DOJ Inspector General Slams DEA Confidential Source Practices

Today the Department of Justice publicly released the Office of the Inspector General Semiannual Report to Congress (dated October 30, 2015), which contains a section (starting at page 38, copied below the fold) detailing the OIG's audit of the DEA's policy and practices related to confidential informants. 

These investigations were likely spurred by revelations in 2013 that the DEA had rehired controversial former informant Anthony Chambers, who had previously been named as a perjurer in 16 different federal cases from 1984 to 2000. During this period, Chambers received at least $4 million in compensation for his services as an informant in cases yielding tens of millions of dollars in asset forfeiture. Notably, when the Chambers scandal came to light, DEA spokeswoman Dawn Dearden claimed:

"However, I can say that DEA follows very strict and rigorous guidelines and protocols when handling all informants.”

Today, with public notice that the DEA agrees with all 7 reforms proposed by the DOJ Inspector General, we know Dearden's claim to be false. 

 

Here is the full text of the OIG's report on DEA confidential source use:

The OIG found that the DEA’s policy for confidential sources, which was approved by the Criminal Division in 2004, differs in several significant respects from the Attorney General’s Guidelines Regarding the Use of Confidential Informants (AG Guidelines), which is DOJ’s overarching policy regarding component use of confidential sources. The use of high-level and privileged or media-affliated sources—such as individuals who are part of drug trafficking organization leadership, as well as lawyers, doctors, or journalists—can pose an increased risk to the public and can have unique legal implications for DOJ. For this reason, the AG Guidelines require special approval before these individuals may be used as a source. Yet, the OIG found that the DEA’s Confidential Source Program has no similar requirement, resulting in insufficient oversight.

In addition, the OIG reported that DEA policy and practices are not in line with the AG Guidelines’ requirements for reviewing, approving, and revoking confidential sources’ authorization to conduct Otherwise Illegal Activity (OIA). The effects of inadequate oversight of OIA by confidential sources could prove detrimental to DEA operations and liability, and could create unforeseen consequences. For instance, confidential sources could engage in illegal activity that has not been adequately considered, or could overstep their boundaries with a mistaken belief that the DEA has sanctioned any illegal activities in which they participate.

Further, contrary to its own policy, the DEA did not always review its continued use of long- term confidential sources and, when it did, the reviews were neither timely nor rigorous. The OIG found that between 2003 and 2009, the DEA used over 240 long-term confidential sources without rigorous review, often devoting an average of less than 1 minute per source to consider the appropriateness of the source’s continued use. In addition, in most instances the DEA continued to use these sources without obtaining the required DOJ concurrence.

This created a significant risk that improper relationships between government handlers and sources could be allowed to continue over many years, potentially resulting in the divulging of sensitive information or other adverse consequences for the government.

In addition, the DEA confidential source policy does not include any specific guidance regarding the use of DEA licensees as con dential sources. DOJ guidance emphasizes the need for controls to ensure that no licensee is led to believe that the continued validity of their license is predicated on their status as a confidential source, yet the OIG found that the DEA’s con dential source policy does not specifically address the recruitment, establishment, or use of sources who have been issued a DEA-provided controlled substance registration number.

Finally, the OIG found that the DEA provided Federal Employees’ Compensation Act (FECA) benefits to confidential sources without adequate processes in place for reviewing the claims and determining eligibility for these benefits. The OIG estimated that, in just the 1 year period from July 1, 2013, through June 30, 2014, the DEA paid 17 confidential sources or their dependents FECA benefits totaling approximately $1.034 million. The audit also found that the DEA inappropriately continued using and paying confidential sources who were also receiving full disability benefits through FECA, and that the DEA had not adequately considered the implications of awarding such benefits on the disclosure obligations of federal prosecutors and had not consulted DOJ about the issue.

The report notes that the audit was seriously delayed by instances of uncooperativeness from the DEA, including a empts to prohibit the OIG’s observation of confidential source file reviews and delays, for months at a time, in providing the OIG with requested confidential source information and documentation. In each instance, the matters were resolved only after the Inspector General elevated them to the DEA Administrator. As a result, over 1 year after initiating this review, the OIG has only been able to conduct a limited review of the DEA’s Confidential Source Program. The OIG is continuing its audit to more fully assess the DEA’s management and oversight of its confidential sources.

The OIG made seven recommendations to the DEA to improve the policies and management of its Confidential Source Program. The DEA agreed with all of the recommendations...

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