• 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)

Recent Blog Posts

Tuesday, August 31, 2010

Thank you

As my brief tenure as a guest blogger here comes to an end, I just want to thank everyone for reading my contributions. I hope that I have been able to add in a meaningful way to discussions about how best to use, manage, protect, and recruit informants. For those of you who are interested, I hope that you will keep tabs on my profile on SSRN, where I hope soon to be posting my most recent work on informants, including an article discussing the moral status of informing and how that status should impact when and how police and prosecutors recruit and use informants and another contemplating the propriety and value of police encouraging civilians to commit immoral acts in the name of fighting crime. Until then, thank you.

Jailhouse snitches for the defense

The Massachusetts Supreme Judicial Court recently rejected a motion by Calvin Carnes, a convicted killer, to stay his appeal pending his attempts to seek a new trial on the ground that the prosecution withheld exculpatory evidence. The evidence in question was an affidavit of a jailhouse informant who claimed that Robert Turner, one of Carnes's accomplices, confessed to the homicides. The Suffolk District Attorney's Office justified waiting eighteen months to turn over the affidavit on the ground that they had needed time to check out the informant's story, meet with Turner's attorneys, and, assuming the informant's story was true, allow Turner more time to make incriminating statements. The prosecutors further argued that the delay didn't matter because the informant was "unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information." The response of Ellen Zucker, Carnes's attorney, is worth quoting in full:
Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody. In each case, they have a profile not dissimilar to Mr. Smith, [the informant in this case]. It would be very curious if the district attorney took the standard they’re applying to Mr. Smith and applied it to every jailhouse snitch they put on the stand to try to get a conviction.
Of course, a lying informant is not valuable to anyone, and it is in everyone's best interest for the state to ensure that informants are not permitted to lie. And in the ideal world, the police and prosecutors would exert just as much effort to test the veracity of informant's testifying for them as they do when an informant wishes to provide unhelpful testimony. But if the history of informant use has taught us anything, it is that the combination of more-or-less unbridled prosecutorial discretion, secrecy in the handling of informants, and zeal for convictions has led to inconsistent stances by states depending on whether they are relying upon or attempting to rebut informant testimony. In other words, every jailhouse informant is a lying rat unless he's testifying for your side.

Monday, August 30, 2010

Using informants to ID gang members (and other secondary uses of informants)

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from "trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public" in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney's Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: "Subject has been identified as a gang member by a reliable informant/source," and, "Subject has been identified as a gang member by an untested informant or source with corroborative evidence." Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed "corroborative evidence" for the untested informant's identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

In San Francisco, being deemed a gang member may mean that your First Amendment rights to association are restricted. Moreover, in California, Tennessee, Florida, South Dakota, and New Hampshire, if you're labeled a gang member by informants, you are subject to significantly higher penalties if convicted of the same crime. In addition, your assets are more likely to be subject to forfeiture, and information about you will be stored in government databases for years. And what's notable about most of these effects is that they occur without the same kind of due process accorded in criminal trials (the exception being the enhanced criminal penalties, which generally require that the jury find beyond a reasonable doubt that the defendant is a gang member). The result, as in San Francisco, is that when they happen there is little a resident of a inner-city, high-crime neighborhood can do about it, because they lack the resources to do so.

And the gang member identification is only one of the more formalized secondary impacts of police use of informants. By secondary, I mean tangential to the main use of informants, which is to "make" criminal cases. Other secondary effects of informant use may be increased police surveillance of alleged criminals, interactions with police that do not lead to arrests, and stigmatization within communities, leading to interpersonal and intrafamily tensions and loss of job prospects. All of these can occur when police rely on informants who are pressured to come up with evidence for their handlers, either to earn money or to work off a beef. And unlike a criminal charge, which at least will involve a defense attorney and some due process, these negative secondary effects are nearly impossible to reverse. Indeed, because police dealings with informants are hidden from public view, they are particular difficult to combat.

Ultimately, this simply means that their is more at stake when it comes to restricting informant use or making it more open to public scrutiny than "merely" criminal convictions. Police harassment, loss of privacy, impingement on civil rights, and loss of property rights also are at issue.

Thursday, August 26, 2010

The (monetary) costs of informant use

On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.

Tuesday, August 24, 2010

Rewarding illegal informant activity -- a German example

The government often rewards informants for their illegal activity. A petty drug dealer is not prosecuted if she provides information on her supplier, information she would not have were she not involved in the drug trade. A member of an organized crime family receives leniency for his crimes in exchange for testimony against a crime boss. An informant is paid to assist in planning a terrorist attack and testify against the other planners. But few American cases parallel a recent incident in Germany:
German authorities in the state of Baden-Wuerttemberg are examining tax information offered by an informant detailing what may be illicit funds stashed in Swiss accounts, though they said they won’t buy stolen data.
This is only the latest in a string of cases (detailed here) in which insiders at banks in Switzerland, Luxembourg, and Liechtenstein have stolen bank account data and attempted to sell it. The potential buyers are the home countries of the owners of the accounts, to whom significant quantities of tax revenue are owed. In the best-known incident, Germany's foreign intelligence service paid an employee of a subsidiary of Liechtenstein's largest bank more than 4 million Euros for stolen account information on 600 Germans, many of whom were evading German tax laws. As I will attempt to explain, these cases raise interesting and important questions about the ethics and wisdom of rewarding criminal activity.

But before getting there, it's helpful to see how the bank informants differ from the informant examples listed above. I see at least three difference. First, the bank informants stole the records for the sole purpose of profiting from them. This situation is thus different than that of the petty drug dealer or the organized crime family member, because the latter groups obtain the information they provide to the government tangentially to their initial purpose of successfully engaging in criminal activity. As a result, the connection between the illegal activity and the reward is less direct. Put another way, the government doesn't reward the drug dealer for dealing drugs, it rewards her for information she happened to acquire while dealing drugs. It's a fine distinction morally, but as a policy matter it's much less likely that paying the drug dealer will encourage more drug dealing than it is that paying the thief will encourage more similar thefts.

Second, the bank informants stole the records prior to any contacts with the purchasing government entity. This differentiates them from the informant hired to infiltrate a terrorist organization who helps plan an attack, because in the latter case, but not the former, the government can play some role in authorizing, guiding, and restricting the informant's illegal activity. In the bank informants case, on the other hand, that illegality runs unchecked until the informant chooses to come forward.

Third, the bank informants stole the records from their employers who were doing business legally in their home jurisdictions. This means that unlike in the other informant cases, there is an "innocent" victim, or at least a victim who played by the rules of its home jurisdiction. Though the banks almost certainly knew that they were assisting in criminal behavior in other jurisdictions, they at least has a colorable argument to justify their activities. The mid-level drug dealer, organized crime boss, and terrorist organization member have no such argument. Thus, the government, in purchasing the assistance of these informants, is immune from a claim that an innocent victim has been hurt alone the way.

With these distinctions in mind, the best analogy I can come up with to the current situation is that of a hacker who steals information from a credit card company that reveals illegal transactions by the card users for the purpose of selling the information to law enforcement. Such a case would raise questions somewhat different from those usually at issue in U.S. informant cases: Is it morally proper for the government to pay an informant for the proceeds of an illegal act committed without previous authorization against an entity engaged in legal activity in its own jurisdiction and for the sole purpose of obtaining such a payment? And is it good policy to do so?

With respect to the more question, the issue calls to mind other circumstances where the ends are found to justify immoral means by law enforcement. For instance, police are permitted to deceive defendants in order to obtain confessions. And prosecutors may authorize the commission of minor crimes in order to catch more significant offenders. In particular, this question reminds me of the observation that my host here has made that police often look the other way when informants engage in petty criminal activity, like theft, that harms innocent victims. But these cases are even worse in a sense, as the government is not just ignoring criminal activity against innocents, but rewarding it. On the other hand, the banks are international corporations that are aware that they are flouting the laws of other jurisdictions and not innocent residents of high-crime neighborhoods, thus indicating that the victims may not be so innocent. But regardless of exactly how the case of the bank informants compares to current police practice, paying for stolen information in this context seems to be another small expansion of the use of informants that reinforces the notion that the road to hell may well be paved with good intentions.

With respect to the policy question, the answer seems to be clearer. By paying a thief for committing a theft, one encourages more thieves to do the same. And indeed after Germany paid for the Liechtenstein records, more thieves came out of the woodwork. From a purely monetary standpoint, in an individual case the benefits, at least in terms of the lost tax revenue recovered, may outweigh the cost of the reward, but the harm caused by those future thieves who uncover minimal or no additional wrongdoing through their crime may well tip the scale in the other direction. And this calculus does not even consider the significant harm that paying these thieves would cause to the public perception of law enforcement and to their moral standing in the community as it reinforces the sense that the police are frequently in cahoots with law breakers.

Finally, to bring it home, the issues facing Germany are also facing the U.S. government, only in a less public venue: the same individual who sold account information stolen Liechtenstein's largest bank to Germany has filed a claim with the IRS to collect a bounty for revealing information garnered from these same records about individuals dodging U.S. tax laws. But unlike in Germany, IRS regulations keep the agency's deliberations relatively secret, meaning that the US is making its decision without the public oversight currently causing headaches to politicians in Germany.

Friday, August 20, 2010

The power of labels

There is no shortage of slang terms for informants: "weasels," "rats," "stool pigeons," and, of course, "snitches." And none imply positive things about those who assist the police. According to the Oxford English Dictionary, to "weasel" means "to escape from or extricate oneself out (of a situation, obligation, etc.), esp. dishonourably." A "rat" is "a man who is deceitful or disloyal in a romantic relationship," "a person who deserts his or her party, side, or cause," "a person who gives information, esp. of an incriminating nature, on another person to the police or other authority, an informer." And to "snitch" is "to inform upon or on a person" or "to take surreptitiously, purloin." Yet, despite the negative connotations of these slang terms, they (and particularly "snitch") are used synonymously with "informant" in journalism and academic debate, where at least the appearance of neutrality is valued. For instance, a search of news articles over the past year finds thousands of uses of the word "snitch." Many of course are found in direct quotations or a similar context, but some simply refer to informants as snitches, and thus import the negative connotation into a presumably neutral forum. A fair number of law review articles incorporate the word "snitch" in the title. And this blog is called, "Snitching Blog."

To some extent, of course, the use of slang synonyms is unavoidable as authors and reporters seek to avoid repetition. But I raise the issue because I wonder to what extent the use of a term like "snitch" improperly colors the debate over the proper role and treatment of confidential informants. Some, like Paul Butler, have argued that the term "snitch" refers only to a subset of confidential informants and do not include those civilians who assist the police out of a sense of civic duty. I don't disagree that were this distinction adhered to in practice, it would be valuable, but the use of the word "snitch" is sufficiently indiscriminate to raise concerns that in academic and journalistic discussion those good citizens are being painted with the same brush as criminals who turn in their accomplices.

Wednesday, August 18, 2010

Interesting effort to preempt jailhouse snitching

Since everyone in the criminal system knows that high-profile murder suspects are prime targets for jailhouse snitches, why not try to nip it in the bud? That's what one Arizona public defender tried to do, asking the judge to keep other inmates away from his client Pamela Phillips if those other inmates were also represented by the public defender's office. Were such inmates to come forward as snitch witnesses, it would create a conflict and the public defender's office could no longer represent Phillips. Story here: Pre-emptive anti-snitch move fails. The judge denied the motion, but its a good example of proactive lawyering that builds on our growing knowledge of how jailhouse informants operate.

Tuesday, August 17, 2010

Tailoring solutions to informant problems

The city of Atlanta has agreed to pay $4.9 million to the family of Kathryn Johnston, a 92-year-old woman who was killed by police acting on a false tip from an unregistered informant. The police then planted drugs in Johnston's home to cover up their failure to follow the law and Atlanta Police Department policy on informant use. (A fuller account of the Johnston case can be found here.) The settlement properly reflects the egregious nature of the misconduct in the case, but the more important question is whether the settlement can properly be said to bring "[o]ne of the most divisive chapters in the history of the Atlanta Police Department . . . to a close." While it certainly marks the end of what the court system can do to assuage the pain caused by Johnston's death, the settlement marks the end of the chapter only if the steps that the APD and the City of Atlanta have taken to make sure that a similar incident does not happen again are likely to be effective.

The APD has attempted to fix the problems that led to the Johnston tragedy by reorganizing its Narcotics Unit and strengthening its Office of Professional Standards (which houses the department's Internal Affairs and Corruption Units). While these steps are positive, they continue to rely on the police to self-regulate, a task that the APD and police departments generally often do poorly. (In Atlanta's case, a report written in response to the Johnston incident found repeated breaches of APD policies and a police culture that ignored these breaches.) Indeed, if Johnston's death was the result of "rogue officers," strengthened policies are unlikely to prevent future tragedies.

Atlanta City Council, apparently skeptical of the APD's ability to self-police, reacted to the Johnston tragedy by creating a Citizen Review Board and empowering it to investigate citizen complaints against the APD. The creation of the CRB is a positive step away from unfettered police discretion and toward civilian oversight.

But informant use presents a unique problem that this CRB (and others like it) is ill-suited to address. In particular, Atlanta's CRB has the authority only to respond to citizen complaints. Such complaints provide an effective oversight mechanism only for misconduct that is likely to be reported. For example, civilians who are subject to excessive use of force or who suffer false arrest or imprisonment are likely to bring complaints to the CRB. But police use (and misuse) of informants takes place almost entirely in secret, and those civilians who might have knowledge of police misconduct -- the informants themselves -- are unlikely to report it. After all, informants frequently assist the police under threat of criminal prosecution for a prior offense. And any complaint to a CRB by such an informant will likely result in the informant's incarceration, thus creating a strong disincentive to report misconduct.

For instance, prior to raiding Johnston's home, APD officers stopped a suspected drug dealer, planted drugs on him, and threatened to arrest him if he didn't provide information to incriminate someone else. That dealer falsely told police that a dealer with a significant amount of cocaine was at Johnston's home. The police then lied on an affidavit to secure a warrant, thus leading to the fatal raid. As this recounting shows, a CRB would not have prevented the Johnston incident, both because there was no time for a citizen complaint to be filed and because the informant was unlikely to complain for fear that the police would follow through on their threat of prosecuting him for the planted drugs. Instead, police misuse of informants will likely come to light only in situations like the Johnston tragedy, where an innocent civilian is injured, killed, or falsely imprisoned as the result of police misconduct. Meanwhile, the more run-of-the-mill misconduct involving false or fabricated informant testimony (used to incriminate the actually guilty), informants permitted to continue to engage in low-level criminal conduct, and informants coerced into engaging in dangerous activities with little to no training will continue unchecked.

Of course, bad actors intent on misconduct are difficult to deter completely, but two approaches would work better than those taken in Atlanta. First, affirmatively obligating the police to report on informant use would allow for insight into systemic problems before they lead to incidents like the Johnston tragedy. For instance, it is likely that the events leading to Johnston's death were not the first time that the officers involved had fabricated informant testimony. Informant use data might have identified them as wrongdoers due to informant use at a rate or in a manner inconsistent with their fellow officers.

Second, forbidding the police and prosecutors from trading pre-conviction leniency for informant assistance would make tragedies like the Johnston incident less likely. I've argued that many such bargains violate the Thirteenth Amendment, but regardless of the basis for the prohibition, such a ban would have two positive effects. The first is that it would place the informant-state relationship under the supervision of the courts, which could guarantee that informants are used appropriately. The second benefit is that a ban would make police hesitant to offer such deals and civilians would be less likely to accept them, knowing that they are prohibited and thus unlikely to be honored. In the Johnston case, such a ban may have prevented the police from receiving the false information tying Johnston's home to drug dealing and thus prevented her death.

The problem of informant misuse is a difficult one, but tragedies like Johnston's death deserve solutions that are tailored to the problems that cause them.

Friday, August 13, 2010

Informant lawsuit against FBI offers window into messy world of anti-terrorism

By the end of his stint working for the FBI, informant Craig Monteilh was earning over $11,000 a month to secretly film and record worshippers at the Islamic Center of Irvine, California. Monteilh, who has a lengthy rap sheet of his own, is now suing the FBI for allegedly instructing him to plead guilty to criminal charges of grand theft so as to maintain his cover. The Associated Press report on Monteilh's lawsuit reveals details of the informant's world that the public rarely gets to see, particularly the government's ability to use private individuals/informants to obtain information that the government would otherwise need evidence of wrongdoing and a warrant to obtain: US Judge gives informant time to amend FBI lawsuit. From the story:
In court papers and his ACLU declaration, Monteilh says he was asked to work as an informant for local law enforcement in 2004, when he became friendly with some police officers in a local gym. By 2006, he was promoted to the FBI's counterterrorism operations. Monteilh alleges he gathered phone numbers and contact information for hundreds of Muslim-Americans and recorded thousands of hours of conversation using a device on his key fob or cell phone during his stint with the FBI. His said his handlers told him to work out with Muslims at gyms, asked him to get codes for security systems so they could enter mosques at night and encouraged him to ask mosque members about "jihad" and supporting terrorist operations abroad. In June 2007, however, mosque members became suspicious of Monteilh and requested a restraining order, saying that he had spoken repeatedly about engaging in jihad.

Thursday, August 12, 2010

Judged by the company you keep

Yesterday, Hal Turner, a shock jock and blogger popular with the Ku Klux Klan, Aryan Nations, and American Nazi movements, testified in his own defense at his criminal trial. Turner is charged with making threatening blog posts about Judges Posner, Bauer, and Easterbrook of the Seventh Circuit Court of Appeals, in which he suggested that the three judges deserved the same fate as District Court Judge Joan Lefkow for a decision upholding handgun bans in Chicago and a suburb. Judge Lefkow's husband and mother were murdered in 2005. Turner's defense is that the posts were not actual threats, and his testimony outlined his four-year stint as an FBI informant.

Between 2003 and 2007, Turner was paid by the FBI to attend gatherings of white extremists and gather evidence about their activities. He testified that his FBI handlers also encouraged him to use inflammatory rhetoric in order to flush out those responsible for the murders of Judge Lefkow's husband and mother. This rhetoric, he claimed, was no more inflammatory than that which led to the criminal charges, and he testified that his FBI handler praised him for his rhetoric and assured him that it was not illegal.

This case raises two issues: first, it's an excellent example of a conundrum facing law enforcement. On one hand, it is difficult to infiltrate and prosecute organized crime, like white power groups, without people on the inside. On the other, the people on the inside willing to cooperate with the government are, in some sense, doubly odious, as they are both criminals and willing to be disloyal to their peers. Thus, to the extent that the state cooperate with them and encourages their activities, the state is painted with the same brush. Here, the FBI's reputation is necessarily tarred by its relationship with Turner, who made money both for egging on and celebrating white supremacists and for turning them in to the police.

This problem is multiplied when the government then prosecutes the informant for activities similar to those for which the government previously paid the informant. Then, as here, the state risks appearing hypocritical on top of being moral suspect for its affiliation with criminals. This further weakens law enforcement credibility with civilian populations that already have a tendency not to trust the police.

The second issue is that by previously encouraging activities similar to those that form the basis of the current criminal charge, the FBI has made it exceedingly difficult to obtain a conviction against Turner. According to Turner, his FBI handler assured him that his earlier statements about Judge Lefkow were not criminal. Now he faces charges for similar statements. Though there may be legally important distinctions between the two sets of statements, those distinctions are fine, and the state is in a very difficult position trying to argue them to a lay jury. Thus, it is not surprising that the case against Turner already has ended in mistrials twice.

Monday, August 9, 2010

The limited value of police policies on informant use

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting's success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

These problems are neither surprising nor rare. Others (including Professor Natapoff and myself) have explored the issues: that drug informants often do little to get criminals off the street, instead churning cases targeting minor offenders; that they fabricate evidence leading to false convictions; and that the alliance between police and criminals like the informant in this case cast the police in a negative light and call into question their standing to enforce the criminal laws.

But what is interesting about this case is that the use of this informant was in flagrant violation of Jacksonville Police Department policy, which says that no individuals wanted on a warrant can be used as a confidential informant. The policy no doubt is meant to prevent the problems here, as fugitives are less credible as witnesses, have a significant incentive to fabricate evidence, and diminish police credibility. And the need for such a policy is real: an individual with an outstanding warrant is a prime target of an officer seeking an informant because the potential sentence hanging over the individual's head is excellent leverage to recruit her.

But, as this case shows, the existence of a policy is at best only a laudable first step toward responsible informant use, and one that inevitably fails unless the policy is enforceable, compliance with it is transparent, and police are held accountable for violations.

On the enforceability front, courts have repeatedly declined to allow injured civilians (including informants) to enforce violations of police procedures. This means that police, like wolves guarding the chicken coop, enforce their own rules. In most cases, then, breaches of policy are enforced only when public outcry requires it, as in the Rachel Hoffman case in Tallahassee. And in this case the JPD administration provides little hope that its policies will be enforced, as the JPD's deputy chief has said that an investigation will occur only "if a violation of policy is brought to [the JPD's] attention."

This raises the issue of transparency. Typically neither internal police guidelines nor the specifics of any informant case are made public. (In Tulsa, Oklahoma, for instance, the police department grudgingly released its policy on informant use while making clear that the policy did not fall within Oklahoma sunshine law. Moreover, though Tulsa's policies are reportedly "grounded in national standards," the former police chief acknowledged that policies are worthless if they're not enforced.) Here, the JPD refuses to release the name of the informant. And when the informant finally was arraigned, he received an unsecured bond before the detective investigating the outstanding charges even had an opportunity to speak to him. With proceedings cloaked in secrecy, it is nearly impossible for there to be independent investigation of potential past wrongdoing or for current violations to be uncovered.

Finally, most police procedures lack accountability. The procedures themselves generally do not include any punishment for violators, and courts are loathe to undermine a criminal case based solely on violations of police procedures. As a result, police have very little incentive to abide by their own procedures when, as they inevitably do, police perceive the policies as making their jobs more difficult. And the incentives to violate procedures are significant: police often are assessed and rewarded based on how many arrests they make, regardless of how those arrests are made. (In this case, one of the officers involved in the sting was promoted, though it is unclear if there is any causal connection between the sting and the promotion.)

These problems are not unique to informants, of course. The vast expanse of police and prosecutorial discretion is a frequently-explored phenomenon, and this is just one of the many areas where that discretion, which depends entirely on the assurance of state agents that they can be trusted to govern themselves, is problematic.

Nevertheless, the case in Jacksonville goes to show that while pushing for policy changes is a worthwhile effort, it can only be a first step toward more effective, fair, and just informant use. Until these policies are enforceable, compliance with them is transparent, and their violation results in real punishment, little genuine change in police handling of informants can be expected.

Wednesday, August 4, 2010

The Wikileaks informants

On July 25, the New York Times reported on the release by of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society's treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an "informant" in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant's role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning's involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

Seen in the best possible light, Manning is a classic whistle-blower. Disillusioned with his employer's actions, he revealed them publicly in the hopes of forcing change. What some see as treason, then, could also be viewed as the highest form of loyalty to America's ideals of openness and public debate. But even if he did not betray his country, Manning certainly betrayed his fellow soldiers and those Afghans who have assisted the United States by placing them in mortal danger. And, at least according to Lamo, Manning's motives were not altruistic: he leaked the documents because enjoyed the attention that his contact at Wikileaks lavished on him, not because it was the right thing to do.

Lamo, on the other hand, is an informant in the more typical mold. He is a hacker with a previous conviction for breaching computer networks. He lied to Manning in order to gain the soldier's confidence, claiming to be an ordained minister so that Manning would feel comfortable giving his "confession." And he has at least arguably milked the situation for attention. Yet Lamo says that he came forward out of a sense of moral obligation: he believed that Manning had endangered human lives and felt that it would be cowardly to do nothing.

Neither Manning nor Lamo would seem to be a clear-cut hero or villain, then, and each has been both celebrated and condemned. Some call Manning a hero (the website for the Bradley Manning support network is here), while others have called for his execution. For his part, Lamo has received death threats and has been shunned by the hacker community, but he also has been hailed as a patriot for doing the right thing in a tough spot.

Moreover, the situation is even more of a moral and ethical morass than the typical criminal informant case, because there at least the underlying criminal conduct is considered unquestionably wrong. Here, though, one's perspective on Manning and Lamo may depend on one's view of the war in Afghanistan. If you believe it is a just war, then you may feel that Lamo did the right thing, but if you think that the war has been mishandled, then you may see Manning as a hero. Alternatively, some will fall back on equating legality with morality. In that case, Manning is a villain for breaking the law, while Lamo, though maybe not a hero, at least committed no crime.

But what should the government do? It does not prosecute every crime, and whether Manning is charged is a decision within the government's broad prosecutorial discretion. Without knowing all of the facts, I don't know how that discretion should be exercised. What I do suggest, however, is that whoever makes the final decision must consider more than the letter of law and focus as well on the morality of Manning's actions. It appears to me that he betrayed his compatriots, but it is less clear that he betrayed his country. The crime charged must fit his moral desert. Treason may be going too far, but something less than treason may be appropriate.

Meanwhile, what do we do about Lamo? He lied to and betrayed Manning, and he did so at the instigation of the government, with whom he was actively cooperating during his discussions with Manning. This raises a larger question that applies to the government's handling of many criminal informants: should the state encourage informants, as private citizens, to commit immoral, if non-criminal, acts? As I see it, there is something unsavory and disquieting about the government, in the name of enforcing criminal laws that are themselves based on society's moral code, pushing civilians to act immorally. And certainly law enforcement's involvement in private immorality weaken the communicative force of the criminal justice system. But is that a price we are willing to pay for the information that informants like Lamo provide?