In the last few years, the FBI has repeatedly violated its own rules about informants, according to a report released by the Justice Department on Monday. The report found that agents broke the rules in almost 90 percent of the cases it reviewed. How are you supposed to handle an FBI informant?
With lots of paperwork. Any confidential source of information for the FBI, DEA, INS, or U.S. Marshals must be properly documented and registered throughout his government career. Before you can put a snitch to work, you first have to file a report on his qualifications and liabilities and then get written approval from a supervisor. Once your informant is on the government payroll, he faces annual reviews of his suitability and more extensive tests every six years.
To get started, you have to provide your informant with certain instructions. You can’t lie to him, and he has to understand that his assistance is strictly voluntary. You’ll try (without guarantees) to protect his identity, but you can’t offer him immunity from prosecution without special permission from federal prosecutors.
Once he gets approved—and his photograph, true identity, criminal history, and other background material are filed away—you can start to pay your informant for evidence. Each time you hand over some money—whether it’s a one-time payment or part of an annual salary—you need to get a signed, dated receipt. (He can sign with an agreed-upon pseudonym, if necessary.) You’re also required to let him know that, in general, his payment is taxable income.
You’ll need prior written approval if your informant is going to commit a crime, either to keep his cover or to get you more information. A law-enforcement agency can only authorize a crime—called an “Otherwise Illegal Activity” if it’s approved—for a limited period of time, and if it’s essential for the investigation. Under no circumstances can the informant engage in an act of violence or an obstruction of justice; the approval of more serious (“Tier 1”) crimes requires a consultation with a prosecutor.
You can’t spend too much time socializing with your informant, and you’re not permitted to give him or receive from him “any thing of more than nominal value.” If you have to “deactivate” an informant for cause, you can never talk to him again. Any deactivation must be documented in writing. You also have to tell the informant that he’s been fired, though you can keep him in the dark for a little while if that’s important for your investigation.
Bonus Explainer: How have the rules for treating informants changed over the years? Until the 1970s, the FBI followed its own internal rules. “Potential” informants were paid for information before they’d been approved by agency headquarters, and the only criteria for controlling their behavior were designed “to obtain maximum results and prevent any possible embarrassment to the Bureau.” Attorney General Edward Levi * created the first official guidelines in 1976; Benjamin Civiletti updated them in 1980. Civiletti’s rules gave the bureau formal permission to approve certain crimes, if necessary. A high-profile informant scandal in the late 1990s led to a major update in 2001, under Janet Reno. The 2001 rules limited fraternization among agents and informants and instituted a Confidential Informant Review Committee that included federal prosecutors.