49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–564 

LAW ENFORCEMENT COOPERATION ACT OF 2006 

JULY 14, 2006.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 4132] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4132) to amend title 18, United States Code, to provide penalties for officers and employees of the Federal Bureau of Investigation who obtain knowledge of criminal conduct within the jurisdiction of State and local prosecutors and fail to so inform those prosecutors, having considered the same, report favorably thereon with 

an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Law Enforcement Cooperation Act of 2006’’. 

SEC. 2. F.B.I. FAILURE TO INFORM STATE AND LOCAL OFFICIALS OF CRIMES WITHIN THEIR 

JURISDICTION. 

(a) IN GENERAL.—Chapter 73 (relating to obstruction of justice) of title 18, United 

States Code, is amended by adding at the end the following: 

‘‘§ 1521. F.B.I. failure to inform State and local officials of crimes within 

their jurisdiction 

‘‘(a) FAILURE TO INFORM STATE AND LOCAL OFFICIALS.—Whoever, being an officer 

or employee of the Federal Bureau of Investigation, obtains information that a confidential informant or other individual has committed a serious violent felony (as 

defined in section 3559 of title 18) in violation of State or local law and knowingly 

and intentionally fails to promptly inform the chief State law enforcement officer 

and local prosecuting official, shall be fined under this title or imprisoned not more 

than 5 years, or both. 


rwilkins on PROD1PC63 with HEARING
2 

1 Union Calendar No. 237, 108th Congress 2d Session, Third Report by the Committee on Government Reform, ‘‘Everything Secret Degenerates: The FBI’s Use of Murderers as Informants,’’

at. 135. Available at: http://reform.house. gov/ 

‘‘(b) NOTIFICATION TO THE ATTORNEY GENERAL.—The Federal Bureau of Investigation shall notify the Attorney General that such officer or employee has provided 

information pursuant to this section.’’. 

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 73 

of title 18, United States Code, is amended by adding at the end the following new 

item: 

‘‘1521. F.B.I. failure to inform State and local officials of crimes within their jurisdiction.’’. 

PURPOSE AND SUMMARY

H.R. 4132, the ‘‘Law Enforcement Cooperation Act,’’ provides for 

the imposition of criminal penalties upon an officer or employee of 

the Federal Bureau of Investigation who knowingly and intentionally fails to promptly inform the chief State law enforcement officer and local prosecuting official that a confidential informant or 

other individual has committed a serious violent felony (as defined 

in section 3559 of title 18) in violation of State or local law. An offense under this section is punishable by a fine or imprisonment 

up to five years, or both. The officer or employee must promptly notify the Attorney General that such officer or employee has provided information under this section. 

BACKGROUND AND NEED FOR THE LEGISLATION

A. HOUSE COMMITTEE ON GOVERNMENT REFORM

On November 20, 2003, the House Committee on Government 

Reform submitted a report entitled, ‘‘Everything Secret Degenerates: The FBI’s Use of Murderers as Informants’’ following an extensive Committee investigation. While the report focused on activities in the FBI Boston Field Office, it concluded generally that, 

beginning in the 1960s, Federal law enforcement officials chose to 

use dangerous criminals as informants and in turn protected them 

from the consequences of their crimes. These crimes include the 

murder of a number of men who were killed because they came to 

the government with information incriminating certain informants 

but whose identity subsequently was disclosed to the informants 

themselves.1

As a result of the Committee on Government Reform’s investigation, the FBI re-engineered the administration and operation of 

human sources. This effort was to include the centralization of the 

administration of all human factors; the development of a ‘‘Risk 

Factor Model’’; and for certain categories of human sources, implementation of a validation process. Further, the FBI undertook a review of its Office of Professional Responsibility to ensure that the 

system of internal discipline was effective in deterring misuse of 

Confidential Informants. 

B. HOUSE COMMITTEE ON THE JUDICIARY

In February 2004, the House Committee on the Judiciary, pursuant to its oversight responsibilities, resumed a review of the FBI’s 

Confidential Informant program, including its guidelines, policies, 

and practices. While the Government Reform investigation highlighted the problems in the Boston field office, the Judiciary ComVerDate Aug 31 2005 20:12 Jul 15, 2006 Jkt 049006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR564.XXX HR564

rwilkins on PROD1PC63 with HEARING
3 

2 Id. at 136. 

3The Department of Justice Office of the Inspector General Report, ‘‘The Federal Bureau of 

Investigations Compliance with the Attorney General’s Investigative Guidelines,’’ at 2. 4 Id. at 36. 

5 Id. at 19. 

6 Id. at 59. 

mittee examined the FBI’s development of confidential informants 

and whether or not the Boston field office was representative of 

general problems existing throughout the agency’s confidential informant program or simply an isolated incident. The Committee 

also examined the reforms promised to the Committee on Government Reform by Director Robert Mueller in November of 2003,2 as 

well as a review of compliance with the Confidential Informant 

Guidelines, revised in January 2001, that among other things, established the Confidential Informant Review Committee. To pursue 

its oversight investigation, the Committee conducted numerous 

meetings and sent correspondence to various State and Federal 

agencies, including the Department of Justice. 

C. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL’S

REPORT, ‘‘THE FEDERAL BUREAU OF INVESTIGATION’S COMPLIANCE

WITH THE ATTORNEY GENERAL’S INVESTIGATIVE GUIDELINES.’’

In September 2005, the Department of Justice Office of the Inspector General (OIG) released a report entitled, ‘‘The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines’’ (the Report). OIG examined four areas of 

FBI’s compliance with the Attorney General’s Investigative Guidelines (Guidelines). The four areas examined were: Confidential Informants; Undercover Operations; General Crimes, Racketeering 

Enterprise and Terrorism Enterprise Investigations; and Consensual Monitoring. In the Report, the OIG reviewed the FBI’s implementation of the revised 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. The most significant problems cited were failures to comply with the Confidential 

Informant Guidelines. In fact, the OIG identified one or more 

Guideline violations in 87 percent of the confidential informant 

files examined.3

The Report issued by the OIG was the culmination of an exhaustive review regarding various issues of compliance with the Guidelines. The Guidelines were adopted in 1976, with revisions added 

periodically at the behest of the then-Attorney General, and were 

adopted in place of statutory recourse for the FBI and other Federal Law Enforcement Agencies.4 The latest revision of the Attorney General’s Guidelines, the Ashcroft Guidelines, were adopted 

without the customary Congressional consultation.5 In the past the 

Attorney General and FBI Leadership have uniformly agreed that 

the Guidelines were necessary and desirable, and that the FBI’s 

adherence to the Guidelines were the reason why the FBI should 

not be subjected to a general legislative charter or to statutory control.6 However, failure to adequately comply with the Guidelines 

brings into question whether legislative alternatives may be necessary. 


rwilkins on PROD1PC63 with HEARING
4 

7The Department of Justice Office of the Inspector General Report, ‘‘The Federal Bureau of 

Investigations Compliance with the Attorney General’s Investigative Guidelines,’’ at 2. 8 Id. at 7. 

9 Id. at 8. 

10 Id. at 65, citing Webster, The Director: Why the FBI Needs Undercover Snoops, Los Angeles 

Herald Examiner, June 2, 1978, at A–21. 

Although the Report looked at the general compliance by the FBI 

with several portions of the Guidelines, the relevant portion for the 

purposes of this legislation is that addressing the Bureau’s effectiveness regarding Agent relationships with Confidential Informants (CIs), an area that the Report identified as the most problematic.7

Twelve FBI offices of various sizes were selected and a random 

sampling of between 9 to 11 CI files from each office (for a total 

of 120) were selected in order to ascertain compliance levels. In addition, various personnel from the FBI and U.S. Attorney’s offices 

were interviewed to supplement and explain the results of the file 

analysis. The OIG determined that there existed at least one compliance error in 87 percent of the files examined.8 As an explanation for this finding, personnel from field offices, as well as personnel from FBI Headquarters, indicated that the Guidelines are 

too cumbersome and, as such, discourage agents from adhering to 

the Guidelines. Similarly, a majority of the Special Agents in 

Charge (SAC) indicated that while they believed the Guidelines are 

realistic, the accompanying paperwork is too cumbersome.9 These 

complaints about and failure to adhere to the Guidelines is an apparent departure from previous feedback about the priority placed 

on adherence to the Guidelines, as indicated by former FBI Director William Webster who stated that the Guidelines were ‘‘scrupulously observed’’ in regard to handling informants.10

Furthermore, the GIG found significant problems in the FBI’s 

compliance with the Guidelines occurring primarily in the areas of: 

suitability reviews; 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. 

1. Initial and continuing suitability reviews 

Suitability reviews (a list of 17 different factors which, collectively, will help to inform on the initial suitability determination of 

a CI) are the initial reviews undertaken by Agents and their supervisors to evaluate the suitability of those whom they propose to operate as CIs. Of the files that the OIG reviewed, 44 percent were 

newly opened files and required an Initial Suitability Report and 

Recommendation (ISR&R). Of those requiring an ISR&R, 34 percent of those reviewed did not contain documentation of at least 

one required suitability factor, the most common of which were: 

a. The extent to which the CI’s information or assistance 

could be corroborated; 

b. 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; and 


rwilkins on PROD1PC63 with HEARING
5 

11 Id. at 97. 12 Id. at 99. 13 Id. at 103. 14 Id. at 104. 15 Id. at 105. 

c. The nature of any relationship between the CI and the 

subject or target of an existing or potential investigation or 

prosecution.11

2. Instructions 

Once the CI 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. Of the 120 CI files reviewed, 22 percent lacked the documentation that all required instructions were given and acknowledged.12

3. Authority to engage in otherwise illegal activity (OIA) 

OIA is activity that would be criminal absent permission granted 

by the government. This is normally done to enable CIs to have 

greater access to criminal activity, which in turn aids the Agency 

in preventing more substantial crimes. Tier 1 OIA, which involves 

the more serious crimes, must be authorized by the FBI Assistant 

Director in Charge or SAC of the appropriate Field Office or Division and the appropriate U.S. Attorney in advance and in writing, 

and must not exceed 90 days of effectiveness. Tier 2 OIA may be 

authorized for a period not to exceed 90 days by a senior field manager. In any case, an analysis must be made by those who are approving the OIA that documents the conclusion that the benefits to 

be obtained by the CI’s participation in the OIA outweigh the risks 

or harm caused by the specific act or acts being authorized.13

OIA is one of the most sensitive areas of CI management. As 

such, some of the findings of the OIG may be a cause for concern. 

OIG indicated that upon interviewing Confidential Informant Coordinators (an administrative position charged with the maintenance 

of administrative and coordinative efforts related to the handling 

of CIs) in the FBI field offices, only 52 percent reported that they 

believed Agents in their offices obtain the required written acknowledgments in all cases.14 In the twenty-five informant files regarding cases in which OIA was authorized, two were Tier 1 OIA 

and the other twenty-three were exclusively Tier 2 OIA. Of the 

twenty-five files, 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 the OIA, failures to obtain the CI’s written acknowledgment of instructions regarding the limits of OIA activities, and 

failures to provide required instructions to the CI.15 Perhaps one 

of the most disturbing facts is that in two of the Tier 1 OIA files, 

the FBI failed to obtain proper authorization from the U.S. Attorney with respect to the concurrence and authorization of the activity, thereby circumventing prosecutorial review and acquiescence. 


rwilkins on PROD1PC63 with HEARING
6 

16 Id. at 108. 17 Id. at 109. 18 Id. at 115–116. 

4. 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 

that has not been previously authorized. Five of the cases reviewed 

required the FBI to notify the U.S. Attorney of the activity and in 

two cases (40 percent) the FBI failed to do so in violation of the 

Guidelines.16

5. Deactivation of CI’s 

When a CI is deactivated, the Guidelines require the FBI to 

maintain appropriate documentation in the CI’s file of certain notifications to the CI and to FBI Headquarters and DOJ personnel. 

Of the relevant files reviewed, 37 percent contained one or more 

deficiencies in documenting these notifications.17

6. OIG analysis 

The OIG indicated several reasons that may attribute to the 

overall lack of compliance by FBI agents: • Inadequate administrative support for the Criminal Informant Program, including the failure to provide standardized 

forms, a field guide, and Intranet tools; • Failure by executive managers to hold first-line supervisors accountable for compliance deficiencies and to exercise 

effective oversight of agents operating confidential informants; • Inadequate training at every level, including periodic 

training on the Guidelines themselves and joint training with 

the U.S. Attorneys’ Offices on appropriate methods to operate 

CIs; • Inadequate support of Confidential Informant Coordinators and assignment of this responsibility as a collateral duty; • Failure to take compliance performance into account in 

personnel and promotion decisions and policies; and • Lingering differences between the FBI and DOJ over informant issues.18

Congressional oversight by the Government Reform and Judiciary Committees, as well as the detailed findings by the OIG, demonstrate a need for a legislative, rather than executive, solution to 

the deficient compliance with the Guidelines by the FBI. The need 

for a Congressional response is compounded by events in recent 

years including the 2002 adoption of revised Guidelines by the Department of Justice without the customary Congressional approval 

and the prosecution of two FBI agents, John J. Connolly, Jr. and 

R. Lindley DeVechhio, relating to their complicity in crimes of violence committed by confidential informants. 

HEARINGS

The Committee on the Judiciary held no hearings on H.R. 4132. 

COMMITTEE CONSIDERATION

On July 12, 2006, the Committee on the Judiciary met in open 

session and ordered favorably reported the bill, H.R. 4132, with an 


rwilkins on PROD1PC63 with HEARING
7 

amendment in the nature of a substitute by voice vote, a quorum 

being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee consideration of H.R. 4132. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 4132, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

JULY 4, 2006. 

Hon. F. JAMES SENSENBRENNER, Jr., 

Chairman, Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4132, the Law Enforcement Cooperation Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DONALD B. MARRON, Acting Director. 

Enclosures. 

H.R. 4132—Law Enforcement Cooperation Act of 2005 

CBO estimates that implementing H.R. 413 would have no significant cost to the federal government. Enacting the bill could affect direct spending and revenues, but CBO estimates that any 

such effects would not be significant. H.R. 4132 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no direct costs on 

state, local, or tribal governments. 

H.R. 4132 would establish a new federal crime for the failure of 

Federal Bureau of Investigation (FBI) employees to inform state 

and local law enforcement officials about certain crimes committed 


rwilkins on PROD1PC63 with HEARING
8 

in their jurisdictions. Because the bill would establish a new offense, the government would be able to pursue cases that it otherwise would not be able to prosecute. We expect that H.R. 4132 

would apply to a relatively small number of offenders (i.e., certain 

FBI employees), however, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant. Any such costs would be subject to the availability of appropriated funds. 

Because those prosecuted and convicted under H.R. 4132 could 

be subject to criminal fines, the federal government might collect 

additional fines if the legislation is enacted. Criminal fines are recorded as revenues, then deposited in the Crime Victims Fund and 

later spent. CBO expects that any additional revenues and direct 

spending would not be significant because of the small number of 

cases likely to be affected. 

The CBO staff contact for this estimate is Mark Grabowicz. This 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 4132 is intended 

to promote notification to State and local law enforcement by the 

FBI regarding the commission of a serious violent felony by a confidential informant or other individual. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short title 

This section provides that the Act may be cited as the ‘‘Law Enforcement Cooperation Act of 2005.’’

Section 2. FBI failure to inform State and local officials of crimes 

within their jurisdiction 

This section amends the federal criminal code to prescribe penalties to be imposed on any officer or employee of the Federal Bureau of Investigation (FBI) who obtains information that a confidential informant or other individual has committed a serious violent felony (as defined in section 3559 of title 18) that violates 

State or local law and who knowingly and intentionally fails to 

promptly inform the chief State law enforcement officer and local 

prosecuting official. An offense under this section is punishable by 

fine or imprisonment up to five years, or both. The FBI is required 

to notify the Attorney General that an officer or employee has provided information under this section. 


rwilkins on PROD1PC63 with HEARING
9 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

CHAPTER 73 OF TITLE 18, UNITED STATES CODE 

CHAPTER 73—OBSTRUCTION OF JUSTICE 

Sec. 

1501. Assault on process server. 

* * * * * * * 

1521. F.B.I. failure to inform State and local officials of crimes within their jurisdiction. 

* * * * * * * 

§ 1521. F.B.I. failure to inform State and local officials of 

crimes within their jurisdiction 

(a) FAILURE TO INFORM STATE AND LOCAL OFFICIALS.—Whoever, 

being an officer or employee of the Federal Bureau of Investigation, 

obtains information that a confidential informant or other individual has committed a serious violent felony (as defined in section 

3559 of title 18) in violation of State or local law and knowingly 

and intentionally fails to promptly inform the chief State law enforcement officer and local prosecuting official, shall be fined under 

this title or imprisoned not more than 5 years, or both. 

(b) NOTIFICATION TO THE ATTORNEY GENERAL.—The Federal Bureau of Investigation shall notify the Attorney General that such officer or employee has provided information pursuant to this section. 


rwilkins on PROD1PC63 with HEARING
(10) 

ADDITIONAL VIEWS OF HON. JEFF FLAKE 

I have serious concerns regarding H.R. 4132 and its impact on 

covert investigations by the Federal Bureau of Investigation (FBI). 

It is important to note that the FBI does not support this legislation because they believe that the bill will compromise their covert 

activity in a significant way. 

H.R. 4132 would impose stiff prison terms of up to five years on 

Federal Bureau of Investigation agents who knowingly fail to 

promptly tell local or state law enforcement authorities if FBI informants commit serious felonies. Some of these felonies, such as 

robbery, may be committed by an informant who is deep within a 

terrorist cell here in the United States, or be an informant in the 

inner circle of the Russian mob. Do we compromise those investigations by reporting those crimes to local officials, or do we let these 

informants give us enough information to arrest an entire cell or 

crime syndicate? 

Murder is a serious crime and any informant who commits murder should be prosecuted to the fullest extent of the law. However, 

it is important to note that the FBI has a process in place to handle such incidents. Crimes by informants are to be reported up the 

chain of command, per the Department of Justice’s own regulations. It’s already illegal for an agent to fail to report a crime like 

murder committed by an informant and, in the case of Boston Mob 

Boss Whitey Bulger, one agent has already gone to jail for failing 

to do so. 

Intelligence gathering requires dealing with unsavory characters, 

as any field agent in the FBI, CIA or DEA will tell you. We must 

allow the FBI to do its job, and focus on stopping the next terrorist 

attack. I believe this bill hampers that mission to no small degree. 

JEFF FLAKE. 


rwilkins on PROD1PC63 with HEARING
(11) 

ADDITIONAL VIEWS OF HON. WILLIAM DELAHUNT 

The gentleman from Arizona, Mr. Flake, expresses concern that 

the FBI opposes this legislation. The FBI’s opposition to this bill 

is consistent with what at least one court determined to be an ‘‘enduring culture of resistance’’ to information-sharing with state and 

local prosecutors and law enforcement authorities. This is precisely 

the flaw at the core of the problems identified in reports produced 

by both the Judiciary Committee and the Committee on Government Reform, as well as the report of the Department of Justice 

Inspector General. It is exactly why this legislation is essential. 

Mr. Flake argues that this bill is unnecessary because ‘‘the FBI 

has a process in place to handle such incidents.’’ He is correct that 

there is a process outlined in the Attorney General’s Investigative 

Guidelines for sharing information with state and local law enforcement. It is the FBI’s long-standing willful disregard of that ‘‘process’’ and the violent crimes that have resulted that led us to H.R. 

4132. 

This legislation is not about the failure of one agent, but many 

agents and supervising agents of the FBI. The agent to which Mr. 

Flake refers in the Bulger case was prosecuted and jailed for his 

own criminal involvement in the criminal activities of his informants, not because of his failure to comply with the Attorney General’s Guidelines. 

The reports of two House Committees and the Department of 

Justice’s own Inspector General acknowledge that the FBI’s failure 

to follow the Attorney General’s Investigative Guidelines is a 

chronic problem. Given that these and wrongful death suits against 

the government have not been sufficient incentive to encourage 

compliance, criminal penalties are necessary. 

WILLIAM D. DELAHUNT. 


rwilkins on PROD1PC63 with HEARING
(12) 

* 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. 

MATERIAL SUBMITTED ON BEHALF OF HON. WILLIAM DELAHUNT

To accompany H.R. 4132, the ‘‘Law Enforcement Cooperation 

Act,’’ I submit the Executive Summary from the Report entitled, ‘‘The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines.’’

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 played key roles in 


rwilkins on PROD1PC63 with HEARING
13 

1We 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. 2The 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. 

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. 

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. 


rwilkins on PROD1PC63 with HEARING
14 

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 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 ReVerDate Aug 31 2005 20:12 Jul 15, 2006 Jkt 049006 PO 00000 Frm 00014 Fmt 6604 Sfmt 6602 E:\HR\OC\HR564.XXX HR564

rwilkins on PROD1PC63 with HEARING
15 

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. 

view 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 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’ 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 


rwilkins on PROD1PC63 with HEARING
16 

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 

Guideline apply only to the FBI. The Consensual Monitoring Guidelines apply to all Executive 

Branch departments and agencies. 

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 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 file, 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. AtVerDate Aug 31 2005 20:12 Jul 15, 2006 Jkt 049006 PO 00000 Frm 00016 Fmt 6604 Sfmt 6602 E:\HR\OC\HR564.XXX HR564

rwilkins on PROD1PC63 with HEARING
17 

torneys’ 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 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 


rwilkins on PROD1PC63 with HEARING
18 

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 judgment 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. 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. 

Guidelines compliance errors in 87 percent of the informant files 

we examined.5

These compliance errors are troubling in light of the history of 

the Confidential Informant Guidelines. As result of a 2-year review 

after high-profile 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

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 officeVerDate Aug 31 2005 20:12 Jul 15, 2006 Jkt 049006 PO 00000 Frm 00018 Fmt 6604 Sfmt 6602 E:\HR\OC\HR564.XXX HR564

rwilkins on PROD1PC63 with HEARING
19 

level compliance deficiencies regarding the Confidential Informant 

Guidelines identified in the course of our review. CID conclude 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 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. 


rwilkins on PROD1PC63 with HEARING
20 

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: 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 


rwilkins on PROD1PC63 with HEARING
21 

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 sever issues pertaining to recordkeeping and dissemination of 

information derive 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 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, he 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 


rwilkins on PROD1PC63 with HEARING
22 

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. 9Letter to Glenn Fine from Congressmen John Conyers, Jr., Robert C. Scott, and Jerrold Nadler, dated August 17, 2004. 

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 remaining 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 Crime Guidelines, or under the Undercover Guidelines), 

neither program manager 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. 

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 an 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 new 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 convention 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 


rwilkins on PROD1PC63 with HEARING
23 

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 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, warantless 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 office 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 reVerDate Aug 31 2005 20:12 Jul 15, 2006 Jkt 049006 PO 00000 Frm 00023 Fmt 6604 Sfmt 6602 E:\HR\OC\HR564.XXX HR564

rwilkins on PROD1PC63 with HEARING
24 

garding 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. 

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, 


rwilkins on PROD1PC63 with HEARING
25 

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 (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. 

Æ 


rwilkins on PROD1PC63 with HEARING