Infiltrating a confidential informant into a group of suspected terrorists is a perfectly legitimate law enforcement technique. In reality it may be the only way to prevent a terrorist attack. However, if good practice is not followed, it can lead to concerns and, as seen with the FBI, allegations that the offenses would never have taken place if the “confidential informant” wasn’t hired.
Following recent criticism of the FBI’s use of confidential informants in terrorism investigations, confidential informant expert and ABM Software Consultant, John Buckley, discusses recent concerns and gives advice and tips on how to manage CIs in terrorism stings to avoid damaging the legitimacy of the investigation and running the risk of CIs being branded as agent provocateurs.
Criticism regarding the use of confidential informants in terrorism investigations
New York’s Joint Terrorism Task Force investigators have increasingly used “confidential informants” to get close to and arrest potential terror suspects before they actually commit any crime. The latest example involved 21-year-old Bangladeshi student, Quazi Mohammed Nafis, who had no provable connections with al-Qaeda and no terrorism funding source, but was persuaded by an FBI-hired informant to carry out a bomb plot in New York.
Another case in recent years against four Newburgh men that reportedly attempted to blow up synagogues in the Bronx has also drawn criticism and created a general opinion that confidential informants have too much freedom in luring suspects into committing acts they would have never imagined otherwise. In that case, a confidential informant offered to provide the suspects with missiles to launch at the Jewish synagogue. After handing down minimum jail terms to three of the men, Manhattan Federal Court Judge, Colleen McMahon, slammed government investigators for their tactics.
Failing to address the concerns raised in these allegations not only damages public confidence in law enforcement but also leaves minority communities feeling ostracised from the criminal justice system which could affect the outcome at trial.
How to manage confidential informants in counter terrorism investigations
Sadly a report by the Department of Justice Office found FBI agents failed to follow their own guidelines in 87% of all investigations involving confidential informants, giving the public little confidence in such investigations. However, by following a few simple steps law enforcement agencies can ensure they manage CIs effectively and mitigate the risks of criticism:
- No confidential informant should ever be used unless their “activity” behaviour has been authorised at an appropriate level within the law enforcement agency.
- The authorising officer must be satisfied that the activities of the informant are necessary and the activity is proportionate to what it seeks to achieve.
- The officer authorising the informant should be independent of the investigation.
- The potential benefits of the operation should be documented as well as all the risks involved. Only then should the informant be deployed.
- When deciding to use an informant to further an investigation, the authorising officer should take note of the ability and credibility of the informant and the strength of the existing intelligence available on the suspects.
- Comprehensive records of every contact the agency has with the informant should be made.
- The informant should be debriefed after every contact with those under investigation.
- All records should be kept to evidential standards.
- If the informant will be involved in a criminal conspiracy with those under investigation, or be involved in any other criminal offense, the level of authorisation should be raised to a senior rank within the agency.
- Doubts about the mental health or vulnerability of any of the suspects should be documented as soon as they become apparent. This can help to mitigate an argument that the suspects were exploited.
- Meetings between the informant and the suspects should be recorded and consideration should be given to recording the meetings between officers and the informant.
- Independent verification of the activities of the suspects should always be a priority.
- The early involvement of legal counsel should be considered as good practice.
- There should be ongoing review of the progress of the operation by the officer who authorised the use of the informant.
Following these guidelines may not stop allegations of CIs acting as agent provocateurs but they will make them a lot easier to refute and help to improve public confidence.
John regularly advises ABM on the development of software for managing covert operations and intelligence and has written several books surrounding the topics of intelligence management and confidential informants. His latest book, Managing Intelligence; A Guide for Law Enforcement Professionals, is due to be released next year.
If you would like more information on ABM’s confidential informant management software (abmpegasus source management) and how it can help you manage confidential informants in counter terrorism investigations please email firstname.lastname@example.org or visit our abmpegasus page on our website.