Snitching

Criminal Informant Law, Policy, and Research

Incentives & Payments

Congressional hearing on informant use at ATF and DEA

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Last week, the House Committee on Oversight and Government Reform held a hearing on April 4, 2017, in response to U.S. Department of Justice reports that ATF and DEA were mishandling their informants.  Testimony was heard from DOJ Inspector General Michael Horowitz, DEA Acting Principal Deputy Administrator Robert Patterson, and ATF Associate Deputy Director Ronald Turk.

From the Committee’s website:

TAKEAWAYS: 

  • The Drug Enforcement Administration (DEA) continually refused to provide the Committee its new policy regarding the proper use of confidential informants (CIs). During the hearing, Chairman Chaffetz issued a subpoena to DEA for the documents.
  • The Bureau of Alcohol, Tobacco, Firearms and Explosives’s (ATF) and DEA’s inadequate oversight over the CI program prevents the agencies from properly tracking and monitoring CIs.
  • Since 2012, ATF and DEA paid CIs almost $260 million, with payments largely determined by field agents who did not seek approval or review from headquarters.
  • The Department of Justice Office of Inspector General (DOJ OIG) found incomplete and inaccurate tracking of money or amounts paid to CIs at both agencies.
  • DOJ advised ATF Associate Deputy Director Turk not to appear and testify before the Committee’s hearing last month on the death of ICE Agent Jaime Zapata.

California informant bill passes out of committee

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A bill that would improve recordkeeping and disclosure regarding jailhouse informants just passed out of the California Legislature’s Public Safety Committee.  The bill would also cap certain informants benefits.  Bill here and ACLU press release here.

I testified in support of the bill along with Bruce Lisker, who was wrongfully convicted of murder at age 17 based on jailhouse informant testimony, and spent 26 years in prison before he was exonerated.  Here is Mr. Lisker’s testimony from today’s hearing:

“Honorable Assembly Persons, my name is Bruce Lisker.  I am here to urge a YES vote on AB359.  On March 10, 1983 my teenage world became a nightmare. I discovered my mother beaten, stabbed and left for dead on the floor of our Sherman Oaks home. It wasn’t long before a corrupt LAPD detective was, unbelievably, arresting ME for the attack.  I was cast into the notorious “Snitch Tank” at L.A. County Jail, where I met a vile creature known as Robert Hughes, a morally bankrupt jailhouse informant with an extensive rap sheet and one overriding mission – to get out of jail.

After conning me into innocent conversation, Hughes told police I’d confessed to him. I was the fourth target of his lies inside of 18 months.  Police fed him cigarettes and food, flew him in private LAPD aircraft – and my prosecutor got him sprung from prison months early.

Hughes’ lies, and the criminal justice system that encourages them, cost me more than twenty-six years of freedom and youth I can never get back.  Had AB359 been the law of the land, my lawyer would have known that Hughes had a lengthy history of severe mental health issues, including documented psychotic breaks.

He was given inducements to investigate and testify against me, had unrecorded interviews with police about the case, and undue influence rewarded his lies with the thing he coveted most, his freedom.  All this was hidden or misrepresented by police and prosecutors.

Evidence is clear – jailhouse informant testimony is a leading causes of wrongful conviction in America.  As demonstrated by the recent outrage in Orange County, and investigations in at least five other California counties, this problem persists.  Please vote YES on AB359. Society deserves no less.”

Intercept publishes FBI informant manual

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The Intercept has published the FBI’s 2015 Confidential Human Source Policy Guide. It includes policies on recruitment, payments, and international informants: The FBI Gives Itself A Lot of Rope to Pull In Informants.  From the article:

“The classified guidelines reveal:
  • Before approaching a potential informant, agents are encouraged to build a file on that person, using information obtained during an FBI assessment, including derogatory information and information gleaned from other informants. The FBI claims that it seeks derogatory information in order not to be blindsided by its informants’ vulnerabilities, but such material may also be useful in coercing cooperation from otherwise unwilling recruits.
  • FBI agents may use undercover identities to recruit informants, including online. These approaches are not limited by a rule stipulating that agents and informants are allowed no more than five meetings with a target before their activity is subject to supervisory approval as an undercover operation.
  • With permission from supervisors, FBI agents may recruit minors as informants. They may also, with permission from the U.S. Department of Justice, recruit clergy, lawyers, and journalists.
  • Informants may operate in other countries for the FBI, and the FBI guidelines do not require notification to be given to the host countries.”

The FBI’s “immigration relief dangle”

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The FBI has long used immigration as both a carrot and stick to induce people to become informants.  See this story from BuzzFeed last year: Welcome to America, Now Spy on Your Friends.  Now the Intercept has published this article: When Informants Are No Longer Useful, the FBI Can Help Deport Them. It includes new information from  the FBI’s “Confidential Human Source Police Guide”–its manual for handling informants–which uses the phrase “immigration relief dangle” to describe the dynamic.  FBI agents coordinate with immigration officials to identify and pressure potential informants, and then help ICE locate them for deportation when they are no longer useful.  From the article:

“It’s been clear for a decade that the FBI works with ICE to keep informants in the country. What we didn’t know was that the assistance is often contingent and temporary, and that the FBI actively assists ICE in locating informants who are no longer useful so that they may be deported.”

“’This creates a perverse incentive structure, because informants are incentivized to keep themselves valuable,’ said [immigration expert and Stanford lecturer Diala] Shamas. ‘It will further incentivize them to create investigations when there wouldn’t be one otherwise. In the traditional criminal context, the law enforcement community is conscious of the risk that coercing informants increases the likelihood of getting bad intelligence. But in the counterterrorism and intelligence context, this caution has been thrown out the window.'”

The article is by Trevor Aaronson, author of the Terror Factory: Inside the FBI’s Manufactured War on Terrorism.

DOJ audit of DEA confidential source program

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The U.S. Department of Justice Office of the Inspector General has just released this audit of the DEA’s Confidential Source Program.  In a rare glimpse into the scope and scale of informant deployment, the audit states: “Between October 1, 2010, and September 30, 2015, the DEA had over 18,000 active confidential sources assigned to its domestic offices, with over 9,000 of those sources receiving approximately $237 million in payments.”

The audit was critical of the DEA. Here are a few excerpts:

  • “[W]hile DEA policy prohibits paying deactivated sources who were deactivated because of an arrest warrant or for committing a serious offense, we found two concerning instances of payments to previously-deactivated sources. In one case, the DEA reactivated a confidential source who previously provided false testimony in trials and depositions. During the approximate 5-year period of reactivation, this source was used by 13 DEA field offices and paid $469,158. More than $61,000 of the $469,158 was paid after this source was once again deactivated for making false statements to a prosecutor. . . .  [W]e estimated the DEA may have paid about $9.4 million to more than 800 deactivated sources between fiscal years (FY) 2011 and 2015.”

  • “[W]e were extremely concerned to discover the DEA condoned its confidential sources’ use of “sub-sources,” who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay “sub-sources,” but the information in the files was insufficient to allow us to determine the full extent of such payments.”
  • “[W]hen we asked the DEA Intelligence Division to provide us with an itemized list and overall total of payments to intelligence-related confidential sources, it was unable to do so. We reviewed DEA records and estimated that, during the 5-year period of our review, the Intelligence Division paid more than $30 million to sources who provided narcotics-related intelligence and contributed to law enforcement operations, $25 million of which went to just 9 sources. Additionally, we identified one source who was paid over $30 million during a 30-year period, some of it in cash payments of more than $400,000. We concluded the Intelligence Division’s management and oversight of its sources was not commensurate with the large amount of payments it made to them.”