Surprising No One, The FBI's Watchdog Says The Agency Is Handling Its Informants Improperly

from the consummate-professionals dept

Confidential informants are only as trustworthy as their law enforcement handlers. The FBI isn't the only agency to have problems with handling confidential human sources (CHSs), but it's one of the more notorious, thanks to its botched handling of James "Whitey" Bulger.

This questionable legacy lives on, as the FBI's Inspector General reports. "Whitey" Bulger is name-checked early on in the report [PDF], setting an appropriately cautionary tone for the rest of the document.

The FBI loves its CHSs. Without them, it can't radicalize random people into arrestable would-be terrorists. Without the assistance of criminals, it apparently can't go after other criminals. While a certain amount of criminal activity is necessary to maintain cover, the FBI doesn't appear to be keeping close tabs on its informants, which isn't going to minimize collateral criminal damage during investigations.

The FBI spends $42 million a year paying CHSs but doesn't seem to care whether that money is being wisely spent. The actual number of informants the FBI employs is redacted, but the IG notes that 20% of these are "long-term," having been used by the FBI for at least five years.

The longevity of CHSs is a concern that the FBI doesn't seem to be concerned about. The longer the FBI uses the same informants, the greater the risk they'll be exposed. But beyond that, there's the problem of familiarity. Every five years, CHSs are supposed to be assigned new handlers in order to prevent agents from becoming too close to their charges. The FBI isn't doing this. In fact, the FBI doesn't appear to track length of service with any accuracy, which means the agency potentially has more "Whitey" Bulgers on its hands: criminals whose close relationship with a single handler allows them to engage in far more criminal activity than guidelines (and human decency) would allow.

According to this report, the FBI's inability to properly track CHSs has led to a backlog of required "enhanced reviews" -- the validation process put in place to ensure proper handling of long-term informants. To make matters worse, the FBI unilaterally decided to remove "long-term" as a potential risk factor for CHSs, allowing these problematic informant-handler relationships to fly under the radar.

The few people performing CHS validations are further restricted by FBI policy. It's almost as though the FBI has decided that what it doesn't know can't hurt it. The limitations prevent reviewers from accessing anything more than one year of files, denies them access to other helpful FBI databases, and discourages them from providing recommendations or drawing conclusions from the limited info they can actually access.

The FBI also has problems with automation. The system does not automatically flag CHSs when they hit the five-year mark. This has to be done manually by the informant's handler. Without this feature, handlers and reviewers are left in the dark about CHS longevity, which further hinders the review process and adds to the backlog the FBI will never catch up to at its current review pace.

The FBI knows this is a problem but continues not to care.

Although the FBI has considered improvements to address the shortcomings, it has not taken corrective action by implementing an automated mechanism in Delta.

This refusal to fix this issue has lead to further failures up the line. Handlers with long-term CHSs are supposed to obtain approval from Special Agents in Charge (SAC) for continued handling of these informants. Since the system doesn't flag long-term informants, SACs are not automatically notified and CHSs continued to be handled by the same agents in direct violation of FBI policy.

The problem becomes exponential once FBI field offices are factored in. CHSs in use at field offices are subject to the same review, but review personnel at FBI HQ appear to believe they are there to grease the wheels, not act as oversight.

Several FBI officials suggested to us that there is a risk that field offices may avoid the selection of certain CHSs for validation review because the field offices may wish to continue using those CHSs despite the presence of particular risk factors. In fact, one of these officials told us that the field offices may be sending "softballs," meaning field offices may be sending CHSs lacking any significant risk factors.

It's not just the field offices. The FBI is actively avoiding documenting negative information about CHSs to subvert the justice system. It's just that simple.

[O]ne Intelligence Analyst told us that he was permitted to recommend a CHS receive a polygraph or operational test to the handling agent by phone by not permitted to document the recommendation in the CHS's validation report. Additionally, multiple FBI officials told us that they believe that field offices do not want negative information documented in a CHS file due to criminal discovery concerns and concerns about the CHS's ability to testify. For example, one FBI official told us that some U.S. Attorney's offices will not use a CHS at trial if there is negative documentation in the CHS's file.

The Inspector General obviously recommends the FBI stop doing this sort of stuff but it's obviously already entrenched in the FBI's culture. Officials recognize field offices are harboring shady CHSs but have done almost nothing about it.

Then there's the infosec part. Confidentiality is key to the handling of confidential human sources. But FBI agents don't appear to care that they're putting their sources at risk by carelessly handling communications. Since no policy specifically forbids the use of government equipment to contact CHSs, many agents simply use their FBI-issued phones. The use of electronic communication methods is discouraged, but simply telling people they shouldn't do something is rarely an effective deterrent.

In addition, the central CHS database is on a shared site that grants access to personnel not involved with handling human sources. This increases the risk to CHSs by eliminating the "confidentiality" of the arrangement. The only thing mitigating this increased risk is the fact that the database is riddled with errors and incomplete information. Incompetence might save the day as CHS files improperly accessed may not contain enough accurate information to expose a confidential source. Win-win, I guess.

That the FBI concurs with all of the OIG's recommendations is hardly heartening. Included in this review are recommendations issued by the OIG six years ago in response to CHS handling issues that occurred in 2006. To date, the FBI has only implemented five of the eleven recommendations from the 2013 report.

It's a mess. And it's a mess the FBI continues to make worse. The underlying problem appears to be the FBI's unwillingness to cut loose informants who might be a liability. The only effort that gets made in these situations is to find some way to work around an already-very permissive system to ensure agents can retain the CHSs. A system that fails to flag risk factors or periodic review periods is the kind of system that allows the FBI to engage in business as usual with just enough plausible deniability to avoid the few accountability tripwires built into the system.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fbi, informants