Newly uncovered documents reveal that the FBI expressly authorized its informants (or Confidential Human Sources) to commit over 5,600 crimes in a year. USA Today obtained the documents in response to a FOIA request. Although it is well known that informants often continue to offend, this one of the first public accountings of informant crimes authorized by the government. The 5,600 number does not include unauthorized crimes committed by informants, although the FBI is required to document those as well.
The FBI has special rules governing the authorization of informant crime. Referred to as “Tier 1” and “Tier 2 Otherwise Illegal Activity,” handlers can approve the commission of crimes by their informants, as long as the informant does not personally commit perjury or a violent crime. Permissible crimes include: drug trafficking, crimes of violence committed by persons other than the informant, and the provision to a third party of “a controlled substance, an explosive, firearm, or other dangerous weapon…with little or no expectation of its recovery by the FBI.” Those rules can be found in the U.S. Dep’t of Justice Guidelines for the FBI’s Use of Confidential Human Sources. While 5,600 crimes may sound like a lot, this is the tip of the informant crime iceberg. As the USA Today story put it,
Crimes authorized by the FBI almost certainly make up a tiny fraction of the total number of offenses committed by informants for local, state and federal agencies each year. The FBI was responsible for only about 10% of the criminal cases prosecuted in federal court in 2011, and federal prosecutions are, in turn, vastly outnumbered by criminal cases filed by state and local authorities, who often rely on their own networks of sources.
In fact, the FBI has some of the best accountability and transparency rules in this area. Many state and local police departments lack guidelines for documenting or authorizing informant crime, leaving it to the discretion of individual officers to decide whether and under what circumstances their informants will be permitted to commit new crimes.