Deploying Undercover Officers or Confidential Informants into a Place of Worship

One of the most sensitive aspects of investigating terrorist and/or criminal activity is the deployment of undercover officers and/or confidential informants into places of worship. While there has been significant journalistic material written on the topic little of it actually seeks to address anything other than sensationalizing the understandably emotive responses of those who feel their faith is under attack and that their places of worship are being violated.

Acknowledging the sensitivities that are justifiably associated with this topic, let me begin by saying that everyone, if they so wish, should be allowed to attend a place of worship and celebrate their faith without any interference from government or the agents of that government. Those individuals should also be allowed to engage in acts of faith without their place of worship being desecrated by those who would seek to use such places for activities that not only are contrary to teachings of that faith but that are intended to facilitate harm coming to others.  If all involved in the debate around covert law enforcement activities in places of worship start by acknowledging these two tenets then the discussion that follows can take cognizance of the emotion involved without that emotion becoming all consuming.

There are some key points that will hopefully inform this discussion and allow all involved to put in place measures that if not pleasing can at least be tolerated.

First, a place of worship is not the same as any other place. Many involved in law enforcement activities have different views on faith and can fail to recognize the level of hurt and insult felt by those of faith, when they realize that a place of worship has been subject to law enforcement activity. Such places are provided for faith-based activity and anyone who is there for other activities (such as those engaged in, by an undercover officer or confidential informant) violate the sanctity of the place. Law enforcement must recognize the extent of the violation that can be felt.

Second, law enforcement agencies are obligated, not just by law, but also by their moral duty, to protect society and everyone in it, from those who would seek to harm others. This includes the well codified obligation to protect people’s right to worship. Undoubtedly, using a place of worship to plan terrorism interferes with the right to worship in peace. Where law enforcement is aware of activity taking place that is likely to harm others including activities that interfere with worship, they must do what they reasonably can to prevent that reprehensible activity. Unfortunately, this can sometimes involve using techniques that they would prefer not to use.

Third, terrorism, by its very nature, is parasitic and causes harm to the host community. Those involved in terrorism hide their activities from others that they claim to protect, creating a culture of mistrust and secrecy. They mislead and corrupt young people attending   worship often making victims out of them. They carry out actions that few would condone and instill fear in any who would attempt to speak out against them. They abuse places of worship because they know the reluctance that law enforcement has about carrying out any form of investigation in such places.

Forth, undercover operations and the use of confidential informants are sometimes the only way that the activities of terrorist groups can be thwarted.

Having said all that, what it boils down to is that however reluctantly law enforcement may be about doing so, while terrorist groups continue to use places of worship to recruit members and to plan operations, law enforcement has no choice but to continue to deploy undercover officers and confidential informants into places of worship. The most difficult task then becomes that of creating a system where such activity can be regulated and properly managed.  Here are a few measures that go some distance at least to creating such a system:

1.      Any such activity must be fully justified, whether through evidence or specific pre-existing intelligence. Such justification must be fully documented including the reasons why the use of such activity is necessary. Necessity can only be demonstrated if alternatives have tried and failed, or it is documented why such alternatives are likely to fail.

2.      Any such activity must be authorized at the highest levels of the law enforcement agency. If it is not the Chief authorizing the activity then there better be really good reasons for that.

3.      Continuance of the activity must be justified on a regular basis – an elapse of a month is about the maximum time one could reasonably expect between reviews.

4.      Strict parameters must be put in place with regard to what can and cannot be done, must be identified and briefed to the person taking part in the activity. Where a confidential informant is taking part this briefing should be done by, or in the presence of, a supervisory officer.

5.      Comprehensive records of all the activity engaged in must be kept including the dates and times of each occurrence.

6.       All the risks of the operation must be documented and properly managed. This should include addressing the potential psychological risks that may arise for those engaged in the operation as a result of issues pertaining to faith. Furthermore, the potential for fallout and the nature of that fallout should the operation be compromised must be recognized and discussed.

7.      Processes must be put in place to destroy any material gained as a result of the operation that does not directly relate to a criminal investigation.

8.      Independent scrutiny of the operation should be considered during the operation or at its termination. This does not mean details of the operation are made public at any time but it does mean that the actions of the agency are scrutinized. Such scrutiny may be carried out by a suitably qualified person such as a retired judge or other external senior law enforcement official. This oversight ensures that those from the agency involved in the investigation don’t rationalize and justify actions that would be unacceptable to those independent of the investigation.

9.      Agency polices with regard to the circumstances under which such activity can take place and the authorization levels required for such activity should be available for public scrutiny.

While these guidelines may not assuage all the concerns of those attending places of worship for legitimate reasons, the measures will hopefully go some way to assuring them that law enforcement recognize the serious nature of what is being undertaken.

As a side note many of the principles discuss here are also worthy of consideration when carrying out similar activities in places of education. While the expectations of privacy and sanctuary may not be at as high a level as a place of worship, they certainly exist.