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[House Report 109-564]
[From the U.S. Government Publishing Office]

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:

``Sec. 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.''.
  (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\
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    \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/
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    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 Committee 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.
---------------------------------------------------------------------------
    \2\Id. at 136.
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  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\
---------------------------------------------------------------------------
    \3\The Department of Justice Office of the Inspector General 
Report, ``The Federal Bureau of Investigations Compliance with the 
Attorney General's Investigative Guidelines,'' at 2.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\Id. at 36.
    \5\Id. at 19.
    \6\Id. at 59.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \7\The Department of Justice Office of the Inspector General 
Report, ``The Federal Bureau of Investigations Compliance with the 
Attorney General's Investigative Guidelines,'' at 2.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
          c. The nature of any relationship between the CI and 
        the subject or target of an existing or potential 
        investigation or prosecution.\11\
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    \11\Id. at 97.
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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\
---------------------------------------------------------------------------
    \12\Id. at 99.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \13\Id. at 103.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\Id. at 104.
    \15\Id. at 105.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \16\Id. at 108.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \17\Id. at 109.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \18\Id. at 115-116.
---------------------------------------------------------------------------
    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 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 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.

         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.

           *       *       *       *       *       *       *

Sec. 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.

                  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.

               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.

         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:
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    *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.
---------------------------------------------------------------------------
           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 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\
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    \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.
---------------------------------------------------------------------------
    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.
    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 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 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\
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    \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.
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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 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
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    \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.
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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. 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 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\
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    \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.
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    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\
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    \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.
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    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 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.
            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 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 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\
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    \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.
---------------------------------------------------------------------------
    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 of the FBI's use of 
investigative authorities in advance of the national political 
conventions in 2004.
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    \9\Letter to Glenn Fine from Congressmen John Conyers, Jr., Robert 
C. Scott, and Jerrold Nadler, dated August 17, 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. Sec. 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 
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.
    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 (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.

                                  
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