April 25, 2016 —
We evaluated the Air Force Office of Special Investigations’ (AFOSI) conduct of Internet based operations and investigations initiated during the period of January 2010 through October 2014. We evaluated the procedures used to initiate and participate in Internet-based operations and investigations with Federal, state, and local law enforcement agencies’ Internet crimes task forces.
Specifically, we focused on whether AFOSI had adequate:
- policy and guidance governing Internetâ€‘based operations and investigations; and
- policies and procedures for its special agents’ participation in operations such as Internet Crimes Against Children (ICAC).
AFOSI lacked specific policy addressing its special agents’ roles during ICAC operations, which contributed to violations of the provisions in DoD Directive (DoDD) 5525.5, “DoD Cooperation with Civilian Law Enforcement Officials,” and the DoDD’s revised version, DoD Instruction (DoDI) 3025.21, “Defense Support of Civilian Law Enforcement Agencies.” These violations were the result of AFOSI special agents participating in prohibited investigative activities with civilian law enforcement agencies before establishing a reasonable likelihood of a subject’s military affiliation. During our evaluation, AFOSI published investigative policy, which incorporated the reasonable likelihood standard and provided guidance and clarity regarding ICAC operations. In addition, DoDI 3025.21 has not been updated to include the reasonable likelihood standard articulated in United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014). April 25, 2016 Of 80 AFOSI cases we reviewed, 23 (29 percent) lacked a reasonable likelihood of the subject’s military affiliation. In those 23 cases, AFOSI special agents participated in prohibited investigative activities in violation of DoDD 5525.5, DoDI 3025.21, and AFOSI Manual 71-118, volume 3, “Undercover Operations.” Special agents violated policy by conducting criminal investigations without first establishing a reasonable likelihood of the subject’s military affiliation.
At the time of the evaluation, AFOSI policy did not clearly define special agents’ roles and responsibilities regarding Internet-based operations nor did it require the execution of memorandums of understanding for participation in ICAC task forces. However, during the course of our evaluation, AFOSI revised its policy and it now provides clear guidance governing its agents’ participation in ICAC operations.
We recommend that the Under Secretary of Defense for Policy clarify DoD Instruction 3025.21, enclosure 3, to reflect the holding in United States v. Dreyer, 767 F.3d 826, affirmed in relevant part by 2015 U.S. App. LEXIS 19226 (9th Cir., en banc). Dreyer established a standard requiring a reasonable likelihood of a subject’s military affiliation before Military Criminal Investigative Organizations (MCIOs) conduct investigative activities.
Management Comments and Our Response
The Director, Defense Support of Civil Authorities, responding for the Under Secretary of Defense for Policy, agreed with our recommendation, but stated that the Dreyer violation was more of an education and training issue than a policy issue. However, we believe it is more than a training issue and feel clarification of the Instruction is appropriate. We also request that the Under Secretary of Defense for Policy provide a response on what additional training and education will be provided, and when that will occur.
This report is a result of Project No. 2014C018.