[House Report 109-564]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-564
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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.
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\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\
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\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.
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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.
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\4\Id. at 36.
\5\Id. at 19.
\6\Id. at 59.
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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\
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\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.
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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\
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\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.
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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\
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\12\Id. at 99.
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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\
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\13\Id. at 103.
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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.
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\14\Id. at 104.
\15\Id. at 105.
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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\
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\16\Id. at 108.
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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\
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\17\Id. at 109.
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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\
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\18\Id. at 115-116.
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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.
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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.
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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.
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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.
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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.