• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

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Monday, September 21, 2009

Movie Review--The Informant

In 1992, Mark Whitacre was vice president of operations at agribusiness giant Archer Daniels Midland, handling hundreds of millions of dollars worth of contracts and overseeing the production of lysine, a key corn-based ingredient in animal feed. At the same time, for nearly three years Whitacre worked with the FBI to obtain evidence implicating ADM in a massive international price-fixing scheme. As do most informants, however, Whitacre had issues. He was factually unreliable, personally unstable, and--without giving away the story--engaged in a few shenanigans of his own. The New York Times calls the movie "a smart, cynical comedy" about greed and corporate malfeasance, and it certainly is. But the story of how the federal government came to believe, rely on, adore, distrust, despise, and ultimately discard Whitacre as an informant is also a whirlwind tour through many of the benefits and dangers of real-life informant use.

The Informant, starring Matt Damon, opened this weekend and it is based on Kurt Eichenwald's best-selling non-fiction book of the same name published in 2000. The book, which weighs in at a whopping 550 pages, is an exhaustively detailed journalistic expose of the seemingly incredible facts of Whitacre's cooperation with the FBI. While the movie is a comedy, with plenty of chuckles at the topsy-turvy quality of Whitacre's personality and the resulting ups and downs of the ADM investigation, the book is more disturbing than funny. It offers an up-close view of how heavily the government depended on Whitacre, its inability to control or adjust to his deviations, how ADM's money and political influence shaped the legal outcomes of the investigation, and how justice got deeply twisted along the way. As a factual matter, the film tracks the book relatively closely, and so while people may leave the movie theater shaking their heads over the craziness of it all, they would do well to take the underlying revelations of the film seriously. The Informant points to some very non-fictional truths about the productive yet dangerous marriage of convenience between the government and its informants. Here are a few take-aways:

Cracking Big Cases. If nothing else, The Informant makes abundantly clear why law enforcement goes through the trouble of cultivating informants: they are often the only way to crack big cases against politically powerful or otherwise hard-to-penetrate organizations such as corrupt corporations, drug rings, or terrorist groups. The FBI's storied history with its mafia informants is a case in point. On the one hand, informants with names like "Sammy the Bull" Gravano enabled the investigation and prosecution of some of the most powerful mafia figures in history--including John Gotti--and over the years helped the government undermine the power of the mob. On the other hand, the FBI's habit of letting its informants commit serious crimes like murder, racketeering, and money laundering has given snitching a bad name, and subjected the FBI to heightened scrutiny, congressional disapproval, and millions of dollars in civil liability.

Unreliable. At the end of the movie's preview, Mark Whitacre casually informs his lawyers (and by implication the audience) that "I haven't been telling you guys the whole truth." This might be the biggest understatement of the movie, and it reflects the more general truth that informants are deeply unreliable sources of information. For example, the Center for Wrongful Convictions at Northwestern University Law School reports that 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making "snitches the leading cause of wrongful convictions in U.S. capital cases." Several states, including California, New York, Texas, and Illinois, have considered or implemented new laws to restrict the use of unreliable informant witnesses.

"Falling in Love with Your Rat." This is how one federal prosecutor in New York describes the fact that law enforcement officials can become so dependent on their informant sources that they develop personal attachments to them and lose their objectivity. This attachment can impede the government's evaluation the real usefulness or reliability of their long-term sources. Mark Whitacre's FBI handlers, for example, grew so fond of him that they carried around photos of him and his family--a fondness that eventually blindsided them.

Vulnerable Informants. Like most informants, Mark Whitacre was also a vulnerable person. First and foremost, he was vulnerable to retribution from ADM--the company against which he cooperated. The threat of retribution and potential violence against cooperators is a widespread problem, particularly in gang-related cases. While the federal WITSEC program is well known and well funded, most states have few or no resources to protect or support witnesses who risk their security by cooperating.

Whitacre was also vulnerable in other ways which I won't disclose, but that, as the book describes in detail, made his FBI handlers very uncomfortable with the eventual resolution of the investigation. While Whitacre was hardly a typical snitch, his predicament reflects the widespread reality that informants, like the criminal justice population more generally, are often vulnerable people: young, frightened, undereducated, suffering from substance abuse or mental health problems. Their weaknesses make them more easily pressured into cooperating, and less able to make self-protective decisions, and the criminal system has almost no mechanisms to protect them. In recognition of this fact, Florida recently passed first-of-its-kind legislation entitled "Rachel's Law" (see previous post) which extends some much-needed protections to people who become informants.

In the end, The Informant is plain old good entertainment. But it also provides an accurate glimpse into the machinations of criminal justice, a drama that seems "unbelievable" even though it is all too real.

The Informant is rated R for occasional foul language.