The New York Times features a story this week on the expanding recruitment and use of Mexican drug informants: U.S. Agencies Infiltrating Drug Cartels Across Mexico. The story describes American law enforcement as having "significantly built up networks of Mexican informants" and focuses on the substantial benefits that such criminal informants can provide. For example:
[Informants] have helped Mexican authorities capture or kill about two dozen high-ranking and midlevel drug traffickers, and sometimes have given American counternarcotics agents access to the top leaders of the cartels they are trying to dismantle.
The Times story notes that informants can also give rise to "complicated ethical issues," including the fact that informants are typically working off their own crimes. Last year, NPR and Primetime ran stories illustrating the serious criminality that such informants may engage in, even while working for the government: NPR series on House of Death informant and Primetime: U.S. Customs authorizes informant to import cocaine.
In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized. "Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.
The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch's office in support of this bill and I am strongly in favor of the effort.
Follow up to this post: A Rat's Life: MS-13 Informants Run Wild. In a rare turnaround, the government has prosecuted its own informant for lying to prosecutors about murders he previously committed. Roberto Acosta now faces up to five years; he argues that he was the government's main source for its case against MS-13 and without him they wouldn't have been able to get the numerous convictions they did. SF Weekly blog postings here: Feds Want Maximum Prison Time for Roberto Acosta, MS-13 Informant Who Lied and Roberto Acosta, MS-13 Informant Convicted of Lying, Wants Out of Jail
The Freedom of Information Act (FOIA) empowers individual requestors to compel the government to disclose its records. Various exceptions permit the government to withhold certain records regarding informants, but the Ninth Circuit recently explained some limits to those exceptions. In Pickard v. Dep't of Justice, 2011 WL 3134505 (9th Cir., July 27, 2011), William Pickard filed a FOIA request with the DEA to get records regarding Gordon Todd Skinner, a DEA informant. The DEA denied his request by submitting a so-called "Glomar response" in which it neither officially confirmed nor denied the existence of Skinner as an informant. The 9th Circuit held that the DEA in effect had already "officially confirmed" Skinner as a confidential informant by eliciting testimony about and from him in open court at Pickard's trial, and that therefore the DEA could not avoid the FOIA request in that manner. In other words, once the government relies on an informant--either through an agent's testimony at trial regarding that informant or by using the informant as a witness--it cannot subsequently block a FOIA request by refusing to acknowledge the existence of the informant. This does not mean that the DEA necessarily has to produce records regarding its informants; it does mean, however, that it has to acknowledge the existence of such records and identify the specific FOIA exceptions that might permit nondisclosure.
This is an important decision for a number of reasons. As Judge Wallace explains in his concurrence, "the specific circumstances pursuant to which an informant's status is deemed "officially confirmed" is a matter of first impression and great importance." This is because the threshold question of whether a person is an informant at all may be a secret. Moreover, the decision clarifies that once the government decides to use an informant or his information at trial, it relinquishes much of its claim to confidentiality under FOIA. As Judge Wallace put it:
On the one hand, prosecutors frequently must rely on informants, who possess vital information, to prosecute dangerous criminals. On the other hand, the DEA and confidential informants have a different interest in secrecy and privacy than federal prosecutors. Yet, under the majority holding, an Assistant United States Attorney can eliminate that privacy interest by asking a single question--i.e., "Did you serve as a confidential informant"--in open court.
After serving 17 years in prison for murder, Obie Anthony was exonerated last Friday. Anthony was represented by the Northern California Innocence Project and the Loyola Law School Project for the Innocent. The judge found that the key witness--a pimp who received leniency as a result of his testimony against Anthony--lied, and that the government failed to disclose its deal with the informant. See L.A. Times story: Judge overturns murder conviction in 1994 slaying, and press release. Although the informant was promised a lighter sentence for testifying, prosecutor Scott Collins denied there was a deal. "It was not a deal in exchange for testimony," he said. "It was simply a thank-you for cooperating with the LAPD in a homicide investigation." Whether we label such arrangements a "thank you," deal, benefit, or something else, the fact remains that informants can reasonably expect to be rewarded for their testimony and are therefore incentivized to lie in ways that other witnesses are not.
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