Undercover operations, once the domain of the FBI, have expanded to "virtually every corner of the federal government," a New York Times investigation published Saturday found—and the scope of those missions has become so wide that it risks abusing civil liberties and possible entrapment of targets.
Officers from at least 40 agencies played various roles in the operations—student protesters, doctors, business people, and welfare recipients among them—to investigate "wrongdoing," according to the Times. At the Internal Revenue Service, for example, officers posed as accountants to investigate tax evasion.
But often, the operations involved officers infiltrating political rallies outside of state courthouses to look for "suspicious activity," or pretending to be food stamp recipients at neighborhood grocers to suss out welfare fraud.
"[C]hanges in policies and tactics over the last decade have resulted in undercover teams run by agencies in virtually every corner of the federal government, according to officials, former agents and documents," the Times writes.
In addition to civil liberties concerns, the investigation also found that the expanded operations resulted in "hidden problems"—such as missing money and compromised investigations, as well as a troubling internal structure that left agents on their own for months at a time. In one case, a Florida police chief who used undercover missions to look into drug money laundering was fired from his position after an audit revealed "financial lapses."
Undercover work can be a "very effective law enforcement method, but it carries serious risks," former FBI undercover agent and New York University law fellow Michael German told the Times. "Ultimately it is government deceitfulness and participation in criminal activity, which is only justifiable when it is used to resolve the most serious crimes."
According to the investigation, undercover officers are considered to be a "more effective way of monitoring large crowds," like those that gather freely for political protests, such as reproductive rights outside of courthouses or other government buildings. The Supreme Court, for example, staffs more than 150 police officers, all of whom are trained in covert tactics. When protesters gather for issues like abortion rights, teams of officers—dressed down and often youthful-looking—stand or wander in the crowd to look for suspicious activities.
German called that revelation troubling.
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"There is a danger to democracy in having police infiltrate protests when there isn’t a reasonable basis to suspect criminality," he said.
The Times writes:
It is impossible to tell how effective the government’s operations are or evaluate whether the benefits outweigh the costs, since little information about them is publicly disclosed. ...
Defendants who are prosecuted in undercover investigations often raise a defense of “entrapment,” asserting that agents essentially lured them into a criminal act, whether it is buying drugs from an undercover agent or providing fraudulent government services.
But the entrapment defense rarely succeeds in court.
The investigation comes as more evidence emerges of law enforcement agencies using the guise of terrorism to bolster their everyday cases, including using provisions of the Patriot Act to conduct delayed-notification searches on unknowing drug suspects. In one recent case, an agent impersonated an Associated Press journalist to locate a 15-year-old high school student suspected of making bomb threats, sparking an uproar among news outlets who said the falsification "endangers the media’s credibility and creates the appearance that it is not independent of the government."
That trend continues in federal operations, the Times found—in some cases, officers posed as minors to look for illegal alcohol and cigarette sales, while in others, they pretended to be Medicare patients to investigate healthcare providers for fraud. Undercover missions even spread to NASA and the Smithsonian.
Several operations which caused high-profile scandals—such as the case of the FBI's falsified journalist sting, or that of the Drug Enforcement Administration setting up a fake Facebook profile, using an unsuspecting woman's real photos, to lure drug suspects—led to the Justice Department issuing new guidelines for stricter oversight of "sensitive" investigative techniques. But those guidelines only apply to agencies that the Justice Department is in charge of, allowing others, like the IRS, to evade accountability. And oversight can be minimal, the Times notes:
A special committee meant to oversee undercover investigations at the Bureau of Alcohol, Tobacco, Firearms and Explosives, for instance, did not meet in nearly seven years, according to the Justice Department’s inspector general. That inquiry found that more than $127 million worth of cigarettes purchased by the bureau disappeared in a series of undercover investigations that were aimed at tracing the black-market smuggling of cigarettes.
In one investigation, the bureau paid an undercover informant from the tobacco industry nearly $5 million in “business expenses” for his help in the case. (The agency gained new authority in 2004 allowing it to take money seized in undercover investigations and “churn” it back into future operations, a source of millions in revenue.)