This chapter contains the Department’s policies regarding the use and/or targeting of federal prisoners. The Attorney General stands in a unique position as both the custodian of all federal prisoners and the highest ranking U.S. law enforcement official charged with investigating violations of federal law. As such, the Department has formulated the following policies and protocols designed to balance these two important Departmental interests.

Requests to use, for investigative purposes, persons who are in the physical or legal custody of the USMS or BOP, or who are under BOP supervision, or to target such individuals in covert investigations, must be submitted to OEO for review and prior approval. Such requests must first be approved by the designated official(s) at the requesting law enforcement agency's headquarters, with the concurrence of a federal prosecutor, and then submitted, in writing, by the requesting agency’s headquarters to the Chief, Special Operations Unit, OEO, Criminal Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Criminal Division, OEO, JCK Building, Room 1100, Washington, D.C. 20530-0001. Requests can be electronically submitted to OEO-SOU-9-21.050@crm.usdoj.gov (DOJ agencies) or OEO-SOU-9-21.050@usdoj.gov (non-DOJ agencies).

As part of the review process, OEO coordinates with the headquarters component of the requesting agency and the custodial agency (BOP or USMS) to assess legal and operational risk, to include, deconfliction. This review also seeks to ensure the continued safety and the security of the prisoners, correctional staff, and the public, and promotes nationwide consistency of operational plans. Please be advised that the BOP and USMS may have specific requirements and conditions for operations occurring within their facilities. Accordingly, in order for an operation to proceed, OEO must have the concurrence of the headquarters component of the custodial agency. Upon approval or denial of the request, OEO will advise the requesting agency’s headquarters of the decision, and issue a formal memorandum of the decision and authorization, if authorization is applicable.

OEO approval is required for operations where a cooperating inmate will be used to conduct a consensual recording of another inmate, visitor, or correctional staff member.

Please note the following specific and narrow exception to the need for Attorney General/OEO approval regarding the investigative use of a prisoner in federal custody.

When all four of the following conditions are met, neither Attorney General/OEO approval nor consultation is required for a cooperating prisoner to engage in consensually monitored telephone call(s), consensually monitored text message(s) from a cellular telephone, or consensually monitored computer communication(s) once the prisoner has given consent. (This situation typically occurs when a newly arrested prisoner is in custody of the investigative agency or the USMS.)

1. 1. The cooperating prisoner is not in BOP custody or under BOP supervision (e.g., not in a BOP-operated facility, BOP contract facility including BOP halfway house, or under BOP home detention or BOP electronic monitoring);
2. 2. The prisoner will participate in the consensually monitored telephone call(s), consensually monitored text message(s) from a cellular telephone, or consensually monitored computer communication(s) from one of the following locations:

a. A detention facility not covered by Paragraph 1 above, or

b. A federal prosecutor’s office, or

c. An office of an investigative agency, or

d. A secure location under the control of the requesting investigative agency;

1. 3. No follow-up activity by the prisoner that requires OEO approval is anticipated to occur as a result of these consensually monitored telephone call(s), consensually monitored text message(s) from a cellular telephone, or consensually monitored computer communication(s); and
2. 4. The Special Agent supervising the telephone calls has obtained and documented the concurrence of the appropriate federal prosecutor, and has complied with his or her agency's policies concerning the making of consensually monitored telephone calls, text messages, or computer communications by prisoners.

Additionally, neither approval nor consultation with OEO is required for a cooperating prisoner to engage in debriefings, polygraphs and proffers once the prisoner has given consent if the prisoner will participate in such activity from one of the following locations:

a. A detention facility, or

b. A federal prosecutor’s office, or

c. An office of an investigative agency, or

d. A secure location under the control of the requesting investigative agency.

Furthermore, neither approval nor consultation with OEO is required in the following circumstances:

a. Where an investigative agency obtains a court order to temporarily take custody of a prisoner to allow the prisoner to identify a location; or
b. Where the investigative agency seeks to use an inmate to pass the contact information of an undercover agent to a correctional staff member; or
c. Where the investigative agency seeks to use an inmate strictly for intelligence gathering purposes, i.e., acting as a listening post.

If there are exigent circumstances requiring an immediate response from OEO, oral requests for approval will be accepted from personnel at the agency's headquarters. However, confirmation of the request and appropriate supporting information must be submitted to OEO in writing as soon as possible after approval. This information will be held in the strictest confidence, and no dissemination of the information will be made, except to persons in BOP or USMS who have a need to know, without the prior approval from the appropriate personnel at the agency's headquarters.

Although it is not encouraged, if extraordinary circumstances warrant the investigative utilization of a person in the custody of the BOP or the USMS by a state or local law enforcement agency, OEO will consider that request. Such a request must be submitted in writing and endorsed by the United States Attorney for the district in which the investigative use is to occur, or where the charges will be brought, whichever is more appropriate.

In addition, the interception of wire, oral or electronic communications of a federal prisoner, or within a BOP or USMS facility, presents complicated legal, policy, security, and operational issues. Any proposed activity involving the covert monitoring or interception of federal prisoner oral communications, or within a BOP or USMS facility, must be approved by OEO when the prosecutor has determined that the speaker has a justifiable expectation that the communications are not subject to interception. When applicable, requests must also comply with USAM 9-7.000 (Electronic Surveillance) and AAG Caldwell’s guidance memorandum “Electronic Surveillance Procedures within the Federal Prison System.” (December 1, 2014).

Finally, special authority is required for requests to use federal prisoners who are current, or former, participants in the Federal Witness Security Program (Program). The proposed use of these uniquely situated individuals as cooperating witnesses presents sensitive security and logistical issues. Any request to use a current Program participant must be routed to OEO. In order to use a former Program participant, law enforcement officers and prosecutors must consult with the federal prosecutor who originally sponsored the witness into the Program to ensure that the use of the former Program participant does not interfere with the testimony of the witness for which Program participation is authorized. Additionally, prosecutors using the former Program participant must consult with OEO to determine whether OEO has any discoverable information about the witness in its files. Law enforcement officers and prosecutors using a former Program participant should be aware that the reinstatement of Program services for a former Program participant who has been terminated from or voluntarily left, the Program is exceedingly rare. Law enforcement, therefore, should account for necessary safety measures before beginning any operations.

NOTE: Federal investigative agencies are also required to seek the approval of OEO to use a BOP employee in an undercover capacity.