There's
an American trope we all know and love — the loose-cannon cop who doesn't play
by the rules. Whether it's Dirty Harry, Raylan Givens, or Jack Bauer, the story
is as reassuring as it is trite. There's someone out there who can get the job
done and doesn't worry about coloring inside the lines.

In
counterterrorism circles, that figure is known as the professional informant. And
the truth is far more complicated and troubling than the comforting fiction. Professional
informants are paid by law enforcement to infiltrate criminal or extremist
circles, sometimes on a full-time basis. Yet they're not considered employees of
the government and are not subject to the same rules. From warrantless searches
to sex
with targets
to constructing terrorist plots out of thin air, the informant
problem is not new, but this powerful investigative tool is under pressure like
never before after being exposed to the harsh light of day in a series of
recent terrorism trials. Growing media scrutiny and a pending civil lawsuit in
California are aggressively challenging whether the benefits of aggressive informant
tactics outweigh the risk to civil liberties and are raising troubling questions
about the legitimacy of terrorism investigations.

The risks
to recruiting informants from within criminal organizations have been amply documented
over the years — but usually with mobsters, not terrorists. Law enforcement
can get too cozy with informants inside criminal organizations, leading to
corruption and other complications, as in the cases of Whitey Bulger and Gregory Scarpa.

Other
challenges are less obvious. Consider the professional informant, who is not
primarily employed by a criminal enterprise but by a law enforcement agency. In
a number of cases, these informants are chosen because they fit a profile —
such as "wealthy Muslim" or "pretty girl" — and not because they have any prior
connection to the targets of the investigation.

Because
they are not insiders but infiltrators, these informants exist in a netherworld
somewhere between snitch and cop. But while agents are rigorously trained about
what's legal, ethical, and fair, informants are often just given a stipend and
sent to work. In an ideal world, that work is supposed to be limited in scope.

"Usually
what the informant provides is an opportunity to introduce an undercover
operative," says Mike German, a former FBI undercover agent who now works for
the American Civil Liberties Union (ACLU). "And then you push the informant out of the case because you want
the FBI agent there. He understands the law. He or she would be much more
sensitive to any kind of privilege issues or sensitive techniques."

In a
significant number of cases, however, the informant simply becomes the
undercover operative, sometimes for months or years at a stretch. The practice
has endured for decades, though details have only become available to the
public in recent years.

In
one of the earliest known examples, an FBI informant covering the Black
Panthers helped arm the group prior to its violent conflicts with Oakland, California,
police in the 1960s, according to a new book and accompanying story by the Center
for Investigative Reporting
.
The informant, Richard Masato Aoki, was recruited by the FBI when he graduated
from high school. Although he had brushes with the law as a troubled youth, he did
not become involved in left-wing politics until an FBI agent recruited him to
penetrate California communist circles. Aoki did that and more, rising to
become a legendary radical activist even as he regularly met with FBI handlers.
When the Black Panthers formed, Aoki was there, providing both guns and
training on how to use them.

Aoki
was not the only member of an extremist group to become prominent under the
FBI's tutelage. During the 1990s, an FBI informant named Vince Reed
rose to a top leadership position in the white-supremacist Aryan Nations
organization. Reed had always dreamed of being a law enforcement officer, but
an injury disqualified him from working on the street, according to his former
FBI handlers. Instead, Reed became a professional informant, monitoring the Hells
Angels for the FBI after being recruited into the gang in prison.

When
that assignment ended, he infiltrated the Aryan Nations, a group with which he had no prior affiliation
(a swastika tattoo left over from his biker days helped). The FBI invested
considerable resources, including multiple undercover operations, in support of his efforts, and
Reed served for years before testifying against some of the group's members in
1996.

Such
cases are not representative of the vast majority of informants, a label that
can be applied to almost anyone who provides information on an investigation. The
overwhelming majority of informants fall into noncontroversial categories. Some
are paid for information; others receive leniency regarding their own criminal
behavior. Many informants are simply good people who happen to live next door
to bad people.

"They're
the prototypical good citizen who's going to take some personal risk in order
to make sure their community is safe," says German.

That's
an apt description of Karen Wister-Kearns, an informant in the traditional
sense — found, not made. After the 1995 Oklahoma City bombing, the FBI
recruited her to collect information on her neighbor, white supremacist Mark
Thomas, an Aryan Nations preacher sporting a Hitler mustache who held white-power
rock concerts at his rural Pennsylvania farm as a tool to recruit skinheads and
neo-Nazis into the world of organized racism.

"I
would receive phone calls. 'Could you drive up to [Thomas's] compound and see
if there's a particular vehicle with out-of-state license plates?'"
Wister-Kearns recalls. "They would always end it with: 'Don't do anything that
puts you in danger.'"

To
gain more insight, Wister-Kearns served as an intermediary in a child-custody
dispute in which Thomas was embroiled, but her unpaid role was limited to passive
collection of information. She informed, but didn't get involved in her
target's world. (Thomas was arrested in 1997 and pleaded guilty to using cash
from bank robberies to finance white-supremacist causes.)

While
most informants do their jobs the same way, some are asked to play a more
active role. These operational informants can have a disproportionate impact,
taking part in multiple investigations over long time periods and playing a
role that much more closely resembles that of an agent than that of a concerned citizen.

One paid
informant, who asked not to be named, contacted the FBI in the early 1990s after
hearing longtime associates discuss a planned anti-government crime. He was
recruited to monitor them over the long term and proved so reliable he received
additional assignments involving white supremacists and other extremists.

Although
he came to the FBI for all the right reasons, the informant was soon employed
full time as a kind of utility player, spending most of his time on his duties
and performing tasks that would have been prohibited for an undercover agent.

"The
things I could do that they couldn't do was I could go around and make a mess
of people's houses," he said in an interview. "I could be nosy to where they
couldn't be nosy without a warrant."

The
informant was not specifically instructed to break the law, but he never
received any coaching on the legal limits of a search. Instead, his handlers
made what he characterized as "suggestions" about what they wanted to know. As
long as he reported back with answers, no one ever commented on his methods.

Searches
by the informant — and other informants from that period, according to former
FBI agents — were not restricted to the "plain view doctrine," which under the Fourth Amendment allows law enforcement to seize
items left out in the open and observed under normal, lawful circumstances.

Instead,
informants looked in drawers, closets, sheds, and hiding places. These searches,
which multiple sources referred to as "snooping and pooping," could involve
scouting the location of weapons or explosives in a suspect's home prior to a
raid. But often, they were exercises in intelligence gathering. Anything that
might be interesting in a suspect's home was noted and reported.

"Nobody
ever told me nothing about the Fourth Amendment or anything else," the
informant said. "I could go in and do those things because I wasn't a sworn
officer."

Searches
aren't the only gray area for professional informants.

Dennis
Mahon was a big-talking white supremacist who moved in some of the same circles
as Thomas and even Oklahoma City bomber Timothy McVeigh. During the 1990s, Mahon's girlfriend
— a blond bombshell sporting a swastika tattoo — was recruited to inform on
him to the Bureau of Alcohol, Tobacco and Firearms (ATF). Her reporting never led to his
arrest, but investigators retained one crucial piece of information: Mahon had
a fatal weakness for women, especially if he thought he had a shot at sex.

In
late 2004, the ATF decided it needed another informant next to Mahon, but
this time she would be made, not found.

According
to the Arizona
Republic
, ATF agent Tristan Moreland recruited Rebecca Williams, a
former stripper with no criminal record and no previous connection to Mahon or
white supremacy. Moreland preferred to "cast" his informants like a Hollywood
director, rather than work with what he found, the newspaper reported.

By
all accounts, Williams's motives for taking part in the investigation were
pure. Her father and an uncle had been in law enforcement. "I kind of wanted to
be a cop," she told the Republic.

Williams
became, for all intents and purposes, a paid employee of the ATF. But because
she was classified as an informant, she was not subject to the same scrutiny
and regulation that would tie the hands of a trained undercover agent.

Much
of her work was standard fare, flirting and talking with Mahon and getting him
to open up (often on tape) about the 2004 mail-bombing of an Arizona diversity
official, a case that Moreland was investigating. Mahon was ultimately convicted, based
in significant part on Williams's testimony and recordings.

On one
such video recording, Mahon lay naked in bed while talking with Williams, who
ultimately put a towel over the camera to obscure what happened next.

Williams
denied having sex with Mahon. Prosecutors claimed that "there was no use of sex to
obtain evidence," which was not quite the same thing as saying, "There was no
sex." Mahon's attorney asserted in closing arguments that Williams had slept
with Mahon, though in an email interview she stipulated that "at the risk of
sounding like President Clinton, it depends on how one defines 'sex.'"

Another
counterterrorism case where the question of sex entered the scene involves Craig
Monteilh, a paid FBI informant who says he was tasked to search for possible
terrorist sympathizers among mosques in Orange County, California, where he
pretended to convert to Islam to gain access.

Monteilh
said he approached the job with considerable enthusiasm, taping hours of
religious and cultural events before going public with a series of alarming, and often
contradictory, stories about his misadventures, which are the centerpiece of an ongoing lawsuit against the
FBI
by southern
California Muslim organizations.

In
March, Monteilh claimed his FBI handlers had given him explicit permission to have sex with Muslim women in the community as part of his infiltration.
An undercover law enforcement officer would be subject to severe disciplinary
action for having sex with a target.

"Big
problem. You'd get fired, and there'd be criminal prosecution as well," says David
Gomez, a former FBI agent who spent years investigating domestic terrorism.
"The sex itself is not criminal, but depending on the outcome and what the
court says, it would be very bad."

Even
though Monteilh was not an agent, his handlers could still be on the hook for
his activities — but likely only if they explicitly told him to do it.

"There
are degrees of participation, and it depends on how much you're acting on the
direction of the FBI," Gomez explains. "In other words, if the FBI directed you
to have sex with somebody and you had sex with them, the FBI would be liable
for that."

Monteilh's
blizzard of claims are best taken with a large grain of salt, at least until
they are resolved in court, but other sources have raised
questions about his behavior. Monteilh was so zealously militant that some of
his targets informed on the informant, voluntarily reporting his "jihad talk"
to the FBI.

Such
aggressive plays in the post-9/11 era have come under heavy scrutiny. Shahed Hussain is a Pakistani national who made
tens of thousands of dollars working as a professional informant for the FBI in
an unknown number of investigations on at least three continents since 2002. His
work became the center of controversy in 2011 during the trial of four U.S. citizens for a synagogue bombing plot two
years earlier in New York.

Once
again, the informant had no prior connection to the subjects of his
investigation. Hussain showed up at the local mosque and probed for anyone who
would join him in radical talk. He eventually "revealed" himself as a flush
terrorist financier and threw money around liberally to prove it. In a key
exchange, Hussain offered $250,000 to one of the suspects, James Cromitie, who was
wavering about taking part in the bombing.

"That
case wasn't a terrorism plot. It was a murder-for-hire case," says the ACLU's
German. "If I get $250,000, I guarantee you I can find a lot of people willing
to do a lot of really horrible things."

During
sentencing, U.S. District Judge Colleen McMahon also excoriated the FBI's
handling of the investigation.

"The
essence of what occurred here is that a government, understandably zealous to
protect its citizens from terrorism, came upon a man both bigoted and
suggestible, one who was incapable of committing an act of terrorism on his
own," McMahon said, adding at a different point in the proceeding, "Only the
government could have made a terrorist out of Mr. Cromitie."

But
for all her harsh language, McMahon conceded that the men were indeed guilty of
committing crimes and sentenced them each to 25 years in prison.

Similar
concerns were raised in the case of Rezwan Ferdaus, a Massachusetts man
arrested in 2011 who believed he was part of a terrorist cell plotting to bomb
the Pentagon. Everyone else in his "cell" worked for the government, including
two undercover agents and an informant with a heroin problem. During bail
proceedings, his attorneys tried to impeach the informant's credibility based
on drug use, but their arguments fell on deaf ears. Ferdaus pleaded guilty in
July and faces 17 years in prison.

Therein
lies the rub. In the vast majority of cases, the government's use of professional
informants has stood up in court, year after year and case after case. For the
most part, these tactics withstand the legal test, and the courts have
substantial power to correct excesses when they occur. Perhaps the more
important question is whether these tactics are desirable and whether Americans
will continue to accept them.

What's
fair play?

Should
law enforcement officials be able to employ virtual agents who can skirt restrictions
that would tie the hand of sworn officers? Is it acceptable for professional
informants to use sex to establish themselves with suspects? Is it fair to
prosecute someone whose path toward terrorism is shepherded, prodded, cajoled, and
financed at every stage of the plot?

"You
come to a situation where a person has indicated they want to do something,
perhaps something illegal, but has taken no actual steps to accomplish that
until the government arrives in the guise of Santa Claus," says the ACLU's German.
"It has a bag full of treats that can help the plot along, when the person
actually made no effort to do it themselves. And it puts them in the strange
position of saying, 'Do I embarrass myself by saying I didn't really mean it,
or do I go along?'"

The
informant who "snooped and pooped" among white supremacists during the 1990s
believed at the time that his work was justified, to keep someone from getting
hurt or stop bombs from going off.

"Years
ago, I thought it was fair play," he says. "But nowadays I look at things a
little differently than I did back then."

He eventually
became frustrated with the inconsistency of the Justice Department's prosecution
of his targets. Over time, he came to see his efforts as intelligence-gathering
without clear limits.

One
thing was clear, however — the contract the FBI asked him to sign, many months
after he was put on the payroll. The document, variations of which are still
used with informants today, made the informant responsible for whatever he did
in the course of his work. It also stipulated that the full-time, paid
informant was "not an employee, partner, member of a joint venture, associate,
or Agent of the FBI."

He was simply a concerned citizen, who took "suggestions"
and received a regular paycheck, for the better part of a decade.