DEA Confidential Informants Program Subject of DOJ IG Report

After last week’s entry discussed the fact that nearly 100,000 people are in federal prison on drug offense convictions, the results of a recently completely review by the Office of the Inspector General of the Department of Justice may be disturbing. The OIG audited the Drug Enforcement Administration’s Confidential Source Program and found that the DEA’s policy “differs in several significant respects from the Attorney General’s Guidelines Regarding the Use of Confidential Informants.” It also found that the program “lacks sufficient oversight and lacks consistency.” You can view the press release, executive summary, or report in its entirety (with the exception of sensitive information).

The AG Guidelines require a special level of approval prior to using “high-level and privileged or media-affiliated sources – such as individuals who are part of drug trafficking organization leadership, as well as lawyers, doctors, or journalists” due to the increased level of risk to the public. The audit found that the DEA did not have a similar requirement, resulting in a lack of oversight of these sources.

Some confidential informants are authorized to conduct “Otherwise Illegal Activity.” Again, the audit found that the DEA was not adhering to the AG Guidelines on the level of oversight required for these activities. Similarly, the DEA was not rigorously reviewing the appropriateness of its long term informants. Over the course of six years, some 240 long term informants were used, and in many cases, less than one minute was devoted to reviewing the source. “In some cases, the DEA continued to use … individuals who were involved in unauthorized illegal activities and who were under investigation by federal entities.”

In a 12 month period from July of 2013 to June of 2014, the DEA paid 17 different sources a total of over $1 million. Importantly, the report notes that “the DEA had not adequately considered the implications of awarding such benefits on the disclosure obligations of federal prosecutors and had not consulted the DOJ about the issue.”

Perhaps most disturbing, the reports notes the audit was repeatedly seriously delayed by uncooperativeness by the DEA, including refusing to provide files, sometimes for months at a time.

It is unclear how defense attorneys may employ this report both when addressing past convictions based on DEA investigations and future cases involving DEA agents.