Allegations regarding “Butch” Merritt, Watergate, Intelligence Agencies and “Crimson Rose,” Vol. XXII

Splitting Hares – Part Two

Written (and first posted) by Kris Millegan, April 25, 2011

I know a funny little man, As quiet as a mouse,
Who does the mischief that is done In everybody’s house!
There’s no one ever sees his face, And yet we all agree
That every plate we break was cracked By Mr. Nobody. – Anonymous

Confidential informants many times have no idea for whom they are truly working. They may have one “handler” or several. The CI “job” is to gather raw intelligence to then be used by investigators and/or prosecutors to make a criminal case … or so the story goes.

As shown in the case studies presented in Vol. XXI, CIs are put into tenuous situations where lines soon blur and with the lack of oversight, many times troubling questions arise: Would the activity have happened the same without the presence of the CI? Did the CI act as an agent provocateur? Did the CI go out of bounds? Does the CI have his own agenda?

How does law enforcement look at CIs?

From Confidential Informant: Law Enforcement’s Most Valuable Tool:

Preface

“Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience, nor by any deductive calculation. Knowledge of the enemy’s disposition can only be obtained from other men.” -Sun Tzu, The Art of War

Our story begins 2000 years ago with the words of Sun Tzu, a Chinese general and a man who valued information and those who brought it to him. The informant is an institution as old as history. Controversial for nearly as long, the informant’s role in law enforcement is as important today as it was in Sun Tzu’s day. One might suppose that, at a time when science has given the police more tools than ever before to use in the war on crime, we would not need to rely so much on the informant. Unfortunately. Sun Tzu was right in saying that knowledge of the enemy’s dispositions can only be obtained from other people.

Law enforcement’s challenge is to make effective use of this valuable resource and to do so in an ethical way. This book is written primarily for criminal justice professionals to assist them in meeting this challenge. Although I believe it offers some relatively new perspectives on a very old subject, much of what is contained in these pages is also found in the collective wisdom of a hundred generations of law enforcement officers. Transported to the present day, the officers who paid Judas Iscariot his 30 pieces of silver and escorted him to the garden of betrayal would find the techniques of informant management little changed in the intervening 20 centuries. Certainly the outcome – a swift resolution, conviction, and sentence – is still the common result of an informant’s cooperation, even in cases that otherwise defy solution for years.

We will be visiting with Sun Tzu throughout the book. Because he possessed significant insight into the secret world of informants and spies, the Chinese philosopher-warrior is quoted extensively. In The Art of War, he outlines principles a general can use to conquer his foes. Many of these principles are still valid today, and none more so than those which focus on the importance of the spies who collect the intelligence for the general who runs the war. Much of what Sun Tzu says is common sense, plainly understood by a thoughtful and interested student. He does, however, propose a fairly complex: system with respect to acquiring information for use in the war. Within this system are several types of informants who perform different functions and act for different reasons. As we shall see, the characteristics of the spies of Sun Tzu’s ancient system are as likely to be found in the informants of the 21st century.

But understanding, rather than mere acceptance of, Sun Tzu’s principles is required for our success. In order to realize the full potential of the confidential informant, it is necessary to understand the individual – how and why he behaves the way he does. This understanding transcends tactics. Therefore, the objective of this book is not to teach technique, although some techniques are discussed to provide insight. If we can understand why trust is so important in human relationships, we may understand why the betrayal of trust carries such a heavy burden. If we know the barriers to betrayal, we can understand some of the motivations, which cause people to pass those barriers. And, if we know what motivates people to inform, we can learn how to control the entire process, realizing the full potential of each informant.

This is a very challenging set of ifs, but the rewards are substantial. To illustrate how these rewards might be reached, the text refers to scores of criminal cases, all of which involve an in formant in some way. Each chapter also includes a case study that illustrates the principles discussed in that chapter. The cases outlined in the studies are well known to most in law enforcement. As such, they provide us with the opportunity to look at familiar facts from a new perspective. In our study of the informant, we should be analyzing these examples, not as a faultfinder, hoping to detect the mistakes or failings of another, but as a student who can learn from the experience of others.

The text and the case studies are designed to provide the reader with insight into the informant’s life. The strains of this existence and the emotional pressures of informing are reflected in the actions of the characters of these short stories. It is my hope that by viewing these actions in light of the additional information and perspective of this book, we may better understand the informant. This understanding, more than a flat knowledge of procedures or techniques, will make law enforcement officers better able to develop and manage informants.

This ability is important, because informants solve cases in amazing numbers, not only in drug enforcement, where informants are indispensable, but also in crimes such as murder, terrorism, gambling, kidnapping, bank robbery, perjury, obstruction of justice, bootlegging, and assassination. These are some of the crimes that are described in the case studies. The law enforcement officer, regardless of his or her assignment or duties, can almost always benefit from the assistance of a good informant.

One of the themes of this book is that good informants are not born, but made, and the law enforcement officer is the maker. Whether we succeed or fail in this construction will depend upon the insight we have into the character of the person giving the information. Do you understand why he is here? Do you have all the information he possesses? Can you use the informant in an effective and ethical way to exploit the information he provides? If we are going to succeed in making the best use of informants, we are going to have to find the answers to these questions.

Informants work so well that, although they play a critical role in the American system of criminal justice, the use of informants is often attacked. Defense attorneys, civil libertarians, and the victims of informant betrayals all decry law enforcement’s use of this investigative technique. Informants are criticized as intrusive, in violation of civil rights, abusive of due process, and just plain unfair. The pacts that are made to secure the cooperation of informants are routinely denounced as “deals with the devil.” The worst of this condemnation is reserved for “paid” or “bought” informants who sell their information (and some would say. their souls) for mere money or those who seek a chance at a lighter sentence.

We must accept that there is more than just a grain of truth to these complaints. Informants are terribly intrusive. Some informants do lie, cheat, and violate the rights of the people we are supposed to be investigating. Some corrupt the officers with whom they work. Worst of all, the act of betrayal is often so catastrophic as to destroy relationships built up over decades. The effects of the informant’s breach of faith are felt long after the judge’s gavel falls.

Therefore, it behooves us to listen to the people who make these denunciations. Abuse of this investigative resource could result in official or judicial disapproval of informants, something that could, in turn, deprive society of law enforcement’s most valuable tool. But, those who scorn the in formant should stop for a moment to consider the fact that it was an informant – a paid one, in fact – who reported plots to bomb bridges, tunnels, and other public places in New York City to the FBI. Had it not been for the actions of this informant in coming forward, thousands of Americans could have been killed.

That information was priceless and so was the informant who brought it to the attention of the FBI. As law enforcement professionals, we have a responsibility to protect that resource. We also have the obligation to employ this invaluable weapon in a way that preserves its usefulness for future cases. In this regard, we must find ways to employ informants in the most effective and ethical way possible. The purpose of this book is to provide some ideas about achieving this very worthy goal.

1. The Divine Manipulation of Threads

“Thus, what enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men is foreknowledge.” –Sun Tzu, The Art of War

“Good informant, good case. Bad informant, bad case. No informant, no case.”–drug enforcement adage

Sun Tzu was a man who understood the value of information and knew a thing or two about how to get it. Simply put, he used spies, an ancient technique even in his time, 2000 years ago. History has shown over and over that such a person can provide the key to a city or unlock the door concealing a criminal conspiracy.

Whether the informant’s tip prevents an act of international terrorism or leads to the arrest of a serial killer depends not so much on the informant himself, for many people may possess the information; rather, the potential of an informant is only realized through the effectiveness of the officer who works with and controls the flow of the information. By developing the skills needed to recruit and manage informants, the law enforcement officer can “strike, conquer, and achieve things beyond the reach of ordinary men.”

This process is part art and part science – a blend that is as old as law, crime, and human weakness. Surprisingly, given the important role that informants have played in many criminal investigations, relatively little has been written about their employment. They are rarely featured in mystery novels or in film screenplays. There are a couple of reasons why this might be so. First, this may be due to the public’s desire for their hero or heroine to triumph over ovenvhe1ming odds and solve crimes by sheer force of mind and will. Having someone come in and spoil the climax by telling us “whodunit” (and how and why) can diminish our champion. Second, there is a fundamental distrust in our culture and. indeed, in others around the world, of the informant.

Listen to the popular names for informants: “snitch,” “rat,” “stool-pigeon,” “fink,” “squealer.” These are not terms of endearment or affection because people associate informants with treachery and betrayal. Even the very young are cautioned against “tattling” by their parents. Being told as a child that “nobody likes a tattletale” provided each or us with some early conditioning against the betrayal of confidences.

This well-entrenched animus makes informants unsympathetic characters, not only in fiction but in real life. Intelligence officers who work with the spies who are betraying their countries and police officers who work with the informants who betray their comrades in crime often describe very mixed feelings in their relationships with such persons. Although we will explore these conflicts in more depth later, they must be acknowledged as products of the early values instilled in people, which condemn disloyalty and breach of trust.

These negative attitudes are in direct conflict with the obligation of law enforcement officers to uphold the law by all of the legal means available to us. Employment of informants as one of these means has, in spite of our personal reservations, been a part of our legal system for hundreds, if not thousands of years. J. Edgar Hoover noted in the FBI’s Law Enforcement Bulletin:

Experience demonstrates that the cooperation of individuals who can readily furnish accurate information is essential if law enforcement is to discharge its obligations. The objective of the investigator must be to ferret out the truth. It is fundamental that the search include the most logical source of information – those persons with immediate access to necessary facts who are willing to cooperate in the interest of the common good. Their services contribute greatly to the ultimate goal of justice – convicting the guilty and clearing the innocent. Necessarily unheralded in their daily efforts, they not only uncover crimes but also furnish the intelligence data so viral in preventing serious violations of law and traditional security.

There can be no doubt that the use of informants in law enforcement is justified. Tile public interest and the personal safety of these help fill citizens demand tile zealous protection of their confidence. Unlike the totalitarian practice, the informant in America serves of his own free will, fulfilling one of the citizenship obligations of our democratic form of government.

Mr. Hoover, who, despite his long service at the FBI, never personally worked an informant in his life, nevertheless clearly understood the importance of informants to law enforcement. Everything about informants is a study in conflict: Our parents’ warning that “nobody likes a tattletale” directly contradicts Mr. Hoover’s assertion that “the cooperation of individuals who can readily furnish accurate information is essential if law enforcement is to discharge its obligations.” These two statements, both of which are completely true, graphically illustrate this basic dissonance. We, as a society, may not “like” the idea that a person is betraying a trust or telling someone else’s secret, but we still need to have those people who do have inside information about crimes to come forward. We reluctantly accept the betrayal in favor of what most agree is the common good. The act of betrayal always exacts some sort of fee, however, and not just against the person betrayed. The very act of informing – the transfer of loyalties and the rejection of the convention against “tattling” – entails serious social and psychological conflict, fraught with all sorts of peril for the person informing, the officer who receives the information, and our society of laws.

There is obviously peril, also, for the person whose trust is betrayed. It is unlikely that the Unabomber, a man who eluded the police for over 17 years, would have been identified had not an informant – in this case, his brother – come forward with information. John Dillinger was caught as a result of an informant’s cooperation with the FBI. An informant provided the critical information which led to the impeachment of President Bill Clinton. Informants have given advance word of presidential assassination plots, contract killings, robberies, and other terrible crimes. An informant told the Romans where to find Jesus Christ. Each of these actions represented a betrayal of someone’s confidence, a breaking of someone’s faith. This is the price we pay for information that can be of inestimable value.

A Study in Conflict

Sun Tzu. the Chinese philosopher-warrior enjoyed tremendous success on the battlefield but achieved his lasting fame as the author of the oldest known treatise on military science, The Art of War. One chapter of this essay is devoted to the means by which a general can obtain information, summarized as “The Use of Spies.” In this chapter. Sun Tzu outlines a system for the employment of spies which he describes as “The Divine Manipulation of the Threads.” This ancient system is eerily familiar to those who work with informants in our present day war on crime. This should remind us yet again that the value of secret information has been understood and appreciated probably for as long as people have been in conflict. This wily old soldier unquestionably knew the effect a spy’s information could have on the outcome of a battle:

Hostile armies may face each other for years, striving for the victory which is decided in a single day. This being so, to remain in ignorance of the enemy’s condition simply because one begrudges the outlay of a hundred ounces of silver in honors and emoluments {for spies] is rite height of inhumanity.

Is this not exactly the situation faced in the hunt for the Unabomber? A 17-year search costing millions of dollars came to an end with one name spoken by an informant. If crime, in general, or one person’s crime spree is allowed to go unchecked, or if the criminal could be stopped through the use of a recognized investigative technique and is not, those in law enforcement would be failing in their duty to act. As Judge Learned Hand noted in United States v. Dennis (183 F.2d 201, 1950): “Courts have countenanced the use of informers from time immemorial.” They have done so because an informant may be the only means by which a crime can be solved. To turn away from an informant who could have solved a case such as the Unabomber’s before other innocents were killed would indeed be “the height of inhumanity.”

The tradition of the American justice system calls for citizen involvement in crime prevention and control. As “peers” of the accused, citizens serve as jurors in criminal trials. Even before a case reaches trial, the citizen is expected, even required, in some cases, to bear witness against wrongdoers. Federal law (Title 18. U.S. Code. Sec. 4) describes the offense of misprision of felony as follows:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Although some states have similar statutes, others do not. Recently, in one of the latter states, a young man who witnessed at least part of a terrible rape-murder of a young girl could not be prosecuted because state law did not require that knowledge of such crimes be reported. Public outrage was directed at the witness, even to the extent that people protested against his presence on his university campus. Anger was also focused on the state, which found itself without the legal means to punish the witness for failing to do what was perceived as at least a moral duty, to turn in the perpetrator, a school chum.

As a result of this case, efforts are now underway to mandate the reporting of this type of crime, effectively forcing people, under pain of imprisonment, to become informants. There is precedent aside from the misprision of felony law. Doctors must report gunshot wounds encountered in the course of their practices. Teachers may be required to notify authorities of signs of physical or sexual abuse against their minor students. Government employees are obligated to report fraud, waste, or other malfeasance. Statutes such as these, sometimes referred to as “snitch laws,” have proliferated as people seem to grow more remote from one another within society and less likely to “get involved” in the solving of crimes.

The statute books are laced with other, more positive incentives for citizen cooperation in the war on crime. In federal law, numerous provisions allow for the payment of rewards for information on a wide variety of crimes. There was a $1 million reward for the Unabomber suspect, and there is currently a $5 million reward for Osama bin Laden, the suspected mastermind behind terrorist bombings at American embassies overseas. The payment of rewards is, of course, not a new means of promoting citizen involvement in the resolution of crime. Reward posters from the age of piracy or the Wild West demonstrate an understanding by the authorities that, as Sun Tzu said, “to remain in ignorance of the enemy’s condition simply because one begrudges the outlay of a hundred ounces of silver” really is penny wise and pound foolish.

The need to offer rewards for information points out the beginning of a contradiction in attitudes, one which will persist throughout our discussion of informants. An observer completely ignorant of human nature might ask why, if assistance to law enforcement is one of the obligations of citizenship, is it necessary to offer money to those who provide the assistance? The answer is that there are numerous disincentives for that cooperation, all of which militate against giving something valuable for nothing. And information about crime is extremely valuable – in some cases more precious than gold – and apparently far more valuable than the warm, fuzzy feeling which accompanies doing one’s civic duty. Two thousand years ago. Sun Tzu described the measure of these riches, and exactly where they could be found:

Thus, what enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men, is foreknowledge. Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience. Knowledge of the enemy’s dispositions can only be obtained from other men.

Information – the “foreknowledge” of which Sun Tzu speaks, has always been critical to effective law enforcement, of course. The entire investigative process is a search for facts, which come to us from a wide assortment of sources. As we occupy the “Information Age” and approach the 21st century, not only is the sheer volume of information greater than ever before, but so, too, is the variety of sources.

Despite the many advances in forensic science and technology, there is still only a limited number of ways to skin the criminal cat. One author, Richard Nossen, a former IRS Special Agent and administrator, identifies seven basic investigative techniques which can be used in the resolution of criminal cases. According to Nossen, these are

1. Surveillance

2. Acquisition and analysis of physical evidence

3. Interviewing and interrogation

4. Wiretapping and electronic surveillance

5. Undercover operations

6. Informants

7. Financial investigation

Some of these techniques are as old as Sun Tzu himself, while others would scarcely be recognized by law enforcement officers of even a generation ago. All have their places in the unending battle against crime, but, as cases old and new illustrate, none is as valuable as a well-placed informant.

Definitions

What exactly is an informant, other than a person who fits all of the pejorative descriptions we heard earlier? An informant is the person who can provide the “knowledge of the enemy’s dispositions,” but how does he come by this knowledge and why does he tell us about it? Law enforcement agencies have come up with a number of less colorful (but less disparaging) descriptions of what constitutes an informant. The terms cooperating individual, cooperating witness, cooperating defendant, cooperating source, source of information, confidential source, restricted source, and confidential informant all describe “a person who provides information about a crime to law enforcement.”

This definition is much too broad, however, for it includes casual observers who phone in anonymous tips to Crimestoppers or America’s Most Wanted. The definition also encompasses witnesses to crimes, such as the tellers at a bank being robbed or the victims of a telemarketing scam. For that matter, it includes other law enforcement officers who share information with a colleague. None of these people would be considered “informants” in the popular definition.

A better definition of the informant includes a description of three qualifications that such a person must possess. Informants are people with access to information about crime. They become informants when they are somehow motivated to bring this to the attention of the police. These factors plus the control of the in formant and his information by the investigator are what make informants so essential to effective law enforcement, though not without considerable cost.

Motivation + Access + Control

These three attributes determine whether a person is or is not an informant. Without one or more, you’ve got something, but it is not an informant. Only someone who possesses all three characteristics will be effective as an informant. Our ability to develop and manage these individuals will provide us with the foreknowledge Sun Tzu cherished:

Hence the use of spies, of whom there are five classes: (1) local spies; (2) inward spies; (3) converted spies; (4) doomed spies; (5) surviving spies. When these five kinds of spy are all at work, none can discover the secret system. This is called “divine manipulation of the threads … It is the sovereign’s most precious faculty.

The Threads

As each of us proceeds on our respective paths through life, we weave around us a fabric of ties or bonds to others in our society. The threads in this fabric link us through association to friends, family, employers, co-workers … to everyone our lives touch, directly or indirectly.

Some of the filaments are thin and weak; perhaps they represent a passing acquaintance or a half-forgotten school classmate. Other ties bind strong and tight: the bonds of blood, love, marriage, kinship, and long, intimate association. New threads are woven constantly, while others weaken or break, though none ever completely disappears. The result is a very large and very intricate tapestry, so complex that no one, not even the individual himself, can fully appreciate the pattern that surrounds him.

These threads form our connections to society, but in them are found the three elements of the informant, as well. One end of each thread obviously links to another person or group, providing the access that is required of anyone who would report the knowledge of a crime. And each strand is comprised not of wire or fiber, but of memories, emotions, values, and needs. Love, respect, honor, and pride compete with greed, ego, fear, longing, repentance, and the desire for revenge to weaken or strengthen the lies. The latter form the motivation for betrayal. Finally, those emotions, values, and needs afford the ability to control the informant and his information. This is the system that Sun Tzu called “the divine manipulation of the threads.”

Every informant is unique in his or her access to information. Although more than one person might have similar knowledge of a crime, no two people could ever be completely alike in this regard. The motivations of these individuals will vary as well. Because all of us perceive our needs differently, our behavior in response to those needs will also differ. The individual response to discipline or control is also variable.

While there are quite a few high-priced books about how to work with CIs, there are no books about Agent Provocateurs. Imagine that!

to be continued…

Watergate Exposed: How the President of the United States and the Watergate Burglars Were Set Up (as told to Douglas Caddy, original attorney for the Watergate Seven), by Robert Merritt is available at TrineDay, Amazon, Barnes & Noble, The Book Depository, and Books-a-Million.