The U.S. Department of Justice has announced an investigation–in conjunction with the U.S. Attorney’s Office of the Central District of California–into unconstitutional informant practices in Orange County. This is a welcome and important development. Below are links to stories, and to the original letter from former California Attorney General John Van de Kamp and U.C. Irvine Dean Erwin Chemerinsky, requesting that DOJ intervene:
Secrecy
Congress to hold hearing on DEA informant program
This Wednesday, November 30th, the House Committee on Oversight and Government Reform will hold a hearing entitled “Oversight of DEA’s Confidential Source Program.” The announcement describes the hearing as follows:
PURPOSE:
- The hearing will examine the recent audits and investigations conducted by the Department of Justice Office of Inspector General (DOJ OIG) of the Drug Enforcement Administration’s (DEA) Confidential Source (CS) Program.
- Topics include the current state of DEA’s oversight and management of its CS program, changes it has made to the program, and DEA’s response to DOJ OIG’s recommendations.
BACKGROUND:
- The DEA maintains an extensive and recently expanding CS program. DOJ OIG found deficiencies in DEA’s oversight and management of this vast network of confidential sources dating back to 2005.
- These CSs included employees from Amtrak, the Transportation Security Administration (TSA), private bus companies, and employees in the parcel delivery industry being paid for information.
- A September 2016 DOJ OIG audit found that from 2010 to 2015, DEA had 18,000 active CSs, with over 9,000 CSs receiving approximately $237 million in payments from the DEA.
- Much of the activity identified by DOJ OIG occurred under the previous DEA Administrator Leonhart who resigned in April 2015 after Chairman Chaffetz, Ranking Member Cummings, and other members of the Oversight Committee released a statement expressing “no confidence” in her ability to manage the DEA.
The U.S. Department of Justice OIG audit can be found in this previous post.
DOJ audit of DEA confidential source program
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.”
Threats against cooperators and calls for secrecy
Earlier this year, the Federal Judicial Center released a report assessing threats against federal defendants who cooperate: Survey of Harm to Cooperators. A survey of federal judges, prosecutors, defense counsel, and probation officers showed that the majority of these legal officials were aware of threats to or harms against cooperating defendants in one or more cases. The survey identified hundreds of cases in which cooperators or witnesses were threatened or harmed.
The Marshall Project reported on this issue today in an article entitled “Is the Internet endangering criminal informants? A judicial committee proposes more secrecy.” A committee of the Judicial Conference has called for more secrecy regarding cooperator status, including proposals to routinely seal records or create special “sealed supplements” to every case. But there are several problems with this approach. As the Marshall Project put it:
“Many defense attorneys and free speech advocates say that the proposed new rules are troublesome (and perhaps unlawful) for at least two reasons. First, they say, creating a sealed annex in every case could deprive the public, and the media, of basic information that goes beyond the issue of cooperation. Second, several defense attorney told me this week the proposed new rules could have the perverse effect of making life even more dangerous for informants; the existence of sealed supplement would mean every inmate was presumed to be a “snitch” unless proven otherwise. And such proof would be hard to come by with the information sealed.”
Congressman Lynch introduces informant legislation
In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants’ serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all “serious crimes” committed by their informants, whether or not those crimes were authorized. “Serious crime” is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General’s Guidelines, the FBI is already required to disclose its informants’ crimes to federal prosecutors.
The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch’s office in support of this bill and I am strongly in favor of the effort.