The Missing Voice of Undercover Agents

Jay Dobyns
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Posted: Jun 12, 2014 12:01 AM
The Missing Voice of Undercover Agents

Editor's note: This is a Townhall exclusive.

The public and political debate surrounding law enforcement's use of undercover techniques and tradecraft has become very heated as of late, most especially those employed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). My commentary is primarily focused within the universe of ATF because that is where my experience is based.

I write with no agenda other than to provide some balance and a voice to those without one - good and honest undercover agents who risk their lives so others can be safe. My thoughts are not conservative or liberal. They are not anti-gun, or pro-gun. They are not Republican, Democrat, race or ethnicity driven. My viewpoints are not based in academic study. I do not have an advanced degree in law or criminal justice. What I do have is a Ph.D. in undercover work derived from twenty-seven years of having lived it.

Criticisms are being waged from judges, lawyers, academics and reporters. There is an important voice that has been left out; the undercover operatives themselves. By "left out" I do not mean excluded. Reporters seeking balance try to obtain the views of the "undercovers." So why do we not hear from them? If they are not "storming the gates" to defend themselves they must be guilty of the allegations?

Frankly, they get stonewalled and replaced for comment and testimony by executives who don't understand the process, believing an elevated title makes them the expert. The next time an ATF manager voices a strong public opinion on anything will be the first time. When the undercovers are allowed to speak on the record, which is rare, their responses are "coached" and "scrubbed" by the public relations division. Further, being "undercover" they risk compromising current or future assignments. As a result one side of the story is publicly told - the attacking side - with the subjects of the attacks bound and gagged from defending themselves. Who has their backs? No one does.

With ATF's management unwilling to come out and defend their street agents, I will try to take advantage of this brief platform to explain what is not being said and provide a real-world explanation of the decisions made behind the tradecraft.

ATF management is terrified of three things: the Media, Congress, and the Courts. Why? In my opinion they are our allies. Rather than defend allegations using truths and facts to counter misinformation they opt for silence (and sometimes cover-u,p but that is a debate for another day). Through naivety or cowardice, in some cases both, they've come to believe this strategy is the safest. Their historical pattern and practice reaction to negative attention is to batten down the hatches and wait for the storm to blow over. Their knee-jerk response to criticism is "shut it down" panic, thus, non-law enforcement critics dictate policy and procedure to ATF and America becomes a less-safe place. They simply do not have the testicular fortitude to intelligently explain, "This is what we do. This how we do it. This is why we do it and we intend to continue doing it." It is not in their DNA.

Any public relations executive would advise ATF's leadership to get in front of groundswell negativisms with honesty, accuracy and accountability. Acknowledge mistakes before your feet are held to the fire, taking meaningful and positive steps to fix and prevent them from reoccurring. But, opening your mouth at ATF results in having it punched closed and being handed a ticket for a fast trip on a slow boat to places undesired. First learning of mistakes through media reports, as ATF's Executives have admitted is these cases, is entirely unacceptable and unimaginable for those running a federal law enforcement agency.

Have mistakes been made? Absolutely yes. Policing, and more so undercover policing, is a world with no guarantees. Having been involved in over five-hundred undercover operations (I retired in January), makes me an expert in mistakes. I don't carry a torch for perfection because I was never able to achieve that. The difference between me and management? I was accountable for my words and actions.

Are there undercover agents who should not be involved in implementing the tradecraft? Yes, not every lawman or woman is good at it. Decisions are fluid, spontaneous and often carry life and death consequences. They require immediate, experience based calculation. A misstep comes with the fear that your career will conclude licking stamps in the mailroom or handing out paperclips. It is not a life for those weak in spirit. But, an overwhelmingly vast majority of ATF's undercovers are consummate law enforcement professionals. We rarely hear about them. The standards of undercover tradecraft have been elevated to incredible levels of efficiency and production by these men and women. Today's undercovers are able to sit in the witness box during an afternoon trial wearing coat and tie debating brilliant defense attorneys, and then morph into their street persona and be equally dynamic amidst thugs and thieves that night. To do that right takes a uniqueness that few possess.

Allow me a brief history lesson. After the September 11 terrorist attacks resulted in a restructuring of government, ATF was realigned under the United States Department of Justice and tasked with the responsibility of investigating domestic violent crimes. ATF does more high-risk undercover work towards that mission than any other federal law enforcement agency in the world. For each highlighted mistake dozens if not hundreds of crime guns and vicious felons are removed from our streets. No one appears willing to credit or discuss that, not even the agencies shotcallers.

Undercover agents and officers should not be confused with plain clothes lawmen where much of today's policing is conducted. Out-of-uniform officers must identify themselves as policemen when executing their authorities. Undercover operatives assume false identities and often remain "in role" in the midst of crimes. In the purest sense, they often engage in authorized and limited illegal events to obtain criminal evidence while protecting their fabricated "cover".

The best way for me address the criticized situations is to "rip from the headlines" the topics under scrutiny. These appear to be the Top 5 complaints:

1."UNDERCOVER IS A VIOLATION OF SUSPECT RIGHTS"

When Eugène François Vidocq first employed undercover policing in 19th Century France to date, courts in the U.S. and abroad have ruled that police deception and trickery is not a violation of one's rights.

We do have the right to live freely without an ever present and suffocating fear of violence. That is very often not the case in many of our communities.

2."ATF UNDERCOVER OPERATIONS TARGET IMPOVERISHED AREAS AND MINORITIES"

ATF does not target downtrodden neighborhoods, they proactively work in areas with the most violence. Most of the demoralized neighborhoods I have worked in are filled with good, honest and loving people who want nothing more than a fighting chance, some hope, to exist without danger. I always considered it my honor and privilege to go toe-to-toe with violence on their behalf.

An elderly woman should be able to walk down the sidewalk without the risk of being beaten for her purse. A young child should be able to play on the front porch without concern for the bullets from a drive-by. A mother should be able to pump gas in her car without the fear that it will be stolen with her baby in the car seat. A man, young or old, of any race, needs to be able to use an ATM machine without having to press the buttons on the keypad with one eye while looking over his shoulder for an armed robbery with the other.

ATF's undercovers are colorblind. They do not see black, white or brown. They do not see economic pressures nor should they be asked to consider them. They see violence. They hunt for it. They stalk the stalkers. They identify the sources of violence and attack it. If you have violent intentions ATF's undercovers want to shake your hand and discuss it.

Many people in the U.S. have fallen on difficult times. Some of those live in impoverished communities. Even fewer, - actually very few of those affected, - resort to predatory crimes of violence to resolve their burdens.

If violence was raging in affluent lily-white areas like Fischer Island, Florida or Baker, Missouri or Rancho Santa Fe, California, ATF would set up undercover shop there. It isn't. Where the violence is overwhelming and where the risks to citizens are the greatest is where ATF butters their bread; places like Oakland, St. Louis and Detroit.

3."ATF IS LACKADAISICAL IN SELECTING OPERATING LOCATIONS"

It is tragic that violent crime exists near schools, churches and day care centers. Reality proves that it does and is there before ATF ever arrives on the scene. Establishing an undercover base of operations always first considers the safety of "the innocents", then the safety of the agents and the suspects. We always place a high priority on everyone's well being but we also go where the action is. Those violent environments are established for us, not by us. There is one true way to engage it and that is head-on.

I cannot speak directly for the people in these neighborhoods. I live in a very safe and peaceful area. I don't hear gunshots at night and my children played safely. I would think it reasonable though for people who have generations of family living in one neighborhood and with no desire to leave their roots regardless of the environment or, for the people who are trapped in these neighborhoods without the means to escape - ask them if they want ATF's proactive undercover presence investigating and arresting the sources of the violence they deal with every day and night.

That is why the undercovers leave their own families and homes, sometimes in very nice, safe and comfortable communities, to live and work amidst the crime. No one is going to pin a medal on their chest or give them a handshake and a thank you for what they do. They go anyway.

If not for ATF's undercovers planting themselves in these areas then who? Who will stand up for innocent victims? The reporters who attack the operations? The prosecutors who are intimidated by the risk of undercover techniques? The defense attorneys who argue entrapment? The legislators? The judges who turn criminals loose after they join a conspiracy to commit a violent crime? Trust me, those people don't live these neighborhoods, they just talk about them from the safety of suburbia.

4."ATF USES PERSONS WITH MENTAL DEFICIENCIES TO FURTHER THEIR OPERATIONS"

I am not going to defend any police operation seeking out a person who is not at full mental capacity to offer unwitting assistance. We as an agency and as individual agents are better than that.

But, if a person of diminished intelligence volunteers himself into an covert police operation, should their violence, or potential for it, give them a free pass? Are you "less dead" if the bullet that struck you was fired from the hand of someone handicapped vs. someone healthy?

Based on many of the current public arguments suggesting undercover operations take a "hands off" approach when encountering persons with a mental or emotion handicap - using that reasoning - had ATF's undercovers encountered Eric Harris and Dylan Klybold, Jared Loughner, James Eagan Holmes, Jeffrey Weise, Seung-Hui Cho, Adam Lanza or Elliot Rodger; they would have been prevented from further investigative action. Each were mass murderers using firearms and determined to have varying levels of mental disturbance. It's not the gun that commits the crime, it's the hand of a twisted mind holding it. ATF's undercovers pursue both.

Ask the families of the victims, their friends, their communities, even the friends and families of the gunmen if they would have preferred that the shooters had first encountered an ATF undercover agent. If we could, ask the victims. With all the crime guns purchased and seized and the all the suspects with bad intent who possess them arrested under these operations, imagine for a moment the potential for many more tragedies that have been prevented by ATF's undercover work.

Great policing is not only reactionary, it is also disrupting, preventative and proactive.

5."ATF ENTRAPS SUSPECTS USING STINGS AND STOREFRONTS"

If the common man or woman reading this were provided an opportunity to join a criminal conspiracy and that scheme involved recruiting your like-minded friends, bringing with you firearms all knowing that you may very well encounter a violent exchange while robbing drugs and money; regardless of your economic hardships what would you do? Now consider that opportunity was presented by someone you didn't know or never met. All of us would not only be running the other direction, we would be dialing 9-1-1 in the process.

The suspects in these cases do not do that. They embrace these opportunities. They jump at them with zealotry. It is depressing to watch that process take place with your own eyes. Once their crew is built to "hit a lick" they arrive with an intent to kill possessing all types of firearms (and trust me a half-rusted, twenty-dollar .38 will kill you just as dead as a military grade assault rifle), knives, batons, ballistic body armor, fake police badges, rubber gloves and ski masks. And they are entrapped? Do they not possess the free will, logic, reason or common sense to not only say, "no" but, "hell no"?

A flaw in attacking the home invasion cases is, "My client was never involved in narcotics robberies until he met Agent X". The catch is that the "sting" is not designed only to investigate and arrest drug thieves. It is employed to proactively ferret out violent criminals willing and anxious to commit more violence, interrupting that process. By the defense's reasoning ATF would be required to produce a fake rape victim to investigate a rapist, a fake building to investigate an arsonist, or offer a fake murder target to investigate a hitman.

When properly executed the H.I. (Home Invasion) tactic provides suspects ample opportunities to remove themselves from the scheme. Most don't. When they do the undercovers move on. There is plenty of violence in our streets to investigate without tricking someone to engage in it.

I will personally take the arrest of willing, able and enthusiastic marauder before they act, rather than after. The "after" is most surely coming and it is incredibly real. Maybe not today, maybe not tomorrow, maybe not next month or even next year but, for the suspects who willingly participate in H.I. stings - it is coming. They are on the prowl and they will find that "lick" whether it be made available through an undercover operation or not. You can take that to the bank.