9:12PM EDT October 7. 2012 - WASHINGTON — The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."
The ATF and DEA said in written statements that they are "in compliance'' with the rules for using informants, and that information about crimes by individual informants is "collected at both the field division and headquarters levels." The rules do not require the agencies to tally authorizations to engage in what the department calls "otherwise illegal activity" to determine how often it happens.
The FBI, by comparison, is required to collect information on how often each of the bureau's 56 field offices allows informants to break the law, though the bureau would not release those figures. (The FBI initially said in response to a request by USA TODAY that it, too, had no reports that would indicate how often informants are allowed to commit crimes.)
"There has to be some new accountability," said Rep. Stephen Lynch, D-Mass., who introduced a bill last year to force federal law enforcement agencies to tell Congress about crimes by their informants. "There can be a big upside when informants are used and the FBI actually pulls bad people off the street. But no one is looking at the collateral damage."
Informants' work is a closely guarded secret, in large part because of the danger involved. But records suggest the government's network of cooperators is vast: In 2005, the DEA estimated it had 4,000 informants, and two years later the FBI said in a budget request that its agents had 15,000 more. DEA officials told the inspector general's office that "without confidential sources, the DEA could not effectively enforce the controlled substances laws of the United States."
As part of that work, agents have authorized their informants to do everything from buying and selling drugs to participating in Medicaid fraud rings. Agents are supposed to get supervisors' approval before they permit informants to commit even minor crimes; in more serious cases — involving violence or big drug shipments — they must also get permission from Justice Department lawyers.
The department tightened those rules a decade ago, after the FBI acknowledged that its agents had allowed accused Boston mobster James "Whitey" Bulger to run a crime ring responsible for extortion and murder in exchange for information about the mafia.
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