The importance of the implementation process was highlighted by Attorney General Ashcroft when he issued the new Guidelines. In a memorandum to the heads of all DOJ components dated May 30, , the Attorney General stated: I hereby direct all affected components to implement these revised guidelines and procedures, and to incorporate them as relevant into their training programs for new and current personnel. The new tools made available by the guidelines will only be effective if our agents and employees know how to use them. 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 changes to Guidelines are made. As explained below, we found several significant deficiencies in the FBI's process for implementing the revised Guidelines. For example, we examined communications to FBI personnel relating to the May revisions and documents describing the FBI's plans for implementing the Guidelines.
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The importance of the implementation process was highlighted by Attorney General Ashcroft when he issued the new Guidelines. In a memorandum to the heads of all DOJ components dated May 30, , the Attorney General stated: I hereby direct all affected components to implement these revised guidelines and procedures, and to incorporate them as relevant into their training programs for new and current personnel. The new tools made available by the guidelines will only be effective if our agents and employees know how to use them.
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 changes to Guidelines are made. As explained below, we found several significant deficiencies in the FBI's process for implementing the revised Guidelines. For example, we examined communications to FBI personnel relating to the May revisions and documents describing the FBI's plans for implementing the Guidelines.
In addition, we reviewed reports, data, and other information provided to the Attorney General and DOJ components concerning the FBI's implementation activities. Our review focused on four aspects of the FBI's implementation of the revised Guidelines: 1 initial planning; 2 communications and the provision of guidance to agents concerning the revisions; 3 training; and 4 administrative support. We summarize below our findings for each part of the implementation process.
Planning for Implementation. Our review found that components within the FBI did not sufficiently coordinate planning to implement the revised Guidelines. Although Headquarters personnel told us that discussions occurred within various divisions and offices at FBI Headquarters regarding the need for new guidance and training, FBI officials told us that no office or entity provided coordinated oversight of the Guidelines implementation process.
It prepared guidance for the field and conducted some training sessions. See discussion in Sections II. B and C below. Without inter-division consultation and coordination, however, the implementation of the Guidelines proceeded in a patchwork fashion. For example, as we describe below, updating of the FBI's Manual of Investigative Operations and Guidelines MIOG was significantly delayed, and agent training needs were not timely identified and addressed.
Communication and Guidance. OGC assumed responsibility for many of the communication-related tasks associated with notifying the field of the amendments to the Guidelines. The e-mail also explained that "ILU will be providing guidance regarding the implementation of the new guidelines in the near future. The electronic communication provided a 5-page summary outlining 12 important policy changes, including increased monetary limits for Group II UCOs and emergency approval procedures.
The electronic communication discussed changes to the major sections of the General Crimes Guidelines, including those addressing full investigations, racketeering enterprise investigations REIs , terrorism enterprise investigations TEIs , counterterrorism activities, and the dissemination of investigative information.
With respect to counterterrorism activities involving visiting public places and events for the purpose of detecting or preventing terrorist activities, the guidance stated that, time permitting, agents should obtain their supervisor's approval for the visit and that no information collected should be retained unless it related to potential criminal or terrorist activity.
On August 6, , the Criminal Intelligence Section issued to all field offices a 3-page explanation about the revisions to the Confidential Informant Guidelines. It described the changes to the Guidelines, including elimination of the requirements to read verbatim instructions to CIs and to obtain the CI's written acknowledgment that the CI had received the instructions.
The guidance addressed issues such as predication standards and authorization levels and time periods. The Counterterrorism Division supplemented this guidance with an electronic communication to all field offices on January 2, , describing the proper use of preliminary inquiries in TEIs.
Besides issuing explanatory electronic communications concerning changes to the Investigative Guidelines, the FBI took other steps to assist the field with interpreting the Guidelines and understanding related civil liberties issues. On March 27, , OGC designated an attorney to coordinate guidance and assistance on investigative, operational, and policy matters concerning constitutional and privacy interests. Despite these and other guidance memoranda issued by FBI Headquarters, we found numerous instances where agents were not timely informed of Guidelines' requirements.
Furthermore, we identified problems in communication between FBI Headquarters and the field concerning the requirements of the new Guidelines. For example, our survey of Division Counsel indicated that 55 percent said they believed that guidance is not clear with respect to Section VI. Our review of the FBI's training initiatives on the Investigative Guidelines revealed inadequate planning and poor coordination between Headquarters Divisions, with the consequence that nearly two years after the Guidelines were revised, key groups within the FBI reported significant deficiencies in both the sufficiency and effectiveness of the available Guidelines training.
Our interviews revealed that no entity in the FBI made a determination regarding which agents or supervisory personnel should receive training, the form it should take e.
According to the Training Division, new agents receive copies of the Investigative Guidelines as well as instruction on Guidelines issues related to consensual monitoring, the operation of confidential informants, undercover operations, and investigative techniques.
Guidelines instruction also is provided during in-service training at the FBI's training facility in Quantico, Virginia, in sessions for agents on domestic and international terrorism. Chief Division Counsel in each field office also provide mandatory quarterly legal training for each field office. According to OGC, Guidelines issues are covered in this setting.
Headquarters program units within the CID also provided training that addressed the Guidelines. Yet, despite this training activity, our survey of FBI personnel revealed significant gaps and inconsistencies in the sufficiency and effectiveness of Guidelines training. For example, our survey of Division Counsel in early showed substantial variation in the percentage of agents in field offices who had received general training on each of the four Investigative Guidelines, apart from guidance provided by Division Counsel on particular cases.
As shown below, only 19 percent of surveyed Division Counsel reported that all agents in their field office had received training on the General Crimes Guidelines which includes the new anti-terrorism measures added with the May revisions , and 6 percent reported that no agents in their office had received such training. In addition, fewer than half of the respondents said that all agents in their respective field offices had received training on the revised Confidential Informant Guidelines.
Our surveys further revealed that 65 percent of surveyed Division Counsel said they believed additional training or guidance on the revised Guidelines was necessary in their respective field offices. A high percentage of Division Counsel told us that agents and squad supervisors require additional training.
As the following diagrams reveal, a far greater percentage of Informant Coordinators than Undercover Coordinators reported receiving Guidelines training that they deemed "not effective. In addition, approximately 10 to 24 percent of surveyed Division Counsel reported receiving no training or ineffective training on each of the Guidelines in the first 21 months after the revised Guidelines were issued.
Compliance with regulations and policy requirements such as the Investigative Guidelines can be significantly enhanced through basic administrative measures, including use of accurate and up-to-date reference materials and standard forms, and adherence to procedures that ensure review by experienced personnel. As explained below, our review identified multiple deficiencies in the FBI's administrative support of the revised Guidelines. These included year-long delays in updating the MIOG and other administrative materials used to promote adherence to the Guidelines.
The date of the electronic communication requesting a manuals change is reflected as the "effective date" of the change in the text of the MIOG. Thus, RMD did not receive all requests for MIOG revisions until more than one year after the Guidelines were modified and did not complete all the necessary changes until more than two years after the revised Guidelines were issued. In addition to examining the timing of the revisions to the MIOG and Field Guide, we also compared their text with the Guidelines, noting omissions and differences in language.
We identified nine significant discrepancies between the Guidelines and their corresponding sections of the MIOG or field guides that were available to the field from May to May These differences range from omissions of Guidelines' requirements to contradictions in language.
Confidential Informants. Registration of Confidential Informants. The Confidential Informant Guidelines identify seven categories of information that must be documented in a CI's files upon registration.
The MIOG omits one of these requirements - the requirement to document the promises or benefits that are given to a CI by any prosecuting office. Contingency Payments to Confidential Informants. The Confidential Informant Guidelines provide that payments to a confidential informant shall not be contingent upon the conviction or punishment of any individual. Deactivation of Confidential Informants. The Confidential Informant Guidelines establish procedures when a CI is deactivated "for cause or for any other reason.
Undercover Operations. The Undercover Guidelines require the Special Agent in Charge SAC or Supervisory Special Agent SSA to review with an undercover employee the conduct that the undercover employee is expected to undertake, conduct that may be necessary during an operation, and any sensitive or fiscal circumstances that are reasonably likely to occur.
The Field Guide omits the requirement to discuss sensitive or fiscal circumstances. The revised Guidelines authorize the use of mail covers in preliminary inquiries in general crimes investigations.
The MIOG prohibits mail covers in these investigations. Consensual Monitoring. Duration of Consensual Monitoring. We believe an ambiguity exists in the Consensual Monitoring Guidelines and MIOG regarding the authorization period for monitorings that do not involve the sensitive circumstances set forth in Section II. A of the Guidelines. For non-sensitive matters, Section V of the Guidelines requires that the records for the monitoring include the information set forth in Section III.
A, which provides that the request must "state the length of time needed for the monitoring" and establishes the day authorization period described above emphasis added. The MIOG provides, however, that in non-sensitive consensual monitorings, the SAC or ASAC may approve the monitoring "for the duration of the investigation," which, as explained in Chapter Six, the FBI has converted into a standard practice of authorizing non-sensitive monitorings for an extended period of time beyond 90 days.
The Consensual Monitoring Guidelines require the establishment of procedures for emergency authorizations in cases that do not require DOJ approval.
The MIOG does not include such procedures. For example, some standard forms in use in the field offices we visited were not current and contained requirements that had been superseded by the revisions. OIG Analysis and Recommendations. Our review extended over a period of fundamental organizational change within the FBI in response to the terrorist attacks of September 11, Notwithstanding these significant challenges, we believe the May revisions to the Investigative Guidelines warranted more comprehensive implementation planning and training to ensure that they were effectively communicated to the field, understood, and followed.
Our review of the FBI's actions following the May revisions to the Guidelines showed that the FBI did not provide sufficient training, guidance, administrative support, and oversight to ensure adequate implementation of the revised Guidelines. Although we found that some FBI components took important actions to implement the Guidelines, such as the Undercover and Sensitive Operations Unit and the Office of the General Counsel, taken as a whole, the FBI's implementation process was insufficient.
In some respects, the FBI's efforts were destined to fall short because it failed to develop even a rudimentary plan for how it intended to disseminate and implement the revised Guidelines. This occurred despite the FBI's input on and prior knowledge of the impending Guidelines changes. We believe that someone at FBI Headquarters should have been assigned responsibility for overseeing implementation of the new Guidelines, in advance of their effective date.
Of all the implementation-related functions we examined, training on the revised Investigative Guidelines likely was hindered most significantly by the lack of inter-division coordination.
For example, our interviews revealed that no entity in the FBI made decisions regarding the Guidelines training that should be provided throughout the FBI and the form it should take. As explained above, the Training Division does not have budgetary or operational authority over all training at the FBI, a fact which has been the topic of other reports critical of the FBI's training programs.
Our surveys of FBI employees nearly two years after revision of the Guidelines showed that while percent of agents in some offices had received training on individual Guidelines, agents in other offices had received no training, and 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 actions to support compliance with the Guidelines were outdated or otherwise deficient. Moreover, during our field work in the summer , we identified field-generated forms that field Divisions used to record information relevant to Guidelines compliance that were not current and that did not account for the May revisions.
Moreover, our comparison of the Investigative Guidelines and FBI policy manuals identified several discrepancies. These included omissions from the MIOG that addressed the contents of informant files, informant deactivation procedures, and the preparation of undercover employees.
We also identified a conflict between the General Crimes Guidelines and the MIOG concerning authorizations for terrorism enterprise investigations. We learned in the course of our review that OGC distributed copies of the revised Guidelines to all Chief Division Counsel the day after they became effective and announced their upcoming availability on the FBI Intranet.
Thereafter, OGC and other FBI Headquarters divisions disseminated guidance to the field describing the modifications to the Guidelines in a reasonably prompt fashion. The Undercover and Sensitive Operation Unit did an especially good job in this regard, and distributed its guidance and announced a revised version of its field guide addressing key interpretive questions less than two weeks after the revised Guidelines became effective.
However, the guidance with regard to certain of the new counterterrorism authorities in the General Crimes Guidelines was not sufficient.
Confidential Informants - FBI
We focused this review on compliance with the Attorney General Guidelines, rather than on these other legal constraints, for several reasons. First, the Investigative Guidelines govern most aspects of an FBI agent's day-to-day authority to investigate federal crimes and to conduct criminal intelligence investigations. When they were issued, the Attorney General and the FBI Director underscored that the revisions were necessary to remove bureaucratic obstacles to the ability of field agents and their supervisors to address terrorist threats, while at the same time guide the day-to-day activities of key federal law enforcement agencies within constitutional and other legal constraints. Third, the revised Guidelines give the FBI broader authorities in connection with its efforts to detect and prevent terrorism and to investigate other criminal activity.
FBI Manual of Investigative Operations & Guidelines [MIOG]