Whitey Bulger trial and the FBI: How have rules about informants changed?

James 'Whitey' Bulger is not the only one facing scrutiny as his trial begins Tuesday. So is the FBI, which infamously used Bulger as an informant for years. Today the FBI relies more heavily than ever on confidential informants, but under new rules.

Focus

For 15 years former FBI Special Agent John J. Connolly Jr. was the handler for a confidential informant known only as BS-1544-TE in bureau files, a secret identifier given to reputed Boston mob boss James "Whitey" Bulger.

In those years, from 1975 to 1990, the Federal Bureau of Investigation's main criminal target was the Italian mob – and Mr. Bulger, a "TE" or "top echelon" informant, was a means to that end.

So while Bulger's Winter Hill Gang allegedly continued loan-sharking, gun-running, and murdering anyone who got in their way, he and his Irish-American mob associates fed the FBI information about their competition: the Patriarca family, the New England wing of "La Cosa Nostra." In return, the FBI shielded its prize informants – Bulger and his lieutenant, hit man Stephen "The Rifleman" Flemmi – from state and local police investigations.

Informants have played a major role with the FBI since the days of J. Edgar Hoover, breaking up spy rings, organized crime empires, and, most recently, terrorist plots. Infiltrating crime groups can be done with wiretaps or agents. Yet today the FBI relies more heavily than ever on insider "snitches" or confidential informants for details of crime group structure, methods, and murders, say criminologists and former FBI agents.

But for the G-men, relying on such informants has always been a double-edged sword. While informants trade their knowledge of labyrinthine inner workings of criminal groups to the Feds for a lighter prison sentence or even payments, those same informants may turn the tables, manipulate investigations, and subtly transform good lawmen into lapdogs or even accessories to crime.

"Informants are one of the most important tools in law enforcement today," says James Wedick, a 35-year FBI veteran who retired in 2004. "It's a good and a bad thing. We need the information these criminals provide. But we have to monitor their activity carefully and in detail. Some agents do a very good job at handling informants, while other agents just don't."

Indeed, as he comes to trial Tuesday, Bulger is not the only one facing scrutiny. So is the FBI system that once embraced his decades-long role as an informant, a system in which the bureau looked the other way on murders in order to hang onto the inside knowledge he gave it about the Mafia.

After that decades-long dance between the violent Bulger gang and the FBI agents who knew about it was revealed in 1998, lawmakers were aghast. While Bulger has been accused of participating in 19 murders, his own FBI handler was convicted in 2002 of racketeering and in 2008 of second-degree murder for leaking information to Bulger that led to a murder.

The Bulger-FBI linkup proved a bombshell for the bureau. Tough new guidelines for informants were adopted in light of the revelations, which were closely followed by congressional investigations.

"What happened in New England over a forty year period is, without doubt, one of the greatest failures in federal law enforcement history," the House Committee on Government Reform conceded in a lengthy 2004 report, "Everything Secret Degenerates: The FBI's Use of Murderers as Informants."

Under the new FBI guidelines, confidential informants undergo scrutiny for suitability before being approved and are regularly warned about limits on their authority. Informants may engage in otherwise illegal activities only as they are justified according to unusual circumstances and only after those activities are "carefully defined" and approved by Department of Justice and FBI personnel, the DOJ reported in 2005.

But just how well those guidelines work today – especially amid the vast expansion in the use of informants – is a major question for lawmakers more than a decade after Bulger's role as an informant became public.

In 2005, a DOJ Office of the Inspector General report found the FBI was not fully following its own guidelines in 87 percent of the cases it examined, and in 2011, Rep. Stephen Lynch (D) of Massachusetts proposed a bill to require the FBI and other agencies to list annually the number and types of crimes in which their informants participated that year.

"While the use of confidential informants can be an effective crime-fighting tool, unfortunately, we have also seen the practice abused, innocent people killed [or] falsely imprisoned, and families torn apart as a result," Representative Lynch said at the time. "By enhancing congressional oversight, hopefully, the past will not be repeated."

One thing is clear, the FBI today relies more heavily on confidential informants than it ever did in the Bulger era. Driven by terrorism investigations and a new breed of organized crime groups infiltrating the United States since 9/11, the FBI increased its stable of informants to 15,000 by 2008, a 10-fold increase over 1975, according to FBI budget documents and a Senate report.

Just how well the FBI has changed its system to protect the integrity of law enforcement is a question lawmakers, former FBI agents, and researchers are asking more than a decade later.

Despite revamping the informant system, and intense scrutiny of the New England bureau of the FBI, there have been major belly-flops. One of those involved Mark Rossetti, charged in 2010 with running an organized crime ring that included heroin trafficking, loan-sharking, and extortion. A Massachusetts State Police wiretap that was used to convict him also picked up conversations with his FBI handler. It appeared to show that the handler was aware Mr. Rossetti was committing mob crimes while acting as a paid informant.

The Rossetti case creates the appearance of the FBI "not having learned any lessons. There needs to be big changes," Sen. Chuck Grassley (R) of Iowa told "Fox Undercover" in March. "I'm not running the FBI, but this has been going on too long," he added.

After the FBI-Rossetti connection was exposed in court records and Rossetti's link to organized crime became clear, the bureau said it terminated its partnership and assisted state police in their investigation, The Boston Globe reported in March. An internal investigation is ongoing, it reported.

The FBI declined to comment to the Monitor on its informant policies, citing "current operational demands." Others say the guidelines have forced progress, albeit slow and with missteps, in how the bureau uses informants.

"We've seen since the Bulger debacle an increasing push for accountability in how informants are created and used – and that is a work in progress," says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and one of the nation's leading experts on confidential informant use by law enforcement.

"In many ways the dialogue between the DOJ and FBI that resulted from the Bulger mess has created some of the best accountability mechanisms in law enforcement," she says. "Despite flaws and setbacks, and even the Rossetti case, the FBI's guidelines still represent the gold standard in informant accountability."

But with the role of informants growing, the need for strong accountability to keep them under control – and confirm what deals were or were not made – is key to maintaining law enforcement integrity and public confidence in the justice system, Dr. Natapoff and former FBI agents say.

"Many of these complex cases could only have been broken using informants," she says. "That's why transparency and accountability is so important – so that ... legislators, law enforcement, and the public can know when these decisions are in the public interest and when they are not."