WASHINGTON - The FBI has made a living off of confidential informants. When it works -- as in an apparent string of defused terrorism activities -- it works well. But when it fails, it can produce a nightmare of moral quandaries and confusion.
The reliance on this often difficult to manage technique frequently raises not only ethical questions but serious legal challenges. It can also severely strain relations with other federal agencies stymied by bureau insistence on source-protection even at the cost of prosecution or thorough investigation. For instance, there have been reports that FBI informants may have played a role in the abortive Fast and Furious debacle over guns to Mexican drug cartels.
Those reports coincide with recent newspaper disclosures that the Drug Enforcement Administration, which is an FBI subsidiary, and other American law enforcement agencies have built up a serious network of informants at the top levels of the cartels while keeping Mexican authorities out of the loop, fearing damaging leaks from a system generally considered corrupt. There have been spotty results apparently, and the informants continue to break the law including receiving weapons procured from sources in the United States.
The most infamous example of how the reliance on informants, often criminals themselves, can go terribly wrong was the FBI's protection of two of the nation's more notorious mobsters, James "Whitey" Bulger and Stephen "the Rifleman" Flemmi, Bulger's chief lieutenant in the Winter Hill gang in Boston.
Bulger was finally arrested this summer in California after years of being on top of the FBI's Most Wanted list. Flemmi was convicted on 10 counts of murder and sentenced to prison. The two had used their FBI cover while issuing and carrying out murder contracts and both were warned in advance by their FBI control that they were about to be arrested. Flemmi stayed in Boston but Bulger fled with his mistress. He had planned ahead for just such a development.
Both the FBI and the confidential informant system were badly tarnished by this affair and adding to that disgrace recently has been a federal appeals court ruling overturning a lower court decision that had held the government accountable for two of the Bulger-Flemmi victims in a civil suit brought by their families.
Dismissed by the First Circuit Court in Boston was an $8.4 million judgment against the government. The appeals court ruled that the plaintiffs had filed their claim against the government too late.
The decision, of course, compounds the outrageous injustice of the case, in which one of the victims, Edward Halloran, had gone to the FBI for help when Bulger and Flemmi tried to enlist him to commit a murder.
Somehow the word got back to Bulger and Flemmi and they had Halloran killed. But an innocent bystander, Michael Donahue, also was killed.
The court majority opinion -- one judicial dissenter said it certifies "uncontrolled wickedness" -- apparently is based on the fact that news reports in 1998 had quoted an FBI official as speculating that Halloran and Donahue had been slain by Bulger and Flemmi. The plaintiffs should have known this and filed their suits in time, the majority said. In other words, it was their fault that they didn't read the newspaper.
The two families didn't even know the FBI had been protecting this scum until 1999 when a federal district judge said the two mobsters had been conducting murders under the unofficial auspices of the FBI.
By the way, for some 17 years the bureau had been telling Donahue's widow that someone else had killed her husband. All this is a miscarriage of gigantic proportions, prompting another of the court's dissenters to accuse the majority of letting the FBI get away with murder.
Clearly confidential informants have their place in law enforcement, but only under the strictest control. The confidential informant agreement is not a license to commit crimes or to stand in the way of law enforcement.
Turning a blind eye to murder to protect the flow of information makes those who do it accessories to the crime. The perceived worth of that policy of getting the bigger fish is just plain wrong. One can only hope the FBI has learned from Boston.
(E-mail Dan K. Thomasson, former editor of the Scripps Howard News Service, at thomassondan(at)aol.com.)