A recent report from the Office of the Inspector General (OIG) within the Department of Justice (DOJ) has found that the DEA Confidential Source Program “lacks sufficient oversight and lacks consistency with the rules governing other DOJ law enforcement components.”
The July 21 report found that “in a relative lack of DEA and DOJ oversight,” the DEA has been using confidential sources who may pose a risk to the public, and this carelessness could, according to the Inspector General’s office, produce unforeseen consequences.
“For instance, confidential sources may engage in illegal activity that has not been adequately considered, or may overstep their boundaries with a mistaken belief that the DEA sanctions any illegal activities in which they participate,” the report stated.
The Inspector General’s office received numerous complaints about the DEA program and launched an audit, but the report was delayed by an uncooperative DEA. The administration attempted to prohibit the OIG from accessing key files and withheld information and documentation for months at a time.
One of the OIG’s key findings was that the DEA “spent minimal time meeting to determine the appropriateness of the continued use of long term sources,” risking the formation of improper relationships between informants and handlers that could continue for years.
According to the Attorney General’s Guidelines, there are three categories of confidential human sources.
A “Source of Information” provides information based on legitimate or routine access to information—without any criminal association with an investigative target. A “Cooperating Defendant/Witness” has agreed to testify in a criminal case as a result of a written agreement with a prosecutor. A “Confidential Informant” is any individual who provides credible information about felonious criminal activities and whom investigators plan to continue to use as a source in the future.
Sources who present risks of greater liability, intrusion into other governmental processes, and other adverse consequences require ongoing review—the kind of review that OIG discovered has not been properly utilized by DEA. The agency avoided these requirements by improperly classifying sources in ways that prevented their status from being reviewed by the DOJ Criminal Division and the U.S. Attorney’s Office before being approved as a confidential source. This practice resulted in inadequate supervision of these informants.
The DEA’s policies for monitoring criminal activity by confidential sources was also criticized by the OIG, particularly with respect to providing documentation in individual cases authorizing the purchases of illegal drugs and oversight of these activities. Because of this inadequate oversight:
“DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities.”
The Federal Employees’ Compensation Act (FECA) allows paying workers’ compensation benefits to confidential sources for injuries or death sustained on the job. This is another area in which the DEA suffers from “serious mismanagement,” paying out $1,034,000 to 17 confidential sources between July 1, 2013 and June 30, 2014. However:
“In some cases, the DEA has been paying FECA benefits since 1974, but we could not determine the total historical cost because the DEA and DOL do not track payments to confidential sources receiving FECA benefits. In one particular case we reviewed, the confidential source was killed in July 1989 and his surviving family, which included a widow and dependents, began receiving FECA payments of $4,287 every 4 weeks. At the time of her death in 2012, the widow’s 4-week payment amount had increased to $6,311. Therefore, this family alone received over $1.3 million in FECA benefits since 1989.”
The OIG noted that the exact amount in benefits paid out is unknown, but that it is clear that this has been an area with significant expenditures.
There were some cases where the OIG could not confirm that benefits were being paid out for deaths or injuries that occurred while the confidential source was “performing services directly for the DEA.” Examples include a 1984 incident without information where a fatal shooting took place, a 1991 incident in which a source was said to have been killed overseas but no body was recovered, a 1999 incident in which a source was killed at home with no other information on file to verify the incident was related to DEA involvement, and another home-based shooting fatality from 2002 with no witnesses and no link connecting the death with work for the DEA.
Other problems found by the OIG involved inconsistent benefits paid to sources under FECA and misuse of the program to provide benefits to active sources (the law is intended to cover individuals who cannot perform their duties).
Despite DEA resistance to this audit the Office of the Inspector General has found that DEA has failed to mitigate significant risks associate with their use of confidential sources. The OIG is particularly concerned “about the relative lack of oversight provided to DEA confidential sources who pose the greatest risk to the U.S. government.” The OIG is also extremely troubled that DEA is “wholly unaware” of the rules and regulations involving FECA benefits and its failure to properly manage claims for injury and death under this program.
The OIG provided the DEA with a list of seven recommendations to remedy the issues discovered in the audit.
In a June 30 memo, the DEA responded to the OIG audit and affirmed their commitment to working with the OIG as their review of the Confidential Source program continues.
“DEA concurs in this recommendation” was the language used in response to each of the OIG’s recommendations, followed by a report of ongoing efforts to internally review their policies and practices and to consult with the Department of Justice in order to bring their procedures in line with DOJ requirements.
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