The Use of Informants in the FBI
The use of FBI informants is an integral part of the government's response to threats of terrorism in the United States.
Shortly after the end of WWI, during the Red Scare of the 1950s into the 1970s, the FBI's Counter Intelligence Program (COINTELPRO) infiltrated and spied on communist and civil rights organizations. Now, today's FBI campaign has been dubbed the "Green Scare" and the target is primarily environmental and animal rights activists. Since 2006, 14 members of the Earth Liberation Front have been convicted in FBI cases that have involved informants. One man has been sentenced to 20 years in prison for conspiring to bomb one or more targets, including a federal facility for tree genetics, a federal dam and fish hatchery and a cell phone tower.
According to a recent article in The New Yorker, the FBI maintains more than 15,000 informants. These informants can collect evidence that government agents would need court orders to collect. The informants are often paid thousands of dollars — in some cases even hundreds of thousands of dollars — in retainers.
The article states, "In almost every successful case against a large-scale criminal enterprise — from the one against John Gotti's Mob operation to those involving terrorists plotting against New York synagogues and subways — an informant has played a central role."
The U.S. Department of Justice identifies several different classes of informants:
A confidential informant is any individual who provides useful and credible information to a Justice Law Enforcement Agency (JLEA) regarding felonious criminal activities and from whom the JLEA expects or intends to obtain additional useful and credible information regarding such activities in the future.
Cooperating witnesses differ from confidential informants in that cooperating witnesses agree to testify in legal proceedings and typically have written agreements with the U.S. Department of Justice (usually with an assistant U.S. attorney) that spell out their obligations and their expectations of future judicial or prosecutive consideration.
Sources of information, in contrast, provide information to law enforcement only as a result of legitimate routine access to information or records. The U.S. Department of Justice explains that sources do not collect information by means of criminal association with the subjects of an investigation, while confidential informants and cooperating witnesses often do.
The use of informants has been standard at the FBI since 1961, when J. Edgar Hoover instructed agents to "develop particularly qualified, live sources within the upper echelon of the organized hoodlum element who will be capable of furnishing the quality information" needed to attack organized crime. In 1978, the FBI formed its current criminal informant program, designed to develop a bank of informants who could assist FBI investigations.
Informants, according to the U.S. Department of Justice, "are often uniquely situated to assist the FBI in its most sensitive investigations. They may be involved in criminal activities or enterprises themselves, may be recruited by the FBI because of their access and status and, since they will not testify in court, usually can preserve their anonymity." These sources are approved for use in cases involving organized crime, domestic and international terrorism, white-collar crime, drugs, civil rights, cyber crime, gangs and major theft, among other crimes. While informants are instructed about the limits to their authority, they are authorized to perpetrate some crimes as necessary to their duties and as defined by the department.
The use of such sources has become essential to FBI operations, with informants — including "privileged" informants, such as attorneys, clergy and physicians — supplying short — to long-term services.
However, the use of informants does present certain challenges. Working with informants often means working with people who are themselves engaged in criminal activity. According to Philip B. Heymann, the former deputy attorney general and assistant attorney general in charge of the criminal division, "some informants are responsible citizens who report suspected criminal activities without any hope of return. In the middle, other informants live in the midst of the criminal underworld and inform largely for cash. Still others, at the other pole, are charged with serious crimes and cooperate with law enforcement officials in return for the hope or promise of leniency."
Informants are not official employees of the FBI, but many receive compensation for their services; they are screened for suitability before they enter into relationships with the FBI and are screened periodically thereafter.
A 2005 report from the Office of the Inspector General investigating FBI compliance with the attorney general's investigative guidelines found significant problems in the FBI's compliance with the guidelines' provisions, including serious shortcomings in the supervision and administration of the criminal informant program. Specifically, it was found that cumbersome paperwork and inadequate support from FBI headquarters and certain field offices led agents either to avoid using informants or to use informants who were not properly registered.
Discussing the role of informants on its website, the FBI writes, "use of informants to assist in the investigation of criminal activity may involve an element of deception, intrusion into the privacy of individuals or cooperation with persons whose reliability and motivation may be open to question. . . . [S]pecial care is taken to carefully evaluate and closely supervise their use so the rights of individuals under investigation are not infringed."
Many defendants in cases that involve informants have accused informants of entrapment, meaning the defendants were not predisposed to commit crimes, nor would they have done so without the influence of the informants. According to NPR counterterrorism correspondent Dina Temple-Raston, not a single entrapment defense since September 11 has been successful.
» Associated Press: "FBI Chief Defends Use of Informants in Mosques"
» Harper's Magazine: "To Catch A Terrorist"
» FBI: "Frequently Asked Questions"
» Bloomington Independent: "Resistance, dissent and government repression"
» Mother Jones: "How a Radical Leftist Became the FBI's BFF"
» The New Yorker: "The Mark"
» Talk of the Nation: "Entrapment Defense Hasn't Worked in Terror Cases"
» U.S. Department of Justice: "The Federal Bureau of Investigation's Compliance with the Attorney General's Investigative Guidelines"