In the mid-1970s, the FBI was so leery of “stings"--undercover operations in which police masquerade as crooks to catch lawbreakers--that the bureau would not even spend its own money on the potentially high-payoff investigations.
Instead, the FBI preferred to piggyback with local police when they donned their disguises and set traps for fences of stolen goods with experimental federal anti-crime grants.
But the success of these relatively primitive operations, both in snaring hard-to-catch offenders and in generating bonanzas of favorable publicity, has made the bureau into a true believer.
FBI spending on undercover operations has grown eightfold over the last decade, topping $8 million this year, and the technique has come to symbolize the bureau’s new investigative direction--taking the offensive against insulated crime schemes rather than simply reacting to individual offenses after they occur.
The latest sting to surface--Brispec, the bribery-special interests probe that involves prominent Democratic and Republican lawmakers in Sacramento--illustrates how far the FBI has come in its ability to construct elaborate scenarios to make the investigations work.
At the same time, it spotlights some of the hazards of public-corruption stings, principally the danger of interfering with the legislative process, that worry some in Congress who oversee the FBI.
Controls to Prevent Abuse
After some embarrassing foul-ups, the FBI has honed the sting tool, subjecting it to what bureau and Justice Department officials maintain are rigorous controls to prevent abuses. Even the strongest critics of sting operations agree that the outlook is bleak for any legislation to limit or further control the FBI’s reliance on the covert inquiries.
Kenneth P. Walton, the veteran FBI official who heads the bureau’s undercover operations review committee, links the FBI’s embracing of the sting technique to former FBI Director Clarence M. Kelley. Kelley placed a new emphasis on “quality over quantity” of cases when he took over the agency after the 1972 death of long-time Director J. Edgar Hoover.
In the Hoover years, the FBI was much more a “high-volume, high-turnover” organization, in which agents concentrated on such cases as auto thefts and fugitives who fled across states lines, Walton said in an interview.
Hoover, wrote UCLA Prof. James Q. Wilson in a book on FBI management, generally shunned having agents go undercover in the roles of criminals, in which they would be exposed to corrupt temptations and required to use enforcement methods that “struck many citizens as unsavory.”
But that aversion ended with the advent of the sting. In recent years, the bureau has launched a wide array of secret undercover investigations with agents playing parts in full-dress schemes that created opportunities for suspected criminals to break the law.
These operations have accounted for many arrests and convictions that could not have been obtained otherwise. But the bureau’s expanded sting operations also have come under criticism from those who say that the technique creates crimes and entraps people who otherwise might not break the law.
Guarding Against Entrapment
The review committee headed by Walton is the key mechanism set up in the bureau to prevent such entrapment from occurring.
The panel, composed of senior FBI managers and up to five Justice Department lawyers, examines all so-called “Group I” operations--those involving substantial costs, time, or “sensitive circumstances,” such as political corruption.
Each proposed sting operation is examined to determine whether it merely sets the stage for a crime, which is legal, or crosses the legal line by providing “the inducement or encouragement of an individual to engage in illegal activity in which he would otherwise not be disposed to engage.” That is the definition of improper entrapment.
If any Justice Department lawyer on the panel objects to a proposed operation on legal, ethical or policy grounds, higher authorities, including the FBI director or even the attorney general, are consulted.
Walton said that the review process is “no rubber stamp.” In the five months he has headed the committee, Walton said, he has turned down “maybe half a dozen” proposals out of roughly 20 the committee has reviewed.
He said that he knows of no sting cases that have been lost because of a defendant’s claim of entrapment.
Though FBI stings are used with some frequency now, the initial, large-scale ones early in the decade caused a shock wave of public attention. The most famous was the Abscam probe, which came to light in 1980.
In that investigation, one agent posed as an Arab sheik and others as individuals seeking special immigration treatment. The agents paid bribes to public officials in exchange for their influence. A U.S. senator, six House members, the mayor of Camden, N.J., three Philadelphia City Council members, an Immigration and Naturalization Service official and several businessmen and lawyers were convicted.
A special Senate committee that investigated the unprecedented investigation found many flaws in its operation--which took place before special attorney general’s guidelines on stings were issued in 1981. But the convictions it produced stood up against legal challenges. A prime sting technique--video and audio tapes of the key figures taking the money and making incriminating remarks--had a powerful impact on the juries hearing them.
Some stings, despite the now-extensive precautions, have managed to produce more embarrassment for the bureau than glory.
Interfered With Election
In Operation Colcor in 1980-82, for example, the FBI was investigating alleged corruption in Bolton, N.C., and became involved in a local referendum to permit the sale of liquor by the drink. Its undercover operatives, promising to open a new restaurant in the town if the liquor laws were eased, helped win adoption of the referendum. The North Carolina state board of elections later invalidated the vote and branded the FBI’s activities as unconstitutional interference in the electoral process.
(A Justice Department manual on how to run stings now cautions agents not to use schemes to push any kind of substantive legislation. If a proposal is introduced, the manual says, “it should be narrow, special-interest type of legislation that affects no one in the jurisdiction except the entity providing cover for the FBI.” The book also suggests that the FBI make every effort to derail the proposal before it is enacted into law.)
Operation Corkscrew, a four-year probe of alleged corruption in Cleveland’s municipal courts, generated reams of publicity but no indictments of any of the judges targeted.
In a 1984 report, a congressional subcommittee charged that the FBI “has not hesitated to interfere with political, judicial and financial institutions across the nation” in its undercover pursuit of such cases. “They have initiated and continued broad-based investigations on the merest of suspicions of unspecified criminal activity; they have caused innocent third parties to suffer substantial damages.”
California Rep. Don Edwards (D-San Jose), the panel’s chairman, said his concern over FBI undercover operations has not lessened since that report. But noted that “we haven’t had any recent scandals. The urgency has gone out of it (the issue.)”