The FBI, as America’s top law-enforcement agency, has always depended heavily on informants to bring to justice all manner of criminal organizations—be they the Ku Klux Klan, the Mafia, or an international drug cartel. But along the way the efforts had sometimes gone appallingly awry, with agents undertaking illegal bugging operations or committing rampant civil rights violations—Martin Luther King Jr. had been one well-known target of gross FBI malpractice during the civil rights era. In another, the worst known informant scandal in FBI history, the legendary Boston crime boss James J. “Whitey” Bulger was protected by a band of corrupt agents in the FBI’s Organized Crime Squad in Boston in return for tips about the Mafia. In practice, Bulger had a license to kill, with free rein to conduct a criminal enterprise, knowing the FBI had his back.
By definition, the recruitment and monitoring of informants have always proved problematic; illegal conduct on the part of the informant or, less likely, the agent remains an ever-present risk. For agents, the challenge increases exponentially when the people enlisted to provide inside information on criminal activity come with substantial baggage of their own. It could be a prior criminal record, a history of drug or alcohol abuse, or a pending criminal case, with the informant angling to lessen the charges or the eventual punishment by means of sub rosa work for the government. One or more of these possibilities further complicate the already tricky task of constantly assessing an informant’s reliability and trustworthiness: was the individual trying to con the bureau? Even if a tight leash is maintained and an FBI investigation eventually succeeds in bringing criminal charges against the targets, the informant’s baggage persists as cause for concern in a case’s final phase—the trial. Defense attorneys typically pounce on it, arguing that the government’s evidence is either tainted or concocted by an informant trying to please his master and improve his own dire situation. In instances when the informant has been paid by the government for her undercover work—a not uncommon scenario—that additional fact further buttresses claims that the informant’s testimony was bought and paid for, and therefore unreliable. From start to finish, the credibility of informants with unclean hands is a vexing matter for agents tasked with managing them.
In this regard, FBI agent Amy Kuhn liked what she found in Dan Day. In the broadest sense, Dan’s prior work as a guard at a juvenile detention facility and later as a probation officer made him a fellow member of the criminal justice world. Even though his last job had ended badly, Dan was forthcoming about his firing. He’d come across as honest; she and her partner were mostly used to lies. “Everybody lies to us—that’s the norm,” Smith once said. The agents then conducted further checks, contacting a trusted counterpart in the Kansas Bureau of Investigation, or KBI, who basically verified Dan’s accounts. The instance of the missing holiday gift cards and the “bomb scare” on Dan’s last day of work came across as nasty office politics and the result of personal vendettas.
Even so, Anthony Mattivi, the Topeka-based assistant US attorney who oversaw national security investigations, remained skeptical. To him, Dan Day at first glance had plenty of baggage: he’d been fired from his job, his employment history included other controversies, and now he seemed to be bouncing around. Dan might not have the level of personal baggage seen in drug or Mafia cases, with informants who often had criminal records, but Mattivi nonetheless imagined he’d have a hard time selling Dan to a jury, especially after defense attorneys had at him during cross-examination. In his line of work, Mattivi preferred having an undercover agent—a true professional—infiltrate a potential terrorist group. He worried that a civilian would come across as “a wannabe cop,” someone of shaky reliability.
Kuhn pushed back, however. She liked the fact that Dan was homegrown, a local more likely to fit in with Crick’s militia. An “imported” informant posturing as a rural Kansan might use mannerisms and speak in a way that would come across as forced. Put bluntly, posturing as a redneck among rednecks would not be a stretch for someone with Dan’s working-class background. Moreover, even though the agents had learned that Dan was out of work and spent a fair amount of his time scrambling to provide for his family, he had not once brought up the subject of getting paid for infiltrating the militia. The FBI agents had no intention of paying, certainly at the start of the relationship, and the fact that Dan never mentioned money worked in his favor as they assessed his suitability. The internal document prepared late in September 2015 to formalize the arrangement—paperwork that Dan would sign—stipulated that there was “no promise of financial compensation.” It also included a section where the handler—in this instance, Amy Kuhn—had to characterize the informant’s motivation for agreeing to work secretly on the bureau’s behalf. Often the motive was money or a reduction in a criminal charge or pending sentence. But not this time. Instead, as the summer ended and Dan had begun providing information and screenshots from the militia’s private Facebook sites, Kuhn noted in her assessment that he was doing so for the greater good. “His biggest concern was that there might be somebody wanting to do something bad in his area,” she said. “He wanted to make sure that members in his community were safe.” In the official internal FBI form, she kept her description of Dan’s motivation short and simple: “Patriotism.”
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Dan Day’s tenure officially began in early October 2015, and as an informant, he was given a five-digit identifying number for internal FBI record-keeping: 73282.
Amy Kuhn then came up with his code name: Minuteman.
But it wasn’t as if the newly enlisted FBI informant Dan Day was on a par with an FBI agent, state trooper, or local police officer working undercover. Extensive training was required for an investigator to adopt a phony identity as a mafioso, cocaine trafficker, or international arms dealer. For someone like Dan—a civilian confidential human source—there was no formal instruction.
The agents did review some do’s and don’ts with him, a quick course you might call Informant 101, in the run-up to his official start. The most critical ground rule boiled down to the distinction between a sting and an entrapment. The former was legally permissible, allowing Dan to participate in militia business, react to others’ comments, and gather intelligence. It meant that once someone introduced a plan, Dan could play along with the cabal insofar as giving feedback and even, at a later date, reminding the others of an idea or proposal they’d previously discussed. Entrapment, however, was not okay. Dan could not initiate an illegal action or coerce militia members into taking such an action against Muslim refugees if the militia would not have otherwise undertaken it. The bottom line: Dan was never to plant ideas; plans had to start with someone else. But once such an idea was put in play, he could brainstorm with the rest of them.
Legally, the stakes were huge. The notion that the accused had been entrapped by an infiltrator working secretly for the government was a standard defense strategy in subsequent criminal prosecution. It was a defense raised in several federal counterterrorism cases brought in the years following 9/11, cases that had relied on the FBI steering an undercover agent to get close to a suspect. Indeed, in the local case of John T. Booker Jr.—arrested earlier in 2015 near Fort Riley in Manhattan, Kansas, as he prepared to detonate what he thought was a car bomb—critics argued the ISIS-inspired Booker had been entrapped by a government agent who orchestrated Booker’s deadly terrorist plan.
But Dan wasn’t too concerned about joining Crick’s militia with so little formal coaching. Perhaps naive, he was confident in his ability to get by on his wits and the low-key personality that gave him time to read people and tease out the subtext of a particular interaction. Besides, over a lifetime filled with stretches of hardship, and surrounded by a large and toughened cast of siblings and extended family, he’d learned not to be intimated by any person or situation. If someone got into his face, he’d hold his ground—a simple rule for survival he liked to summarize this way: “I don’t care if they’re bigger than me or whatever. Even if they could kick my butt, you know, I ain’t going to be intimidated.” It was part of the overall outlook, come what may.
The FBI agents had also talked about the “persona” Dan would need to cultivate as a member of Crick’s Three Percenters, but he didn’t see much of a problem in that. Militia members liked guns; so did he, as big a fan of Second Amendment gun rights as any hardcore member of the National Rifle Association. He wouldn’t have to pretend there. Militia members also had strong anti-government attitudes; on Facebook he’d observed militia members and white nationalists of all kinds as they ranted nonstop about how the federal government was totally corrupt and overrun by the Muslim Brotherhood. Though Dan did not feel utter hostility and hatred toward the government, he had plenty of complaints about it that he could share. Slightly more difficult would be the vile and virulent xenophobia he would have to express. When Dan was growing up, one of his best friends, John Franco, was Mexican American, and he’d never had a beef with the Vietnamese refugees or, more recently, the Somalis. Bigotry wouldn’t come naturally, but he still figured he could act as if he hated Muslims as much as others did. For him, the worrisome part was watching what he said in order to stick to the cardinal rule against entrapment—reacting to actions but not initiating them, just being a fly on the wall that took everything in.
Dan didn’t feel out of his league and believed he could get along to go along. That’s why he was matter-of-fact when he presented his work in progress with the FBI to his wife, son, and daughter as the summer ended and a new school year began. “No big deal,” he said, by way of explanation; he was just doing the right thing. “Part of God’s calling,” he continued, and he even tried making light of any potential danger, calling the assignment an “adventure.” During family briefings he also talked about the need to keep confidential what he was doing for the FBI, and that included keeping his work separate from the family. “It’s what the FBI wants,” he said. But even as he spoke, Dan knew that this would be easier said than done. There were few secrets in a family as close as his—living in close quarters too, in the tiny ranch house his father had built.
Dan’s wife, Cherlyn, had needed some reassurance, whereas Alyssa, starting her freshman year at Garden City High School, thought that her dad’s new work sounded like an episode from her favorite TV show, Criminal Minds, a long-running series about FBI profilers investigating murders. She watched it all the time on Netflix. Then in real life, she and her brother experienced a moment that seemed like a plot twist a television writer might concoct. Alyssa had decided to join the high school debate team alongside Brandon, then a sophomore and a returning debater. The two went to an organizational meeting where that fall’s topic was presented, as chosen by the National Speech and Debate Association: Resolved: The United States federal government should substantially curtail its use of domestic surveillance. The siblings exchanged knowing looks. The strange coincidence became their private joke in the weeks that followed, as they worked with teammates researching evidence to support an argument for or against the use of all manner of surveillance practices, technological or human, including informants. The two whispered about how they could tap their father as Exhibit A in support of whatever side of the topic they were tasked to argue. That was a joke. At the start their father’s covert work, keeping tabs on a local militia for the FBI, seemed more abstract than real—and kinda cool.
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Excerpted from the book WHITE HOT HATE: A True Story of Domestic Terrorism in America’s Heartland by Dick Lehr. Copyright © 2021 by Richard Lehr. From Mariner Books, an imprint of HarperCollins Publishers. Reprinted by permission.
