Confidential Informants:

Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies

GAO-15-807: Published: Sep 15, 2015. Publicly Released: Sep 15, 2015.

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What GAO Found

Some components within the Departments of Justice (DOJ) and Homeland Security (DHS) do not fully address procedures outlined in The Attorney General's Guidelines (the Guidelines)—which established procedures to help ensure that components exercise their authorities regarding the use of informants appropriately and with adequate oversight. Eight components within DOJ and DHS—the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); the U.S. Marshals Service (USMS); U.S. Customs and Border Protection; U.S. Immigration and Customs Enforcement (ICE); the U.S. Coast Guard (USCG); and the U.S. Secret Service (USSS)—have policies in place that generally address the procedures outlined in the Guidelines for vetting a confidential informant.

However, five of the eight components' policies are not fully consistent with the Guidelines' provisions for overseeing informants' illegal activities. For example, the Guidelines require agencies to document certain information when authorizing an informant to participate in an activity that would otherwise be considered illegal (e.g., purchasing illegal drugs from someone who is the target of a drug-trafficking investigation). DEA, USMS, ICE, USCG, and USSS do not fully address the requirements to provide the informant with written instructions about the authorized activity and require signed acknowledgment from the informant. Without such documentation, if an informant engages in an activity that exceeds the scope of the authorization, the agency may not be able to demonstrate that the informant's actions were not authorized, thereby limiting the agency's ability to prosecute the informant for the unauthorized illegal activity.

The DOJ and DHS components that oversaw the most informants in fiscal year 2013—the FBI, DEA, ICE, and USSS—have monitoring processes in place to help ensure that agents are complying with their respective components' policies. Such monitoring activities include supervisory reviews, as well as headquarters inspections and self-inspections within the field offices. These agencies also use administrative tools, such as standardized forms, that cover the requirements in their policies and help ensure that agents capture necessary information. However, as noted above, some components' policies do not fully address the procedures in the Guidelines, and as a result, the components' monitoring processes likewise do not assess compliance with those procedures in the Guidelines. Consequently, agencies may not have reasonable assurance that they are complying with procedures established in the Guidelines to address the risks associated with using informants.

This is a public version of a sensitive report that GAO issued in March 2015. It does not include details that ICE deemed law enforcement sensitive.

Why GAO Did This Study

Federal law enforcement components used more than 16,000 confidential informants in fiscal year 2013 as part of criminal investigations. Informants can be critical to an investigation, but without appropriate oversight, problems can occur that undermine the credibility of the informant's role in an investigation. The Attorney General's Guidelines sets forth procedures on the management of informants, including vetting potential informants and overseeing informants' illegal activities that components authorize to support an investigation.

GAO was asked to review the use of confidential informants. GAO reviewed the extent to which (1) DOJ and DHS components' policies address the Guidelines for vetting informants and overseeing their illegal activities and (2) selected components have monitoring processes to ensure compliance with the Guidelines.

GAO reviewed components' documented policies and monitoring processes and interviewed agency officials about their practices. GAO visited components' field offices in three locations chosen based on the numbers of informants overseen, among other factors.

What GAO Recommends

GAO recommends that DOJ and DHS and their components take actions to update components' policies and monitoring processes to improve handling and oversight of confidential informants. DOJ and DHS concurred with our recommendations.

For more information, contact David C. Maurer at (202) 512-9627 or maurerd@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: USMS provided the DOJ Criminal Division with its updated policy and in April 2016, the DOJ Criminal Division signed a memorandum stating that the updated policy is consistent with the Attorney General's Guidelines. USMS provided GAO with a copy of the policy in August 2016, once the policy had been finalized. GAO reviewed and confirmed that the policy is consistent with the Attorney General's Guidelines provisions regarding vetting informants and overseeing informants' illegal activities. The USMS's updated policy is consistent with our recommendation and ensures that USMS has procedures in place to address the risks associated with using informants.

    Recommendation: To help ensure that agencies' policies and oversight are fully consistent with The Attorney General's Guidelines Regarding the Use of Confidential Informants, the Administrator of DEA and the Director of USMS, with assistance and oversight from the DOJ Criminal Division, should update their agencies' respective policies and corresponding monitoring processes to explicitly address the Guidelines' provisions on oversight of informants' illegal activities.

    Agency Affected: Department of Justice: United States Marshals Service

  2. Status: Closed - Implemented

    Comments: DEA provided the DOJ Criminal Division with its updated policy, and in April 2016, the DOJ Criminal Division signed a memorandum stating that the updated policy is consistent with the Attorney General's Guidelines. GAO reviewed a copy of the policy in September 2016, once the policy had been finalized, and confirmed that the policy is consistent with the Attorney General's Guidelines provisions regarding vetting informants and overseeing informants' illegal activities. Additionally, in October 2016, DEA provided GAO with internal inspection checklists that ensure compliance with the updated policy, including provisions added to the policy to address our recommendation. DEA's updated policy and monitoring processes are consistent with our recommendation and ensures that DEA has procedures in place to address the risks associated with using informants.

    Recommendation: To help ensure that agencies' policies and oversight are fully consistent with The Attorney General's Guidelines Regarding the Use of Confidential Informants, the Administrator of DEA and the Director of USMS, with assistance and oversight from the DOJ Criminal Division, should update their agencies' respective policies and corresponding monitoring processes to explicitly address the Guidelines' provisions on oversight of informants' illegal activities.

    Agency Affected: Department of Justice: Drug Enforcement Administration

  3. Status: Closed - Implemented

    Comments: In July 2016, DHS issued a policy guidance memo on the use of confidential informants. The memo directed law enforcement component agencies engaged in the use of confidential informants to take steps to ensure that their policies and procedures fully address the substantive provisions of the Attorney General's Guidelines, particularly with respect to vetting informants for suitability and authorizing informants to take part in otherwise illegal activity. The memo directs law enforcement component agencies using confidential informants to provide the Deputy Assistant Secretary for Law Enforcement with written descriptions of actions taken to comply with the policy memo by early September. The memo also notes that if a component agency has planned actions that are not yet completed, the agency is to include a plan of action and timeline for completing those actions. DHS's policy guidance memo is consistent with our recommendation and will help ensure component agencies take action to update their policies to be consistent with the Guidelines.

    Recommendation: To help ensure that agencies' policies and oversight are fully consistent with The Attorney General's Guidelines Regarding the Use of Confidential Informants, the Secretary of the Department of Homeland Security should provide oversight and guidance to ensure that DHS agencies comply with the Guidelines.

    Agency Affected: Department of Homeland Security

  4. Status: Open

    Comments: In December 2016, ICE issued a memo regarding changes to its policies for the registration and suitability of confidential informants. The memo included updated forms to oversee those aspects of confidential informant oversight. In April 2017, ICE officials informed GAO that a working group is in the process of updating the Informants Handbook and the Undercover Operations Handbook. ICE expects to finalize drafts of the handbooks in September 2017 and implement them by December 2017. When the updated handbooks are available for GAO's review, we will assess the extent to which they address our recommendation.

    Recommendation: To help ensure that agencies' policies and oversight are fully consistent with The Attorney General's Guidelines Regarding the Use of Confidential Informants, the Assistant Secretary of ICE and the Commandant of USCG should update their respective agencies' informant policies and corresponding monitoring processes to explicitly address the Guidelines' provisions on oversight of informants' illegal activities.

    Agency Affected: Department of Homeland Security: United States Immigration and Customs Enforcement

  5. Status: Closed - Implemented

    Comments: In November 2016, USCG provided GAO with its updated confidential informant policy, and in January 2017, USCG provided a supplemental form agents are required to use when overseeing informants. GAO reviewed and confirmed that the policy, together with forms required by the policy, are consistent with the Attorney General's Guidelines provisions regarding vetting informants and overseeing informants' illegal activities. The USCG's updated policy is consistent with our recommendation and ensures that USCG has procedures in place to address the risks associated with using informants.

    Recommendation: To help ensure that agencies' policies and oversight are fully consistent with The Attorney General's Guidelines Regarding the Use of Confidential Informants, the Assistant Secretary of ICE and the Commandant of USCG should update their respective agencies' informant policies and corresponding monitoring processes to explicitly address the Guidelines' provisions on oversight of informants' illegal activities.

    Agency Affected: Department of Homeland Security: United States Coast Guard

 

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