1906

Guidelines For INS Undercover Operations—Part 8. Monitoring and Control of Undercover Operations

8. MONITORING AND CONTROL OF UNDERCOVER OPERATIONS Continuing Consultation with United States Attorney or Strike Force Chief Throughout the course of any undercover operation, the District Director or Chief Patrol Agent or his or her designee shall consult periodically with the United States Attorney or Strike Force Chief or his or her designee concerning the plans, tactics, and anticipated problems of the operation. Serious Legal, Ethical, Prosecutive, or Departmental Policy Questions, and Previously Unseen Sensitive Circumstances In any undercover operation, the District Director or Chief Patrol Agent shall, after consultation with the United States Attorney or Strike Force Chief, consult with the Central Office whenever a serious legal, ethical, prosecutive, or Departmental policy question is presented by the operation. The Central Office shall promptly inform the Department of Justice members of the Undercover Operations Review Committee of any such question and its proposed resolution. This procedure shall be followed if an undercover operation is likely to involve one of the circumstances listed in paragraph IV(A) and either (a) the District Director's or Chief Patrol Agent's application for undercover operation approval did not contemplate the occurrence of that circumstance or lb) the undercover operation was approved by the District Director or Chief Patrol Agent under his own authority. In such cases the District Director or Chief Patrol Agent shall also submit a written application for continued authorization of the operation or an amendment of the existing application pursuant to paragraph IV(A), above. Whenever such a new authorization or amended authorization is required, the INS shall consult with the United States Attorney or Strike Force Chief and with the Department of Justice members of the Undercover Operations Review Committee on whether to modify, suspend, or terminate the undercover operation pending full processing of the application or amendment. After the institution of formal legal charges against a subject, concurrence by the United States Attorney or Strike Force Chief must be received before an undercover employee or a cooperating private individual can be allowed to attend a meeting between the subject and his or her lawyer. Annual Report Of Undercover Operations Review Committee The Undercover Operations Review Committee shall retain a file of all applications for approval of undercover operations submitted to it, together with a written record of the committee's action on the applications and any ultimate disposition by the Commissioner or Associate Commissioner for Enforcement. The INS shall also prepare a short summary of each undercover operation approved by the Committee. These records and summaries shall be available for inspection by a designee of the Deputy Attorney General or of the Assistant Attorney General in charge of the Criminal Division. On an annual basis, the Committee shall submit to the Commissioner, Attorney General, Deputy Attorney General, and Assistant Attorney General in charge of the Criminal Division, a written report summarizing: (a) the types of undercover operations approved and (b) the major issues addressed by the Committee in reviewing applications and how they were resolved. Preparation of Undercover Employees The District Director, Chief Patrol Agent, or a designated supervisory officer shall review with each undercover employee prior to the employee's participation in an investigation, the conduct that the undercover employee is expected to undertake and other conduct which is expected during the investigation. The District Director, Chief Patrol Agent, or designated supervisory officer shall expressly discuss with each undercover employee any of the circumstances specified in paragraph IV(A) which are reasonably expected to occur. Each undercover employee shall be instructed generally and in relation to the proposed undercover operation that he or she shall not participate in any act of violence, initiate or instigate any plan to commit criminal acts, use unlawful investigative techniques to obtain information or evidence, or engage in any conduct that would violate restrictions on investigative techniques or INS conduct contained in Department policy, and that, except in an emergency situation, he or she shall not participate in any otherwise illegal activity for which authorization has not been obtained under these guidelines. When the INS learns that persons under investigation intend to commit a violent crime, any undercover employee used in connection with the investigation shall be instructed to try to discourage the violence. To the extent feasible, a similar review shall be conducted by a case office with each cooperating private individual. Review Of Undercover Employee Conduct From time to time during the course of the investigation, as is practicable, the District Director, Chief Patrol Agent, or designated supervisory officer shall review the actual conduct of the undercover employee, as well as the employee's proposed or reasonably foreseeable conduct for the remainder of the investigation, and shall make a determination whether the conduct of the employee has been permissible. This determination shall be communicated to the undercover employee as soon as practicable. Any findings of impermissible conduct shall be promptly reported to the Commissioner, and consultation with the Commissioner shall be undertaken before the employee continues his or her participation in the investigation. To the extent feasible, a similar review shall be made of the conduct of each cooperating private individual. A summary memorandum report shall be submitted at the conclusion of an undercover operation and shall include information concerning use of false representations to third parties in concealment of personal identity or the true ownership of a proprietary for establishing, funding, and maintaining secure cover for an undercover operation. The report shall also contain information concerning any otherwise illegal activity engaged in by an undercover employee or cooperating private individual. It shall be submitted to the District Director, Chief Patrol Agent, or designated supervisory officer, and copies shall be submitted to the Regional and Central Offices. Additionally, a written report on participation in any otherwise illegal activity which would be proscribed by federal, state, or local law and which is not routine to the investigation, shall be made by an undercover employee to the District Director, Chief Patrol Agent, or designated supervisory officer, with copies to the Regional and Central Offices, as soon as possible after the participation in the otherwise illegal activity. To the extent feasible, a similar report should be made on the conduct of each cooperating private individual. Deposit Of Proceeds; Liquidation Of Properties Whenever a proprietary with a net value over $50,000 is to be liquidated, sold, or otherwise disposed of, the INS, as much in advance as the Commissioner or his or her designee shall determine is practicable, shall report the circumstances to the Attorney General and the Comptroller General. The proceeds of the liquidation, sale, or other disposition shall be deposited in the Treasury of the United States as receipts. VII. RESERVATION These guidelines on the use of undercover operations are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, and they do not place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice. ___________________________________ WILLIAM FRENCH SMITH Attorney General Date: Effective March 9, 1984