DEA's Confidential Informant Program Basically Being Run With No Oversight Whatsoever

from the 'do-what-thou-wilt;-that-it-the-whole-of-the-policy' dept

Fri, Jul 24th 2015 6:25pm — Tim Cushing

DOJ Inspector General Michael Horowitz's report on the DEA's use of confidential informants has been published. (We're still an unknown amount of time away for his report on the agency's use of administrative subpoenas.) And it's still incomplete. Horowitz has been fighting the FBI and DEA every step of the way, as both agencies have proven not only unwilling to turn over needed documents, but thoroughly resistant to DOJ intervention or threats against their collective wallets.

The opening of the OIG report gives some insight into the months of DEA interference and recalcitrance.

Our audit work thus far has been seriously delayed by numerous instances of uncooperativeness from the DEA, including attempts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after we initiated this review, the OIG only has been able to conduct a limited review of the DEA’s Confidential Source Program.

This makes the concluding sentences of this same paragraph seem particularly hopeless.

Nevertheless, we have uncovered several significant issues related to the DEA’s management of its Confidential Source Program that we believe require the prompt attention of DOJ and DEA leadership, as identified in this report. We will continue to audit the DEA’s Confidential Source Program to more fully assess the DEA’s management and oversight of its confidential sources.

If you can't get the DEA to turn over existing documents, it's highly unlikely Horowitz's recommendations will be implemented with any expedience. The DEA has already shown complete disdain for its oversight. Putting this in print won't change that.

The problems begin with the DEA apparently cherry-picking which Attorney General guidelines it will follow when dealing with confidential sources. Rather than add the guidelines as its own section of the DEA's policies, the DEA instead chose to fold in certain recommendations. This has created two sets of policies -- the DEA's and the (supposedly overriding) AG's. It hasn't gone well… at least in terms of cohesiveness. But it has worked out perfectly if you consider "thwarting oversight" to be an essential part of drug enforcement.

The DEA’s differing policies have resulted in DEA personnel being able to use high-risk individuals as confidential sources without the level of review as would otherwise be required by the AG Guidelines for high-level and privileged or media-affiliated sources. These categories include individuals who are part of drug trafficking organization leadership, as well as individuals who are lawyers, doctors, or journalists. The AG Guidelines provide a special approval distinction for these individuals because the use of them as confidential sources poses an increased risk to the public and DEA and creates potential legal implications for DOJ. The exemption of the DEA from these requirements results in a relative lack of DEA and DOJ oversight…

And what has this lack of oversight led to? All sorts of fun stuff. The DEA has shown little interest in thoroughly reviewing its informants' "conduct authorization." By failing to stay current on what informants can commit what criminal acts, illegal activities are occurring with the implicit approval of the agency -- whether or not they contribute to ongoing investigations.

These sources may be committing not-directly-approved Otherwise Illegal Activity (OIA - yes, it's an official DEA term) for years after they've contributed to any DEA investigations. The DEA is also apparently unwilling to keep its sources' files up-to-date, meaning it could be years before the agency cuts a useless source loose. This lack of attention has resulted in DEA sources becoming the subject of other law enforcement agencies' investigations.

In some cases, the DEA continued to use, for up to 6 years without any DOJ intervention, individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.

While committing criminal acts in the service of the Drug War, these sources were also availing themselves of additional taxpayer funds -- again without proper oversight -- in the form of federal benefits.

We estimated that, in just the 1-year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million.

The DEA's oversight-dodging is more than just its ad hoc meshing of pertinent rules. It also involves using a completely different categorization process for its informants. Certain informants working with other federal agencies are designated "high level" and must be directly approved by the DOJ and US Attorney's Office. The DEA avoids this outside approval process by using its own rubric, which doesn't contain the "high level" designation and appears to have very flexible sitpulations. This includes policies pertaining to informants whose communications may fall under the heading of "privileged."

Other DEA headquarters’ officials acknowledged that Special Agents are permitted to establish as a confidential source a privileged or media-affiliated status individual, such as a doctor or lawyer, to obtain information not related to the source’s employment. In these cases, the DEA’s legal staff would review the proposed utilization of the privileged or media-affiliated individual to ensure there is not a breach of privilege. However, this requirement and process is not included in the DEA Special Agents Manual section on confidential sources. Thus, the DEA solely relies on the discretion and judgment of its special agents to identify occupations that necessitate additional review and seek that from DEA legal staff.

The agency's approval of Otherwise Illegal Activities is similarly flawed, again allowing the agency to avoid oversight. (As well as any perception of the DEA as a competent, well-run crime-fighting machine.) For a drug-targeting agency, it certainly takes a very hands-off approach to drug-related activity.

[T]he DEA Special Agents Manual section on sensitive activities explicitly excludes drug buys and other routine confidential source activities, and the DEA Special Agents Manual section on confidential sources does not provide detail on the process for using confidential sources to perform illegal acts such as drug buys, does not require SAC approval for larger drug deals, and does not reach smaller ones…

These inadequate DEA policies and procedures related to OIA greatly increase the risk to the DEA, the U.S. government, and the public from the involvement of DEA confidential sources in OIA. DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA.

This lackadaisical approach is likely costing the DEA drug busts. Because it shows almost no interest in policing approved criminal activity, it could find itself struggling when attempting to prosecute former informants or their conspirators.

And its own internal oversight policies are a complete joke. No matter what the policies state, actual review of informants' files has long been nothing more than a swift rubber-stamping. Up until the OIG started looking into its confidential source program in 2012, the DEA, for the most part, spent only 15-30 seconds examining each confidential source file.

On top of all this, there's a strain of unearned credibility given to the DEA and the sources it employs by other government agencies. Despite a complete lack of documentation, claims submitted to the Department of Labor seeking compensation for injuries or death were routinely approved.

The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered.

The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source.

In addition, the DOL considered anything the DEA forwarded to it to be perfectly accurate, resulting in "disabled" confidential sources drawing paychecks from both the DEA and the DOL for years at a time.

Considering what's in the report, it's of little surprise the agency fought Inspector General Horowitz for as long as it did. And it's still fighting. This report is based on an incomplete survey of pertinent files. The DEA is still holding some stuff back, claiming it needs to protect the sources it can't be bothered to keep an eye on.

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Filed Under: confidential informant, dea, oversight

20 Comments

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Anonymous Coward, 24 Jul 2015 @ 7:25pm

Truth vs Lies
Its hard to really fault them for trying to hide these kind of reports. It seems like there are almost no positive results of these agencies. When they are afraid of the truth, that means they are not serving the side of the just anymore.
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sorrykb (profile), 24 Jul 2015 @ 8:03pm

Inspectors General
It must be maddeningly frustrating to be an inspector general. We hear of these various agency scandals, screwups, and abuses, and woven through almost every story is "inspector general issued numerous reports over many years detailing serious problems and urging immediate action to correct them..." Yet no one seems to listen to them.
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Justme, 24 Jul 2015 @ 10:56pm

Secretive. . .
Criminal organization tend to be secretive!
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Seegras (profile), 25 Jul 2015 @ 1:13am

Re: Truth vs Lies
In that case, they've never served the side of the just.

They might have served "the side of the concerned", or "the side of the nylon industry which wanted to kill the hemp industry" or "the side of the prohibitionists".

But the DEA never had anything to do with "justice".
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Coyne Tibbets (profile), 25 Jul 2015 @ 2:17am

F-Otherwise Illegal Activity
Otherwise Illegal Activity (OIA)....is this why DEA and those guys are so down on Freedom of Information Act, because they think FOIA stands for Finding Otherwise Illegal Activity?
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David, 25 Jul 2015 @ 5:49am

Re: Inspectors General
"inspector general issued numerous reports over many years detailing serious problems and urging immediate action to correct them..." Yet no one seems to listen to them.

That's a totally unfair characterization. I am sure that those reports form the basis for determining the bribes to be paid in order to not have any actions occur.

So they perform an important function for the administration.
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That One Guy (profile), 25 Jul 2015 @ 2:18pm

Re: Inspectors General
As far as I can tell, the position is pretty much there just to make it look like there's oversight, when there really is none. If they were actually meant to be effective, then they would be able to order compliance, not be forced to basically beg for the information they're looking for.
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Zgaidin (profile), 25 Jul 2015 @ 2:22pm

Re: F-Otherwise Illegal Activity
I think you meant Funding Otherwise Illegal Activity.

FTFY. :)
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Mark Wing, 25 Jul 2015 @ 3:44pm

If you work for a gigantic government bureaucracy whose activities are at least 90% pointless, then why on earth would you be cooperative with any amount of oversight?
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TOPDOG, 25 Jul 2015 @ 5:19pm

BAD LAW ENFORCEMENT.
Many state law enforcement agency's don't even check to see if their paid informants information is valid. Many people and family's have been invaded by these incompetent police who are too lazy to even check the information. The prisons and jails are full of victims of some crack addicted informant that the don't know and who have never even seen. Yet they are not allowed to see the person who made the false statements against them.
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GEMont, 25 Jul 2015 @ 8:47pm

I'll scratch you back, if....
Crooks helping crooks.

Where's the surprise in this??

That is exactly what US Justice is all about, isn't it??

---
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DigDug, 26 Jul 2015 @ 3:19pm

Time for some of those DEA Agents and Supervisors Arrests
Seriously.

If the DEA Agents and Supervisors are not following the defined rules, standards and procedures, then they are breaking their Agencies rules.

By breaking Agency rules, they are no longer immune to criminal charges associated with their informants OIA, which means the informants are no longer protected from OIA, turning OIA into IA with the DEA agents and supervisor becoming known accomplices, aiders and abettors, otherwise known as (ONA) criminals themselves.

So just scoop them all up, drop them in the nearest maximum security prison for life.
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me@me.net, 27 Jul 2015 @ 4:14am

DEA, DOJ, etc
all rogue
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Klaus, 27 Jul 2015 @ 5:25am

Quoth Tim
"Do what though wilt..."

Someone knows their Aleister Crowley... Awesome.
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Agonistes (profile), 27 Jul 2015 @ 5:35am

Re: Quoth Tim
Love is the law, love under will.
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OnTheWaterfront, 27 Jul 2015 @ 7:15am

ConAir Quote concerning the DEA
http://www.imdb.com/title/tt0118880/quotes?item=qt0388640
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president of a very scarey large l33t hax0r org, 27 Jul 2015 @ 8:37am

what could go wrong
HEY WE CAN BREAK ALL KINDS A RIGHTS AND LAWS without FEAR....
PROFIT
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Griffdog (profile), 27 Jul 2015 @ 9:48am

sounds familiar
Not that I would change a thing about Whitey Bulger's multiple life sentences, but I find more and more that I believe he's telling the truth that Government officials told him he would be immune to prosecution.
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nasch (profile), 29 Jul 2015 @ 7:10am

Re:
If you work for a gigantic government bureaucracy whose activities are at least 90% pointless, then why on earth would you be cooperative with any amount of oversight?

And "pointless" is a fairly generous description of the DEA.
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Anonymous Coward, 16 Aug 2015 @ 4:32am

Re:
An assembly line placing items into container and neglects one of those items, is an oversight. The person who is supposed to ensure this is done properly is the one who oversees that part of the operation.

Governments are full of oversight while having no-one oversee.
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