Confidential Informants: Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies
Released: 2015-09-15T00:00:00

Letter

Background

Confidential Informants

Confidential informants provide information and take action at the direction of law enforcement agencies to further investigations, and agencies may rely on confidential informants in situations in which it could be difficult to utilize an undercover officer. An informant can be motivated by many factors, including financial gain or reduced sentencing for criminal convictions. Confidential informants who assist DOJ or DHS law enforcement agencies often have criminal histories, though some are concerned citizens with no criminal connections.

Case Study: Risk of Using Criminals as Informants In 1995, the government indicted James “Whitey” Bulger, the leader of an organized crime syndicate in Boston, and his associate Stephen “The Rifleman” Flemmi on multiple charges of racketeering, including acts of extortion, murder, bribery, loan sharking, and obstruction of justice. Bulger and Flemmi had been Federal Bureau of Investigation (FBI) informants for much of the time period covered by the indictment. Evidence presented during the 1998 pretrial hearings in the government’s case against Flemmi revealed misconduct and criminal activity by the FBI agents who handled the two informants.

The Attorney General’s Guidelines

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

Requirements for Vetting Informants

The Guidelines require that, prior to utilizing a person as an informant, agencies vet informants to assess their suitability for the work. In particular, agents who oversee the use of informants (case agents or control agents) must complete and sign a written initial suitability report and recommendation that addresses factors about the proposed informant such as biographical information, personal information (e.g., relationship to the target of the investigation), motivation for becoming an informant, and criminal history. Additionally, the Guidelines require that agents address these same factors through continuing suitability reviews that are to occur at least annually. A first-line supervisor approves the written initial and continuing suitability reports that the agent prepares and ensures that new continuing suitability reports are completed when information becomes available that could materially affect a prior suitability determination. Upon registering an informant and every year thereafter, the agent, along with another government official who must be present as a witness, is required to review written instructions with the informant to convey the scope of the informant’s authority, the limits on assurances of confidentiality, prohibitions against certain types of illegal activity, and the possible consequences of violating these conditions.

These instructions and the accompanying documentation are to ensure that the constraints within which the informant is to operate are clear and well documented so that unnecessary risk does not result. In particular, documenting and administering these instructions helps to prevent informants from claiming that the agency gave the informant authority to commit crimes.

Case Study: Importance of Providing Instructions to Informants to Prevent Claims of Authority to Commit Crimes During the course of several investigations, the U.S. Secret Service (USSS) uncovered the fact that Albert Gonzalez—who had previously been arrested in an unrelated case—was criminally involved while working as an informant. Gonzalez was masterminding a scheme that involved the theft and sale of more than 40 million credit and debit card numbers from numerous U.S. retailers. According to USSS officials, Gonzalez signed a stipulation stating that he was not to engage in unauthorized criminal activity. Gonzalez was subsequently charged with and pled guilty to computer fraud, wire fraud, aggravated identity theft and conspiracy for his role in the scheme.

Requirements for Overseeing Informants’ Illegal Activities

Since 1980, the Guidelines have permitted agencies to authorize informants to engage in activities that would otherwise constitute crimes under federal, state, or local law if someone without such authorization engaged in these same activities. For example, in the appropriate circumstance, an agency could authorize an informant to purchase illegal drugs from someone who is the target of a drug-trafficking investigation. Such conduct is termed “otherwise illegal activity.” According to the DOJ Office of the Inspector General, authorizing informants to engage in otherwise illegal activity can facilitate their usefulness as a source of information to the government but may also have adverse or unforeseen consequences. For example, the informant’s participation in authorized otherwise illegal activity could hinder prosecution of the informant’s coconspirators by prompting, for example, defenses of public authority or entrapment. Agency officials in field offices are responsible for documenting authorization and oversight of otherwise illegal activity, in some cases in consultation with the appropriate local chief federal prosecutor.

The Guidelines include certain requirements when authorizing otherwise illegal activity and restrictions on the types of activities an agency can authorize, as shown in figure 1. In particular, agencies must authorize the activity in advance, in writing, and for a specified period not to exceed 90 days. Additionally, the authorizing official must document certain findings as to why it is necessary for the informant to engage in the activity and assess whether the benefits to be obtained from the activity outweigh the risks. The Guidelines also prohibit agencies from authorizing an informant to participate in an act of violence, obstruction of justice, and other enumerated unlawful activities. After an agency authorizes an informant to engage in otherwise illegal activity, the case agent or control agent, along with another government official acting as a witness, must review with the informant additional instructions addressing the scope and limits of the otherwise illegal activity.

According to the Guidelines, agents are to instruct informants that they may be prosecuted for any unauthorized illegal activity. However, informants who are prosecuted for such conduct may claim in defense that the government authorized or immunized their crimes. To address this concern, if an agency has grounds to believe that an informant has engaged in unauthorized illegal activity, the Guidelines require the agency to notify a federal prosecutor of the suspected activity and the individual’s status as an informant. The Guidelines require the federal prosecutor and the agency’s local special agent in charge to consult and concur regarding whether to notify state and local authorities about the individual’s participation in illegal activity or the individual’s status as an informant. Furthermore, if an agency has reason to believe that an informant has failed to comply with the specific terms of an authorization for otherwise illegal activity, the Guidelines require the agency to make a determination whether the informant should be deactivated, and the informant may be subject to prosecution for any unauthorized illegal activity.

Case Study: Importance of Overseeing Authorized Otherwise Illegal Activity As part of Operation Wide Receiver, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents did not secure the approvals necessary under the Guidelines for allowing an informant (a licensed firearm dealer) to conduct otherwise illegal activity. Agents did not closely monitor the informant’s sale of firearms, including firearms sold to buyers with suspected cartel ties, and in not doing so, the agents gave little to no consideration for the public safety repercussions. Subsequently, in November 2011, ATF revised its confidential informant policies and incorporated the Guidelines’ provisions regarding authorizing otherwise illegal activity for informants, including provisions requiring the agency to closely supervise the activity.

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

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

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

The eight DOJ and DHS component agencies in our review generally require agents to consider the factors identified in the Guidelines when conducting initial suitability reviews prior to utilizing a person as an informant. Specifically, with respect to the initial vetting of informants, we found that the FBI’s policy addresses all of the factors outlined in The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources, and the other seven agencies all require agents to address the following factors, among others, in an informant’s initial suitability review: the person’s reliability and truthfulness, whether the person is a substance abuser or has a history of whether the person is reasonably believed to pose a danger to the whether the person has a criminal history.

Appendix IV provides additional detail on our assessment of the extent to which each agency’s policy is consistent with specific provisions of the Guidelines, including the extent to which each agency addresses the required factors for an initial suitability review. Furthermore, all of the agencies’ policies require that a continuing suitability review be conducted at least annually, in accordance with the Guidelines.

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

ATF, the FBI, and CBP have policies that are consistent with each provision of the Guidelines regarding oversight of informants’ illegal activities. However, the other five agencies—specifically, DEA, USMS, ICE, USSS, and USCG—have policies that we determined are either partially consistent with or do not address some provisions in the Guidelines regarding oversight of informants’ illegal activities. As a result, these agencies do not have policies that explicitly inform their agents of all the activities and safeguards that the Guidelines outline for minimizing the risks involved with using informants. Implementation of the processes in the Guidelines helps increase the likelihood that informants will not engage in criminal activity that may be detrimental to the agency or the general public, thereby preventing issues with informants that agencies have experienced in the past.

Written, advance authorization of otherwise illegal activity: As depicted in table 1, three of the agencies’ policies (USMS, USCG, and USSS) do not have any content that addresses the Guidelines’ requirement to authorize otherwise illegal activity in advance, in writing, and for a specified period of time not to exceed 90 days. Furthermore, three of the agencies’ policies (USMS, USCG, and USSS) do not require officials to document why the agency needs the informant to engage in the otherwise illegal activity—for example, that the informant’s role in the activity would obtain information that is not otherwise reasonably available or that it would prevent injury or significant damage to property. These same agencies, along with DEA and ICE, are partially consistent or not consistent with the Guidelines’ requirements to provide written instructions to the informant regarding the parameters of the authorized otherwise illegal activity and to have the informant sign an acknowledgment of these instructions.

Suspension or revocation of authorization for otherwise illegal activity: Furthermore, as depicted in table 2, five agencies (DEA, USMS, ICE, USSS, and USCG) do not have policies that are consistent with some or all of the Guidelines’ provisions regarding the suspension or revocation of authorization for an informant to engage in otherwise illegal activity. Under the Guidelines, agencies are required to take certain actions when suspending authorization for otherwise illegal activity for legitimate reasons unrelated to the informant’s conduct, but DEA, USMS, ICE, USSS, and USCG do not have any content in their policies that addresses these requirements. If an agency has reason to believe that an informant has failed to comply with the specific terms of an authorization for otherwise illegal activity, the Guidelines require agencies to undertake specific actions to revoke the authorization, but USMS and USSS do not have any content in their policies that addresses these requirements.

Senior officials at multiple agencies told us that, in practice, their agencies address required Guidelines provisions, even though the provisions are not explicitly outlined in the policy. Headquarters officials from DEA, ICE, USCG, and USSS who are responsible for developing and distributing the agencies’ informant policies stated that though their respective policies may not explicitly contain some or all of a particular provision of the Guidelines, these agencies believe their agents and supervisors implement some of the Guidelines’ provisions in practice. For example, ICE officials stated that ICE’s practice is to authorize otherwise illegal activity for a specific operation and that such an authorization would not cover a time period as long as 90 days. However, it is not clear in the policy that authorization for informants’ otherwise illegal activities is to be limited to 90 days. Given that the Guidelines were developed to address the substantial risks involved in using informants, it is important that policies include the specific procedures that implement the requirements of the Guidelines. For example, informant program management and supervisory officials told us that when an agent has a question about a required procedure, they will direct the agent to the requirements in the agency’s policy. Therefore, by explicitly including in the agencies’ policies certain practices that the Guidelines require, agencies would be better positioned to provide sufficient guidance to their agents and supervisors to ensure that agents are implementing these practices in accordance with the Guidelines.

Senior headquarters officials from DOJ agencies whose policies were not consistent with the Guidelines’ provisions discussed above provided additional rationales and approaches for their agencies. Two senior headquarters USMS officials who oversee the agency’s policy stated that USMS does not authorize otherwise illegal activity because USMS’s mission is to locate and arrest fugitives. Therefore, according to USMS officials, USMS does not expect its informants to provide information over a period of time regarding felonious criminal activities the way that other agencies’ informants do. However, USMS’s policy includes instructions that Deputy U.S. Marshals are required to provide to informants, and these instructions refer to the possibility that the agency could authorize otherwise illegal activity. Specifically, USMS’s policy states that an informant is not to engage in any unlawful acts, “except as specifically authorized by representatives of the USMS.” This language suggests that the agency could authorize an informant to engage in otherwise illegal activity, and there are no USMS policy provisions to inform agents that they are not permitted to authorize such an activity. Because the policy does not provide any further discussion of the procedures for authorizing otherwise illegal activity, this ambiguity in the policy could result in an agent authorizing an activity without adhering to the provisions set forth in the Guidelines. USMS officials agreed that, based on our findings, information about the role of informants in otherwise illegal activity could be stated more explicitly in the agency’s policy, and they will plan to update the policy in the future, but officials did not have specific details about their next steps.

With respect to the Guidelines’ requirement to authorize otherwise illegal activity in advance, in writing, and for a specified period of time not to exceed 90 days, DEA officials stated that their policy is more restrictive than the Guidelines because the agency authorizes otherwise illegal activity for a given operation that occurs within a time frame shorter than 90 days. However, our review of DEA’s policy found that it does not state this explicitly, and therefore a DEA agent looking to DEA’s policy for guidance may not understand that agents are expected to prepare documentation in accordance with the Guidelines for all circumstances that would be considered otherwise illegal activity. With respect to providing informants instructions for each instance of otherwise illegal activity, DEA’s policy requires briefing the informant for an operation, but the policy does not meet the specific requirements in the Guidelines that instructions be provided in writing and that the informant sign an acknowledgment of these instructions. Without such documentation, if an informant engages in an activity that exceeds the scope of the authorization, the agency may not be able to demonstrate that the informant’s actions were not authorized, thereby limiting the agency’s ability to prosecute the informant for the unauthorized illegal activity.

The Guidelines require DOJ component agencies to submit informant policies to the Assistant Attorney General for the Criminal Division for review, but these reviews did not ensure that DEA’s and USMS’s policies explicitly address all provisions of the Guidelines. DEA and USMS each submitted agency-specific policies to the Criminal Division for review after the latest version of the Guidelines was issued, in May 2002. Criminal Division officials stated that they reviewed documentation, where available, reflecting the review and approval of these agencies’ policies. According to Criminal Division officials, the agencies submitted their respective policies and made revisions as a result of the Criminal Division’s review, and the Criminal Division approved the amended policies. However, as discussed above, our assessment identified that DEA’s and USMS’s policies were not fully consistent with the Guidelines. The Guidelines permit component agencies to make departures from the Guidelines by seeking an exception or through a dispute resolution process. However, according to two senior Criminal Division officials, neither agency applied for a departure from the Guidelines. During our meeting with these officials, they stated that noncompliance with provisions in the Guidelines could have serious effects on prosecution and that agencies’ policies are the tool for ensuring that agents know what steps are required in using informants. Accordingly, policies that do not address all requirements in the Guidelines could result in agents not being aware of the necessary precautions to take when working with informants, and not taking such precautions could jeopardize prosecutions. In response to our findings, Criminal Division officials said that they plan to revisit the agencies’ policies in coordination with the component agencies, but did not provide further details on their plans.

As discussed earlier in this report, federal prosecutors expect DHS agencies to adhere to the Guidelines to support successful prosecution through DOJ prosecuting offices. Not adhering to the Guidelines can affect agencies’ cases for prosecution and put agencies at risk when informants commit unauthorized crimes. For example, an official at one field division of a DOJ component agency we visited said that an informant continued to engage in illegal activities after an authorization had expired, and because the agency had documentation that the informant was no longer authorized to do so, the informant could not claim that the activity was authorized. This ensured that the government could successfully prosecute the informant for the activity that occurred outside of the authorization. Additionally, complying with the Guidelines can help an agency demonstrate control of how the informant obtained evidence for the case. Demonstrating such control can help to prevent the possibility that a defendant could undermine the prosecution’s case by attacking the credibility or role of an informant.

In contrast to DOJ component agencies, DHS agencies do not have guidance from the department level instructing or requiring the agencies to develop policies that directly match the Guidelines. Officials from the Offices of the Chief Security Officer, Policy, and the General Counsel said that they do not have an oversight role regarding DHS agencies’ informant policies or the agencies’ use of informants, although the Office of the General Counsel may provide guidance on a case-by-case basis when an agency requests assistance. Senior officials from the Office of the Chief Security Officer said that the DHS component agencies had their own informant policies prior to the formation of DHS, and therefore the agencies continued to operate under component-specific policies since that time without additional involvement from the department. Without departmental oversight, the DHS agencies have independently managed their own policies and have different perspectives about the importance of incorporating all provisions of the Guidelines. As a result, some agencies do not incorporate all requirements in the Guidelines that can be important for supporting prosecution. Specifically, four senior USSS officials who manage the agency’s informant policy said that they would incorporate provisions that were missing, according to our review. USSS subsequently made changes to its policy in February 2015. Similarly, two senior USCG officials who manage the agency’s policy said that they would incorporate missing provisions, although at that time, they could not estimate when a revised policy would be drafted or implemented. However, several ICE headquarters officials questioned whether their agency is subject to the Guidelines, as the Guidelines explicitly apply to DOJ, but not DHS, agencies. These officials stated that they may consider amending their policy based on the results of our review.

Providing department-level guidance regarding compliance with the Guidelines would be consistent with federal internal control standards and help support the DHS Secretary’s priority to achieve a unified DHS across its many components. Federal internal control standards require that authority and responsibility be defined throughout an organization, in consideration of factors such as the nature of operations. Given that the information from DHS agencies’ investigations flows to the U.S. Attorneys within DOJ for prosecution, it is important to define the responsibilities for DHS agencies with respect to adhering to the standards that apply at prosecution, such as the Guidelines. The Secretary of Homeland Security stated in The 2014 Quadrennial Homeland Security Review that one of the highest priorities is to ensure that the department invests and operates in a cohesive, unified fashion and makes decisions that strengthen departmental unity of effort. In DHS’s 2012-2016 Strategic Plan, the department identified a goal to improve departmental management, policy, and functional integration. Part of the steps identified under this goal is establishing an executive decision support structure to provide strategic direction for program management processes, among other processes. Enhancing DHS’s oversight of its component agencies’ informant policies could help promote adherence to the Guidelines, consistency in the approach to overseeing informants across component agencies in support of DHS’s unity of effort goal, and accountability for agencies to meet prosecution standards.

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

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

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

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

Ongoing Monitoring Processes

Consistent with federal internal control standards, these four agencies have ongoing monitoring processes that include the following:

Supervisory and managerial oversight. All four agencies’ monitoring processes include the requirement for regular supervisory and managerial reviews that check for inconsistencies with policy. For example, all four agencies require a supervisor to review informant initial and continuing suitability reviews and assess any risk factors identified for each informant. Additionally, these agencies have developed administrative evaluation tools, such as standardized forms that correspond with their respective policy requirements, to help ensure that agents capture necessary information when vetting an informant. Supervisory and managerial reviews are to be used to verify that agents complete these forms correctly and properly store them in the informant’s file.

Confidential informant coordinators. DEA, the FBI, and ICE policies call for informant coordinator roles, or similar position assignments, and officials at the three USSS offices we visited said that they also have assigned staff to carry out similar responsibilities.

Coordinators or personnel in similar positions we spoke with at each of the four component agencies told us that they employ various practices, such as initiating reminders to agents and supervisors to meet deadlines (e.g., for continuing suitability reviews), and periodically reviewing individual forms or whole informant files to ensure compliance with agency policies. According to headquarters and field officials from the four agencies, these dedicated positions help to ensure adherence with informant policies at the field division level by providing support to field staff on working with informants.

Separate Evaluations

DEA, the FBI, ICE, and USSS also perform separate evaluations, through headquarters-led on-site inspection programs that occur on a 2- to 5-year cycle. Additionally, DEA and ICE have field-based inspection programs to assess compliance with informant policies between regularly scheduled headquarters inspections. Consistent with federal internal control standards, both types of inspections help to monitor the extent to which agents are complying with their respective informant policies.

Headquarters-led inspection program. All four agencies’ on-site inspections assess compliance with their informant policies, and some of these inspections include inspecting administrative tools and systems (e.g., how informant files are stored, the security of the file room), reviewing the functions of officials responsible for overseeing the informant program (e.g., managers, informant coordinator), and talking to informants themselves to make sure the informants are aware of key procedures.

Field office–based inspection programs. DEA, ICE, and the FBI have field office–based programs that involve independent reviews for compliance with agency policies. DEA and ICE also require their field divisions to conduct self-inspections for compliance in major program areas, including informant management. According to DEA and ICE field officials, during the self-inspection process, field supervisors are to review other supervisors’ informant files to determine whether the files comply with required policies and procedures. Additionally, in October 2014, the FBI implemented a field-based program that involves a supervisor in one field office reviewing, with the support of an intelligence analyst, informant files from another field office for compliance with the informant policy, among other things. Each FBI field office also has a division compliance council to monitor, detect, and mitigate compliance risks, including those related to informants.

As part of the monitoring processes described above, these four agencies also have procedures for addressing serious violations of informant policies, including steps for referring agent misconduct when working with an informant. Officials from these four agencies stated that alleged violations of their informant policies can be reported by an agent, by a supervisor while conducting a file review, or by a third party such as the informant or a person who has become aware of the violation. For example, inspectors are required to address in the inspections report any significant deficiency findings identified. According to officials, findings identified during an inspection are handled on a case-by-case basis and directed to headquarters-level management officials—such as inspection unit officials or the agencies’ Offices of Professional Responsibility, Integrity, or Internal Affairs—to ensure accountability for any policy violations. These agencies report that failure to comply with the provisions of their respective policies may result in disciplinary action, which could involve dismissal of the employee. Additionally, these agencies’ Offices of Professional Responsibility or Internal Affairs, or Inspectors General, can receive allegations of misconduct identified outside of an inspection, and these offices have procedures for investigating such allegations.

We found that the agencies’ inspections processes can help to identify deficiencies and develop corrective action steps. We reviewed examples of inspection reports from each agency; in general the reports did not identify deficiencies that would indicate systemic non-compliance, and any deficiencies noted were isolated issues. The reports we reviewed also documented the corrective actions taken to address these deficiencies, such as completing the required documentation and adding a corrective action memo to the informant file as an update.

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

As noted above, DEA, the FBI, ICE, and USSS have monitoring processes in place to help ensure compliance with their respective policies on handling informants. However, as discussed earlier in this report, DEA, ICE, and USSS have policies that do not explicitly address all of the Guidelines’ provisions related to oversight of informants’ illegal activities. Accordingly, these component agencies’ monitoring processes do not assess compliance with the provisions in the Guidelines that are missing from their policies (i.e., areas where we found that the agencies’ policies were not consistent with provisions in the Guidelines). The FBI, on the other hand, fully addresses each of the provisions of the Guidelines in its informant policy, and its monitoring processes address oversight of informants’ illegal activity in accordance with its policy and the Guidelines.

In particular, DEA’s, ICE’s, and USSS’s inspections correspond with the requirements in their respective informant policies, but do not address provisions that are missing from the policies. Accordingly, these inspections generally address Guideline provisions for vetting an informant. However they do not generally address compliance with illegal activity provisions, in part because these provisions are not explicitly addressed in the agencies’ respective policies. In response to our findings, senior program officials at DEA, ICE, and USSS confirmed that their informant program inspections do not assess provisions in the Guidelines that are not explicitly stated in the agencies’ respective informant policies. As a result, agencies may not have reasonable assurance that agents are complying with provisions in the Guidelines for overseeing informants’ illegal activities.

Conclusions

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

Recommendations for Executive Action

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

Agency Comments and Our Evaluation

We provided a draft of the sensitive version of this report to DOJ and DHS for their review and comment. DOJ and DHS provided written comments, which are reproduced in appendixes V and VI, respectively. In their comments, DOJ and DHS concurred with our recommendations and described actions under way or planned to address them. Specifically:

DOJ concurred with our recommendation that DEA and USMS update their respective policies and corresponding monitoring processes, and stated that DEA and USMS have begun updating their policies in consultation with the Criminal Division.

DHS concurred with our recommendation that DHS provide oversight and guidance to ensure that DHS agencies comply with the Guidelines. DHS stated that it plans to designate a DHS entity to be responsible for developing, implementing, and overseeing policies and programs to ensure DHS-wide compliance with the Guidelines, as appropriate.

DHS concurred with our recommendation that ICE and USCG update their respective policies and corresponding monitoring processes. DHS stated that ICE will review requirements related to the oversight of informants’ illegal activities as part of an ongoing update to its informant handbook. DHS stated that USCG has issued an interim policy that requires compliance with the Guidelines and that USCG also plans to do a comprehensive review and revision of its policy.

When implemented, these ongoing and planned actions should address the intent of our recommendations, result in revised policies that are consistent with the Guidelines, and ensure that DOJ and DHS agencies impose safeguards that minimize the risk of using informants. DHS and DOJ also provided technical comments, which we incorporated as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Attorney General, the Secretary of Homeland Security, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-9627 or maurerd@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix VII.

Appendix I: Scope and Methodology

For this report, we reviewed the policies and processes for the eight Department of Justice (DOJ) and Department of Homeland Security (DHS) component agencies that used confidential informants in fiscal year 2013, the most recent year for which data were available. The DOJ agencies included in our review are the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the U.S Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); and the U.S. Marshals Service (USMS). The DHS agencies are U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the U.S. Coast Guard (USCG), and the U.S. Secret Service (USSS). For each agency, we reviewed the policies and processes that apply to criminal informants that agencies oversee domestically; we did not review policies or processes that apply only to informants that assist with national security investigations. We conducted interviews with officials responsible for overseeing these agencies’ respective informant programs, as well as an attorney adviser from the Executive Office for U.S. Attorneys because the U.S. Attorneys’ Offices prosecute cases for these agencies, including cases that involve the use of informants.

To determine the extent to which DOJ and DHS component agencies’ policies include procedures outlined in The Attorney General’s Guidelines, we assessed the eight agencies’ informant policies against provisions in the Guidelines regarding vetting informants or overseeing informants’ illegal activities. Specifically, we compared the FBI’s policy against The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources, and we compared the policies of the other seven agencies—ATF, DEA, USMS, CBP, ICE, USCG, and USSS— against The Attorney General’s Guidelines Regarding the Use of Confidential Informants. We identified provisions in each set of Guidelines that relate to vetting informants (see app. II) and overseeing informants’ illegal activities (see app. III). To conduct our assessment, two independent reviewers examined each agency’s informant policy and related documents to determine the extent to which an agency was consistent with each provision we identified in the Guidelines. We defined the assessment categories as follows:

Consistent. The agency’s policy documents generally address each requirement in the provision.

Partially consistent. The agency’s policy documents address some, but not all, requirements in the provision

Not consistent. The agency’s policy documents address none of the requirements in the provision or are contradictory to the provision.

We compared the two reviewers’ assessments, and where the assessments differed, the reviewers discussed the requirements in the Guidelines’ provision and agency documentation to reach agreement on an assessment, and had an additional reviewer verify the assessment as appropriate. For any provisions that we assessed the agencies as partially consistent or not consistent with the Guidelines, we provided our preliminary assessments and reasoning to the agencies for additional information or discussion. Following these communications with agency officials, agency officials provided additional documentation that they said demonstrated the agency’s consistency with the Guidelines. Two reviewers analyzed the additional documentation and reached agreement on our final assessments. Our assessment determined whether agencies meet the minimum criteria established in the Guidelines; the assessment did not evaluate the policies to identify leading practices or areas where agencies’ policies exceed the requirements in the Guidelines. In addition to our assessment, we interviewed officials responsible for overseeing the agencies’ informant programs about policies and processes for vetting informants and overseeing informants’ illegal activities. We also reviewed guidance from and interviewed representatives of DOJ headquarters offices (Office of the Deputy Attorney General and Criminal Division) and DHS headquarters offices (Office of Policy, Office of the Chief Security Officer, and Office of the General Counsel).

To determine the extent to which selected DOJ and DHS component agencies have monitoring processes to ensure compliance with the Guidelines, we analyzed monitoring processes at four component agencies—two from DOJ, and two from DHS. Out of DOJ’s total of four component agencies, we selected DEA and the FBI for analysis because these agencies used the most confidential informants in fiscal year 2013.

Likewise, out of DHS’s total of four component agencies, we selected ICE and USSS for analysis for the same reason. We reviewed the FBI’s, DEA’s, ICE’s, and USSS’s internal review mechanisms and processes related to compliance with their respective informant policies. We compared these mechanisms and processes with Standards for Internal Control in the Federal Government, specifically standards that require agencies to develop an internal control monitoring system that allows agencies to ensure that ongoing monitoring occurs in the course of normal operations and separate evaluations are performed, as necessary, to assess the effectiveness of agency controls used for monitoring compliance with agency policies. Internal control is an integral component of an organization’s management that provides reasonable assurance that agency objectives are achieved. Given this, we reviewed the elements of the FBI’s, DEA’s, ICE’s, and USSS’s processes that monitor and ensure compliance with informant policies.

We analyzed agencies’ policies on monitoring and related documentation, including agency-wide forms used to document the use of informants and examples of inspection checklists, inspection reports, and corrective action reports. We compared the controls and processes described in these documents with those in Standards for Internal Control in the Federal Government. In doing so, we reviewed internal controls related to identifying opportunities for ensuring compliance with informant policies; we did not review all aspects of or conduct tests of these agencies’ internal control systems. We did not review a representative sample of monitoring documents; however, the documents we reviewed demonstrate the structure of agencies’ monitoring processes, such as what is covered in inspections, that allowed us to compare these monitoring processes against internal control standards.

Additionally, we visited these four agencies’ field division locations in three cities that we selected based on the number of informants these agencies oversaw in those locations and geographical diversity. On the basis of interviews conducted regarding the systems and methods for recording information about the number of informants, we determined that the agencies’ data on the number of informants were sufficiently reliable for selecting the agencies we reviewed for this objective and selecting field locations to visit. At these 12 locations, we interviewed managerial and supervisory agents regarding how they oversee and monitor the use of confidential informants, and we analyzed supporting documentation, such as supervisory checklists. The results of the site visits are not generalizable to all field divisions, but provided important observations and insights into how these agencies oversee the use of informants using standardized, agency-wide methods and locally developed approaches. We also interviewed attorneys at each of the U.S. Attorneys’ Offices located in the same cities as the agency field offices we visited to obtain the prosecutors’ perspectives regarding the role of the Guidelines in supporting prosecution.

We conducted this performance audit from August 2013 to March 2015 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

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

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

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

Table 4 provides a listing of the provisions from The Attorney General’s Guidelines Regarding the Use of Confidential Informants and The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources that were included in our assessment of agencies’ policies for overseeing informants’ illegal activities. Both sets of guidelines provide the following definitions for two categories of otherwise illegal activity that an agency can authorize:

Tier 1 otherwise illegal activity is any activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization, and that involves (1) the commission, or the significant risk of the commission, of any act of violence by a person or persons other than the informant; (2) corrupt conduct, or the significant risk of corrupt conduct, by senior federal, state, or local public officials; (3) the manufacturing, importing, exporting, possession, or trafficking of controlled substances in a quantity equal to or exceeding those quantities specified in United States Sentencing Guidelines § 2D1.1(c)(1); (4) financial loss, or the significant risk of financial loss, in an amount equal to or exceeding those amounts specified in United States Sentencing Guidelines § 2B1.1(b)(1)(I); (5) an informant providing to any person (other than a law enforcement agent) any item, service, or expertise that is necessary for the commission of a federal, state, or local offense, which the person otherwise would have difficulty obtaining; or (6) an informant providing to any person (other than a law enforcement agent) any quantity of a controlled substance, with little or no expectation of its recovery by the law enforcement agent.

Tier 2 otherwise illegal activity is any other activity that would constitute a misdemeanor or felony under federal, state, or local law if engaged in by a person acting without authorization.

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

This appendix provides selected results of our assessments for the provisions of the Guidelines discussed in this report. We found that the agencies generally address the required factors for initially vetting informants. Table 5 provides our assessment regarding the 17 factors that The Attorney General’s Guidelines Regarding the Use of Confidential Informants requires in the initial suitability report and recommendation, and table 6 provides our assessment regarding the six pieces of information that The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources requires when initially establishing an informant.

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

Appendix V: Comments from the Department of Justice

Appendix VI: Comments from the Department of Homeland Security

Appendix VII: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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