The use of undercover or covert law enforcement is common throughout much of the world and,
for the most part, men and women tasked with going undercover are expected to, and do,
follow the law.
However, beyond the occasional bad officer doing things they aren’t supposed to, exceptions
can and will be made on a case by case basis, making undercover police some of the few people
who are paradoxically legally allowed to commit certain crimes while they try to catch other
people committing crimes.
And before we continue, we should probably also just quickly state that the common internet
rumor that undercover officers must admit to being such if asked is completely false.
They can happily lie to your face if they want, which is pretty essential to the whole
job of being an undercover agent.
In any event, as alluded to, before undercover police officers and covert agents in many
countries of the world commit any kind of crime, they are generally required to get
prior approval from someone higher up the chain of command.
However, as with most things in life, there are of course exceptions to this and if an
individual officer feels that they have to commit a given crime to maintain their cover,
they’re tentatively free to do so at their own discretion, but with full knowledge that
they’ll almost certainly be required to justify this decision and there’s no guarantee
that their superiors will agree with them.
This potentially opens up the officer to criminal charges themselves.
That said, one of the ways some undercover operations have historically gotten around
this in a very controversial way is to simply keep everything under wraps and potentially
even lie on their reports, which is where the controversy occasionally pops up when
this is discovered.
For example, it was noted by the Justice Department’s Inspector General in 2005 that the FBI regularly
broke the rules and disregarded guidelines over the course of their undercover investigations,
generally with no consequences to the agents involved.
As a worse example, we have the relatively recent case where a three year investigation
ended up all being wasted time and effort because it was revealed that the undercover
officer, according to Judge Cam Ferenbach, “deployed techniques that generated a wholly
new crime for the sake of pressing criminal charges against [Jeremy] Halgat.”
The officer appears to have taken this route after repeatedly trying to get Halgat to commit
a crime, but with Halgat refusing.
Judge Stephen Reinhardt would also ring in about the ATF’s conduct in this and other
similar operations around this time, stating, “In this era of mass incarceration, in which
we already lock up more of our population than any other nation on Earth, it is especially
curious that the government feels compelled to invent fake crimes and imprison people
for long periods of time for agreeing to participate in them — people who but for the government’s
scheme might not have ever entered the world of major felonies.
… When the government decides to troll though poverty-stricken neighborhoods, ordering its
agents to seek out people who look ‘bad’ and test them at random for willingness to
break the law in order to obtain large sums of money, its conduct is unacceptable.”
Unsurprisingly, as with any industry, there are always bad eggs to be found.
But for those better officers who actually stick to the rules, we have, for example,
official FBI guidelines about undercover operations stating that “Except when authorized pursuant
to these Guidelines, no undercover employee shall engage in any activity that would constitute
a violation of Federal, state, or local law if engaged in by a private person acting without
authorization.”
In fact, if you read the whole document, undercover FBI agents can’t even jaywalk or litter
without express permission from a superior or handler.
Of course, an undercover agent posing as a hardened criminal would look mighty suspicious
if they dutifully obeyed every law.
And any criminal operation could quickly weed out any such undercover agents simply by asking
them to break a law and seeing what happened next.
Again, to get around this sort of issue, most officers are given prior approval to commit
minor crimes that might come into play in a given under cover scenario prior to deployment;
the key here generally comes down to whether or not committing the given minor crime will
blow the officer’s cover or not or is integral to the operation, such as selling or purchasing
drugs.
On that note, undercover agents can commit more major crimes, including even bribing
politicians, so long as prior approval to do so is obtained.
In the case where approval to commit a crime or perform a given illegal activity isn’t
obtained, undercover agents are often given broad authorization to commit crimes that
were “unforseen” if they believe doing so to be “necessary and appropriate” to
their continuing investigation or in some cases if necessary for their own personal
safety.
In such a case, the guidelines note that permission to commit the crime can be “retroactively
authorized if appropriate”.
All this said, these officers are usually prohibited from engaging “in any act of
violence” or from attempting to instigate a crime themselves, but, again, there are
exceptions.
For example, they can engage in an act of violence if doing so in either self defence
or to protect the life or wellbeing of the innocent.
It’s also noted that generally permission is required to break the law not just for
more obvious reasons, but to ensure that the officers are appropriately considering the
issue of entrapment which was somewhat alluded to in the aforementioned ATF case.
But for anyone unfamiliar with the term, entrapment is described thusly in the FBI guidelines:
Entrapment occurs when the Government implants in the mind of a person who is not otherwise
disposed to commit the offense the disposition to commit the offense and then induces the
commission of that offense in order to prosecute.
To avoid this and other such issues, any plan suggested by an undercover agent must be checked
and authorized by the upper echelons of FBI command who need to ensure, amongst other
things, that planning the crime is necessary to reveal evidence of other, worse crimes
or the like.
So, for example, an undercover agent could propose stealing some cars to take part in
an illegal street race if doing so would allow them to earn the trust of an individual they
suspect has been hijacking trucks containing millions of dollars worth of cargo…
Officers are also often encouraged to develop romantic relationships as a great tool to
integrate oneself in a given organization, though as we’ll get into in a minute, this
one has caused major issues over in the UK in recent years.
But just as a general rule of thumb to keep in mind- the more serious the crime being
investigated, the more leeway an officer or agent is likely to be given to commit crimes
in their pursuit of arresting other people committing crimes.
As an aside, we should probably mention that many of these protections are also granted
to FBI and police informants who can be granted blanket immunity for minor or agreed upon
crimes they may commit while acting as an informant in return for their testimony.
This, too, is not without controversy owing to the secrecy departments usually maintain
with this sort of thing and the fact that when deep investigations are sometimes done,
it occasionally reveals things happening outside of the rules, including in rare cases the
embarrassment of informants getting away with a vast array of crimes for their own benefit
simply because they’re on good terms with the authorities and are providing valuable
information.
On this note, in a report from 2011, it was noted that the FBI allowed informants to break
the law almost 6,000 times in that year alone.
Being forced to report these tallies every year began after it was revealed that the
FBI was allowing famed mobster and many time murderer James Bulger to operate a vast crime
ring in exchange for him revealing information about other mobster activities.
Another reason these informants sometimes cause controversy is when they more or less
manufacture crimes to keep themselves useful and on the payroll.
As Former DEA agent Michael Levine notes, “You want to catch bad guys, people who
are committing crime, people who have committed murder.
You don’t want your informant to go out and talk someone into it.
You can do that all day long and fill jails from the Bronx to Bogota, Colombia.
It’s the easiest thing in the world to do, but that’s not law enforcement.”
Over in the UK the rules are somewhat similar, though in more recent years the ability of
undercover police to commit crimes has been drastically limited after a series of scandals
involving undercover police officers.
These scandals primarily revolved around a little-known covert unit of Scotland Yard
known as the Special Demonstrations Squad.
In a nutshell, covert officers working with the SDS were tasked with infiltrating protest
groups and the like.
The Guardian would eventually reveal that many officers were doing things like sleeping
with those they were investigating and in some cases, marrying and fathering children
with their targets before, sometimes after years of a relationship, disappearing forever
when the investigation was over, including potentially abandoning not just their unsuspecting
spouse or partner (and, indeed, in some cases the officers already had spouses besides in
their real lives), but the children they had with these women.
Just as controversially, the officers had a common practice of selecting a deceased
child born around the same time as themselves and with a similar name, and then assuming
that identity without permission from the surviving parents and relatives.
Not only this, but they would go further and research the various family member backgrounds
and sometimes even visit the homes and areas they were supposedly raised in to help their
cover.
Not just insensitive, this also in some cases placed these surviving relatives in potential
direct danger given the supposed association between these people and the undercover officers’
assumed identity, especially when said officers then up and disappeared when the investigation
was over.
In addition, other officers were found to have taken drugs while undercover (a big no
no due to the risk of becoming addicted, potential to blow their cover inadvertently while under
the effects of the drugs, and the fact that narcotic use can weaken an officer’s testimony
in court, potentially hurting the whole point of the operation).
In some cases they were also found to have taken part in various acts of violence or
other such more serious crimes, including in one case a major arson incident in a public
building that risked civilian lives.
In perhaps the most famous case, involving a highly decorated officer by the name of
Bob Lambert, he was investigating an animal rights group and so hitched up with an animal
rights activist who would eventually become the mother of his child.
Again, this practice of forming romantic relationships for undercover officers had formerly been
considered (and still is in some agencies) an invaluable tool to quickly integrate an
agent within some organization.
As for Bob’s lady, however, she only discovered her whole relationship with him had been a
sham after seeing his picture in the paper some two decades after he disappeared from
her life, leaving her to raise their child alone and in poverty.
She stated of this, “Bob was there by my side through the 14 hours of labour in the
autumn of 1985 when our son was born.
He seemed to be besotted with the baby.
I didn’t realise then that he was already married with two other children…”
She went on, “There can be no excuses for what he did: for the betrayal, the manipulation
and the lies … I loved him so much, but now have to accept that he never existed….
I don’t understand what I am supposed to have done that I was chosen by the state to
be treated like this.
I was no threat to national security and what was my child – collateral damage?”
During the investigation it was also noted that undercover officers regularly withheld
information about their activities from prosecutors in instances where it would weaken the case
they were building or otherwise get the undercover officers in trouble.
They also occasionally were found to have allowed false evidence to be used against
people.
In response to the controversy, the British government introduced sweeping legislation
severely limiting the ability of undercover officers to commit crimes and form relationships
with those they were investigating.
A Cliff notes version of the 80 page list of instructions handed to officers is that
sexual contact of any kind, as well as the taking of any illegal drug during an investigation,
was now technically banned.
However, much in the same way FBI agents and the like can commit crimes at their own discretion
if they feel it necessary to their investigation, the new guidelines noted that undercover officers
could engage in sexual activity to mitigate an immediate threat, but only to the smallest
degree needed in a given case.
While seeming absurd on the surface, this is actually an important clause given that
without it, discovering an undercover officer would be as easy as simply mandating they
have sex with someone.
In addition, while undercover officers can’t otherwise have sex with a person they’re
investigating or in connection to an investigation, official guidelines do permit them to engage
in “communications of a sexual nature” if they feel it is necessary to achieving
their objective.
So sexting is still considered OK apparently…
Likewise, the guidelines note that while drugs are absolutely not “authorised as a tactic
of a deployment”, officers can take drugs if there is an immediate, present threat to
their own or another’s safety.
As with the guidelines about having sex, in such a scenario, the officer is only permitted
to take enough drugs to “mitigate the threat” and no more.
So to sum up, undercover agents in most regions of the world can absolutely commit crimes
while undercover, though the extent and severity of the crimes they are allowed to commit varies
depending on who or what they are investigating.
However, in general, to cover their own backsides and ensure the case they are building against
someone is as strong as possible, a good officer will avoid committing crimes
whenever possible.