When Donald J. Trump took the oath of office and swore to protect and defend the U.S. Constitution, he gained access to an FBI whose spy powers are pushing the limits of constitutional protection.
Over two previous presidential administrations, the FBI, enabled by complacent congressional oversight in the wake of the 9/11 attacks, has transformed itself from a criminal law enforcement organization into an intelligence-gathering operation whose methods are more similar to those of the CIA and NSA. With 35,000 employees and more than 15,000 informants, today’s FBI is an intelligence agency without a historical peer in the United States.
Recruiting and managing informants, known in the FBI’s parlance as “confidential human sources,” is one of the most crucial ways in which the bureau gathers intelligence. Confidential FBI documents obtained exclusively by The Intercept reveal for the first time how the bureau approaches those tasks — including its use of a number of tactics that raise concerns about the civil liberties of those being targeted for recruitment.
“A lot of this suggests a return to the methods that were used under J. Edgar Hoover that were later denounced and abandoned in favor of ensuring FBI domestic operations were narrowly confined to enforcing criminal statute,” said Michael German, a former FBI agent who is now a fellow with the Brennan Center for Justice’s Liberty and National Security Program.
One document, the Confidential Human Source Policy Guide, a nearly 200-page FBI manual classified secret, details the steps and rules agents must follow in recruiting, handling, and finally parting ways with informants. This document, dated September 21, 2015, is much more voluminous than the version the American Civil Liberties Union made public in 2011, which was dated September 5, 2007, and was unclassified and therefore heavily redacted. In the eight intervening years, the FBI revised its informant policy guide substantially. The changes appear to allow agents working within the United States to employ methods more commonly associated with foreign intelligence agencies. The Intercept is publishing the 2015 version in near complete form, redacting only information whose disclosure could cause harm.
Some of the most significant revelations of the CHS guide expand on what we know about the FBI’s so-called Type 5 assessments — through which federal agents have authority to investigate people in the United States who are not suspected of having committed crimes, but who, in a federal agent’s opinion, could be recruited as informants. The classified guidelines reveal:
Throughout the FBI’s history, informants have been the bureau’s backbone and a source of controversy. The bureau had 1,500 informants when the Senate’s so-called Church Committee, led by Sen. Frank Church of Idaho, began investigating Hoover’s counterintelligence program against civil rights groups and others, known as COINTELPRO. The committee’s suggested reforms were enacted, with the Senate Select Committee on Intelligence empowered to provide a check on what had been the unchecked power of U.S. intelligence agencies.
In the 1980s, when the FBI was given concurrent jurisdiction over narcotics with the U.S. Drug Enforcement Administration, the informant rolls expanded to around 6,000. After 9/11, and following a presidential directive to increase human intelligence, the number of informants ballooned to more than 15,000 — so many that today the FBI uses a custom software program, Delta, to track and manage informants.
The exact number of informants operating at any given time and how they are handled by the FBI are among the bureau’s closely guarded secrets. While the classified informant policy guide focuses largely on the bureaucratic aspects of managing informants — such as how to open informant files, how to make payments, even how best to communicate (be careful about text messages, the document warns) — the guide does describe the expanded investigative powers the FBI has received and how just about anyone in the United States could be investigated through the bureau’s vast and expanding intelligence apparatus. These rules and restrictions frequently nod to the 1970s reforms that sought to rein in Hoover’s FBI and force the bureau to respect constitutionally protected liberties, such as the right to free speech. But they also include elaborate exceptions and loopholes that, taken together, significantly erode the legal constraints on domestic spying operations imposed in the wake of the Church Committee hearings.
Since the 9/11 attacks, the FBI has at times attempted to avoid oversight by being unresponsive to congressional committees — withholding information and in some cases providing misleading information. As one example, the House Homeland Security Committee in 2014 investigated the intelligence failures surrounding the Boston Marathon bombings. The FBI at times denied or ignored requests for information, writing in a letter to the committee that the requests were “non-oversight activities.”
Just about anyone can be recruited as an informant, according to the FBI’s policy guide, and agents have authority to open investigations, without probable cause, related to anyone who could be a valuable source for the bureau. In fact, this version of the policy guide recommends agents investigate potential informants by producing a “source identification package” — essentially a dossier — prior to any recruitment approach. This is a relatively new process, according to three former FBI agents interviewed by The Intercept.
“This type of thing was done in the past, but it was never formal,” said Peter Ahearn, a retired FBI special agent who headed the field office in Buffalo, New York.
The source identification package may include information that could be used to pressure otherwise unwilling informants to cooperate with federal law enforcement. This may include information from public and FBI databases, from other informants, as well as from other U.S. agencies.
Another internal FBI document obtained by The Intercept, from 2011, which is titled “CHS Assessing” and classified secret, describes the assessment of a potential informant as “a means to induce him/her into becoming a recruited [informant] mainly through identifying that person’s motivations and vulnerabilities.”
The document notes that the FBI “will also attempt to psychologically evaluate the target to determine the target’s motivations, mental stability and loyalties and will seek information on the target’s habits, hobbies, interests, vices, aspirations, emotional ties, and feelings concerning his country and his career and his employer.” The FBI declined to comment further on how its agents go about psychologically evaluating would-be informants.
If information alone is not sufficient to induce someone to inform, the bureau may offer six-figure payments and even some of the value of any property forfeited as a result of the investigation, the informant guidelines make clear. Informants can make a lot of money working for the FBI.
Recruiting some people as informants requires approval from the Justice Department at least some of the time. These sensitive potential informants include the senior leaders of any organization involved in illegal activity, as well as high-level government and labor union officials.
Even individuals under the age of 18 may be recruited as informants, with or without their parents’ consent, as long as an FBI special agent-in-charge gives permission.
Perhaps most concerning are the methods the FBI may employ in recruiting informants and how agents may approach potential informants. In the FBI’s phraseology, the first meeting between an agent and a potential informant is known as “The Bump.” It can take several forms. One is an approach at the border; in recent years, many have complained of the FBI using immigration status as leverage to recruit informants. The informant policy guide addresses this.
In addition to traditional recruitment efforts — when an FBI agent identifies himself and asks an individual to become an informant — the bureau may use what are termed “nonaffiliated” and “covert” approaches.
In a nonaffiliated approach, which does not require supervisory approval, the agent “does not volunteer” that he or she is affiliated with the FBI or a related agency, such as a Joint Terrorism Task Force, when meeting with a potential informant. In this approach, agents are not allowed to “affirmatively deny” that they are with law enforcement and may not use any sort of disguise, such as, to use the guidelines’ examples, “wearing a plumber’s uniform or driving a cable truck.”
In a covert approach, the FBI agent employs tactics more commonly used by foreign intelligence agencies — taking on a full undercover identity for the purpose of recruiting someone to be an informant. In this approach, FBI agents are allowed to deny that they are affiliated with law enforcement. This method requires approval and, according to the guidelines, “a well-devised operational plan to protect the technique and use it effectively, while weighing its use against less intrusive investigative methods.” The FBI classifies this type of investigative work as a “Type 5 assessment,” which permits agents to meet with potential informants more than five times without revealing their true identity, a limit otherwise imposed on other types of FBI activity. Covert agents who successfully recruit an informant are not allowed to reveal their true identity and must pass on the informant to an agent who is not using a cover.
Asked why this type of assessment is not bound by the five-meetings rule, an FBI spokesperson explained that such assessments seek only to identify, evaluate, and recruit informants. Undercover activity, by contrast, “includes the use of a false identity to obtain intelligence or evidence from a subject or other person of interest.” The spokesperson added that the FBI has safeguards in place to ensure that assessments are not abused: “Regular file reviews, which include a review of whether or not the assessment should be closed or should continue for another 60- or 90-day period, as well as realistic resource constraints, provide the necessary safeguards to ensure that individuals are not subject to long-term surveillance,” he said.
However, the FBI acknowledged that any information collected through assessments may be retained, and accessed later by other agents, in accordance with standard governmental records-retention rules.
FBI agents may use covert assessments to recruit informants online as well, with some limitations, according to the informant policy guide. As with other covert assessments, agents must receive authorization from supervisors for covert work online.
Once given authorization, agents may use publicly accessible websites, which include websites that require registration so long as the public at large is able to register. When registering, agents using a covert approach to recruiting may use an alias and a throwaway email account, but they are permitted to provide only a minimal amount of information. The limitations, for example, would hinder the FBI’s ability to set up covert social media profiles, as FBI agents are not permitted to provide such data as photographs and interests.
In addition, in the context of informant recruiting, FBI agents are not permitted to view websites with access limitations, such as social media profiles that are restricted to “friends” or websites that are limited to a group of people, such as, in the example provided in the informant policy guide, a website where “only persons from a certain school may register.”
The FBI said in a prepared statement that the same protocols and restrictions that govern agents and informants on the streets apply to those working in online environments.
As further proof of the FBI’s transformation from domestic law enforcement organization to global intelligence agency, the informant policy guide allows the FBI to deploy informants in countries around the globe and mentions no requirement that the agency notify the host country of their presence.
FBI legal attaches, or legats, are central to this capacity. Legats are stationed in U.S. embassies and their official duty is to serve as liaisons between the FBI and the law enforcement agencies of other nations. But information from the informant policy guide and news reports in recent years suggests that legats function as the FBI’s version of CIA station chiefs — intelligence agents operating in other countries under nominal State Department cover.
Legats have played a role in so-called proxy detentions, when someone traveling from the United States is detained by another country’s police and questioned about activities in the United States. Legats have reportedly received questions from FBI officials and then passed those on to the host country’s police officials, who in some cases have reportedly beaten the people they are interrogating with FBI questions.
The legat program played a small role last year in Hillary Clinton’s email controversies, when then-Republican presidential nominee Trump alleged “felony corruption” after an FBI official and a State Department official discussed in the same conversation expanding the legat program and declassifying some of Clinton’s emails. The FBI and the State Department denied allegations of quid pro quo, with State Department spokesperson John Kirby describing the conversation as “100 percent routine.”
The FBI declined to comment on the legat program and its use of informants overseas.
The FBI’s challenge since the 9/11 attacks has been to be simultaneously a criminal investigations organization and an intelligence agency. The guidelines allowing for the recruitment of informants unrelated to specific criminal investigations move the FBI more clearly toward being an intelligence agency.
But the bureau remains an organization that has one hand in enforcing the law and the other in collecting intelligence. The FBI has struggled with this bifurcated mission, and President Trump will have the authority to tip the bureau toward focusing even more on intelligence — something some FBI officials may welcome in order to maintain the bureau’s role as the premier domestic intelligence organization in the United States.
In a classified document obtained by The Intercept, an FBI official in 2013 bemoaned that too few resources were devoted to agents assigned exclusively to human intelligence. In that document, the FBI official disclosed that only 3.5 percent of the FBI’s special agents were devoted entirely to recruiting and developing informants.
Another classified document, described as a “vision proposal” for human intelligence, recommended that the FBI increase to a minimum of 5 percent the number of special agents assigned exclusively to human intelligence work.
To those outside the FBI, these numbers may seem low — suggesting the FBI hasn’t become a behemoth intelligence agency after all. But the opposite is true. This small minority of agents is assigned only to gathering human intelligence and recruiting informants. Owing to the FBI’s bifurcated mission, FBI officials have said that agents, including those outside intelligence and informant recruiting, are generally required to develop human sources and intelligence, with the demand so critical that a typical agent’s quarterly review includes a section on informant quantity and quality.
A shift to increasing the proportion of agents dedicated to human intelligence work would further erode the bureau’s capacity for traditional criminal investigations.
The FBI’s reason for proposing a shift appears to be as much about turf as national security. The document suggesting an increase to 5 percent warned that if the FBI does not increase its intelligence capacity, the bureau could lose its “primacy” over domestic intelligence to the Central Intelligence Agency, the Department of Homeland Security, or another agency.
According to the classified documents obtained by The Intercept, Trump’s FBI not only has unprecedented spying capabilities, but an aspiration to expand them further under a president who would find appealing the control of such extraordinary and intrusive surveillance powers.
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