In 2011, the FBI authorized the commission of 5,658 crimes or, as the crime-fighting agency designates them, “otherwise illegal activities.” The FBI’s mandate, pursuant to 28 USC 533, is to “detect and prosecute crimes against the United States.” How did that mission mutate into the approval of crimes?

As a recent article in USA Today related, it’s a matter of the end justifying the means. The authorized criminals are FBI informants, officially labeled “confidential human sources.”

According to the bureau, the criminal activities its agents can approve are “situational, tightly controlled” and subject to Department of Justice policy. Violent crimes are not allowed, and federal prosecutors must approve serious crimes in advance. The FBI claims that allowing its informants to violate the law is a necessary tool in investigating criminal organizations.

The practice first came to light about 10 years ago, when the FBI admitted that it had allowed convicted mobster James “Whitey” Bulger to operate his criminal enterprise in exchange for providing information about the Mafia. In reaction to that disclosure, the Justice Department ordered the bureau to submit an annual report of its informants’ crimes to the assistant attorney general of the Criminal Division. None of the reports had been made public until USA Today obtained a copy of the report for 2011 pursuant to a Freedom of Information Act request. (Although the FOIA request was for all reports since 2006, the FBI claimed it could find only the one for 2011.)

Most of the data in that report, including the types of crimes and the places where they were committed, is redacted. Only the total—5,658—is revealed.

That raises some difficult questions: According to testimony at the Bulger trial, the FBI intentionally allowed Bulger and his gang to escape prosecution for their crimes, maintain their illegal operations, and retaliate against perceived rivals by killing them.

The FBI may not now permit its informants to commit violent crimes, as it did then, but how does it define “violent?” Drug sales may not involve immediate physical harm but their ultimate effect on users can arguably be categorized as violent, not to mention the crimes the users commit to get the money to finance their habits.

What about crimes such as promoting prostitution, sex trafficking and labor exploitation? Again, one can argue that their ultimate effect is violent. Does the FBI permit its informants to commit those crimes with impunity, as it did with the Bulger gang? Doesn’t the public have a right to know what types of crimes its agents authorize? Should the FBI’s mission allow the commission of some crimes in order to detect and prosecute others? Isn’t there a conflict of interest when the agencies charged with detecting and prosecuting crimes can also authorize crimes?

At least the Department of Justice requires the FBI to file its bare-bones report. Other federal law enforcement agencies, such as the Drug Enforcement Agency and the Bureau of Alcohol, Tobacco, Firearms and Explosives, have said they can’t even determine how many times their agents have authorized informants to commit crimes, much less file a report providing the types and locations of them.

According to Rep. Stephen Lynch, D-Mass., even Congress doesn’t know the extent of the problem. He has introduced a bill that would require the head of each department containing a law enforcement agency to “report to the House Committee on Oversight and Government Reform, the House Committee on the Judiciary, the Senate Committee on Homeland Security and Governmental Affairs, and the Senate Committee on the Judiciary all serious crimes, authorized and unauthorized, committed by informants maintained by the law enforcement agency.”

That’s a start, if it’s enacted. Perhaps the information provided to Congress would prompt further action to severely limit informants’ crimes. For instance, instead of allowing federal prosecutors to approve those crimes, perhaps Congress should require a judge’s approval. After all, if a judge must approve a search warrant, the purpose of which is not to harm a person or damage his house, papers or effects, then maybe a judge’s authorization should be required before the government allows a law enforcement agency, via its informants, to perpetrate actual crimes.•