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 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. 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. 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. 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. 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. ATF, the FBI, and CBP have policies that are consistent with each provision of the Guidelines regarding oversight of informants’ illegal activities.