The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines
(Redacted)

Special Report
September 2005
Office of the Inspector General


Executive Summary


  1. Overview
  2. After the September 11, 2001, terrorist attacks, the Department of Justice (DOJ or Department) initiated a comprehensive review of four sets of the Attorney General's Investigative Guidelines (Guidelines or Investigative Guidelines) that govern most aspects of the Federal Bureau of Investigation's (FBI) authority to investigate crimes committed by individual criminals, criminal enterprises and groups, as well as those who may be threatening to commit crimes. The purpose of the review was to identify changes to the Guidelines that would enhance the Department's ability to detect and prevent terrorist attacks. The four Guidelines are:

    • The Attorney General's Guidelines Regarding the Use of Confidential Informants (Confidential Informant Guidelines);

    • The Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations (Undercover Guidelines);

    • The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (General Crimes Guidelines); and

    • Procedures for Lawful, Warrantless Monitoring of Verbal Communications (Consensual Monitoring Guidelines).

    On May 30, 2002, the Attorney General approved revisions to each of these Guidelines.

    The Department of Justice Office of the Inspector General (OIG) conducted this review of the FBI's implementation of the revised Investigative Guidelines with two main objectives: 1) to assess the FBI's compliance with the revised Guidelines; and 2) to evaluate the procedures that the FBI employed to ensure that the revised Guidelines were properly implemented.

    Our review was conducted in five phases. The first phase consisted of background interviews of key program managers at FBI Headquarters and an extensive document review. The second phase consisted of interviews of FBI Headquarters and DOJ personnel who oversee critical aspects of the substantive programs governed by the Guidelines. In the third phase, we surveyed three groups of Special Agents in the FBI's 56 field offices who played key roles in promoting adherence to the Guidelines: Confidential Informant Coordinators; Undercover Coordinators; and Division Counsel, who serve as chief legal advisers in the field offices. We also conducted another survey of the Criminal Division Chiefs of the 93 U.S. Attorneys' Offices. That survey focused on the Guidelines' provisions requiring approval, concurrence, or notification to U.S. Attorneys' Offices relating to significant Guidelines-related authorities.

    The fourth phase of our review consisted of 12 FBI field office site visits during which we reviewed a judgmental sample of FBI investigative and administrative files reflecting use of the authorities or operational techniques authorized by the Guidelines. In that sample of files, we also reviewed the various forms and other administrative paperwork supporting the activities governed by the Guidelines.1 Following our field office visits, we interviewed the senior manager of each of those field offices - either the Assistant Directors in Charge or Special Agents in Charge (SACs).2

    During the fifth phase of the review, after analyzing the data from FBI Headquarters and the 12 field offices and the other documents produced by the FBI and the DOJ, including more than 40 triennial FBI Inspection Reports generated by the FBI's Inspection Division, we interviewed several senior FBI officials in Headquarters about organizational and other plans that could affect Headquarters and field supervision of the authorities governed by the Guidelines. We also interviewed the FBI Director in April 2005.

    We now summarize some of the key findings regarding each set of the Guidelines which we explain in greater detail later in this Executive Summary.

    We found that the FBI's compliance with each of the four Investigative Guidelines differed considerably by Guideline and field office. The most significant problems were failures to comply with the Confidential Informant Guidelines. For example, we identified one or more Guidelines violations in 87 percent of the confidential informant files we examined. By contrast, we found approximately 90 percent of the undercover operations and consensual monitoring files we reviewed contained no authorization-related Guidelines deficiencies.

    Confidential Informant Guidelines. Our review found that FBI Headquarters has not adequately supported the FBI's Criminal Informant Program, which has hindered FBI agents in complying with the Confidential Informant Guidelines. Although we noted some improvements in this area during the course of our review, in many instances agents lacked access to basic administrative resources and guidance that would have promoted compliance with the Confidential Informant Guidelines. For example, the FBI did not have a field guide or standardized and up-to-date forms and compliance checklists. The FBI also did not plan for, or provide, adequate training of agents, supervisors, and Confidential Informant Coordinators on informant policies and practices.

    Undercover Operations Guidelines. We found that the FBI generally was compliant with the Undercover Guidelines and that the Headquarters unit supporting undercover operations was well managed and effective. That unit generates an up-to-date field guide and standardized forms, and it uses technology, such as a centralized database which permits effective monitoring of undercover operations, to aid field office compliance with the Undercover Guidelines and Headquarters oversight of the Guidelines.

    General Crimes Guidelines. We found that the FBI generally adhered to the provisions of the General Crimes Guidelines. For example, 71 of the 72 files we reviewed identified appropriate predication in the case opening memorandum and, when disseminating information regarding these investigations to other law enforcement agencies, the FBI consistently documented an adequate basis to do so, in conformity with the Guidelines. However, the FBI has not developed adequate controls to ensure that notifications to U.S. Attorneys, DOJ, and FBI Headquarters are made on a timely basis and documented in the case files, that authorizations for the extension and renewal of preliminary inquiries and for the conversion of preliminary inquiries to full investigations are documented, that SAC reviews of criminal intelligence investigations are documented, and that progress reports to DOJ on terrorism enterprise investigations lasting for more than 180 days are included in the files.

    We also reviewed the FBI's new authorities in Part VI of the General Crimes Guidelines, which allow FBI agents to visit public places and attend public events to detect or prevent terrorist activities in the absence of any particularized evidence that a crime has occurred or is likely to occur. We found that the FBI encourages but does not require agents to obtain supervisory approval prior to visiting public places or attending public events. Moreover, neither FBI field offices nor Headquarters consistently maintains records regarding the use of and compliance with these authorities, including the provisions that address the FBI's authority to collect, maintain, and disseminate information obtained at such events, and provisions forbidding retention of certain information. Without access to data reflecting approval or documentation of such visits, we were unable to draw conclusions about the FBI's utilization of these authorities or its record of compliance with Part VI authorities.

    Consensual Monitoring Guidelines. The Attorney General Guidelines governing consensual monitoring cover non-telephonic consensual monitorings, which include the use of body recorders and transmitting devices. We found that the FBI was generally in compliance with the Consensual Monitoring Guidelines, although we identified deficiencies, particularly with regard to the Guidelines' requirements for supervisory authorization.

    FBI Oversight of Compliance with Attorney General Guidelines. The FBI and DOJ have various mechanisms to promote compliance with each of the Investigative Guidelines, including first-line field supervisors; the expertise of field office Confidential Informant Coordinators, Undercover Coordinators, and Division Counsel; two joint FBI-DOJ committees (the Criminal Undercover Operations Review Committee (CUORC) and the Confidential Informant Review Committee (CIRC)) which approve certain undercover operations and confidential informants; the FBI's Inspection Division; the employee disciplinary process; and various policy manuals.

    We found that the joint review committees were operating effectively and in accordance with assigned missions. However, we found that field supervisors frequently were not held accountable for compliance violations, particularly in the Criminal Informant Program, and that the FBI at times failed to ensure that FBI personnel with special expertise and responsibility for issues addressed in the Guidelines, such as Informant Coordinators, Undercover Coordinators, and Division Counsel, were properly consulted regarding investigative activities. Our review also found that the Inspection Division's triennial audits were useful in promoting compliance, but were not sufficiently comprehensive and did not adequately address the underlying causes of Guidelines violations.

    Implementation of the Guidelines. The process adopted by the FBI to implement the revised Guidelines was not optimal. Although several FBI components performed these duties well - particularly the Office of the General Counsel and the Undercover and Sensitive Operations Unit (USOU) within the Criminal Investigative Division (CID) - we found inadequate inter-division planning, coordination and direction. This hindered provision of necessary training for FBI employees on the revised Guidelines and also resulted in the failure to timely update standardized forms, inspection checklists, and other technical support. In addition, the lack of adequate case management and other information technology tools hindered the FBI's ability to identify, track, and evaluate its compliance with the Guidelines.

    In the next section of this Executive Summary, we summarize in greater detail the contents of the report, including the background of the revised Guidelines, the scope and methodology of our review, our findings and conclusions regarding the FBI's compliance with each of the four Investigative Guidelines, the oversight mechanisms used to promote Guidelines compliance, the implementation process, and our recommendations to address the issues identified in the report.3

  3. Background
  4. The four Investigative Guidelines govern the FBI's use of general crimes investigations to develop evidence about the commission of federal crimes and the FBI's use of criminal intelligence investigations to develop evidence about the nature, size, and composition of ongoing criminal enterprises where the objective may not necessarily be to prosecute but to determine whether a pattern of criminal activity exists. The Investigative Guidelines also constrain the FBI's use of three key techniques used to conduct general crimes and criminal intelligence investigations: the use of confidential informants, undercover operations, and non-telephonic consensual monitoring of verbal communications.

    The first Attorney General Investigative Guidelines were issued in 1976 by Attorney General Edward Levi following congressional hearings and published reports criticizing the FBI's domestic surveillance activities in the 1950s and 1960s that targeted protest groups and others. Since then, the Guidelines have been revised by virtually every Attorney General, often after allegations of abuse by the FBI in the use of the authorities permitted by the Guidelines.

    The Investigative Guidelines apply to the FBI and in some cases other Justice Law Enforcement Agencies (JLEAs) or components of the United States Government.4 The Guidelines set forth detailed procedures and review mechanisms to ensure that law enforcement authorities are exercised appropriately and with adequate oversight, both in the field and, with respect to certain authorities or sensitive investigations, at FBI Headquarters and DOJ. For example, the Guidelines require that before FBI agents employ certain intrusive investigative techniques, sufficient evidentiary predication must be established. The Guidelines also require agents to ensure that confidential informants working for the FBI are suitable and understand the limits on their activities, including their authority to engage in actions that would be illegal if engaged in by someone without such authority; that undercover operations used to develop evidence to prosecute white collar crimes, public corruption, terrorism, and other crimes are approved only after a thorough review of the risks and benefits of the operation; and that before the FBI intercepts and monitors oral non-telephonic communications without the consent of all parties, there is careful review of the reasons for the monitoring, the duration of the monitoring, the location of the monitoring, and the nature of any danger to the party consenting to the monitoring.

  5. The Scope and Methodology of the OIG Review
  6. The OIG review was conducted by a team of attorneys, inspectors, auditors, and paralegals. The OIG team conducted interviews of over 70 officials and employees at FBI Headquarters, typically Unit Chiefs, Section Chiefs, and Assistant Directors. We attended dozens of meetings of the CIRC and the CUORC. We also examined over 2,000 FBI documents from FBI Headquarters' operating and support divisions. Among the documents we analyzed were investigative case files, Headquarters guidance memoranda, correspondence, and reports by the FBI's Inspection Division, Undercover and Sensitive Operations Unit (USOU), and the FBI Office of Professional Responsibility (OPR).

    In addition, the OIG surveyed four groups within the FBI and DOJ who work with the Guidelines on a daily basis. We surveyed the FBI's Confidential Informant Coordinators, its Undercover Coordinators, and its Division Counsel, all of whom work in the 56 FBI field offices around the country. In addition, because U.S. Attorneys' Offices have responsibility for approving or concurring in certain authorities in the Guidelines, or are required to be notified of certain activities or developments, we also surveyed the Chiefs of the Criminal Division of the 93 U.S. Attorneys' Offices.

    After receiving the survey results, we visited FBI field offices from May through August 2004. OIG teams traveled to 12 FBI field offices to conduct interviews and examine a judgmental sample of nearly 400 administrative and investigative files pertaining to investigations governed by the revised Investigative Guidelines during the period May 30, 2002, to May 30, 2004. We examined this sample of individual investigative and administrative files to determine whether key provisions of the Investigative Guidelines were followed.

    In addition to our review of case files, we assessed the steps the FBI took to implement the revised Guidelines. In this portion of our review, we assessed the FBI's planning, communication, guidance, and training for implementation of the revised Guidelines. We also evaluated the FBI's mechanisms to ensure compliance, including the role of Supervisory Special Agents and senior managers in FBI field offices, the FBI's Inspection Division, on-site reviews conducted by units within FBI Headquarters' operating divisions, and the FBI disciplinary process.

    Toward the end of our review, we conducted interviews of the SACs of the 12 field offices we visited. We also interviewed three FBI Executive Assistant Directors and the FBI Director.

  7. OIG Findings
    1. The Attorney General's Guidelines Regarding the Use of Confidential Informants
    2. The Attorney General's Guidelines on Confidential Informants are designed to ensure that proposed confidential informants undergo thorough scrutiny for suitability before they are approved and periodically thereafter; are warned about the limits on their authority by means of instructions that must be administered at least annually; and are authorized to engage in otherwise illegal activities that are justified in unusual circumstances only after such activities are carefully defined and their scope is approved by responsible DOJ and FBI personnel. The Guidelines also provide that when an informant engages in unauthorized illegal activity, it is promptly reported to FBI Headquarters and the appropriate prosecutor. They also require that if an informant is deactivated, whether for "cause" or other reasons, the deactivation is properly recorded, the confidential informant and appropriate FBI and DOJ personnel are notified, and any authority to engage in otherwise illegal activity is revoked.

      We found significant problems in the FBI's compliance with Guidelines' provisions. Those violations occurred mainly in suitability reviews; the cautioning of informants about the limits of their activities; the authorization of otherwise illegal activity; documentation and notice of unauthorized illegal activity by informants; and the deactivation of informants. In total, we found one or more Guidelines compliance errors in 87 percent of the informant files we examined.5

      These compliance errors are troubling in light of the history of the Confidential Informant Guidelines. As a result of a 2-year review after high-profile problems in the FBI informant program came to light in the 1990s, Attorney General Reno issued revised Confidential Informant Guidelines in January 2001 that made the approval process for opening and operating informants more rigorous. Attorney General Ashcroft issued further revisions to the Guidelines in May 2002, but left the provisions regarding opening and operating informants essentially unchanged. Yet, when we examined informant files in May 2004 and surveyed FBI field personnel, we found that serious compliance deficiencies still existed with regard to the approval, monitoring, documentation, and notification provisions of the Guidelines.

      Throughout our review, we were told by field office and FBI Headquarters personnel that the Confidential Informant Guidelines are cumbersome and the supporting paperwork requirements are onerous, and that these factors combine to discourage agents from developing informants or to use sources who are not formally registered in the informant program. A majority of the SACs in the 12 field offices we visited told us that they believe the Confidential Informant Guidelines are workable and well understood, but that the associated paperwork is too cumbersome.

      We found serious shortcomings in the supervision and administration of the Criminal Informant Program. The FBI's Criminal Informant Program lacks adequate administrative and technological support from Headquarters and certain field offices. For example, the FBI has not provided standardized, automated forms to field agents to support their applications for informant-related authorities or a standard field guide describing the requirements to operate confidential informants. In addition, the FBI has provided insufficient training and administrative support to field supervisors and Confidential Informant Coordinators, and does not develop timely compliance data for field managers or FBI Headquarters.6

      In November 2004, several months after the OIG's field office visits ended, the Criminal Investigative Division (CID) at FBI Headquarters generated a self-assessment in analyzing the field office-level compliance deficiencies regarding the Confidential Informant Guidelines identified in the course of our review. CID concluded that field agents still were not familiar with the Guidelines' requirements two years after their implementation, executive managers did not exercise effective oversight, FBI case agents and supervisors did not recognize the implications of some of the most serious Guidelines violations, the FBI had not generated basic administrative tools using existing technology and resources to support operation of the program, and the FBI's basic database tools were so archaic that they seriously limited the ability of field office and Headquarters personnel to support Guidelines compliance. The fact that CID's critique found some of the same problems we did underscores the need for decisive action to remedy the systemic problems we found in the Criminal Informant Program.

    3. The Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations
    4. Our findings regarding the Criminal Informant Program are in contrast to our generally favorable findings regarding the FBI's compliance with the Attorney General's Guidelines on FBI Undercover Operations. FBI undercover operations, while more limited in scope than the Criminal Informant Program, entail similar Headquarters and field supervision challenges, operational risks, and administrative support needs. But with a few important exceptions, we found the FBI compliant with the Undercover Guidelines.

      For example, we found that the CID's Operational Support Section and USOU were supporting and monitoring undercover operations in field offices and were using technological support and other guidance materials to achieve its objectives. Undercover Coordinators, Division Counsel, and other agents experienced with undercover techniques also assisted with ensuring compliance with the Undercover Guidelines.

      In contrast to the 87 percent rate of Guidelines' violations in confidential informant files, our judgmental sample of undercover files in 12 field offices found Undercover Guidelines violations in 12 percent of the files that we examined. These violations concerned the failure to obtain proper authorization for particular undercover activities. Sixty percent of these violations reflected errors relating to field office-approved undercover operations that continued beyond their expiration date or operations in which the FBI participated in a task force that was using undercover techniques. In addition to these authorization violations, 20 percent of the files contained documentation-related errors related to the FBI's Undercover Guidelines compliance responsibilities. These omissions included the failure to document field management reviews of undercover employee conduct, adequately describe "otherwise illegal activity," and include a supporting letter from the U.S. Attorney's Office which made the five required findings. We believe that the majority of these compliance deficiencies likely would have been avoided if the FBI had procedures in place that ensured greater consultation between agents and Undercover Coordinators and Division Counsel. Yet, while not insignificant, we do not believe that these violations reflect the fundamental deficiencies that we encountered in the Criminal Informant Program.

    5. The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations
    6. During our field work, we examined a judgmental sample of 92 general crimes and criminal intelligence investigations files to assess compliance with Guidelines' requirements relating to the initiation of investigations, notification to FBI Headquarters and the appropriate U.S. Attorneys' Offices of specified developments, and the approval by the SAC to use certain authorities.

      General Crimes Investigations

      The General Crimes Guidelines provide direction for initiating and pursuing full investigations where the "facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed." The Guidelines also require that sensitive criminal matters must be brought to the attention of the U.S. Attorney or other appropriate DOJ officials, as well as to FBI Headquarters. Our review found general compliance with these Guidelines. Specifically, we found:

      • all but 1 of the 72 files we reviewed contained the required predication in the opening documentation;

      • with respect to investigations of sensitive criminal matters, the FBI provided the required notifications to FBI Headquarters and either DOJ or the U.S. Attorney on a consistent basis, although a copy of the written notification was not regularly included in the case files; and

      • the FBI consistently documented notification of case closings.

      Criminal Intelligence Investigations

      Criminal intelligence investigations do not focus on the prosecution of completed criminal acts, but instead seek intelligence on criminal enterprises. Criminal intelligence investigations focus on such factors as the size and composition of ongoing criminal enterprises, their geographic dimensions, past activities, intended criminal goals, and capacity to inflict harm. There are two types of criminal intelligence investigations: racketeering enterprise investigations (REIs), which focus on organized crime, and terrorism enterprise investigations (TEIs), which focus on enterprises that seek to further political or social goals through activities that involve force or violence, or that otherwise aim to engage in terrorism or terrorism-related crimes.

      With respect to criminal intelligence investigations, we examined whether the investigative files contained evidence of the required predication and whether the requisite notifications were made to FBI Headquarters, DOJ, and the pertinent U.S. Attorney's Office. The files we examined reflected appropriate predication for the initiation of the REIs and TEIs. However, opening notifications to DOJ and U.S. Attorneys' Offices were not evident in many of the files for REIs (71 percent and 86 percent, respectively). With respect to TEIs, 60 percent of the files did not contain evidence of required notification to the DOJ's Counterterrorism Section, and 80 percent of the files did not contain evidence of the required notification to DOJ's Office of Intelligence Policy and Review (OIPR) and to the pertinent U.S. Attorney's Office. Although only a few files (14 percent) lacked documentation of opening notifications to FBI Headquarters, we found a general lack of consistency in the FBI's documentation practices and supervisory reviews.

      Counterterrorism Activities and Other Authorizations

      The General Crimes Guidelines contain a new Part VI, labeled "Counterterrorism Activities and Other Authorizations." This portion of the Guidelines explicitly authorizes the FBI to visit public places and attend public events on the same terms and conditions as members of the public for the purpose of detecting or preventing terrorist activities. Previously, the FBI's authority to engage in these activities generally was interpreted to be limited to the investigation of crimes or the collection of criminal intelligence only when agents had a sufficient evidentiary basis to check leads, conduct a preliminary inquiry, or conduct a full investigation.

      We evaluated the timeliness and adequacy of the FBI's guidance to the field regarding these new Part VI authorities and attempted to determine how frequently these authorities were utilized. We also examined the approval process and documentation practices used by field offices.

      In our interview of FBI personnel at Headquarters and the field offices, we found widespread recognition of the constitutional and privacy implications of these authorities. We also found that the FBI's Office of the General Counsel (OGC) and the Counterterrorism Division (CTD) issued periodic guidance to address several issues pertaining to recordkeeping and dissemination of information derived from these activities.

      However, we found gaps in the FBI's implementation of the Part VI authorities. Under present FBI policy, FBI agents are encouraged, but not required, to obtain supervisory approval to visit a public place or attend a public event under Part VI. They also are not permitted to document what they learn unless they obtain information that pertains to potential terrorist or criminal activity. If agents believe it is appropriate to retain information from these visits, but the information is insufficient to justify the opening of an investigation, the information is normally retained in a file called a "zero file." Zero files are maintained in field offices and contain miscellaneous information, stacked cumulatively in hard copy, without the capability to readily retrieve all information pertaining to a particular issue or threat.

      Our survey of Division Counsel, the legal officers in FBI field offices, revealed that while 86 percent of Division Counsel said they have been consulted between May 2002 and February 2004 about the propriety of retaining information derived from visiting public places or attending public events, 63 percent said they believed that the FBI's guidance on this issue was not clear when the revised Guidelines were issued, and 55 percent said they believed it was still not clear 21 months later. The FBI also did not establish a Headquarters point of contact to respond to field inquiries regarding constitutional and privacy issues, including questions concerning the Part VI authorities, until March 2003, ten months after the Guidelines became effective. Further, the FBI's guidance on collecting, indexing, and disseminating information derived from the monitoring or surveillance of protest events was not issued until September 2004.

      Due to the absence of routine documentation of the FBI's use of these authorities and the FBI's practice of retaining information from these activities in "zero files," we were unable to determine how frequently the authorities are used. In May 2003, in response to a congressional inquiry, the FBI stated that its informal survey of 45 field offices indicated that agents had visited a mosque only once pursuant to Part VI. At the field offices we visited, we were told that with few exceptions agents did not have time to visit public places or attend public events other than in connection with ongoing investigations.

      However, the way the information is retained makes it difficult for field managers or Headquarters to determine when these authorities are used, and whether information derived from their use is appropriately retained, indexed, and disseminated. And, unlike the practices associated with the FBI's authority to visit public places and attend public events in ongoing investigations (whether in connection with a preliminary inquiry or full investigation under the counterterrorism classification, a full investigation under the General Crimes Guidelines, or under the Undercover Guidelines), neither program managers nor the Inspection Division is able to assess the exercise of these new authorities. While we understand that the FBI does not want to unduly burden case agents with paperwork and approvals, we believe that the FBI should reconsider the approval and documentation process related to Part VI authorities.

      In the course of this review, news articles were published stating that the FBI had questioned political demonstrators across the United States in connection with threatened violent and disruptive protests at the Republican National Convention and Democratic National Convention held in the summer of 2004.7 The initial article stated that dozens of people had been interviewed in at least six states, including anti-war demonstrators and political demonstrators and their friends and family members. Newspaper articles reported that the Department of Justice responded that the interviews were largely limited to efforts at disrupting a plot to bomb a news van at the July 2004 Democratic National Convention in Boston.8

      Following publication of the news articles, several Members of Congress asked the OIG to initiate an investigation into "possible violations of First Amendment free speech and assembly rights by the Justice Department in connection with their investigations of possible protests at the Democratic and Republican political conventions in Boston and New York and other venues."9 Because the request coincided with the investigative work then underway in connection with this review, the OIG commenced an examination of the FBI's use of investigative authorities in advance of the national political conventions in 2004.

      In examining this issue, the OIG has conducted interviews of FBI Headquarters and field personnel and reviewed FBI documents concerning the basis for the interviews referenced in these news stories. We determined that the FBI's pre-convention interviews were conducted pursuant to several different investigative authorities, only one of which falls within the scope of this review - the General Crimes Guidelines, including the authority to check leads or to conduct preliminary inquiries or full investigations. We therefore decided that in order to address fully the questions that have been raised regarding the scope of the FBI's activities in relation to the 2004 conventions, we would need to examine the FBI's use of other authorities that are outside the scope of this review, such as the authorities granted pursuant to Presidential Decision Directive (PDD) 39 and the Antiterrorism and Effective Death Penalty Act of 1996, 18 U.S.C. 2332b(f). This aspect of our review is still ongoing. We intend to continue this review of the FBI's compliance with the pertinent authorities that applied to its actions in connection with these events, and we will produce a separate report describing our findings.

    7. Procedures for Lawful, Warrantless Monitoring of Verbal Communications (Consensual Monitoring Guidelines)
    8. Non-telephonic consensual monitoring, including the use of body recorders and transmitting devices, is governed by the Consensual Monitoring Guidelines. We examined 103 non-telephonic consensual monitoring files that included recorded conversations to assess compliance with the Guidelines' requirements. We determined whether the files contained evidence of advice from the U.S. Attorney's Office regarding the legality and appropriateness of the monitoring, DOJ approval when monitoring "sensitive" individuals, SAC or ASAC approval prior to recording monitored conversations, and timely authorizations for extensions.

      We found that 90 percent of the files were compliant with these Guidelines. The FBI requires that all consensual monitorings be requested on a standard form which addresses the requirements in the Consensual Monitoring Guidelines. We found that the consensual monitoring files consistently included evidence that the U.S. Attorney's Office had provided advice that the consensual monitorings were legal and appropriate.

      However, although the standard form includes space for approvals from the SAC and DOJ, the field offices we visited were not consistent in documenting these approvals. Significantly, we found that nine percent of the consensual monitoring files we examined indicated that "overhears" were recorded prior to receiving SAC or ASAC approval and that the recording of conversations occurred from 1 to 59 days prior to receiving this authorization. We were told in some offices that the SAC approval had been obtained orally prior to recording, but had not been annotated. One percent of the monitoring requests involving "sensitive" individuals did not contain evidence of written DOJ approval. In addition, we found that an ambiguity exists in the Consensual Monitoring Guidelines regarding the permissible duration of non-sensitive consensual monitorings.

    9. FBI Compliance Oversight Mechanisms
    10. Our review found that the FBI did not consistently ensure that FBI personnel with special expertise and responsibility for issues addressed in the Guidelines (such as Informant Coordinators, Undercover Coordinators, and Division Counsel) were properly consulted regarding routine investigative activities. For example, we believe the most serious violations of the Undercover Guidelines we identified during this review likely would not have occurred if the Undercover Coordinator or Division Counsel had been consulted by the case agents, even at a minimal level.

      Our review concluded that Department of Justice personnel make important contributions to the oversight of the FBI's Criminal Informant Program and the FBI's use of undercover operations, including the promotion of compliance with the applicable Guidelines. This occurs through formal and informal consultations between FBI field personnel and local U.S. Attorneys' Offices, and through DOJ's membership on two key joint FBI-DOJ committees that approve and oversee certain undercover operations and confidential informants: the Criminal Undercover Operations Review Committee (CUORC) and the Confidential Informant Review Committee (CIRC). We agree with the members of these two committees, who stated that the committees are operating smoothly and that DOJ appropriately exercises oversight of sensitive criminal undercover operations and certain high-risk or sensitive confidential informants. With limited exceptions, we found good communication between the FBI and U.S. Attorneys' Offices regarding approval, concurrence, and notice issues under each of the four Investigative Guidelines.

    11. The FBI's Implementation Process for the Revised Guidelines
    12. We assessed the FBI's implementation of the revised Guidelines, including: 1) initial planning for implementation of the revisions; 2) guidance regarding the revisions; 3) training on the revisions; and 4) administrative support for ensuring compliance with the revisions. We believe it is important to evaluate how the FBI implemented the revised Guidelines because lessons learned from this process can be useful when future revisions to Guidelines are made.

      We concluded that the FBI's implementation of the revised Guidelines was problematic. Although certain FBI components undertook significant steps to implement the revised Guidelines, such as issuing guidance and providing training, insufficient planning and inter-division coordination affected important aspects of the Guidelines' implementation. Our interviews with FBI personnel revealed, for example, that no entity in the FBI made decisions regarding the priority that should be accorded to Guidelines training throughout the FBI and the form it should take. As a consequence, our surveys of FBI employees approximately two years after revision of the Guidelines revealed that although 100 percent of agents in some offices had received training on individual Guidelines, agents in other offices had received no training. According to the surveys, most Informant Coordinators and Division Counsel believed that they, along with agents in their offices, still required additional training or guidance on the revised Guidelines.

      We also found that certain of the FBI's administrative tools used to support compliance with the Guidelines were outdated or otherwise deficient. For example, with regard to the FBI's primary investigative resource manual - the Manual of Investigative Operations and Guidelines (MIOG) - it took many months, and in some cases closer to two years, for the FBI to update sections to account for the May 2002 Guideline changes. We believe that the FBI's lack of adequate attention to the implementation process contributed to many of the deficiencies we found.

  8. Recommendations
  9. It is important to recognize that the May 30, 2002, revisions to the Attorney General Guidelines were developed and issued within months of the September 11 terrorist attacks. During that period, the demands on the FBI and DOJ were extraordinary, and many of those demands continue today.

    In making recommendations about the implementation of the Guidelines, we also recognize that there are inevitable tensions between promoting aggressive, proactive, and fully effective investigative tools, on the one hand, and the need to have clearly articulated Guidelines, measures to assure that the Guidelines are followed, reliable data to measure compliance, and accountability for Guidelines' violations, on the other.

    We have therefore made 47 recommendations to help improve the FBI's compliance with the Attorney General's Guidelines. In general terms, our recommendations seek to ensure that:

    • agents are provided the training, administrative, and technological support they need to comply with the Attorney General Guidelines and related MIOG requirements;

    • procedures are in place to ensure that personnel at the FBI and DOJ with responsibility for implementing the Guidelines (including Confidential Informant Coordinators, Undercover Coordinators, Division Counsel, and members of the CUORC and CIRC) participate in important decisions that are made under each of the Guidelines;

    • the FBI use technology to better identify, track, and monitor its Guidelines' compliance performance;

    • the highly variable and often poor compliance performance of the Criminal Informant Program be remedied;

    • the FBI increase inspection coverage of Guidelines-related issues, promote greater accountability for Guidelines deficiencies, and conduct more inspections of priority programs and programs experiencing significant compliance problems; and

    • the FBI more effectively implement future revisions of the Guidelines through advance planning, timely guidance, better administrative support, and training of key FBI personnel.



Footnotes

  1. We included in our field office visits six of the largest FBI field offices: New York, Washington, D.C., Los Angeles, Chicago, Miami, and Boston; four medium-sized field offices: Denver, Salt Lake City, Portland, and Buffalo; and two of the smaller field offices: Columbia, S.C., and Memphis.
  2. The senior field managers of the FBI's larger field offices are designated Assistant Directors in Charge. However, for convenience, throughout this report we refer collectively to the senior field managers as SACs.
  3. Individual recommendations are provided at the end of Chapters Three through Either of the report. A complete list of recommendations is provided in Appendix E.
  4. In addition to the FBI, the JLEAs bound by the Confidential Informant Guidelines are the Drug Enforcement Administration (DEA), United States Marshals Service, and the Department of Justice Office of the Inspector General. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) became a Department of Justice Law Enforcement Agency (JLEA) effective in January 2003 and therefore is subject to the Attorney General's Guidelines Regarding the Use of Confidential Informants. ATF told the OIG that it is adapting its orders concerning the use of confidential informants and the conduct of undercover operations orders to conform fully with the Attorney General's Guidelines and anticipates that it will soon be forwarding draft Orders on these subjects to the Criminal Division for review. The General Crimes and Undercover Guidelines apply only to the FBI. The Consensual Monitoring Guidelines apply to all Executive Branch departments and agencies.
  5. As explained later in this report, we selected a judgmental sample of 120 confidential informant files subject to the May 2002 Guidelines from 12 of the FBI's largest, medium-sized, and smaller field offices. We randomly chose between 9 and 11 of the pertinent files to examine in each field office, except in offices where there were only a small number of files within a certain category of informants, in which case we reviewed all files. We did not pre-select CI files that had been identified as non-compliant by internal FBI inspections or other internal compliance mechanisms, nor did we base our selection of field offices on the compliance record of those field offices or on any other criteria that would produce a bias or skewing of the judgmental sample. As is the case, however, with any judgmental sample, one cannot extrapolate with statistical certainty that the non-compliance rate of the entire population of FBI confidential informant files would be identical to the non-compliance rate we found in our sample.
  6. As noted in the FBI's response to the OIG's recommendations (provided in Appendix G), the FBI states that the Directorate of Intelligence (DI) has initiated a "re-engineering" of its Confidential Human Source Program. Because its internal human source policies, practices, and manuals must account for and comply with the Attorney General's Guidelines, the FBI enlisted DOJ to assist in the re-engineering effort. In December 2004, the FBI established a working group, including representatives from DOJ, to revise FBI policies regarding human sources (including confidential informants.) The working group's goals are to develop new guidelines, policies, and processes for the utilization of confidential human sources that are designed to reduce burdensome paperwork, standardize source administration procedures, clarify compliance requirements, and improve Guidelines compliance.
  7. Interrogating the Protestors, The New York Times, Aug. 17, 2004; Eric Lichtblau, Inquiry into FBI Questioning in Sought, The New York Times, August 18, 2004. A FOIA request has led to the release of some FBI documents relating to the pre-Convention interviews. See Dan Eggen, Protestors Subject to 'Pretext Interviews', Washington Post, May 18, 2005; Eric Lichtblau, Large Volume of F.B.I. Files Alarms U.S. Activist Groups, The New York Times, July 18, 2005.
  8. Eric Lichtblau, Protestors at Heart of Debate on Security vs. Civil Rights, The New York Times, August 28, 2004.
  9. Letter to Glenn Fine from Congressmen John Conyers, Jr., Robert C. Scott, and Jerrold Nadler, dated August 17, 2004.



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