When the FBI took on the Mafia in the 1980s, agents were never short of leverage to use to recruit informants.
If a low-level Mafia soldier was popped for stealing a car, the FBI line was simple: Hey, would you rather work for us or go to prison?
After the 9/11 attacks, the FBI became the front-line agency in the war on terror. A presidential directive instructed the FBI to increase its ranks of informants, particularly in Muslim communities, where the bureau’s intelligence capacity was underwhelming.
But the FBI had a problem: It needed a recruiting strategy for Muslims. While agents could, and did, use criminal offenses by Muslims as leverage, as they had done against the Mafiosi, the bureau chose to widen its net in Muslim communities by looking past those with known links to criminal enterprises to individuals who simply wanted to remain in the United States. Many of these people have been targeted not because of anything they have done, but merely because the bureau sees them as potential sources of intelligence on other members of their communities.
If they have immigration problems, then that becomes a key pressure point. Potential Muslim recruits are offered a variation on the bureau’s line to mobsters: Hey, would you rather work for us or be deported?
The FBI’s Confidential Human Source Policy Guide — a nearly 200-page manual for how FBI agents should recruit and handle informants, classified secret and obtained by The Intercept — devotes an entire chapter to immigration, reflecting the outsized importance of leveraging a relatively vulnerable population of immigrants in recruiting informants. While the guide does not explicitly state that agents should exploit a potential informant’s immigration status, other government documents have come remarkably close — even using the phrase “immigration relief dangle” — and real-world examples of agents doing exactly this are plentiful.
In response to questions for this article about its use of immigration status to put pressure on potential recruits, the FBI maintained that the choice to become an informant was only ever a voluntary one.
Agents are prohibited from working with informants who do not have legal immigration status, according to the guidelines. As a result, agents are required to assist immigrants who lack legal status to obtain it before they can be enrolled as informants, and to this end, the bureau makes arrangements with Immigration and Customs Enforcement. In some instances, the FBI can help secure legal status or asylum for informants. But the guide makes clear that as often as not, the bureau avails its informants of temporary immigration relief. Once these informants are no longer of value to the bureau, agents are required to assist ICE in locating them. “If the [informant]’s location is unknown, the [FBI agent] must work with ICE to locate the individual,” the classified manual reads.
Asked whether such practices suggest that the FBI’s authority is blurring into immigration enforcement, the FBI replied: “FBI policy requires case agents to know the general location of confidential human sources, regardless of immigration status.”
This policy shows that the FBI is required to work much more closely with ICE than agents have previously suggested, said Ira J. Kurzban, a Miami-based immigration lawyer who has argued cases before the U.S. Supreme Court.
“In most cases, individuals will go to the FBI and the FBI will say, ‘Yeah, we don’t have any problem with you; you’re cleared,’ and yet ICE is aggressively going after them,” Kurzban said. “To the extent that this document reveals what’s really going on, it’s obvious that the FBI is working with ICE notwithstanding what they’re telling the individuals.”
Among the earliest documented cases of the FBI using immigration status as leverage was that of Yassine Ouassif, whom border agents questioned in November 2005 as he crossed from Canada into New York. The border agents took his green card, placed him on a bus to San Francisco, and told him to contact an FBI agent once he arrived. The FBI’s offer: become an informant or lose the visa.
Across the country, in Miami, the FBI used a similar tactic to attempt to recruit a local imam, Foad Farahi, whose mosque had been attended by al Qaeda members José Padilla, who is serving a 21-year prison sentence for conspiring to deploy a dirty bomb, and Adnan El Shukrijumah, who was killed in Pakistan. Farahi has claimed that after he rebuffed the FBI’s advances, he attended a hearing in 2007 for his political asylum case only to discover that the government suddenly wanted him deported.
In recent years, complaints of the FBI using immigration status as leverage to recruit informants have swelled. As The Intercept reported in October, the FBI now coordinates with U.S. Customs and Border Protection to produce lists of passengers of potential intelligence value. CBP provides the names of passengers who fit the FBI’s criteria, and the FBI may specify who among them should be subjected to extra screening and follow-up visits. The FBI uses this encounter with CBP as a means of prepping the person for informant recruitment and instructs agents to offer the “immigration relief dangle,” as described in the documents obtained by The Intercept.
“If you’re recruiting informants for intelligence purposes, you’re casting a wide net,” said Diala Shamas, a lecturer at Stanford Law School who represented individuals targeted for informant recruitment when she was at the Creating Law Enforcement Accountability & Responsibility project, known as CLEAR. “You’re not identifying people based on their nexus to potential terrorist activity. You’re identifying people based on their nexus to the community you’re surveilling. So you’re going to turn to the most common point of vulnerability, which is immigration status, because the target community is largely an immigrant one.”
The FBI’s informant manual goes into detail about some of the programs agents may employ to recruit sources using immigration status.
One program, known as the “Significant Benefit Parole Program,” allows agents to bring into the country “inadmissible or deportable” informants if they can assist in investigations and prosecutions or provide information of national security interest.
Another, known as a “Deferred Action Program,” allows an immigrant who otherwise would not be allowed to leave the United States and return, to go to another country on FBI business and then be permitted re-entry.
Still, the most significant revelation of the FBI informant manual as it pertains to immigration is the required coordination between the FBI and immigration officials.
It’s been clear for a decade that the FBI works with ICE to keep informants in the country. What we didn’t know was that the assistance is often contingent and temporary, and that the FBI actively assists ICE in locating informants who are no longer useful so that they may be deported.
“This creates a perverse incentive structure, because informants are incentivized to keep themselves valuable,” said Shamas. “It will further incentivize them to create investigations when there wouldn’t be one otherwise. In the traditional criminal context, the law enforcement community is conscious of the risk that coercing informants increases the likelihood of getting bad intelligence. But in the counterterrorism and intelligence context, this caution has been thrown out the window.”
Kurzban, the immigration lawyer, suspects this information becoming public will undercut claims from FBI agents that informants should work with them so they can be protected from ICE.
“The incentives for helping and cooperating seem diminished if as soon as whatever information is given, the FBI is going to turn them back over to ICE,” Kurzban said.