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  • To test compliance with key provisions of the Informant Guidelines in the investigative files we reviewed, we selected a judgmental sample of 120 individual confidential informant files from 12 FBI field offices we visited between June and August 2004. The CI files we reviewed fit into at least one of four categories: long-term CIs, CIs authorized to perform otherwise illegal activity, privileged or media-affiliated CIs, and CIs who are not reviewed at FBI Headquarters.195 The files included some CIs who were reviewed by the CIRC and some who were authorized only at the field level.196 Among the "non-CIRC" CIs we reviewed, we chose CIs who were opened for over one year, CIs from different squads and programs, CIs who had been paid substantial sums, and CIs who were closed more than six months after the May 2002 revisions became effective.197In examining individual informant files, we collected data on: suitability determinations, instructions, documentation and notifications to U.S. Attorneys' Offices of unauthorized illegal activity, approval of otherwise illegal activity, and deactivations.198 We sought to answer the following key questions.Were the Initial and Continuing Suitability reviews of confidential informants conducted within the required time period and was the required information provided?Were the required instructions or cautions given to CIs at registration and periodically thereafter?Were applications to permit confidential informants to engage in OIA complete and timely, was the proposed OIA described in sufficient detail, and was the requisite approval obtained from the U.S. Attorney's Office?Was unauthorized illegal activity by confidential informants reported when required by the SAC to the U.S. Attorney?If confidential informants were deactivated "for cause" or other reasons, was the deactivation appropriately documented; was the informant notified of the deactivation; and, if the informant was authorized to engage in OIA, was the OIA authorization revoked and the revocation documented?Taken together, we believe these five factors address critical judgments the FBI must make under the existing Confidential Informant Guidelines to ensure that those registered as confidential informants are suitable and understand the limits of the relationship, and that responsible DOJ officials approve, concur in, or are notified of significant developments in the informant relationship. The requirements we tested became effective 120 days after issuance of the revised Confidential Informant Guidelines in January 2001. These requirements were unaffected by the May 2002 Guidelines revisions.In addition to our review of informant files, we also examined field guidance distributed by the FBI's Criminal Investigative Division (CID) and the results of various reviews of the Criminal Informant Program. The reviews included inspection reports generated by the FBI's Inspection Division and reinspections coordinated by the Asset/Informant Unit (A/IU) in the Criminal Intelligence Section of the CID. We also examined the role played by Confidential Informant Coordinators, who are GS-10 through GS-13 non-supervisory Special Agents who have the responsibility, as their principal assignment or as collateral duty, to assist FBI agents with issues associated with the administration and operation of human sources. Confidential Informant Coordinators also work with confidential file room analysts in managing the special recordkeeping and document management requirements of the Criminal Informant Program, troubleshoot problems, and assist in the training and administrative aspects of informant operations.200 We surveyed these Coordinators about the work they do in supporting the Criminal Informant Program and solicited their views on FBI compliance with the Guidelines.201 To supplement these findings, we also surveyed FBI Division Counsel and the Chiefs of the Criminal Division of the U.S. Attorneys' Offices for their perspectives on compliance-related aspects of the Confidential Informant Guidelines.202Compliance Findings

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As we discussed in Chapter Two, the significant revisions made to the Confidential Informant Guidelines in January 2001 changed the role of the U.S. Attorneys' Offices with respect to the approval and management of confidential informants.To assist in determining whether the FBI is compliant with the Confidential Informant Guidelines' provisions that call for DOJ oversight, we surveyed the Chiefs of the Criminal Division in all 93 U.S. Attorneys' Offices throughout the country. Ninety-one Criminal Division Chiefs or their designees responded to our survey in February 2004. The results show that the Criminal Division Chiefs are overwhelmingly satisfied with the FBI's communication with them regarding confidential informants. The survey results included the following:with respect to the FBI's obligation to obtain the U.S. Attorney's advance written approval of Tier 1 OIA, the Criminal Division Chiefs said they were not aware of any circumstance when the FBI failed to comply since May 30, 2002;of the 27 percent of surveyed Criminal Division Chiefs who stated that confidential informants had been named in electronic surveillance affidavits in their field offices since May 30, 2002, 88 percent told us that U.S. Attorneys' Offices have been notified in all appropriate cases;only 1 Criminal Division Chief cited as a serious concern the FBI's failure to notify the appropriate federal prosecutor of unauthorized illegal activity by confidential informants and failure to share information with the U.S. Attorney's Office about confidential informants' activities in investigations in which the U.S. Attorney's Office is participating; andas a group, the Criminal Division Chiefs did not express concerns about receiving timely notice of unauthorized illegal activity by CIs operated in their Districts since May 30, 2002. However, 35 percent stated that the impact of unauthorized illegal activity by CIs has been either a minor or occasional concern since May 30, 2002, while 25 percent reported that notice deficiencies have been either a minor or occasional concern. In addition, 10 percent of the surveyed Criminal Division Chiefs said they believed that FBI agents in their District do not have the same understanding as the U.S. Attorney's Office of the Guidelines' requirement to notify the U.S. Attorney of any unauthorized illegal activity by CIs.224Detailed findings from our survey are presented in Appendix D. These results were one of the several areas in which the Criminal Division Chiefs indicated that the required interaction between FBI and DOJ personnel on informant matters is working well.However, some of our findings and the results of our file reviews are in conflict with the Criminal Division Chiefs' positive assessment. As discussed above, in the course of our file reviews we identified Guidelines violations with respect to the required notifications regarding otherwise illegal activity, unauthorized illegal activity, and events surrounding the deactivation of confidential informants. We also identified two cases in which the FBI failed to obtain proper authorization from the U.S. Attorney with respect to Tier 1 OIA.Moreover, the Criminal Division Chiefs indicated that they believe additional training for FBI Special Agents and supervisors and other measures are needed to promote adherence to the Confidential Informant Guidelines. Half of the Criminal Division Chiefs told us that the FBI and DOJ should sponsor periodic joint or cross-training with FBI agents and prosecutors. The following table describes the type of additional training they think is needed.TABLE 3.5Training and Other Measures Proposed by USAO Criminal DivisionCriminal Chiefs to Promote Adherence to theConfidential Informant Guidelines ResponseNumberPercenta) Originating from FBIHQProvide standardized electronic forms related to the Confidential Informant Program (CIP) that can be completed online3538%Create a web site on the FBI Intranet displaying all current AG Guidelines with automatic e-mail notification of updates3640%Consolidate all guidance related to the CIP (AG Guidelines, MIOG, ECs, and OGC training) and make available online at one Intranet web site4954%Hold annual CIP Coordinator conferences on the AG Guidelines3033%Other33%None of the above2426%b) Originating from the Field DivisionsProvide additional trainng to Special Agents and Supervisors by the CDCs3640%Conduct informal field office reviews of confidential informants2326%Have SAC/ASAC conduct file reviews with greater frequency89%Other11%None of the above4449%c) Originating from the USAOsSponsor periodic cross-training within the District with experienced agents who regularly participate in the CIP program4650%Sponsor periodic regional cross-training with experienced agents who regularly participate in the CIP program2224%Sponsor participation by experienced agents who regularly participate in the CIP program in all appropriate NAC courses that deal with confidential informants4852%Other11%None of the above2628%d) Originating from Main JusticePeriodically circulate to all FBI Field Office "lessons learned" from CIRC meetings and training sessions4954%Provided standardized letters of approval that can be completed online3640%Other33%None of the above3236%

Human sources are critical to the success of the FBI's criminal investigative mission and of other law enforcement and intelligence efforts aligned with that mission, including the efforts to prevent terrorism and address other emerging national security threats. Our review focused on the FBI's implementation of Attorney General Guidelines for one category of human sources, confidential informants. The authorities and activities of other human sources, including assets and cooperating witnesses, are governed by different Attorney General Guidelines. Nor did our review examine how the FBI coordinates all of its human sources who, since November 5, 2004, have operated under the FBI's unified Directorate of Intelligence.225The Confidential Informant Guidelines were revised in January 2001 largely in response to the adverse consequences arising from the FBI's operation of informants by its Boston Field Office and a few other informant problems in other offices. Some senior FBI officials and many field personnel we interviewed believe the revisions were an overreaction and that the resulting Guidelines have generated widespread resentment among field personnel. Nonetheless, there is widespread recognition by FBI personnel we interviewed that criminal informants are vital to the success of the FBI's criminal investigative mission, and that the challenge for the government is to appropriately weigh the informant's value against the risk that the informant will commit unauthorized crimes or otherwise prejudice the government, and to monitor and supervise the relationship closely.FBI personnel ranging from new agents to the Director told us that agents find the paperwork associated with opening and operating informants to be excessively burdensome and time-consuming. In addition, personnel in HIU stated that the current version of the Confidential Informant Guidelines is phrased in dense "legalese" that is hard for case agents to absorb, remember, and follow. Although we were unable to quantify the precise impact of these issues, some of the field and Headquarters personnel we interviewed told us that some FBI agents are now reluctant to open informants because of these and other administrative and operational burdens.226 Others expressed concern that agents may shift toward operating "hip pocket" informants in contravention of FBI and Guidelines mandates so they will not have to complete the paperwork, obtain required approvals, or risk disclosing their informants' identities to prosecutors or others.Our survey of Confidential Informant Coordinators revealed that the burden on case agents to complete the paperwork associated with the Criminal Informant Program is a major concern. Approximately 70 percent of the Coordinators reported that case agents fail to devote adequate time to completing their paperwork or resist doing so. In addition, as the following diagram illustrates, the paperwork burdens of operating informants is one of the most frequently raised issues in their field offices.DIAGRAM 3.3


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