'Otherwise Illegal Activity' by FBI Informants Is on the Increase

While our overall crime rate has been declining for decades, it appears the opposite is true for one type of federal crime. Unfortunately, this criminal activity is officially sanctioned during FBI investigations, and it's on the rise. It's called "otherwise illegal activity" -- activity that would be illegal if it weren't committed by an FBI informant.

We've known since at least 1997 that the FBI allows its informants to commit crimes in order to maintain their credibility with criminal peers. It came to light when reporters revealed the FBI had authorized mobster "Whitey" Bulger to continue his criminal enterprise long after he became an FBI informant in 1975. Since that revelation, the U.S. Attorney General has required the FBI to keep reports on "otherwise illegal activity" by its "confidential human sources."

Unfortunately, other law enforcement agencies are not required to keep such reports, although it is widely assumed that all levels of law enforcement allow informants to commit crimes during investigations.

Recently, a reporter obtained the FBI's 2012 "otherwise illegal activity" report through the Freedom of Information Act. Although the report was highly redacted, we now know that FBI informants were authorized to commit 5,939 crimes last year -- more than 16 every day, on average. That's nearly a 5-percent increase over 2011, based on a previously-obtained report.

The redacted reports don't categorize the offenses or say where they were committed, but they do indicate the otherwise illegal activities were considered "Tier I and Tier II violations." The Justice Department defines a Tier I violation as activity that would be criminal if not for the authorization of a federal prosecutor, and includes major crimes such as drug trafficking, public corruption and crimes of violence. Tier II violations aren't necessarily less serious but can authorized by a senior FBI field manager.

In August, a former top FBI official admitted that 5,658 does sound like a lot of potentially major crimes to be sanctioned by the government. He urged the public to consider the context, however, and emphasized that this is not done lightly.

The problem for federal criminal defendants is that information obtained from informants who continue to operate in the criminal sphere simply isn't very trustworthy. Credibility within a criminal organization is not the same as credibility in court, yet allegations by confidential informants are still used as crucial evidence by prosecutors.

Source: RT news, "FBI allowed even more crimes in 2012 than in previous year," Dec. 27, 2013

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