $100,000 in operational expenses; or 3) circumstances requiring 

special attention arise during the conduct of the undercover operation. 

From May 2002 through October 2004, USOU inspected only a single 

Group II UCO. 

Once the results of the on-site visit are collected, the review team 

prepares an electronic communication that is formatted into the following 

sections: 1) synopsis of the undercover operation; 2) investigative 

achievements to date; 3) objectives of the undercover operation; 4) program 

and operational issues; 5) compliance and safety issues; and 6) audit and 

financial matters. The Headquarters operational unit supervisor is 

responsible for compiling the electronic communication, although both the 

operational unit and USOU supervisors are responsible for briefing the SAC 

or ASAC about the review’s findings prior to the departure of the on-site 

team. As with inspection findings, the field division prepares a response to 

the electronic communication and explains how it will resolve any 

deficiencies noted during the review. A copy of the response is forwarded to 

USOU. 

Our review of the results of USOU’s on-site visits revealed 

comparatively few violations of the Undercover Guidelines. As explained in 

Chapter Four, USOU identified the following deficiencies: 1) in seven 

undercover operations, agents failed to obtain proper authorization for 

undercover activity; 2) in two undercover operations, division management 

failed to meet with undercover employees, while in five other undercover 

operations, documentation of the meetings was lacking; and 3) in one 

undercover operation a financial transaction was not properly structured.379 

None of the electronic communications identified these actions as 

Guidelines violations. 

B. Asset/Informant Unit Reinspections 

A/IU led reinspections of four FBI field office’s Criminal Informant 

Programs during the period June 2003 through November 2004. A/IU’s 

participation in the Criminal Informant Program reinspections was initiated 

only recently. The former Chief of the Criminal Intelligence Section, 

 

379 These seven undercover operations were in different field divisions. 
268

Criminal Investigative Division, told us that he initiated the practice in June 

2003 following the Inspection Division’s inspection of the San Francisco 

Division. The former Section Chief stated that he was the second-ranking 

Inspector for that inspection and was concerned by the high noncompliance rate for the Criminal Informant Program, a condition that had 

persisted for more than a decade. See discussion supra at Case Study 7.2 

(describing San Francisco Criminal Informant Program). He said that after 

that inspection he advised FBI executive management in San Francisco that 

A/IU would return in six months to look at every confidential informant and 

cooperative witness file in the Division. 

The new reinspection policy, which was transmitted in an electronic 

communication to the Inspection Division, provided that if a Criminal 

Informant Program had a non-compliance rate of 40 percent or more, a 

reinspection by A/IU would be triggered. The Section Chief stated that his 

drive to institute reinspections for offices that exceeded a 40 percent noncompliance rate was based on the belief that “if [agents] don’t follow the 

rules with the simple things, and there is not enough oversight, that is 

where we could have an unhealthy relationship.” 

During reinspections, A/IU personnel work under the supervision of 

an Inspector in Place, typically an ASAC. ASACs serve as Inspectors in 

Place and are not assigned to the Inspection Division. Data is collected 

using the Inspection Division’s Criminal Informant Program compliance 

checklist, and the findings are presented in a separate electronic 

communication. The reinspection electronic communications provide 

recommendations and instructions to the field division and are provided to 

the Inspection Management Unit for follow-up and resolution. 

As of December 2004, A/IU had completed four Criminal Informant 

Program reinspections. The table below presents the inspection and 

reinspection non-compliance rates, and the number of recurring deficiencies 

for these four field divisions. 

TABLE 7.7 

Inspection and Reinspection Non-compliance Rates 

for Select Criminal Informant Programs 

Field Division Inspection 

Non-compliance Rate

Reinspection 

Non-compliance Rate

Number of 

Recurring 

Deficiencies*

Columbia 88% 38% 3 

San Diego 58% 51% 6 

Omaha 56% 33% 8 

San Francisco 56% 22% 12 

*Deficiencies of the same type identified during succeeding inspections. 
269

As shown above, by the time of the reinspection three of the four field 

divisions improved their non-compliance rates significantly, although the 

non-compliance rates generally remained high. Moreover, the reinspections 

revealed that several of the divisions had significant numbers of recurring 

deficiencies and that only one of the four divisions eliminated deficiencies 

related to two of the most critical Guidelines’ provisions: the conduct of OIA 

and the handling of sensitive sources. 

In addition to identifying overall Criminal Informant Program noncompliance rates, reinspections also can illuminate problems with 

implementation practices and deficiencies in the remedies instituted by 

Informant Program management in response to adverse inspection findings. 

For example, the San Diego Criminal Informant Program reinspection report 

highlighted the following implementation problems: 

SAC [name omitted] took a number of strong steps to provide 

the necessary attention, emphasis, and support to the Criminal 

Informant Program since the November 2003 Inspection. . . . 

However, follow up to ensure the SAC’s instructions were 

followed was not as strong. . . . An internal review of Criminal 

Informant Program files which was conducted by experienced 

supervisors failed to correct numerous deficiencies 

subsequently identified by the re-inspection team. . . . [T]he reinspection uncovered numerous other deficiencies which were 

unambiguous by any standard. . . . The re-inspection for this 

period identified inadequate oversight to ensure the SAC’s 

direction was followed as evidenced by a 51 percent error 

rate.380

As of December 2004 the Inspection Division and A/IU halted all 

reinspections of Criminal Informant Programs pending completion of 

discussions over revised reinspection procedures. According to the FBI’s 

Chief Inspector at the time, the Inspection Division and A/IU need to 

address resource issues and the standards that will guide future 

reinspection activity. In February 2005, the OIG was told by a 

representative from the newly formed Human Intelligence Unit that the 

Inspection Division was changing its Criminal Informant Program inspection 

procedures and that until that work is complete reinspections would not be 

conducted. 

 

380 As explained supra at Case Study 7.2, the San Francisco Criminal Informant 

Program reinspection also noted problems with implementation of corrective action, most 

notably that the SSAs and agents often were ignoring requests from the Criminal Informant 

Coordinator. 
270

C. OIG Analysis and Recommendations 

We believe that the reinspections should be an important part of the 

FBI’s compliance enforcement efforts and the former CID Section Chief 

should be commended for his efforts to institute the program in the 

Criminal Informant Program. We believe, however, that the FBI should reexamine the criteria that it uses to determine when reinspections should be 

performed for this program. Under the terms of the reinspection electronic 

communication issued by A/IU in February 2004, “any field office with a 

compliance error rate in excess of 40 percent will undergo a comprehensive 

Criminal Informant Program audit within six months of its inspection.” This 

language sweeps too broadly. In our view, which is shared by the current 

Assistant Director of the Inspection Division, both the number and 

seriousness of the violations detected during the regular Criminal Informant 

Program inspection should be considered when determining reinspection 

eligibility and priority. See discussion in the preceding section of this 

chapter regarding Criminal Informant Program deficiency matrix. 

In addition, we believe that the FBI should continue intensive 

monitoring of reinspected programs until satisfactory performance is 

demonstrated. Even though three of the four Criminal Informant Programs 

identified in Table 7.7 above showed some improvement in their noncompliance rates, the rates generally remained high, and several of the 

offices failed to eliminate problems with OIA and the handling of sensitive or 

privileged sources. 

As with A/IU’s reinspections, we believe there is significant merit in 

the on-site reviews of undercover operations supervised by USOU. They 

highlight important compliance and performance issues that warrant 

enhanced scrutiny and face-to-face interaction with Headquarters 

personnel. Our review of USOU’s on-site data collection instrument 

revealed, however, that certain critical compliance provisions, such as the 

conduct of OIA, were not addressed. Given that the opportunities to 

perform on-site reviews of individual undercover operations are limited, we 

believe that when they are conducted they should be as comprehensive as 

practicable. 

We recommend the following. 

(39) The Inspection Division and the Human Intelligence Unit should 

institute procedures that establish follow-up inspection measures to 

reinspections that indicate ongoing compliance problems, such as assigning 

a single Assistant Inspector in Place to conduct an additional inspection 

within the first six months following the reinspection. 

(40) Modify the Undercover and Sensitive Operations Unit’s on-site 

review data collection instrument to better address Undercover Guidelines’ 

compliance, including issues such as otherwise illegal activity, potential 

entrapment issues, and task force participation. 
271

IV. FBI Disciplinary Process 

The FBI’s disciplinary process also plays an important role in 

promoting compliance with the Attorney General Guidelines. Unlike the 

Inspection Division, A/IU, and USOU, which affirmatively seek out 

compliance deficiencies through planned inspections or on-site reviews, the 

FBI’s internal investigation caseload is normally generated by referrals of 

alleged employee misconduct to the Internal Investigations Section (IIS) of 

the Inspection Division. The IIS maintains the responsibility to investigate 

the allegation and to refer its findings to the Office of Professional 

Responsibility (OPR). If the allegations of misconduct are sustained, OPR 

has authority to impose disciplinary sanctions. 

The following diagram shows the current structure of the FBI’s 

disciplinary units. 
272

DIAGRAM 7.4 

Organization Chart: FBI Disciplinary Units 

FBI DIRECTOR 

-------------------------------

DEPUTY DIRECTOR 

EXECUTIVE ASSISTANT 

DIRECTOR FOR 

INTELLIGENCE 

EXECUTIVE ASSISTANT 

DIRECTOR FOR 

COUNTERTERRORISM/ 

COUNTERINTELLIGENCE 

EXECUTIVE ASSISTANT 

DIRECTOR FOR 

CRIMINAL 

INVESTIGATIONS 

EXECUTIVE ASSISTANT 

DIRECTOR FOR LAW 

ENFORCEMENT SERVICES 

EXECUTIVE ASSISTANT 

DIRECTOR FOR 

ADMINISTRATION 

TRAINING 

DIVISION 

LAW ENFORCEMENT 

ETHICS UNIT 

APPELLATE 

UNIT 

INSPECTION 

DIVISION 

OFFICE OF 

PROFESSIONAL 

RESPONSIBILITY 

INTERNAL 

INVESTIGATIVE UNITS 

I & II 

INITIAL 

PROCESSING UNIT 

ADJUDICATION 

UNITS I & II 

INTERNAL INVESTIGATIONS 

SECTION 
273

A. Investigative Guidelines Issues Addressed by the FBI 

Disciplinary Process 

Below we describe how the FBI disciplinary process addresses the 

Attorney General’s Investigative Guidelines through its categorization of 

misconduct offenses. We also summarize the OPR cases that have involved 

violations of the Guidelines during the last five years. 

1. Classification of Offenses 

The FBI evaluates allegations of misconduct according to a 

classification scheme that is based on a list of 63 offenses, known as 

“offense codes.” Neither OPR nor the Units in the Internal Investigations 

Section (IIS) of the Inspection Division that investigate allegations of 

misconduct track as a discrete category violations of the Attorney General 

Guidelines. Two prior offense codes that recently were eliminated referred 

to the “AG Guidelines” in their titles: 18F – Informant/CW Matter – 

Violation of AG Guidelines; and 7F – Asset Matter – Violation of Executive 

Orders/AG Guidelines.381 However, our review of misconduct cases under 

these and other offense codes revealed that Attorney General Guidelines' 

violations concerning informants were not consistently captured by the 18F 

classification. Officials at OPR (prior to its restructuring in 2004) could not 

explain why the two codes above contained express references to the 

Guidelines. 

The FBI’s new offense codes cover Attorney General Guidelines' 

violations in two ways: 1) by specifying types of conduct that are subject to 

the FBI disciplinary process; and 2) by identifying general categories of 

conduct standards the violation of which can result in disciplinary 

sanctions. With respect to the latter, three codes refer to operational 

guidelines such as the Attorney General Guidelines.382

 

381 The 7F offense code addresses assets, or intelligence informants, rather than 

criminal informants. Assets are governed by another set of Attorney General Guidelines 

that were not examined in this review. 

The FBI revamped its offense codes in the course of implementing recommendations 

contained in the February 2004 Bell-Cowell Commission report on ways to improve the 

FBI’s disciplinary process. In response to the Bell-Colwell Commission’s recommendations, 

the FBI reengineered OPR’s organizational structure and procedures including separating 

its investigative and adjudicative functions by moving OPR’s intake and investigations units 

to the Inspection Division, relocating the Law Enforcement Ethics Unit in the Training 

Division, and creating a revised set of offense codes and a consolidated set of penalty 

guidelines (Penalty Guidelines). 

382 These codes are: 1.5 Asset/CW/ Informant (Source) – Violation of Operational 

Guidelines and Policies, Other; 1.8 Investigative Deficiency – Violation of Operational 

Guidelines and Policies, Other; and 5.23 Violation of Miscellaneous Rules/Regulations. 

(continued) 
274

2. Investigative Guidelines Violations Adjudicated by 

OPR from 1999 to 2004 

We reviewed OPR cases adjudicated from November 1999 to November 

2004 to identify violations of Attorney General Guidelines. Out of 

approximately 1,500 cases in which OPR imposed discipline, we identified 

24 cases that involved violations of the Confidential Informant Guidelines, 7 

cases where agents initiated unauthorized investigations in violation of the 

General Crimes Guidelines, and 1 case where authorization was not 

obtained for a consensual monitoring in violation of the Consensual 

Monitoring Guidelines. Although several cases discussed misconduct that 

occurred during undercover operations, none of the infractions cited in 

those cases was a violation of the Undercover Guidelines. 

With regard to violations of the Confidential Informant Guidelines, 

most of the cases involved multiple violations, including the following: 

improper personal relationship (10 cases); improper financial transactions 

(7 cases); wrongful disclosure of information (3 cases); failure to obtain 

proper authorization for otherwise illegal activity (3 cases); failure to obtain 

authorization for a privileged or sensitive source (2 cases); failure to witness 

confidential informant payments (2 cases); failure to conduct required 

background checks (2 cases); and failure to report unauthorized criminal 

activity (1 case). As explained in Section III above, the kinds of Guidelines 

violations adjudicated by OPR often are identified during Inspection Division 

inspections (and also were found in the OIG’s review of FBI case files). 

B. OIG Analysis 

Our review identified several issues concerning Guidelines-related 

misconduct that we believe warrant careful evaluation by the FBI: 1) the 

lack of clear standards regarding what Guidelines-related conduct should be 

referred to FBI Headquarters for evaluation of possible misconduct; 2) the 

associated issue concerning the distinction between “performance” and 

“misconduct;” and 3) the potential for disparate disciplinary treatment of 

Guidelines violations due to inadequate information retention, information 

sharing, tracking procedures, and technical support. In addition, we believe 

that certain violations of the Guidelines involving the operation of human 

sources merit elevated attention due to the seriousness of the conduct and 

should therefore be identified as discrete OPR offense codes. 

 

The description of Code 1.8, for example, is “[k]nowingly or recklessly failing to enforce or 

comply with an FBI or Department of Justice (DOJ) operational guideline or policy, not 

specifically delineated in any other ‘Investigative Deficiency’ offense codes provided herein, 

which falls outside the parameters of performance.” 
275

1. Standards for Referral to the FBI Disciplinary Process 

Both the MIOG and Manual of Administrative Operations and 

Procedures require that allegations of “criminality or serious misconduct” be 

reported to FBI Headquarters.383 While Part 263 of the MIOG lists a number 

of offenses that are considered serious misconduct, it provides little 

additional guidance as to when referrals to FBI Headquarters are 

appropriate. Our review of OPR adjudications over the past five years, 

Inspection Division inspection findings, and our own field work revealed 

that some actions that have been treated as misconduct by OPR, such as 

operating a privileged source without proper authorization, have been 

viewed by the field and the Inspection Division as not warranting referral for 

possible discipline. For example, in 2002 OPR disciplined an agent for 

failing to obtain proper authorization for a confidential informant’s 

participation in otherwise illegal activity and for failing to conduct proper 

background checks. However, the Inspection Division’s review in 2004 of 

five source files during one inspection revealed that the responsible Special 

Agents failed to obtain approval for the source’s participation in otherwise 

illegal activity and violated one or more Guidelines’ or MIOG requirements 

while operating the sources. Unlike the 2002 case, none of these matters 

was referred to OPR. 

FBI managers recognize the need to ensure that the disciplinary 

process is both transparent and consistent. For example, the Chief of IIS 

told us that the MIOG and MAOP will be revised to include a reference to the 

FBI’s forthcoming manual on the disciplinary process and will provide 

guidance regarding when it is appropriate for field and Headquarters 

divisions to notify the Initial Processing Unit (IPU) about actual or potential 

misconduct. An Inspection Division official told us that SACs and other 

managers will be encouraged to report everything that could be deemed 

misconduct, and that the IPU will ensure consistency in its determinations 

regarding what is appropriate for investigation through development of a 

precedent database. We believe that such actions are warranted and that 

this FBI initiative could promote greater consistency in how violations of the 

Guidelines are treated. 

“Performance” versus “Misconduct”

An issue which creates uncertainty regarding which violations of the 

Attorney General Guidelines are subject to discipline is the distinction 

between “performance” and “misconduct.” Without clear and wellunderstood principles to guide application of this distinction, the 

disciplinary process will be less effective in promoting compliance with the 

 

383 See MIOG § 263-2; MAOP I § 13-2. 
276

Attorney General Guidelines, and the FBI’s disciplinary investigations and 

adjudications on this subject could produce inconsistent results. 

Several of the FBI’s offense codes refer to conduct “which falls outside 

the parameters of performance.” For example, code 5.23 makes eligible for 

discipline an employee’s failure “to enforce or comply with an FBI, DOJ, 

Office of Personnel Management, or other federal administrative or 

operational guidelines or policy not specifically delineated in any offense 

code, which falls outside the parameters of performance.” Given the broad 

reach of this offense code, the distinction between performance and 

misconduct is critical to determining what behavior, including violations of 

the Attorney General Guidelines, is subject to discipline at the FBI. We 

believe that consistency would be enhanced if those codes that include the 

“which falls outside the parameters of performance” language were 

supplemented with examples demonstrating the difference between 

behaviors that are performance-based and others that constitute 

misconduct. As one FBI electronic communication stated with regard to the 

offense codes, “[b]y having clearly defined elements, employees and 

investigators will know what actions constitute misconduct, and will make 

the entire disciplinary process more transparent.” 

2. Additional Offense Codes 

We also recommend that several offense codes be added to the FBI’s 

offense table to address conduct related to the operation of human sources 

that merits heightened scrutiny due to its seriousness and the frequency of 

deficiencies associated with them. These new codes would target 

misconduct related to informant participation in otherwise illegal activity 

and the authorization and operation of privileged or sensitive sources. 

Our field work and examination of the results of the Inspection 

Division’s inspection findings revealed that the failure by case agents to 

obtain proper authorization for otherwise illegal activity and for the handling 

of confidential informants identified in Section II.D of the Confidential 

Informant Guidelines (sensitive and privileged confidential informants), 

occurred with significant frequency. For example, Inspection Division 

inspections covering the last inspection cycle from May 2002 to October 

2004 identified 38 case files showing that case agents failed to obtain proper 

authorization for confidential informants to engage in otherwise illegal 

activity, and 15 cases where agents operated sensitive or privileged sources 

without necessary authorizations.384 We also identified cases where agents 

 

384 Because some Inspection Division inspection reports did not identify the case files 

where deficiencies were found, it is not possible to specify the total number of deficient files 

evaluated by the Inspection Division. For example, some inspection reports merely stated 

that a particular kind of deficiency occurred during the inspection period. In addition, even 

(continued) 
277

failed to follow special handling procedures related to the operation of 

privileged or sensitive sources. 

The FBI’s current list of offense codes includes four conduct-based 

codes that reference human sources. These codes address the failure to 

report a source’s criminal activity, engaging in improper personal or 

financial relationships with a source, and improperly intervening on behalf 

of a source with respect to law enforcement or legal obligations. The list 

does not include codes addressing the knowing or reckless (i) failure to 

obtain authorization for a source’s participation in otherwise illegal activity; 

(ii) failure to obtain authorization for the operation of privileged or sensitive 

sources; and (iii) mishandling of privileged or sensitive sources.385 While 

such conduct may be covered by a standard-based offense code, such as 1.5 

(“Asset/CW/Informant – Violation of Operational Guidelines and Policies, 

Other), creating separate conduct-based codes would highlight the 

importance of avoiding these types of Guidelines violations and make the 

conduct codes concerning human sources more complete. The Confidential 

Informant Guidelines devote special attention to otherwise illegal activity 

and the handling of privileged and sensitive sources (see §§ II.D – Special 

Approval Requirements, and III.C – Authorization of Otherwise Illegal 

Activity) because of the seriousness of the conduct, the risks to prosecutions 

of informants and others, and the risks of liability to the United States. 

This justifies separate offense codes for misconduct involving authorization 

to participate in otherwise illegal activity, authorization for the operation of 

privileged or sensitive sources, and for the mishandling of such sources. 

3. Technology and Information Dissemination 

We believe that the FBI’s disciplinary units should develop electronic 

information retention, information sharing, and tracking procedures to 

ensure that disciplinary decisions, including those relating to Guidelines 

violations, are consistent and based on complete information. We learned 

that as of December 2004, adequate technology and support that would 

allow for the development and maintenance of upgraded precedent 

databases for Headquarters units involved in the FBI’s disciplinary process 

were not in place, and it was unclear how case information was going to be 

shared and tracked. The FBI’s Chief Information Officer (CIO) told us that, 

 

in those circumstances where the case files were identified, the report did not indicate the 

number of violations found in the files. 

385 We believe that the new offense codes relating to privileged or sensitive sources 

should be limited to circumstances where the source is providing information based upon 

his/her privileged or sensitive status. Accordingly, we do not believe that a case agent’s 

mishandling of an attorney informant who was providing information unrelated to legal 

matters should be covered by the new offense codes. 
278

due to the antiquated nature of the computer system in use by OPR and IIS, 

it is very difficult and time-consuming to execute simple data 

manipulations, such as adding data fields.386 FBI Headquarters officials told 

us that since that time both OPR and IIS have started to use a database 

that was developed by an SSA in the Inspection Division. 

To ensure that information is not “stove-piped” in individual units 

involved in the FBI’s disciplinary process, resulting in inconsistent 

treatment of factors such as Attorney General Guidelines violations, we 

believe that the FBI’s internal discipline components should adopt 

procedures and shared technology that allow for retrieval of case 

information, precedents, and trend analyses. 

C. Recommendations 

To ensure appropriate and consistent treatment of the Attorney 

General Guidelines in the FBI’s disciplinary process, we recommend the 

following. 

(41) Ensure that alleged Attorney General Guidelines’ violations 

warranting potential discipline are referred to the FBI’s Internal 

Investigations Section in a consistent fashion throughout the FBI. 

(42) Ensure that the Inspection Division’s standards for referring 

misconduct involving Attorney General Guidelines’ violations are consistent 

with practices adopted by the Internal Investigations Section. 

(43) Add separate offense codes for: (i) knowingly or recklessly failing 

to obtain proper authorization for a source’s participation in otherwise 

illegal activity; (ii) knowingly or recklessly failing to obtain proper 

authorization to operate long term, high-level, privileged or media-affiliated 

confidential informants or other informants subject to special approval 

requirements; and (iii) knowingly or recklessly failing to operate long-term, 

high-level, privileged or media-affiliated confidential informants, or other 

informants subject to special approval requirements in accordance with the 

relevant Confidential Informant Guidelines and MIOG provisions. 

 

386 For example, the Office of the Chief Information Officer stated that it would take 

approximately two weeks to add a single data field to OPR’s case management system. 

However, that function was completed in a matter of seconds in a demonstration of IIS’s 

new database. 
279

CHAPTER EIGHT 

HOW THE FBI IMPLEMENTED 

THE MAY 30, 2002, REVISIONS TO 

THE ATTORNEY GENERAL’S INVESTIGATIVE GUIDELINES 

In this review we assessed the FBI’s compliance with the Attorney 

General Guidelines and the methods by which the FBI enforced compliance 

with the Guidelines. We also evaluated how the FBI implemented the 

revised Investigative Guidelines. The importance of the implementation 

process was highlighted by Attorney General Ashcroft when he issued the 

new Guidelines. In a memorandum to the heads of all DOJ components 

dated May 30, 2002, the Attorney General stated: 

I hereby direct all affected components to implement these 

revised guidelines and procedures, and to incorporate them as 

relevant into their training programs for new and current 

personnel. The new tools made available by the guidelines will 

only be effective if our agents and employees know how to use 

them. 

We believe it is important to evaluate how the FBI implemented the 

revised Guidelines because lessons learned from this process can be useful 

when future changes to Guidelines are made. As explained below, we found 

several significant deficiencies in the FBI’s process for implementing the 

revised Guidelines. 

I. The FBI’s Implementation Process for the Revised Investigative 

Guidelines 

To assess the procedures the FBI employed to implement the 

Investigative Guidelines, we interviewed FBI personnel, including 

representatives of the Office of the General Counsel (OGC), Inspection 

Division, and Training Division, and reviewed documents describing 

implementation activities. For example, we examined communications to 

FBI personnel relating to the May 2002 revisions and documents describing 

the FBI’s plans for implementing the Guidelines. In addition, we reviewed 

reports, data, and other information provided to the Attorney General and 

DOJ components concerning the FBI’s implementation activities. 

Our review focused on four aspects of the FBI’s implementation of the 

revised Guidelines: 1) initial planning; 2) communications and the provision 

of guidance to agents concerning the revisions; 3) training; and 

4) administrative support. We summarize below our findings for each part 

of the implementation process. 

A. Planning for Implementation 

Our review found that components within the FBI did not sufficiently 

coordinate planning to implement the revised Guidelines. Although 
280

Headquarters personnel told us that discussions occurred within various 

divisions and offices at FBI Headquarters regarding the need for new 

guidance and training, FBI officials told us that no office or entity provided 

coordinated oversight of the Guidelines implementation process. 

Of all FBI components, OGC’s role in the implementation process for 

the revised Guidelines was most prominent. It prepared guidance for the 

field and conducted some training sessions. See discussion in Sections II.B 

and C below. Without inter-division consultation and coordination, 

however, the implementation of the Guidelines proceeded in a patchwork 

fashion. For example, as we describe below, updating of the FBI’s Manual 

of Investigative Operations and Guidelines (MIOG) was significantly delayed, 

and agent training needs were not timely identified and addressed. 

B. Communication and Guidance 

OGC assumed responsibility for many of the communication-related 

tasks associated with notifying the field of the amendments to the 

Guidelines. On May 31, 2002, the day after the revised Guidelines were 

issued by the Attorney General and became effective, OGC e-mailed 

electronic copies of the four Investigative Guidelines to all Chief Division 

Counsel and announced plans to post the documents on the Investigative 

Law Unit’s (ILU) Intranet website. The e-mail also explained that “ILU will 

be providing guidance regarding the implementation of the new guidelines in 

the near future.” The FBI provided no other documentation to the OIG 

concerning its initial notification to its employees, such as a broadcast 

e-mail or posted Intranet announcement for all FBI agents. 

From early June to October 2002, the FBI issued five sets of guidance 

documents concerning the revised Investigative Guidelines.387 On June 11, 

2002, the Undercover and Sensitive Operations Unit (USOU) in the FBI’s 

Criminal Investigative Division (CID) issued an electronic communication to 

all field offices and divisions announcing approval of the revised Field Guide 

for Undercover and Sensitive Operations (Field Guide) that incorporated 

changes required by modifications to the Undercover Guidelines. The 

electronic communication provided a 5-page summary outlining 12 

important policy changes, including increased monetary limits for Group II 

UCOs and emergency approval procedures. 

 

387 The electronic communications for consensual monitoring, confidential informants, 

and undercover operations indicate that the following enclosures were provided: the 

consensual monitoring electronic communication included a copy of the revised 

Consensual Monitoring Guidelines; the confidential informant electronic communication 

included a revised MIOG Part 137; and the undercover operations electronic 

communication included a copy of the revised Field Guide, which contains a copy of the 

Undercover Guidelines. 
281

On July 5, 2002, OGC issued a 2-page electronic communication to 

all Divisions that described changes to the Consensual Monitoring 

Guidelines. On October 7, 2002, OGC sent a 15-page explanation to all 

divisions and Legats regarding the revisions to the General Crimes 

Guidelines. The electronic communication discussed changes to the major 

sections of the General Crimes Guidelines, including those addressing full 

investigations, racketeering enterprise investigations (REIs), terrorism 

enterprise investigations (TEIs), counterterrorism activities, and the 

dissemination of investigative information. With respect to counterterrorism 

activities involving visiting public places and events for the purpose of 

detecting or preventing terrorist activities, the guidance stated that, time 

permitting, agents should obtain their supervisor’s approval for the visit and 

that no information collected should be retained unless it related to 

potential criminal or terrorist activity. 

On August 6, 2002, the Criminal Intelligence Section issued to all 

field offices a 3-page explanation about the revisions to the Confidential 

Informant Guidelines. It described the changes to the Guidelines, including 

elimination of the requirements to read verbatim instructions to CIs and to 

obtain the CI’s written acknowledgment that the CI had received the 

instructions. 

The FBI’s Counterterrorism Division issued an electronic 

communication to all field offices on August 8, 2002, concerning the 

initiation and renewal of TEIs. The guidance addressed issues such as 

predication standards and authorization levels and time periods. The 

Counterterrorism Division supplemented this guidance with an electronic 

communication to all field offices on January 2, 2003, describing the proper 

use of preliminary inquiries in TEIs. 

Besides issuing explanatory electronic communications concerning 

changes to the Investigative Guidelines, the FBI took other steps to assist 

the field with interpreting the Guidelines and understanding related civil 

liberties issues. On March 27, 2003, OGC designated an attorney to 

coordinate guidance and assistance on investigative, operational, and policy 

matters concerning constitutional and privacy interests. The FBI also 

issued the following guidance documents (which are described more fully in 

Chapter Five): 

• March 19, 2004, guidance emphasizing FBI policy regarding the 

protection of civil liberties in connection with use of authorities 

under both the Investigative Guidelines and the NSI Guidelines 

(OGC – “Protection of Civil Liberties”); 

• April 26, 2004, guidance clarifying the standards for collecting, 

retaining, and disseminating information in connection with the 

FBI’s “Special Events” responsibilities (CTD – “Guidance to Atlanta, 

Boston and New York Divisions Concerning Information Collection, 
282

Maintenance, and Dissemination for G-8, DNC and RNC Special 

Events, 2004”); and 

• September 1, 2004, guidance emphasizing the limitations on the 

Part VI authorities and specifying how to collect, maintain, and 

disseminate the information collected in connection with protest 

activity (CTD – “Law Enforcement Monitoring of Protest Groups for 

Indications of Criminal or Terrorist Activity”). 

Despite these and other guidance memoranda issued by FBI 

Headquarters, we found numerous instances where agents were not timely 

informed of Guidelines’ requirements. Furthermore, we identified problems 

in communication between FBI Headquarters and the field concerning the 

requirements of the new Guidelines. For example, our survey of Division 

Counsel indicated that 55 percent said they believed that guidance is not 

clear with respect to Section VI.A.2 of the General Crimes Guidelines.388 

Our survey of Confidential Informant Coordinators also revealed that 45 

percent reported that communication breakdowns with FBI Headquarters 

regarding changed procedures resulting from the Guidelines revisions were 

a significant issue raised by agents in their respective field offices. 

C. Training 

Our review of the FBI’s training initiatives on the Investigative 

Guidelines revealed inadequate planning and poor coordination between 

Headquarters Divisions, with the consequence that nearly two years after 

the Guidelines were revised, key groups within the FBI reported significant 

deficiencies in both the sufficiency and effectiveness of the available 

Guidelines training. Our interviews revealed that no entity in the FBI made 

a determination regarding which agents or supervisory personnel should 

receive training, the form it should take (e.g., classroom, training by 

Division Counsel, or the use of computer-assisted tools such as CD-ROMs), 

and when it should be completed. 

Training for FBI agents is provided by various sources, including 

OGC, the Training Division, and field and Headquarters operating 

 

388 The comments of two Division Counsel are noteworthy. When asked what 

measures they believed should be taken to enhance compliance with the revised 

Investigative Guidelines, they responded: 

• “[C]larity is needed from proposed/draft guidelines to the time they are enacted. 

This information seems to come in piecemeal.” 

• “Provide examples and clear answers. For example, the most recent CDC 

conference in November 2003, someone from OGC regurgitated the brand new 

AG Guidelines. But when asked a very specific, no-wiggle-room question about 

visiting a mosque, we got a non-answer as to what to do.” 
283

divisions.389 The Training Division informed us that it does not maintain 

records on field or Headquarters training that does not involve Training 

Division resources. According to the Training Division, new agents receive 

copies of the Investigative Guidelines as well as instruction on Guidelines 

issues related to consensual monitoring, the operation of confidential 

informants, undercover operations, and investigative techniques. 

Guidelines instruction also is provided during in-service training at the 

FBI’s training facility in Quantico, Virginia, in sessions for agents on 

domestic and international terrorism. 

Chief Division Counsel in each field office also provide mandatory 

quarterly legal training for each field office. According to OGC, Guidelines 

issues are covered in this setting. However, OGC could not verify that the 

May 2002 revisions had been addressed by CDCs in all field offices. 

Moreover, CDCs did not themselves receive training on the revised 

Guidelines until a January 2003 CDC conference at FBI Headquarters. 

Headquarters program units within the CID also provided training 

that addressed the Guidelines. For example, USOU provided Undercover 

Guidelines training on the Confidential Informant Guidelines in several 

courses that it sponsored as did the Asset/Informant Unit (A/IU).390 Finally, 

a limited number of courses that address Guidelines issues are available to 

FBI personnel through DOJ’s Office of Legal Education (e.g., Online 

Undercover Investigations Seminar). 

Yet, despite this training activity, our survey of FBI personnel revealed 

significant gaps and inconsistencies in the sufficiency and effectiveness of 

Guidelines training. For example, our survey of Division Counsel in early 

2004 showed substantial variation in the percentage of agents in field offices 

who had received general training on each of the four Investigative 

 

389 For example, by invitation from various FBI Headquarters and field components, 

OGC conducted more than 20 training sessions addressing Guidelines issues from June 

2002 to June 2003. 

390 According to the former Chief of the Criminal Intelligence Section (CIS), a project 

was initiated in November 2003 to provide FBI-wide “Back to Basics” training to all Special 

Agents, including managers, on the operation of human sources. All Informant 

Coordinators were provided a standard PowerPoint presentation to deliver to field agents. 

An instructional CD-ROM also was distributed that included a mandatory test. The former 

Section Chief explained that all FBI agents were trained the same way in approximately a 

45-day period. He also stated that training is provided to the field through dissemination of 

Weekly Human Source Advisories, which discuss issues that come to the attention of the 

Informant Coordinators, such as the results of Inspection Division inspections. According 

to the former Section Chief, agents in the field find the MIOG to be a difficult source for 

answers and therefore very few agents consult the MIOG on informant issues. Instead, 

they consult with their Informant Coordinator, especially if they do not regularly operate 

informants. 
284

Guidelines, apart from guidance provided by Division Counsel on particular 

cases. As shown below, only 19 percent of surveyed Division Counsel 

reported that all agents in their field office had received training on the 

General Crimes Guidelines (which includes the new anti-terrorism measures 

added with the May 2002 revisions), and 6 percent reported that no agents 

in their office had received such training. In addition, fewer than half of the 

respondents said that all agents in their respective field offices had received 

training on the revised Confidential Informant Guidelines. 

DIAGRAM 8.1 

Division Counsel Reporting of Special Agents who have Received 

Training on the Investigative Guidelines in Their Field Offices 

as of March 2004 

CONFIDENTIAL INFORMANTS

3%

3%

3%

4%

45%

44%

0% 20% 40% 60%

DIVISION COUNSEL 

100%

76% - 99%

51% - 75%

26% - 50%

1% - 25%

0

UNDERCOVER OPERATIONS

10%

19%

12%

13%

31%

15%

0% 20% 40% 60%

DIVISION COUNSEL 

100%

76% - 99%

51% - 75%

26% - 50%

1% - 25%

0

GENERAL CRIMES, RACKETEERING 

ENTERPRISE AND TERRORISM 

ENTERPRISE INVESTIGATIONS

6%

8%

3%

49%

19%

15%

0% 20% 40% 60%

DIVISION COUNSEL

100%

76% - 99%

51% - 75%

26% - 50%

1% - 25%

0

CONSENSUAL MONITORING

8%

8%

4%

6%

50%

24%

0% 20% 40% 60%

DIVISION COUNSEL 

100%

76% - 99%

51% - 75%

26% - 50%

1% - 25%

0

AGENTS 

TRAINED

AGENTS 

TRAINED 

AGENTS 

TRAINED

AGENTS 

TRAINED 
285

Our surveys further revealed that 65 percent of surveyed Division 

Counsel said they believed additional training or guidance on the revised 

Guidelines was necessary in their respective field offices. A high percentage 

of Division Counsel told us that agents and squad supervisors require 

additional training. 

DIAGRAM 8.2 

Division Counsel’s Views on the Need 

for Investigative Guidelines Training 

CDC/ADC Believe Additional Training and 

Guidance on One or More of the Revised 

Guidelines are Necessary in the Field Offices

NO

35% YES

65%

WHO NEEDS ADDITIONAL TRAINING?

CONSENSUAL MONITORING

Special Agents 78%

Squad Supervisors 49%

SACs 22%

CONFIDENTIAL INFORMANTS

Special Agents 59%

Squad Supervisors 41%

SACs 16%

GENERAL CRIMES

Special Agents 76%

Squad Supervisors 47%

SACs 20%

FBI UNDERCOVER OPERATIONS

Special Agents 61%

Squad Supervisors 61%

SACs 20%

Note: multiple responses allowed

Division Counsel Believe that Additional Training or Guidance on One or 

More of the Investigative Guidelines is Necessary in Field Offices
286

We also found that 63 percent of surveyed Division Counsel, 62 

percent of Informant Coordinators, and 50 percent of surveyed Undercover 

Coordinators said they believed they needed additional training on the 

Investigative Guidelines. The diagram below summarizes the views of 

Informant Coordinators: 

DIAGRAM 8.3 

Confidential Informant Coordinators’ Views on the Need 

for Investigative Guidelines Training 

NO

38% YES

62%

Most Confidential Informant Coordinators Believe 

They Need Additional Guidelines Training

Note: multiple responses allowed

Type of Training Confidential Informant Coordinators 

Believe Would be Most Useful

Joint Training with the U.S. Attorneys’ Offices 29%

Quantico In-Service training 37%

Instructional CD-ROMs available at all field offices 40%

Web-based courses 49%

Post answers to frequently asked questions on the 57%

Intranet

CIP Coordinator conferences 91%
287

The reported effectiveness of the Investigative Guidelines training 

received by Informant Coordinators, Undercover Coordinators, and Division 

Counsel since the May 2002 revisions also is noteworthy. As the following 

diagrams reveal, a far greater percentage of Informant Coordinators than 

Undercover Coordinators reported receiving Guidelines training that they 

deemed “not effective.” 

DIAGRAM 8.4 

Effectiveness of Training of Confidential Informant Coordinators 

and Undercover Coordinators on the Investigative Guidelines 

7% 7%

28%

57%

0%

20%

40%

60%

80%

How Undercover Coordinators Rank the Effectiveness of 

Guidelines Training Avaliable to Them

Not Effective Somewhat Ineffective

Neither Effective nor Ineffective Very and Somewhat Effective

20% 11%

27%

43%

0%

20%

40%

60%

80%

How Confidential Informant Coordinators Rank the Effectiveness 

of Guidelines Training Available to Them

Not Effective Somewhat Ineffective

Neither Effective nor Ineffective Very and Somewhat Effective
288

In addition, approximately 10 to 24 percent of surveyed Division 

Counsel reported receiving no training or ineffective training on each of the 

Guidelines in the first 21 months after the revised Guidelines were issued. 

DIAGRAM 8.5 

Division Counsel’s Views of the Effectiveness of Their Training 

on the Investigative Guidelines 

CONFIDENTIAL INFORMANTS

78%

6%

6%

10%

0% 20% 40% 60% 80% 100%

No Training

Somewhat Ineffective and Not Effective

Neither Effective nor Ineffective

Very Effective & Somewhat Effective

UNDERCOVER OPERATIONS

60%

17%

6%

18%

0% 20% 40% 60% 80%

No Training

Somewhat Ineffective and Not Effective

Neither Effective nor Ineffective

Very Effective & Somewhat Effective

GENERAL CRIMES, RACKETEERING 

ENTERPRISE AND TERRORISM 

ENTERPRISE INVESTIGATIONS

77%

11%

3%

9%

0% 20% 40% 60% 80% 100%

No Training

Somewhat Ineffective and Not Effective

Neither Effective nor Ineffective

Very Effective & Somewhat Effective

CONSENSUAL MONITORING

72%

9%

3%

16%

0% 20% 40% 60% 80%

No Training

Somewhat Ineffective and Not Effective

Neither Effective nor Ineffective

Very Effective & Somewhat Effective

D. Administrative Support, Including Mechanisms to Promote 

Accountability 

Compliance with regulations and policy requirements such as the 

Investigative Guidelines can be significantly enhanced through basic 

administrative measures, including use of accurate and up-to-date reference 

materials and standard forms, and adherence to procedures that ensure 

review by experienced personnel. As explained below, our review identified 

multiple deficiencies in the FBI’s administrative support of the revised 

DIVISION COUNSEL DIVISION COUNSEL 

DIVISION COUNSEL 

DIVISION COUNSEL 
289

Guidelines. These included year-long delays in updating the MIOG and 

other administrative materials used to promote adherence to the Guidelines. 

The MIOG is the FBI’s official reference guide on operational 

procedures. It is compiled by the Manuals Desk of the FBI’s Records 

Management Division (RMD), which maintains the document in electronic 

format on the FBI Intranet. The Manuals Desk revises the MIOG 

periodically at the request of FBI components. When the Manuals Desk 

receives such a request, it logs the revision into SOFTBOOK, the mainframe 

automated manuals application. After SOFTBOOK assigns a manual 

change number to the electronic communication requesting the revision, 

Manuals Desk personnel edit, type, proofread, and correct the amendments 

prior to uploading them into SOFTBOOK. SOFTBOOK tracks the upload 

date, manual change number, responsible division, and history associated 

with each manual citation. The date of the electronic communication 

requesting a manuals change is reflected as the “effective date” of the 

change in the text of the MIOG. However, this is not the date the change is 

uploaded to SOFTBOOK. Documentation provided to the OIG by RMD 

shows that many changes took as long as a year or more to appear in the 

“official” downloadable MIOG text available to agents on SOFTBOOK. 

According to RMD, electronic communications amending the MIOG to 

conform to the revised Guidelines were submitted by OGC on July 23, 2002, 

September 23, 2002, and April 4, 2003; by the CTD on June 3, 2003; and 

by the CID on August 6, 2002.391 The FBI stated that SOFTBOOK uploads 

were completed for those five electronic communications on eight dates 

between April 2003 and July 2004.392 SOFTBOOK upload dates do not 

appear anywhere in the text of the MIOG. Thus, RMD did not receive all 

requests for MIOG revisions until more than one year after the Guidelines 

were modified and did not complete all the necessary changes until more 

than two years after the revised Guidelines were issued. 

In contrast, USOU posted revisions to its operations manual on the 

FBI Intranet soon after revision of the Guidelines. For undercover 

operations, agents typically refer to the Field Guide which is available on the 

FBI’s Intranet. To incorporate changes prompted by the revised Guidelines, 

USOU submitted a revised Field Guide to the Investigative Technology 

Operations Division within two weeks of the effective date of the new 

changes, which then uploaded it on the FBI Intranet. 

 

391 The FBI also provided documents which showed that OGC submitted a manuals 

change electronic communication concerning the revised Guidelines to RMD on 

September 30, 2002, and that the CID did the same on January 3, 2003.

392 There were significant delays with the SOFTBOOK uploads. The dates of the 

uploads were April 8, 2003, November 4, 2003, November 12, 2003, March 2, 2004, 

March 3, 2004, March 4, 2004, March 10, 2004, and July 12, 2004. 
290

In addition to examining the timing of the revisions to the MIOG and 

Field Guide, we also compared their text with the Guidelines, noting 

omissions and differences in language. We identified nine significant 

discrepancies between the Guidelines and their corresponding sections of 

the MIOG or field guides that were available to the field from May 2002 to 

May 2004. These differences range from omissions of Guidelines’ 

requirements to contradictions in language. 

Confidential Informants

• Registration of Confidential Informants. The Confidential 

Informant Guidelines identify seven categories of information that 

must be documented in a CI’s files upon registration. The MIOG 

omits one of these requirements – the requirement to document 

the promises or benefits that are given to a CI by any prosecuting 

office. 

• Contingency Payments to Confidential Informants. The 

Confidential Informant Guidelines provide that payments to a 

confidential informant shall not be contingent upon the 

conviction or punishment of any individual. Neither the MIOG 

nor the FBI’s Confidential Funding Guide contains a 

corresponding provision. 

• Deactivation of Confidential Informants. The Confidential 

Informant Guidelines establish procedures when a CI is 

deactivated “for cause or for any other reason.” For CIs who are 

not deactivated “for cause,” the MIOG does not include the 

notification and documentation requirements contained in the 

Guidelines. 

Undercover Operations

• Preparation of Undercover Employees, Informants, and 

Cooperating Witnesses. The Undercover Guidelines require the 

Special Agent in Charge (SAC) or Supervisory Special Agent (SSA) 

to review with an undercover employee the conduct that the 

undercover employee is expected to undertake, conduct that may 

be necessary during an operation, and any sensitive or fiscal 

circumstances that are reasonably likely to occur. The Field 

Guide omits the requirement to discuss sensitive or fiscal 

circumstances. 

• Application/Notification to FBI Headquarters, Sensitive 

Circumstances. The MIOG omits the Undercover Guidelines’ 

requirement that the letter from the “appropriate federal 
291

prosecutor” that is included in the FBI approval package for 

Group I UCOs provide a cost/benefit statement.393

General Crimes, Racketeering Enterprise and Terrorism Enterprise 

Investigations

• Authorizations for Openings and Renewals of Terrorism Enterprise 

Investigations. The General Crimes Guidelines provide that 

approval of initiations and renewals of terrorism enterprise 

investigations may be made by the SAC with notice to FBI 

Headquarters. The MIOG requires Headquarters approval for the 

initiation of TEIs by requiring concurrence of an appropriate 

Section Chief in the FBI’s Counterterrorism Division.394

• Use of Mail Covers in Preliminary Inquiries. The revised 

Guidelines authorize the use of mail covers in preliminary inquiries 

in general crimes investigations. The MIOG prohibits mail covers 

in these investigations. 

Consensual Monitoring

• Duration of Consensual Monitoring. We believe an ambiguity 

exists in the Consensual Monitoring Guidelines and MIOG 

regarding the authorization period for monitorings that do not 

involve the sensitive circumstances set forth in Section II.A of the 

Guidelines. For consensual monitorings that require DOJ 

approval, Section III.A.6 of the Consensual Monitoring Guidelines 

and the corresponding section of the MIOG (Part 2 § 10-10.3(9)(f)) 

impose a 90-day limit on authorizations. For non-sensitive 

matters, Section V of the Guidelines requires that the records for 

the monitoring include the information set forth in Section III.A, 

which provides that the request must “state the length of time 

needed for the monitoring” and establishes the 90-day 

authorization period described above (emphasis added). The MIOG 

provides, however, that in non-sensitive consensual monitorings, 

 

393 We construe the Undercover Guidelines’ requirement that this letter “include a 

finding” that the benefits of the undercover operation outweigh its costs as adding 

something more to the letter than that the prosecutor “agrees with the proposal and its 

legality.” As explained in Chapter Four, we found numerous instances when the 

authorization letter from the U.S. Attorney’s Office did not meet the requirements of the 

Guidelines. 

394 In Chapter Five, we discuss the Attorney General’s May 30, 2002, statements that 

the purpose of the Guidelines revisions delegating authority to field offices to approve TEIs 

was to eliminate “procedural red tape . . . [and to] free field agents to counter potential 

terrorist threats swiftly and vigorously without waiting for headquarters to act.” Remarks 

of Attorney General John Ashcroft (May 30, 2002). 
292

the SAC or ASAC may approve the monitoring “for the duration of 

the investigation,” which, as explained in Chapter Six, the FBI has 

converted into a standard practice of authorizing non-sensitive 

monitorings for an extended period of time beyond 90 days. 

• Emergency Procedures for Consensual Monitorings That Do Not 

Require DOJ Approval. The Consensual Monitoring Guidelines 

require the establishment of procedures for emergency 

authorizations in cases that do not require DOJ approval. The 

MIOG does not include such procedures.395

In addition to delays in revising the MIOG and these discrepancies, we 

encountered numerous instances where the administrative support the FBI 

provided to implement the Guidelines was outdated or inadequate. For 

example, some standard forms in use in the field offices we visited were not 

current and contained requirements that had been superseded by the 2002 

revisions. 

II. OIG Analysis and Recommendations 

Our review extended over a period of fundamental organizational 

change within the FBI in response to the terrorist attacks of September 11, 

2001. Notwithstanding these significant challenges, we believe the May 

2002 revisions to the Investigative Guidelines warranted more 

comprehensive implementation planning and training to ensure that they 

were effectively communicated to the field, understood, and followed. 

Our review of the FBI’s actions following the May 2002 revisions to the 

Guidelines showed that the FBI did not provide sufficient training, 

guidance, administrative support, and oversight to ensure adequate 

implementation of the revised Guidelines. Although we found that some FBI 

components took important actions to implement the Guidelines, such as 

the Undercover and Sensitive Operations Unit and the Office of the General 

Counsel, taken as a whole, the FBI’s implementation process was 

insufficient. 

In some respects, the FBI’s efforts were destined to fall short because 

it failed to develop even a rudimentary plan for how it intended to 

disseminate and implement the revised Guidelines. This occurred despite 

the FBI’s input on and prior knowledge of the impending Guidelines 

changes. We believe that someone at FBI Headquarters should have been 

assigned responsibility for overseeing implementation of the new Guidelines, 

in advance of their effective date. 

 

395 A table listing these discrepancies is attached as Appendix F. 
293

Of all the implementation-related functions we examined, training on 

the revised Investigative Guidelines likely was hindered most significantly by 

the lack of inter-division coordination. For example, our interviews revealed 

that no entity in the FBI made decisions regarding the Guidelines training 

that should be provided throughout the FBI and the form it should take. As 

explained above, the Training Division does not have budgetary or 

operational authority over all training at the FBI, a fact which has been the 

topic of other reports critical of the FBI’s training programs.396 In 2001, 

DOJ commissioned a study of FBI management, which concluded as 

follows: “The FBI’s training and development function is fragmented across 

the organization, resulting in confusion among employees, duplication of 

efforts, gaps in training offerings and inefficient use of resources.”397 Our 

review confirmed that training on the revised Investigative Guidelines 

suffered from similar deficiencies. Our surveys of FBI employees nearly two 

years after revision of the Guidelines showed that while 100 percent of 

agents in some offices had received training on individual Guidelines, agents 

in other offices had received no training, and most Informant Coordinators 

and Division Counsel believed that they, along with agents in their offices, 

still required additional training or guidance on the revised Guidelines. 

We also found that certain of the FBI’s administrative actions to 

support compliance with the Guidelines were outdated or otherwise 

deficient. For example, it took more than two years for the FBI to fully 

update the MIOG to account for the May 2002 Guidelines changes, even 

though the MIOG is the FBI’s primary investigative resource manual. 

Moreover, during our field work in the summer 2004, we identified fieldgenerated forms that field Divisions used to record information relevant to 

Guidelines compliance that were not current and that did not account for 

the May 2002 revisions.398 When preparing for future Guidelines changes, 

the FBI should ensure that its resource manuals and supporting materials 

are updated promptly. 

Moreover, our comparison of the Investigative Guidelines and FBI 

policy manuals identified several discrepancies. These included omissions 

from the MIOG that addressed the contents of informant files, informant 

deactivation procedures, and the preparation of undercover employees. We 

also identified a conflict between the General Crimes Guidelines and the 

MIOG concerning authorizations for terrorism enterprise investigations. 

 

396 See, e.g., Arthur Andersen, Management Study of the Federal Bureau of 

Investigation (December 14, 2001) at 159-160. 

397 Id. at 159. 

398 For example, as Table 3.7 in Chapter Three illustrates, 6 of the 12 field offices we 

visited during this review used one or more field-generated “ponies” or forms that failed to 

address important measures of the suitability of proposed confidential informants. 
294

We learned in the course of our review that OGC distributed copies of 

the revised Guidelines to all Chief Division Counsel the day after they 

became effective and announced their upcoming availability on the FBI 

Intranet. Thereafter, OGC and other FBI Headquarters divisions 

disseminated guidance to the field describing the modifications to the 

Guidelines in a reasonably prompt fashion. The Undercover and Sensitive 

Operation Unit did an especially good job in this regard, and distributed its 

guidance and announced a revised version of its field guide addressing key 

interpretive questions less than two weeks after the revised Guidelines 

became effective. 

However, the guidance with regard to certain of the new 

counterterrorism authorities in the General Crimes Guidelines was not 

sufficient. As we explained in Chapter Five, our survey of Division Counsel 

in the FBI’s field offices revealed that guidance relating to Part VI, which 

authorizes the FBI to visit public places without particularized predication, 

was not timely and comprehensive. We found, for example, that 86 percent 

of Division Counsel said they had been consulted about whether it was 

permissible to retain information derived from the surveillance of or 

attendance at public events, and that 63 percent of those Division Counsel 

believed there was inadequate guidance about these matters when the 

revised Investigative Guidelines were issued. When we surveyed them 21 

months after the revised Guidelines were issued, their views on the clarity of 

guidance improved only slightly to 55 percent.399 Other communication 

gaps we identified appeared to have resulted from agents not knowing that 

guidance was issued or not consulting with others knowledgeable of the 

issues and current developments. 

We recommend that the FBI take the following steps. 

(44) Assign some person or unit at FBI Headquarters the 

responsibility to develop a plan to ensure proper and timely execution of 

future Attorney General Guidelines’ revisions and to coordinate 

implementation of the revisions over time. 

(45) Distribute revised Attorney General Guidelines to Chief Division 

Counsel, together with a concise summary or listing of the changes, 

sufficiently in advance of the new Guidelines’ effective date to allow field 

personnel to familiarize themselves with the revisions and to allow those 

Headquarters and field personnel who provide training on the revisions to 

develop training materials and a schedule for providing training. In 

 

399 As we also described in Chapter Five, a far greater percentage of surveyed Division 

Counsel were satisfied with the quality of the guidance generally on privacy and civil 

liberties issues: 37 percent found the guidance “fully satisfactory,” 34 percent found it 

“somewhat satisfactory,” and only 9 percent found it either “somewhat unsatisfactory” or 

“not satisfactory.” 
295

addition, near the effective date of the revision, the FBI should develop and 

distribute standardized forms and other administrative support tools, issue 

field guidance, and identify a Headquarters point of contact who can 

address questions concerning the revisions. 

(46) Ensure that revisions to the MIOG accurately reflect any changes 

to the Attorney General Guidelines and are made on or about the effective 

date of such changes. 

(47) Make appropriate changes to the MIOG to reconcile the 

discrepancies between the Attorney General Guidelines and the MIOG that 

are identified in this report.400

 

400 We understand that the discrepancies we identify in this report concerning the 

Confidential Informant Guidelines may be overtaken by proposed changes to the FBI’s 

internal rules for handling all human sources, including confidential informants. The FBI 

should decide whether it nonetheless should revise the MIOG in the interim period before 

the Guidelines revisions are made. 
296

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297

CHAPTER NINE 

CONCLUSION 

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 noncompliance 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. 
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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 
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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 
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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, 
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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. 

_________________________ ____________________________ 

Date Glenn A. Fine 

 Inspector General