The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines
Office of the Inspector General
The May 30, 2002, Investigative Guidelines that are the subject of this review are the latest version of the Attorney General's Investigative Guidelines, the first version of which was issued by Attorney General Edward Levi in 1976. Before addressing the FBI's implementation of the Investigative Guidelines in the succeeding chapters of this report, we believe it is important to describe the historical events that prompted issuance of the first set of Guidelines in 1976 and the context in which the various revisions to them were made thereafter.
Since their inception nearly 30 years ago, one of the principal legal constraints under which the FBI has operated has been the Attorney General Guidelines. The FBI does not operate under a general statutory charter but, rather, under Attorney General Guidelines that have been revised from time to time pursuant to the authorities set forth in 28 U.S.C. §§ 509, 510, and 533.
Historically, the Investigative Guidelines have been divided into subject areas, addressing both the types of investigations the FBI may conduct (e.g., checking leads, making preliminary inquiries, or conducting full investigations in connection with general crimes or criminal intelligence investigations), and the specialized techniques the FBI may use in the course of such investigations (e.g., using confidential informants, undercover operations, or non-telephonic consensual monitoring).
In this chapter, we summarize the major revisions of the Attorney General's Investigative Guidelines, noting significant changes to investigative authorities and techniques and the events associated with each revision.
From its inception, the FBI has had as part of its mission the collection of domestic intelligence and the investigation of domestic security matters. Attorney General Charles J. Bonaparte established the Bureau of Investigation within DOJ in 1908. During the post-World War I period, the Bureau of Investigation was charged with the investigation of suspected anarchists, Bolsheviks, socialists, and other radicals in contemplation of prosecution under the Espionage Act and the Immigration Act.
In 1919 and 1920, a series of bombs exploded in eight American cities that targeted federal and local officials, judges, police departments, and financial institutions on Wall Street. In response, Attorney General A. Mitchell Palmer established a position within DOJ to focus on anti-radical activities and obtained funding from Congress to fight subversion. On November 7, 1919, with the assistance of Justice Department attorney J. Edgar Hoover, who headed the DOJ's General Intelligence Division, and the Immigration Service within the Labor Department, Attorney General Palmer ordered the first of a year-long sequence of coordinated raids in 12 cities to round up and deport hundreds of members of the Federation of the Union of Russian Workers and other suspected "radicals." In early January 1920, a second wave of coordinated raids led to the arrest of between 5,000 to 10,000 suspected radicals.
During the 1930s, President Franklin D. Roosevelt expressed concern over the growing indications of subversive activities within the United States, especially those of communist and fascist supporters. At the direction of President Roosevelt, the FBI began gathering intelligence on the activities of such individuals and groups.25 After the end of World War II, as Cold War tensions grew, the FBI refocused its attention on counterespionage activities, including the investigation of Ethel and Julius Rosenberg, who were convicted of espionage against the United States on behalf of the Soviet Union, and executed.
From World War II through the 1970s, the FBI conducted what it called "internal security investigations," the objective of which was to collect intelligence about the political influence of organizations and individuals who espoused what the FBI regarded as revolutionary or extremist viewpoints. The FBI carried out these investigations during periods of intense congressional interest in the nation's internal security, leading to the introduction of legislation in the 1940s and 1950s, principally, the Smith Act26, the Voorhis Act27, and the Internal Security Act of 1950.28
In the 1950s, the FBI also developed a series of covert programs designed to collect intelligence about the Communist influence in the United States (COMINFIL).29 The FBI established other counterintelligence programs, collectively referred to as COINTELPRO, to investigate "racial matters," "hate organizations," and "revolutionary-type subversives" whose activities were monitored in accordance with internal FBI policy even if they did not satisfy the "advocacy of violence" standard articulated in the Supreme Court's controlling decisions.
During the 1960s, the FBI's internal security investigations extended to the investigation of the activities and supporters of the anti-war and civil rights movements.30 The FBI used informants throughout this period, including Gary Thomas Rowe, who infiltrated the highest levels of the Birmingham, Alabama chapter of the Ku Klux Klan from 1959 to 1965.31 Rowe's activities as an informant came to light during the murder trial of three Klan members who were convicted of killing a white civil rights worker, Viola Gregg Liuzzo, on March 25, 1965, the night after the Selma-Montgomery voting rights march.32 Rowe was one of the four Klansmen in the killer's car and witnessed the murder.33 He reported the crime to the FBI within hours, and it is undisputed that Rowe's information led to the conviction of the three perpetrators.34
In 1975, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the "Church Committee," under the chairmanship of Senator Frank Church, and the House Select Committee on Intelligence under the chairmanship of Otis Pike ("Pike Committee") conducted parallel hearings. The Church Committee examined what the FBI knew of Rowe's knowledge of and involvement in the Klan's activities and what instructions he was given.35 The Committee heard evidence that the FBI instructed Rowe to join a Klan "Action Group," which "conducted violent acts against blacks and civil rights workers."36 Rowe testified that he and other Klansmen "had beaten people severely, had boarded buses and kicked people off; and went in restaurants and beaten them with blackjacks, chains, pistols."37 On one occasion, Rowe said that despite giving the FBI advance warning that Klan members were planning violence against blacks, his FBI contact agent or "handler" instructed him to "go and see what happened."38 Rowe admitted he participated in the resulting violence to protect his cover.39 According to the Church Committee, the FBI appeared to walk a fine line in utilizing Rowe, who had provided important information on a variety of murders and other violent crimes.40 FBI Headquarters instructed the field office to ensure that Rowe understood that he was not to "direct, lead, or instigate any acts of violence."41 On the other hand, he was present on many occasions when violence occurred, and he participated in acts of violence. Rowe's FBI handler testified: "If he happened to be with some Klansman and they decided to do something, he couldn't be an angel and be a good informant."42
When the Church Committee presented its findings in 1976, Senator Church described the Committee's work evaluating the FBI's involvement in domestic intelligence in the following terms:
[The Committee investigation's] purpose is . . . to evaluate domestic intelligence according to the standards of the Constitution and the statutes of our land. If fault is to be found, it does not rest in the Bureau alone. It is to be found also in the long line of Attorneys General, Presidents, and Congresses who have given power and responsibility to the FBI, but have failed to give it adequate guidance, direction, and control.43
During its 15-month investigation, the Committee determined that FBI Headquarters alone had developed over 500,000 domestic intelligence files on Americans and domestic groups.44 The targets of the intelligence activities included organizations and individuals espousing revolutionary, racist, or otherwise "extremist" ideological viewpoints, but during the 1960s also included investigations of the civil rights, anti-war, and women's movements. In total, the FBI conducted more than 2,000 COINTELPRO operations before the program was discontinued in April 1971.45
Significantly, the Church Committee found that the FBI went beyond investigation and employed COINTELPRO operations to disrupt groups and discredit or harass individuals. While the Committee's final report did not question the need for lawful domestic intelligence, it concluded that the Government's domestic intelligence policies and practices required fundamental reform.46
The FBI's use of informants also was the subject of a staff report issued by the Church Committee entitled, "The Use of Informants in FBI Domestic Intelligence Investigations." Noting that the FBI was using more than 1,500 informants in 1975 in connection with domestic security investigations, the report focused on the absence of clear guidance for FBI agents as to how they should operate informants and what constraints applied to handling agents' and informants' activities:
The [FBI's] Manual contains no standard limiting an informant's reporting to information relating to the commission of criminal offenses or even to violent or potentially violent activity. In fact, intelligence informants report on virtually every aspect of a group's activity serving, in the words of both FBI officials and an informant, as a "vacuum cleaner" of information.
* * *
The Manual does not set independent standards which must be supported by facts before an organization can be the subject of informant coverage. Once the criteria for opening a regular intelligence investigation are met, and the case is opened, informants can be used without any restrictions. There is no specific determination made as to whether the substantial intrusion represented by informant coverage is justified by the government's interest in obtaining information. There is nothing that requires that a determination be made of whether less intrusive means will adequately serve the government's interest. There is also no requirement that the decisions of FBI officials to use informants be reviewed by anyone outside the Bureau. In short, intelligence informant coverage has not been subject to the standards which govern the use of other intrusive techniques such as wiretapping or other forms of electronic surveillance.47
In response to these ongoing concerns about ineffective internal controls and oversight, the Congress periodically considered subjecting the FBI to a statutory charter. In 1976 the Church Committee in its Final Report proposed a "comprehensive legislative charter defining and controlling the domestic security activities of the Federal Government."48 Initially, the legislative charter proposal was supported by FBI Director Clarence Kelly and his successor, William Webster.49
Two years later, in 1980, the House Judiciary Committee held oversight hearings on a proposal for a legislative charter. Attorney General Civiletti and FBI Director William Webster supported the House bill.50 Attorney General Civiletti testified that the charter "is intended to be the foundational statement of the basic duties and responsibilities of the FBI and also its general investigative powers and the principal minimum limitation on those powers."51 He also stated that "the charter depends for enforcement on the internal disciplinary system of the FBI."52
As we discuss below, Congress did not adopt a general legislative charter defining the FBI's investigative authorities because of the adoption of the first Attorney General Guidelines in 1976.
Attorney General Edward Levi issued the first Attorney General Guidelines, entitled "Domestic Security Investigation Guidelines." These guidelines, which were known as the first of the "Levi Guidelines," became effective on April 6, 1976.53
In congressional testimony prior to release of the first Guidelines, Attorney General Levi stated that the Guidelines "proceed from the proposition that Government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society."54 The Guidelines represented a significant shift in DOJ's approach to domestic terrorism. For the first time, investigations of domestic terrorism were treated as matters for criminal law enforcement, rather than as avenues for intelligence collection.
The Guidelines placed specific limits on techniques the FBI could use and distinguished three types of domestic security investigations: 1) preliminary investigations, 2) limited investigations, and 3) full investigations.55 The Guidelines provided that the FBI could commence a full domestic security investigation only on the basis of "specific and articulable facts giving reason to believe that an individual or group is or may be engaged in activities which involve the use of force or violence."56
In a memorandum dated December 15, 1976, Attorney General Levi issued the second set of Attorney General Guidelines entitled, "Use of Informants in Domestic Security, Organized Crime, and Other Criminal Investigations" ("Levi Informant Guidelines").57 Noting that the Government's use of informants may involve deception and intrusion into the privacy of individuals and may require Government cooperation with persons whose reliability and motivation may be open to question, the Guidelines outlined the factors to be evaluated in using informants, the instructions informants were to be given, and the steps to be taken in the event the FBI learned that an informant used in investigating criminal activity had violated the instructions or learned of the commission of a crime.58
The Informant Guidelines were part of a broader effort to reform the FBI's investigative and intelligence operations in light of the findings of the Church Committee.59 Attorney General Levi emphasized that it was imperative that "special care be taken not only to minimize [use of informants] but also to ensure that individual rights [were] not infringed and that the government itself did not become a violator of the law."60 The Guidelines stated that while informants were not employees of the FBI, "the relationship of an FBI informant to the FBI impos[ed] a special responsibility upon the FBI when the informant engage[d] in activity where he received, or reasonably [thought] he received, encouragement or direction for that activity from the FBI."61 Attorney General Levi also stressed that while the FBI would have primary responsibility for these investigations, DOJ would have "much greater involvement."62
The Levi Informant Guidelines left significant decision-making authority within the discretion of the agents handling the informant. For example, neither the DOJ nor the U.S. Attorneys had any approval or oversight function in connection with an informant's participation in otherwise illegal activity.63 However, if an informant committed an unauthorized criminal act in connection with an FBI assignment, the Guidelines required notification of the appropriate law enforcement or prosecutive authorities.64
The impact of the new Guidelines was readily apparent in FBI case statistics. William Webster, who served as FBI Director from 1978 to 1987, provided information in connection with a March 16, 1978, hearing indicating that the FBI's domestic security investigations had declined from 21,414 in July 1973 to 4,868 in March 1976, and stated publicly on May 3, 1978, that the Bureau was "practically out of the domestic security field."65
Before a number of high-profile investigations occurred in the 1980s, the Attorney General Guidelines were generally considered to be working well. As Attorney General Civiletti stated when he testified in 1980 in support of the FBI charter legislation:
I believe the experience of the last three years with the Levi Guidelines has been highly encouraging. It has demonstrated that guidelines can be drawn which are well understood by Bureau personnel and by the public and which can be filed and reviewed by the appropriate congressional committees. It has also shown that guidelines can be successfully applied to particular kinds of investigative activity and even to certain specific decisions made on a case-by-case basis. The reasonable conclusion which can be drawn from the success of these guidelines is that the charter need not detail every limitation or safeguard by express statutory terms. Such details are better covered in guidelines, with the charter setting forth the obligatory principles and objectives which the guidelines must meet and achieve.66
Within the FBI, however, there was concern that the Levi Guidelines would unduly limit authorized techniques and would not permit the FBI to be proactive, to collect intelligence before disaster struck, and to develop an adequate intelligence base.67
Revelations regarding the conduct of some informants, FBI agents' knowledge of these activities, and interpretations of FBI statements or actions promising immunity for the informants prompted Attorney General Civiletti to issue revised confidential informant guidelines on December 4, 1980.68 The revised Guidelines explicitly provided that, if necessary and appropriate, informants may be authorized to participate in two different types of "otherwise criminal activity" at the behest of the FBI, "ordinary" and "extraordinary." "Ordinary" criminal activity could be authorized by an FBI field office supervisor or higher FBI official. "Extraordinary" criminal activity was defined as any activity involving a significant risk of violence, corrupt actions by high public officials, or severe financial loss to a victim."69 Only SACs could authorize extraordinary criminal activity, and only with the approval of the pertinent U.S. Attorney.70
In addition, both FBI Headquarters and the Assistant Attorney General in charge of the Criminal Division were to be "immediately" informed of any authorization of extraordinary criminal activity.71 In the event an informant engaged in unauthorized criminal activity which was deemed "serious", the approval of either the FBI Director or a senior Headquarters official in consultation with the Assistant Attorney General in charge of the Criminal Division was required to continue to use the informant.72 The Civiletti Informant Guidelines also made modifications to the factors to be considered in determining the advisability of notifying appropriate law enforcement authorities of criminal activity by FBI informants.73
In addition, for the first time, the Guidelines assigned federal prosecutors a coordinating role in relation to informant activities:
In any matter presented to a United States Attorney or other federal prosecutor for legal action . . . where the matter has involved the use of an informant or a confidential source in any way or degree, the FBI shall take the initiative to provide full disclosure to the federal prosecutor concerning the nature and scope of the informant's or confidential source's participation in the matter.74
The Civiletti Informant Guidelines also revised the terms of the instructions required to be given to informants. The Civiletti Guidelines required FBI agents operating informants to advise informants that their relationship with the FBI would not protect them from arrest or prosecution for any violation of federal, state, or local law, except insofar as a field supervisor or SAC determined pursuant to appropriate Attorney General Guidelines that the informant's criminal activity was justified. If the required warnings were given to informants, they would reasonably understand that the FBI, without the involvement of any prosecutor, lacked the authority to decide if the informants would be protected from arrest and prosecution.75
In the 1980s, the Guidelines were again revised following press accounts and congressional hearings concerning the FBI's domestic intelligence and counterespionage activities, and its undercover operations. The most dramatic revelations involved several high profile undercover operations, one of which targeted members of the United States Congress in the ABSCAM investigation.
ABSCAM was an FBI "sting" operation run out of the FBI's Hauppauge, Long Island office which initially targeted trafficking in stolen property and thereafter was converted to a public corruption investigation. The investigation ultimately led to the conviction of a United States Senator, six members of the House of Representatives, the Mayor of Camden, New Jersey, members of the Philadelphia City Council, and an inspector for the Immigration and Naturalization Service.
During the ABSCAM investigation, the FBI relied on an informant, Melvin Weinberg, who presented himself as a business agent for "Abdul Enterprises," a fictitious organization ostensibly supported by two wealthy Arab sheiks looking for investment opportunities in America.76 As part of the scheme, the sheiks approached designated public officials and offered them money or other consideration in exchange for favors assisting their cause. The undercover operation called for Weinberg to contact a variety of individuals and tell them that his principals were seeking to invest large sums of money. When the investigation became public in early 1980, controversy centered on the use of the "sting" technique and Weinberg's involvement in selecting targets. Although Weinberg was found to have previously engaged in numerous felonious activities, he avoided a three-year prison sentence and was paid $150,000 in connection with the operation. Ultimately, all of the ABSCAM convictions were upheld on appeal,77 although some judges criticized the tactics used by the FBI and lapses in FBI and DOJ supervision.78
In the wake of ABSCAM, Attorney General Civiletti issued "The Attorney General Guidelines for FBI Undercover Operations" ("Civiletti Undercover Guidelines") on January 5, 1981.79 These were the first Attorney General Guidelines for undercover operations, and they formalized procedures necessary to conduct undercover operations.
Following the initial press accounts about the ABSCAM investigation, Congress held a series of hearings to examine FBI undercover operations and the new Civiletti Undercover Guidelines. The House Subcommittee on Civil and Constitutional Rights began hearings on FBI undercover operations in March 1980 and concluded with a report in April 1984. Among the concerns expressed during the hearings were the undercover agents' involvement in illegal activity, the possibility of entrapping individuals, the prospect of damaging the reputations of innocent civilians, and the opportunity to undermine legitimate rights to privacy.81 Several witnesses testified that the Civiletti Undercover Guidelines did not sufficiently address entrapment and called for the revision of the provisions prohibiting inducing subjects not suspected of criminal activity.82 Congress also heard testimony from numerous individuals who claimed they were unjustly victimized by an FBI-sponsored undercover operation.83 On April 29, 1982, FBI Director Webster reported that there were 10 undercover operations that resulted in the filing of 30 civil suits implicating the FBI and/or its employees.84
In March 1982, after the Senate debated a resolution to expel Senator Harrison A. Williams for his conduct in ABSCAM, the Senate established the Select Committee to Study Undercover Activities.85 In December 1982, the Committee issued its final report, which was generally supportive of the undercover technique but observed that its use "creates serious risks to citizens' property, privacy, and civil liberties, and may compromise law enforcement itself."86
The Committee's final report called for clarification of vague terminology in the Guidelines and strict approval procedures. The Committee stated that there were several weaknesses in the Civiletti Undercover Guidelines.
In addition, the report asked that Congress be consulted at least 30 days before the promulgation of every guideline governing undercover or criminal investigations, and every amendment to, or deletion or formal interpretation of, any such guideline.90
Both the House Subcommittee on Civil and Constitutional Rights and the Senate Select Committee concluded that the existing Attorney General Guidelines and the FBI's internal controls were insufficient to constrain undercover investigations, and both proposed legislative solutions.91 The Senate Select Committee recommended federal legislation to govern law enforcement undercover operations and the inclusion of congressional oversight mechanisms. Although the Senate Select Committee supported legislation, it rejected the House's recommendation of a judicial warrant requirement. Instead, the Senate Select Committee proposed a "probable cause" standard for undercover operations seeking to infiltrate governmental, religious, or news media organizations, and a finding of "reasonable suspicion" for all other operations seeking to detect past, ongoing, or planned criminal activity.92
Three years after the Civiletti Guidelines were issued and a year following the 1982 House hearings at which DOJ officials provided repeated assurances that the Undercover Guidelines would "ensure that critical judgments are made at appropriate levels of authority," a House Judiciary Subcommittee examined their application in a Cleveland-based undercover operation, code-named "Operation Corkscrew."93 The investigation was designed to probe case-fixing in the Cleveland Municipal Court. Conducted in 1977 to 1982, the operation did not produce evidence deemed worthy of prosecution by the U.S. Attorney's Office. While the paperwork submitted by the case agents asserted that the primary targets were judges, the only evidence developed was that the Court's "antiquated recordkeeping system . . . could be easily tampered with or circumvented by any employee with access to these documents."94
In blunt criticism directed at the FBI's failure to adhere to the Attorney General Guidelines, the House Subcommittee concluded that in Operation Corkscrew "virtually every one of the principal safeguards was either directly violated, ignored, or administratively construed in a manner inconsistent with their stated purposes with profoundly disturbing results to the FBI, the suspects, and the public."95 The Subcommittee asserted there were major Guidelines violations:
Finally, the Subcommittee asserted that the problems in the ABSCAM and Corkscrew investigations "are not aberrations, but in fact reflect a pattern of recurrent problems which are inherent in the process."100
In the 1980s, Congress also scrutinized the FBI's domestic security investigations. In 1982 and 1983, the Senate Subcommittee on Security and Terrorism held a series of five hearings on the Levi Domestic Security Guidelines.101 Some members of the Congress believed that the Levi Guidelines "unduly restricted" the FBI's authority to monitor and prevent potential terror or violence against persons and property in the United States, pointing to the provisions that required a criminal predicate to initiate an investigation.102
The Subcommittee completed its assessment of the Levi Guidelines with the issuance of a report entitled, "Impact of Attorney General Guidelines for Domestic Security Investigations (The Levi Guidelines)." The Subcommittee concluded that the Attorney General Guidelines are "necessary and desirable" but recommended that the Guidelines be revised to delete the criminal standard for initiating domestic security investigations; extend time limits for investigations, particularly those for preliminary and limited investigations; lower the evidentiary threshold for initiating limited investigations; relax restrictions on the recruitment and use of new informants; and authorize investigations of systematic advocacy of violence, alleged anarchists, or other activities calculated to weaken or undermine federal or state governments.103 The Subcommittee recommended that the revised Guidelines be tested and evaluated and that DOJ should thereafter "present legislative recommendations to Congress to justify the enactment into law of adequate and effective guidelines for domestic security investigations."104
After an 8-month review involving numerous DOJ components and consultation with members of the Congress, Attorney General Smith issued a revised set of Attorney General Guidelines, entitled "The Attorney General's Guidelines on Domestic Security Investigations" (the "Smith Guidelines"), on March 7, 1983.105 In announcing the revisions, Attorney General William French Smith stated that the Guidelines were needed "to ensure protection of the public from the greater sophistication and changing nature of domestic groups that are prone to violence" but would "retain adequate protections for lawful and peaceful political dissent."106 Attorney General Smith stated that FBI agents had "demonstrated their professional competence, integrity, and ability to adhere to requirements."107 Moreover, he said that the integration of all FBI law enforcement investigation guidelines into one document was meant to enhance the effectiveness of terrorism investigations by applying to these investigations the concepts and standards that effectively governed the FBI's racketeering enterprise investigations.108
The Smith Guidelines introduced a new type of investigation called the "criminal intelligence investigation," which had a broader organizational focus than a general crimes investigation and authorized the FBI to investigate certain enterprises which sought "either to obtain monetary or commercial gains or profits through racketeering activities or to further political or social goals through activities that involve criminal violence."109 In addition to retaining the racketeering enterprise investigation carried forward from the Civiletti Guidelines, the Smith Guidelines provided for a "domestic security/terrorism investigation," whose purpose is "to obtain information concerning the nature and structure of the enterprise . . . with a view to the longer range objective of detection, prevention, and prosecution of the criminal activities of the enterprise."110 A domestic security/terrorism investigation could lawfully collect information regarding "(i) the members of the enterprise and other persons likely to be knowingly acting in furtherance of its criminal objectives, provided that the information concerns such persons' activities on behalf of or in furtherance of the enterprise; (ii) the finances of the enterprise; (iii) the geographic dimensions of the enterprise; and (iv) past and future activities and goals of the enterprise."111
FBI Director Webster characterized the changes to the Guidelines as "evolutionary," "not revolutionary," stating that the Guidelines needed to adjust as the FBI learned more about organized crime and criminal enterprises. According to Webster, the revisions allowed agents to address the needs of the time, particularly those posed by terrorist organizations that were becoming more fluid with inconsistent structure and varied personnel composition.112
The Smith Guidelines also lowered the evidentiary thresholds for initiating full domestic security/terrorism investigations, requiring the FBI to identify "facts or circumstances reasonably indicat[ing] that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States."113 This replaced the "specific and articulable facts" standard in the Levi Guidelines. The Smith Guidelines provided that the "reasonable indication" standard required an objective, factual basis for initiating the investigation, but did not require specific facts or circumstances indicating a past, current, or impending violation.114 The Smith Guidelines also filled a gap in the Levi Guidelines by permitting "low-level" monitoring of dormant groups even though they did not appear to be an immediate threat.115
The Smith Guidelines restricted the scope of the "preliminary inquiry" tool in domestic security investigations. While the Levi Guidelines permitted preliminary inquiries in domestic security investigations to determine if there was a factual predicate for opening a full investigation, the Smith Guidelines eliminated the use of preliminary inquiries in domestic security investigations, leaving the technique available only for general crimes investigations.116 Under both the Levi and Smith Guidelines, neither informants nor mail covers could be used during preliminary inquiries. The Smith Guidelines extended the duration of preliminary inquiries from 60 to 90 days, permitting extensions by FBI Headquarters upon "a written request and statement of reasons why further investigative steps are warranted when there is no 'reasonable indication' of criminal activity."117
The Smith Guidelines cautioned that investigations could not be initiated solely on the basis of an individual's exercise of First Amendment rights, a restriction that has remained in place for over 20 years and is in effect today. See General Crimes Guidelines § I (General Principles). In addition, the Smith Guidelines instructed agents to consider, in evaluating the use of various law enforcement techniques, the use of "less intrusive means."118 With respect to use of the undercover technique, the Smith Guidelines required FBI Headquarters' approval with notification to the DOJ if the FBI initiated "undisclosed participation in the activities of an organization by an undercover employee or cooperating private individual in a manner that may influence the exercise of rights protected by the First Amendment."119
One key member of Congress observed that the Guidelines were "instrumental in curtailing intelligence abuse by the FBI" and should not be changed "without careful Congressional and public scrutiny to assure that [the Smith Guidelines are] not a retreat."120
The following year, coinciding with the House Subcommittee's final year of hearings on FBI undercover operations discussed above, the FBI instituted an internal review of undercover operations. On February 8, 1984, the FBI's Office of Program Evaluation and Audits (OPEA) in the Inspection Division released a study of FBI undercover operations which concluded that the FBI was doing an effective job in undercover investigations in the criminal field. In terms of management controls, the report concluded that the Criminal Undercover Operations Review Committee (CUORC), the Undercover and Special Operations Unit (USOU), and the Undercover Guidelines improved centralized control of undercover activities.121
Also during 1983 and 1984, Congress debated a bill which would subject undercover operations to congressional control. The Undercover Operations Act would require that before the FBI could initiate an undercover operation, federal law enforcement agencies would have to establish a factual predicate of "probable cause" or "reasonable suspicion."122 Director William Webster did not support the entire bill, arguing that it would not allow agents to effectively perform investigations. Director Webster cited the effectiveness of the Attorney General Guidelines, which set thresholds and guidance for undercover operations.123 Director Webster also stated that the flexibility in the Guidelines allowed "responses in specific situations which arise in the context of the investigative field," while adhering to regulatory requirements.124
In September 1981, the FBI opened a criminal investigation of the Committee in Solidarity with the People of El Salvador, or "CISPES," a United States-based group that opposed the Reagan Administration's policies in Central America.125 According to the FBI, the investigation was opened to determine if CISPES had violated the Foreign Agents Registration Act, 22 U.S.C. § 611-621. The FBI closed the investigation in February 1982, but continued to collect information about CISPES from an informant who claimed that the group was involved in international terrorism. Under the auspices of its Counterterrorism Program, the FBI thereafter opened an international terrorism investigation in March 1983 pursuant to the Foreign Counterintelligence Investigations (FCI) Guidelines, during which it conducted surveillance of CISPES and allied groups. Finding no evidence to support the informant's claims, the FBI closed the investigation in June 1985.
In January 1988, the CISPES investigation was brought to public attention when the Center for Constitutional Rights released material it had obtained under the Freedom of Information Act (FOIA).126 CISPES later alleged that the FBI investigated the group, its members, and affiliated groups solely because of its political views, and that the investigation violated the First Amendment and the constitutional rights of various individuals and organizations.127
After consultations with the Congress in early 1988, FBI Director William S. Sessions ordered an independent inquiry into the FBI's handling of the CISPES investigation to determine if the FBI had broken any laws, violated any Attorney General Guidelines or rules, regulations or policy, or used poor judgment in the course of the investigation. The inquiry also examined whether the requisite evidentiary threshold had been established to initiate the investigation, whether the investigation remained opened for the appropriate period of time, whether DOJ oversight was sufficient, whether the initial informant was reliable, and whether the FBI's practice of "indexing" information obtained from the investigation was proper.128
The FBI's May 27, 1988, report concluded that the FBI had conducted an appropriate investigation for the initial period, but that its objectives became overly broad when FBI Headquarters directed all offices to treat each of the estimated 180 chapters of CISPES as subjects of the investigation. The report also concluded that FBI Headquarters and the Dallas Field Office had inadequately supervised the investigation, principally by their failure to conduct a background check of the informant who prompted the investigation, failing to continually ensure that the informant was reliable and accurate, and failing to adequately supervise and direct the informant.129
With respect to the Attorney General's FCI Guidelines, the report found 31 separate violations, including:
The Senate's Select Committee on Intelligence also investigated the CISPES matter. On September 14, 1988, FBI Director Sessions told the Committee that "the investigation should never have been initiated," but denied that the FBI had acted illegally in conducting the inquiry.131 Director Sessions notified the Committee that several agents had been disciplined and that internal procedures had been revised to ensure that such errors would not recur.132
Although the Senate Committee concluded that the FBI's CISPES investigation did not reflect "significant FBI political or ideological bias," it concluded that its activities "resulted in the investigation of domestic political activities protected by the First Amendment that should not have come under governmental scrutiny."133 The Committee also stressed the key role FBI policy and, particularly, the Attorney General Guidelines play in constraining the FBI's investigative authorities:
Federal laws do not regulate most of the FBI's standard investigative methods, including photographic and visual surveillance, trash checks, the use of informants and undercover agents, attendance at meetings and infiltration of groups, interviews of individuals and their employers and associates, and checks of various law enforcement, license, utility, and credit records. Investigations such as the CISPES case using these methods are governed by internal FBI policies and by guidelines issued by the Attorney General. Violations are normally punishable only by internal disciplinary action. The CISPES investigation demonstrated the vital importance of adherence to policies and guidelines that keep the FBI from making unjustified inquiries into political activities and associations.134
The controversy surrounding the CISPES investigation ultimately led to the establishment of a DOJ working group which proposed changes to the Attorney General's FCI Guidelines. Those revisions, which became effective in September 1989, provided more guidance to FBI field offices about reporting on international terrorism investigations.135
In the wake of the CISPES disclosures, the House Judiciary Committee asked the General Accounting Office (GAO) to review the FBI's international terrorism program. The GAO sampled closed cases and used a questionnaire to develop a profile of international terrorism cases. In its September 1990 report, "International Terrorism: FBI Investigates Domestic Activities to Identify Terrorists," the GAO found that:
However, the GAO stated that because it was not afforded access to full case files, it could not determine if the FBI violated First Amendment rights of the individuals and groups which were monitored or if the FBI had the requisite basis to monitor the activities of these individuals and groups. According to the GAO Report, while the FBI declined the opportunity to provide written comments on its report, "GAO discussed the report with FBI officials who generally agreed with the facts."137
In addition to the CISPES inquiry, another informant controversy arose in the late 1980s. After a 3-year investigation by the Department of Labor's Office of the Inspector General and DOJ into charges of labor fraud by Teamsters President Jackie Presser, the Department of Justice ended the investigation in the summer of 1985. At the time, Presser's uncle, Allen Friedman, and a Cleveland organized crime leader, John Nardi, Jr., had already been convicted of receiving unauthorized payments while serving as "ghostworkers" for the Teamsters. It later came to light that Presser's FBI contact agent or "handler," Robert S. Friedrick, admitted during an internal FBI investigation that Presser had been authorized by the FBI to employ the "no-show" employees.138
The decision to drop the Presser investigation prompted a congressional inquiry by the Senate Permanent Subcommittee on Investigations.139 Following hearings, the Committee staff published a report that focused on whether DOJ was motivated by improper reasons not to prosecute Presser and what problems prompted the declination decision.140 The Committee staff concluded that DOJ's decision not to prosecute "was based on its evaluation of the impact of the agents' authorization claims," but the report did not reach a conclusion as to the evidence that the agents' authorization statements were untrue.141 The report noted that the Levi Guidelines made only passing reference to authorized criminal acts by informants or others. Those Guidelines provided that an informant may not participate in criminal activities "except insofar as the FBI determines that such participation is necessary to obtain information needed for purposes of federal prosecution."142 The report noted that the Civiletti Guidelines, by contrast, addressed the issue in some detail, requiring a written determination by an FBI supervisor that:
Moreover, the Civiletti Guidelines required SAC approval for participation in "extraordinary" illegal activities, defined as those actions presenting a significant risk of "severe financial loss to a victim." DOJ stated that the basic agreement with Presser predated the Levi Guidelines and because there was no retroactive requirement to report either pre- or post-Guidelines authorization of illegal informant activity, there was no violation of DOJ or FBI policy embodied in the Guidelines.
The Committee staff also examined the role DOJ attorneys played in questioning Presser's handlers and their supervisors about Presser's informant relationship. Although DOJ was not at the time required either to approve or monitor the types of activities Presser was involved in, the Senate staff report expressed concern that the DOJ was not exercising adequate oversight of the FBI in informant matters.
On February 26, 1993, terrorists drove a truck loaded with explosives into a garage at the World Trade Center Tower in Manhattan, resulting in the death of 6 and injuring more than 1,000 people. On April 19, 1995, a massive fertilizer bomb destroyed the Alfred P. Murrah federal building in Oklahoma City, killing 168 people, including 19 children, and wounding 674 others. The terrorist attacks prompted renewed congressional concerns about the adequacy of the FBI's tools to prevent and detect terrorism. In 1995, a Subcommittee of the House Judiciary Committee held a hearing on terrorist threats.144 In response to a suggestion by several lawmakers to rewrite the Attorney General Guidelines addressing domestic security investigations and terrorism, FBI Director Louis Freeh testified that the current Guidelines afforded the authorities and flexibilities needed to investigate terrorist groups.145 FBI Director Freeh also testified that prior to the Oklahoma City bombing, he and Attorney General Reno discussed the "necessity of reviewing with an objective of changing the interpretation of the guideline to give [the FBI] not broader authority, but more confidence to use the authority already articulated in the guidelines."146
On November 1,1995, the FBI circulated to each of its field offices the reinterpretation of the domestic security/terrorism investigations and preliminary inquiry provisions of the Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations issued in March 1989, restating that the "reasonable indication" standard for opening a full investigation is "substantially lower than probable cause" and that a preliminary investigation could be opened on a lesser showing.147 With respect to the initiation of domestic security investigations, the 1989 version of the Guidelines provided:
A domestic security/terrorism investigation may be initiated when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals . . . through activities that involve force or violence and a violation of the criminal laws of the United States.
The FBI's practice had been to construe the "reasonable indication" standard as requiring evidence of an imminent violation of federal law. After the Oklahoma City bombing, the Guidelines were reinterpreted to justify the investigation of domestic groups that advocate violence provided that they have the ability to carry out violent acts that may violate federal law.148
The most extensive revisions to the Confidential Informant Guidelines occurred in January 2001, just before the end of Attorney General Reno's tenure. The Confidential Informant Guidelines had not been modified since Attorney General Civiletti issued the second set of Informant Guidelines in December 1980.
The Reno review of the Guidelines was spurred in large part by the FBI Boston Field Office's mishandling of informants James "Whitey" Bulger and Stephen "The Rifleman" Flemmi. In 1995, the Government indicted Bulger and Flemmi on multiple charges of racketeering, including acts of extortion, murder, bribery, loan sharking, and obstruction of justice.149 Bulger was tipped off to his pending arrest and remains a fugitive on the FBI's Ten Most Wanted List. Flemmi allegedly was tipped off but was arrested, later pled guilty, and is in prison serving a life sentence. The FBI's relationship with both Bulger and Flemmi was not acknowledged by the Government until court proceedings following their initial indictment.150
We provide in Chapter Three a detailed description of the FBI's association with Bulger and Flemmi. Evidence presented during pretrial hearings in the Government's case against Flemmi revealed misconduct and criminal activity by the FBI agents who handled the two mobsters. For example, agents accepted money and exchanged presents with them, hosted them for dinners, and provided intelligence on planned law enforcement activity targeted at their criminal operations, including identifying the location of electronic surveillance and the identities of informants. In one case, agents told Bulger and Flemmi that another FBI informant had implicated them in a murder. The informant was killed as he exited a restaurant in South Boston approximately one week after his request to be placed in the Government's Witness Protection Program was denied. In another matter, agents intervened with prosecutors and succeeded in having Bulger and Flemmi omitted from upcoming indictments. Although other law enforcement agencies, such as the Massachusetts State Police and the federal Drug Enforcement Administration, had succeeded in charging other Winter Hill Gang members, Bulger and Flemmi's ability to evade prosecution for so many years raised suspicions that they were being protected by the FBI.
Following lengthy internal investigations by DOJ and FBI, charges were brought against two FBI agents who handled informants in the Winter Hill Gang. One FBI Special Agent, John Connolly, the principal handler of Bulger and Flemmi, was convicted in April 2002 of multiple counts of obstruction of justice and sentenced to 10 years in prison.151 The other Special Agent, H. Paul Rico, died in jail prior to his trial on murder conspiracy charges.152 In addition, approximately 20 civil suits have been brought against the FBI and several of its former agents based on the FBI's handling of Bulger and Flemmi. Many of these suits include claims for wrongful death brought by the families of victims who were murdered by Bulger and Flemmi.
As a result of the Bulger-Flemmi episode and other problem cases involving the FBI's operation of informants, DOJ formed a working group in 1999 to recommend revisions to the Confidential Informant Guidelines. The working group was initially chaired by Mary Jo White, then U.S. Attorney for the Southern District of New York, and later by Jonathan D. Schwartz, Principal Associate Deputy Attorney General, and included representatives of DOJ investigative agencies and federal prosecutors, including FBI Director Mueller, who was then serving as U.S. Attorney for the Northern District of California. The group met regularly for two years and submitted its recommended changes to Attorney General Reno.
In January 2001, DOJ issued revised Informant Guidelines superseding the 1980 Civiletti Guidelines. The changes included the following provisions:
Both the Informant Guidelines and Domestic Security Guidelines remained in place without further revision until the events of September 11, 2001, prompted the reexamination of the existing Guidelines which led to issuance of the revised Guidelines on May 30, 2002.
Several themes echo throughout the history of the evolution of the Attorney General's Investigative Guidelines that we found to be instructive in conducting this review.
First, Attorneys General and FBI leadership have uniformly agreed that the Attorney General Guidelines are necessary and desirable, and they have referred to the FBI's adherence to the Attorney General Guidelines as the reason why the FBI should not be subjected to a general legislative charter or to statutory control over the exercise of some of its most intrusive authorities.
Second, problems in the FBI's handling of informants or conducting undercover operations have occurred when field supervisors or FBI Headquarters, or both, failed to exercise appropriate oversight of field activities in accordance with the Guidelines.
Third, historically, the partnership between the FBI and DOJ in making key operational and oversight decisions has promoted adherence to the Attorney General Guidelines and allowed the Department to exercise critical judgments regarding sensitive FBI investigative activities, particularly with respect to its use of confidential informants and undercover operations.
Fourth, oversight by Congress has identified Guidelines violations and gaps in the coverage of the Guidelines.
Below we provide a timeline identifying the Attorney General Guidelines issued between 1976 and 2002, and the significant historical events associated with the revisions.
In the balance of our report, we present our findings with respect to the FBI's compliance with the May 2002 revisions to the Guidelines, mindful of their historical context and the lessons learned over the last 30 years.
Timeline of Events Associated