Legislator Aims To Regulate FBI Behavior

Last in a three-part series.

Rep. Bill Delahunt (D-MA) at a hearing.

Rep. Bill Delahunt (D-MA) plans to introduce a bill that would essentially hold FBI agents criminally responsible if they fail to share criminal activity of a confidential informant with other law enforcement agencies. Chip Somodevilla/Getty Images hide caption

itoggle caption Chip Somodevilla/Getty Images

The FBI has been repeatedly accused of standing by while its confidential informants commit crimes. One legislator is considering introducing a bill that aims to fix that.

The bill — as envisioned by Rep. William Delahunt (D-MA) — would subject FBI agents to criminal prosecution if they don't alert local law enforcement when one of their informants has committed a crime.

Agents say that if the bill becomes law, the informant program as we know it will end.

An Uncooperative Institution

The FBI's detractors have long seen the bureau as an institution with its own agenda. They worry that the bureau is more concerned about building a successful case than upholding the law. Delahunt is one of those people.

"I have had a long-term concern about the sharing of information by, specifically, the FBI with local and state law enforcement," he says.

Delahunt says the FBI has developed into a model of arrogant uncooperativeness when it comes to helping local police fight crime. Nowhere is this problem as evident, in his view, than in the FBI's confidential informant program.

Time and again, he says, FBI agents neglect to tell local police when they know their informants have broken the law because agents arbitrarily decide that their cases are more important than local ones.

"What is totally unacceptable is having violent criminals out on the street, preying on American citizens everywhere, while there is information that isn't being disclosed to local and state law enforcement authorities that have the primary responsibility in this country to protect us from violent crime," Delahunt says.

A New Bill

Delahunt's solution is to introduce a bill that would essentially hold agents criminally responsible if they keep quiet.

"If an average citizen should lie to an FBI agent, there is a criminal penalty involved," Delahunt says. "Compare that to a situation where an FBI agent has information and fails to disclose it to appropriate local and state law enforcement officials. Should there be a penalty?"

Delahunt says there should and points to the Whitey Bulger case in Boston as an example. "There have been cases, here in the greater Boston area, where the high standards of the FBI have not been honored," he says.

FBI's Unholy Alliance

Whitey Bulger was the godfather of the Irish mob and a confidential informant for the FBI. He gave an agent named John Connolly information that helped the FBI wipe out the Italian mob in Boston. During that time, it seemed that no matter what state and local law enforcement did to gather evidence against Bulger, he remained one step ahead of them. It was revealed later that Connolly was tipping him off. Delahunt was district attorney in neighboring Norfolk County at the time, and the case still rankles.

"Serious crimes went unsolved, while at the same time the FBI had significant information that, in my judgment, could very well have led to a successful prosecution," Delahunt says.

Delahunt is certainly not the only person to cry foul about the FBI's informant program. The Justice Department's inspector general is concerned, too. He came out with a 301-page report saying that in nearly nine out of every 10 cases he reviewed, agents mishandled informants. They allowed informants to engage in criminal activities without approval, they failed to report it when informants broke the law, or they approved illegal activity after the crime had already been committed.

Interfering With Agents' Jobs?

Jack Weinstein has been a sitting judge for 40 years. He is a federal judge in the Eastern District of New York and has probably heard more mob cases — using confidential informants — than any other judge in the country. He's worried about Delahunt's bill.

"I do think that to tie the hands of the FBI unduly is something that ought to be seriously considered before it is done," Weinstein says, adding, "My experience with the FBI over the past 40 years has been very good."

Valerie Caproni, the general counsel for the FBI, is also worried. "I don't think if it was passed we could get agents to run informants."

She said that the way the bill is drafted, an agent would have to inform local law enforcement if they obtain information that a confidential informant has committed a crime. What happens, she asks, if they aren't sure the information they obtain is reliable?

"You would put the agent in a situation in which they would have to choose between criminal liability on their own part and disclosing information they may believe in their heart of hearts — and everyone objectively believes — isn't reliable," Caproni says. "But they risk criminal exposure if they don't disclose that to local law enforcement."

Caproni says that if that was the law of the land, the FBI couldn't put their agents in that kind of position. It would effectively end the informant program.

"I think that's baloney," says Delahunt. He says he simply is requiring FBI agents to comply with guidelines that already exist.

"My role is one of oversight, monitoring and ensuring that the FBI achieves the high standards that we all believe the FBI aspires to," he says.

The attorney general is expected to release revised guidelines for FBI investigative procedures in the next couple of weeks. Delahunt says he'd like to see those provisions before he moves ahead with his bill. Rep. Dan Lungren (R-CA) has been working with Delahunt on the bill.

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