9-90.200
Policies and Procedures for Criminal Cases That Involve Classified
Information
With the concurrence of the appropriate
Deputy Assistant Attorney General (DAAG), National Security
Division, or of the DAAG's designated National Security Division
Section Chief, the Department attorney or the assigned AUSA may
seek access to classified information in the custody and control of
one or more of the United States intelligence agencies. The
National Security Division's Counterespionage Section (CES) has
primary responsibility to assist all Departmental officials and
USAOs on all matters related to national security, including
approval of requests for production of preexisting classified
information in connection with an anticipated or ongoing criminal
prosecution. Other sections of the National Security Division may
also assist, according to the subject matter of the activity
involved in a particular prosecution. Occasionally, a law
enforcement agency may also possess documents that are classified
for national security purposes and which should be reviewed in
connection with a criminal case. The procedures discussed herein
also apply to those documents.
The Classified Information Procedures Act (CIPA), Title 18,
United States Code, App. III, is the mechanism by which the
disclosure of classified information must be controlled during the
course of a criminal prosecution. CES is responsible to insure
proper adherence to CIPA, at the pre-trial, trial, and appellate
stages of a prosecution. CES personnel will assist the prosecuting
attorney in properly drafting a request to an intelligence agency
for production of its information and/or materials for review by
the AUSA and will provide advice and consultation regarding review
and use of those materials.
There are certain unique requirements that apply to cases
involving classified information. First, only the Attorney General,
the Deputy Attorney General, the Associate Attorney General or the
Assistant Attorney General (AAG), National Security Division, can
authorize the declination of a prosecution for national security
reasons. CIPA sections 12 and 14. Such declinations must be
included in a report submitted to Congress pursuant to the
requirements of section 13 of CIPA. This report is initially
prepared by the CES.
Further, classified information that is or may be relevant to
a criminal prosecution cannot be utilized, even for discovery
purposes, without coordinating with the agency that is responsible
for classifying or declassifying that information. This rule
applies to oral disclosures of classified information, such as
certain statements by present or former government employees, or
contract employees who hold or held security clearances and were
given access to classified information. See also
USAM 9-90.240.
Because of regulatory limitations on dissemination of
classified information, special considerations apply to
investigations that involve classified information. First, when
interviewing witnesses, classified information may be discussed
only if the witnesses have appropriate security clearances and the
agency that classified the information has approved such
disclosure. See also the Criminal Resource
Manual at 2056. Second, although the grand jurors are precluded
under Fed. R. Crim. P. 6(e)(2) from disclosing matters occurring
before the grand jury, a prosecutor nevertheless may not disclose
classified information to the grand jury except by agreement of the
agency responsible for classifying that information. Third,
witnesses, subjects or targets of an investigation who have
lawfully acquired classified information cannot lawfully disclose
such information to their uncleared attorneys. Those attorneys
should therefore either obtain a securit y clearance that would
allow access to the classified information or seek to have the
information declassified. If the defense attorney chooses the
latter alternative, the prosecutor must file a motion requesting
the court to o\issue a protective order that controls the use of
that classified information and protects it from disclosure to
unauthorized persons. For guidance on how to handle classified
information during investigations or before the grand jury, see
USAM 9-90.230 and contact the
CES.
9-90.210
Contacts with the Intelligence Community Regarding Criminal
Investigations or Prosecutions
- Generally.
Although
both are arms of the Executive Branch, the Federal law enforcement
and intelligence communities have very distinct identities,
mandates, and methods. For the purpose of this chapter, the law
enforcement community (LEC) includes all Federal investigative and
prosecutive agencies. The intelligence community (IC) includes the
Central Intelligence Agency, the National Security Agency, the
Defense Intelligence Agency, and the National Reconnaissance
Office. It also includes the intelligence components of the
Department of State, Federal Bureau of Investigation, Department of
Treasury, Department of Energy, and the respective military
services. The mission of the LEC is to identify, target,
investigate, arrest, prosecute, and convict those persons who
commit crimes in violation of Federal laws. The mission of the IC
is to perform intelligence activities necessary for the conduct of
foreign relations and the protection of the national security,
including the collection of information and the production and
dissemination of intelligence; and the collection of information
concerning espionage, international terrorist activities, and
international narcotics activities.
- The Federal LEC must carry out its mission in accordance with
the provisions of the United States Constitution, case law,
statutes, and rules of procedure and evidence. Its compliance with
those constraints is continually monitored by the judicial branch.
Through its internal affairs and professional responsibility
offices, the components of the LEC also perform self-monitoring of
the legality of its investigative activities. See, e.g., the
Criminal Resource Manual at 2053(Disclosure
Of Grand Jury Information To An Intelligence Agency).
- The IC carries out its mission in accordance with the United
States Constitution, the National Security Act of 1947 and other
statutes, case law, and with select Executive Orders issued by the
President, primarily E.O. 12958 (issued by President Clinton on
October 14, 1995). The IC's compliance with legislative constraints
is monitored by the Senate Select Committee on Intelligence (SSCI)
and the House Permanent Select Committee On Intelligence (HPSCI).
The IC also polices itself through its various inspectors general
offices.
- The two communities occasionally find themselves mutually
affected by a criminal case, such as when a defendant seeks access
to classified information to assist in his/her defense. When that
occurs, an issue of major concern to both communities is the
adequate protection of sensitive intelligence sources and methods.
This protection is accomplished by the prosecutor through the
invocation of CIPA, and by the IC, by placing restrictions on
access to the information, or by including special warnings and
caveats that restrict the use of the information.
- Although coordination on matters of common concern is critical
to the proper functioning of the two communities, prosecutors must
be aware of the concomitant need of both communities to maintain a
well-delineated separation between criminal prosecutions and
foreign intelligence activities, in which less-stringent restraints
apply to the government. Not to do so may invite the perception of
an attempt to avoid criminal law protections by disguising a
criminal investigation as an intelligence operation. The judicial
response to that may be the suppression of evidence in the criminal
case, e.g., United States v. Truong Dinh Hung, 629 F.2d 908
(4th Cir. 1980).
- Approval to Request a File Search.
Initial contacts
with the IC by the Department of Justice (Department), or by any
United States Attorney's Office (USAO), for the purpose of
requesting a search of IC files in connection with a criminal
investigation or prosecution must be approved by the National
Security Division's (CES). A request to the CES by a USAO for a
search of IC files for preexisting intelligence information
relevant to a criminal investigation or indictment must be in
writing and must have been approved by the United States Attorney
(USA) or a senior designee, e.g., the First Assistant, or the
National/International Security Coordinator.
- Such requests shall be undertaken only when there exist
objective articulable facts justifying the conclusion that
- within specific files, or category of files, there will
likely be information of which the prudent prosecutor should be
aware in deciding whether, or against whom, or for what offenses to
seek an indictment from the grand jury;
- there are intelligence-related issues likely to arise
post-indictment that the prosecutor should address preemptively,
and that searching IC files is likely to duce information helpful
to resolving those issues; or
- there are documents or information within the intelligence
community that fall reasonably within the scope of the prosecutor's
affirmative discovery obligations to the defendant, as that scope
has been defined by the Federal courts.
- That the information within the possession of the intelligence
community is classified shall have no effect either on the
prosecutor's obligation to undertake the review of IC files or on
the legally-mandated scope of that review. Similarly, except as
modified by CIPA, the prosecutor's obligation to produce to the
defendant information found during that review is unaffected by the
classified nature of that information. See the
Criminal Resource Manual at 2052, for a
discussion of discovery, Brady/Giglio issues, and miscellaneous
related issues.
- The Search Request.
Immediately upon the prosecutor's
conclusion, based on the principles outlined above, that a search
of IC files is appropriate, the prosecutor should consult with the
district National/International Security Coordinator and initiate
telephonic contact with the National Security Division's CES. The
USA or his/her designee must approve the AUSA's request before it
is submitted to the CES. See paragraph B, supra. The CES, in
consultation with the Office of Intelligence Policy and Review
(OIPR), will determine whether a search of IC files is appropriate.
If there is a determination that a search of IC files is
appropriate under the circumstances described by the prosecutor,
the prosecutor will be required to prepare a written search request
to be submitted to the IC agencies through the CES.
- In line with the Department's general policy, search requests
must be focused, narrowly drawn, and based upon carefully reasoned
and case-specific grounds. Each request should be accompanied by a
prosecution memorandum that sufficiently identifies the individual
and corporate targets of the investigation (e.g., full name, known
aliases, date of birth, place of birth, social security number,
citizenship, etc.); that summarizes the evidence already known
about those targets (specifically that which the prosecution
believes justifies a search of IC files). Ordinarily, the
prosecutor should confine the search request to a period of time
that conforms with that of the underlying criminal activity that
necessitates the search and that specifies the type of information
that is sought (e.g., what, if any, witting relationship the person
has had or currently has with an IC agency, payments made to the
person, criminal activity known by the IC agency to have been
committed by the person in question, etc.). If the prosecutor's
search request pertains to witnesses who will testify for the
government, the same information should be provided as to them.
- The prosecutor should avoid asking an IC agency any conceptual
questions or to draw any conclusions about the entities named,
especially conclusions of a legal nature. Rather, the search
request should present questions that require answers consisting of
discrete facts that will enable the prosecutor to draw conclusions
concerning the broader conceptual issues extant in his/her case.
- Submitting the Search Request to the IC.
The National
Security Division, CES, acting on behalf of the prosecutor, will
formally transmit the search request to the appropriate element(s)
of the IC. In some cases, that request may be followed by a
planning and strategy meeting between the assigned prosecutors, the
CES, and representatives of the appropriate IC agencies.
- To expedite the pace of the search, the prosecutor should
request that each IC agency obtain limited third agency waivers
from other IC agencies for purposes of the initial review of
documents in response to the search request. Except with certain
very sensitive types of classified information, this will normally
allow an agency that possesses a responsive classified document
originated by another agency to produce that document to the
prosecutors without having first to obtain the permission of the
originating agency. Any subsequent disclosure or dissemination
beyond the prosecutor's initial review of the documents must first
be approved by the originating agency.
- Review of Documents Identified by the IC as Responsive to
the Search Request.
Members of the prosecution team (including
the attorneys and investigators) must have all necessary security
clearances before they will be permitted access to classified
information. This may be accomplished by contacting the Security
Programs Staff for the Executive Office for United States
Attorneys. In some instances when delay should be avoided, an
uncleared AUSA may have the National/International Security
Coordinator or an attorney from the CES review selected documents.
During the review of classified information, it is crucial that all
regulations pertaining to the handling of classified information be
observed. The Justice Management Divion's Security and Emergency
Planning Staff will assist the prosecutor in taking the necessary
measures in the USAO's to physically and administratively protect
any classified information that is determined to be relevant to a
particular case.
- The prosecutor must also be prepared to undertake appropriate
measures for keeping track of the IC documents that are produced in
response to a search request. Depending on the volume of documents
produced, the administrative burden of that process may be
enormous. A critical part of that burden will be the establishment
of procedures for identifying what documents are produced by the IC
agencies, and, thereafter, for indexing those documents that the
prosecutor has reviewed and determined to be relevant to the case.
In all events, classified documents obtained from the IC must be
secured in the appropriate Department approved receptical and
segregated from investigative documents produced by law enforcement
agencies. The Department's Security and Emergency Planning Office
and CES are available to advise the prosecutor on such
matters.
[cited in
Criminal Resource Manual 2052]
9-90.230
Disclosure Of Classified Information to the Grand Jury
Grand jurors do not have
the security clearances required for access to classified
information. Accordingly, disclosure of such information to a grand
jury may only be done with the approval of the agency responsible
for classifying the information sought to be disclosed.
There are measures that a prosecutor can take that will
increase the likelihood that the appropriate intelligence agency
will approve the use of its information before the grand jury.
First and foremost is the use of an unclassified summary of the
information prepared by the prosecutor in concert with the IC
agency. In other instances, the agency may simply be able to
declassify the particular document(s) involved, in whole or in
part, by excising certain portions that make the document
particularly sensitive but that are not relevant to the use desired
by the prosecutor.
Of greater difficulty would be the request of a prosecutor that
an intelligence agency officer or asset testify as a witness before
the grand jury. If a target of the grand jury investigation was, or
is, an intelligence officer, asset, or other employee of the
intelligence community, in addition to the usual concerns related
to the appearance of a target before the grand jury, the prosecutor
must take care to protect against "retaliatory" testimony by that
individual, in the form of unauthorized disclosure of classified
information. Accordingly, prior to any grand jury appearance by
such target, the Assistant United States Attorney, in coordination
with the CES, must consult with any intelligence agency whose
information may be disclosed by the target's testimony. As a rule,
because hearsay testimony is permissible before the grand jury, the
prosecutor will likely have alternatives, such as the testimony of
a summary witness, that would obviate the need for the agency
officer's testimony before the grand jury. If a summary witness is
not a viable option, however, the prosecutor must obtain the
approval of the CES before making any effort to secure the presence
before the grand jury of an intelligence agency officer or asset.
The CES will assist the prosecutor as much as possible in arranging
for that testimony or in structuring an alternative thereto that
will provide essentially the same information to the grand jury.
[cited in
USAM 9-90.200]
9-90.240
Classified Information Procedures Act (CIPA)
The Counterespionage Section (CES) is
responsible for the development and implementation of policies and
procedures related to CIPA. All Assistant United States Attorneys
and departmental attorneys prosecuting CIPA cases are required to
consult with, and closely coordinate, their cases with the CES. In
particular, prosecutors must:
- notify CES if a district court or appellate court will not
accept a substitution proposed by the government under section
6(c);
- obtain the prior approval of the Solicitor General to file an
interlocutory appeal under Section 7(a) of CIPA; and
- immediately notify CES if it becomes likely that an
intelligence agency employee will testify in any criminal
case.
See the Criminal Resource Manual at
2054, for a synopsis of CIPA. CES is also responsible for the
preparation of reports to Congress concerning cases in which
prosecution is declined for national security reasons and reports
concerning the operation and effectiveness of the act.
[cited in
USAM 9-90.200]
9-90.300
Policies for the Prosecution of Espionage, Export and Other Internal
Security Offenses
Chapter 37
of 18 U.S.C. proscribes espionage and related activities. All
prosecutions under Chapter 37 shall be initiated and conducted in
accordance with
USAM 9-90.020. Various statutes
supplement the provisions of Chapter 37 to criminalize activities
that jeopardize the national defense or national security. Key
national defense and national security provisions are synopsized in
the Criminal Resource Manual at 2057.
Prosecutions pursuant to these provisions must also be instituted
and conducted in accordance with
USAM 9-90.020. The
Counterespionage Section supervises prosecutions of espionage and
espionage related offenses.
[cited in
USAM 9-90.100]
9-90.400
Atomic Energy Act
Prosecutions under the Atomic Energy Act, 42
U.S.C. §§ 2272 to 2276, are subject to the
requirements of
USAM 9-90.020 when they involve the national security. The
Atomic Energy Act provides that prosecutions pursuant to it shall
be commenced by the Attorney General, after he or she has notified
the Nuclear Regulatory Commission. See 42 U.S.C.
§ 2271(c). Prosecutions brought pursuant to 42 U.S.C.
§ § 2272 to 2276 must be expressly authorized
by the Attorney General. See the Criminal
Resource Manual at 2058.
9-90.440
Other Prohibited Transactions Involving Nuclear Materials18
U.S.C. § 831
The Convention on the Physical
Protection of Nuclear Materials Implementation Act of 1982, Pub.L.
No. 97-351, makes it a criminal offense: (1) to possess unlawfully
or use nuclear material when it will cause substantial injury; (2)
to take or use nuclear material without authorization, or to obtain
nuclear material fraudulently; or (3) to threaten or attempt to use
nuclear material for illegal purposes. See 18 U.S.C.
§ 831.
9-90.500
Internal Security
Numerous offenses pertaining to the internal
security of the United States can be prosecuted only with the
approval of, and under the supervision of, the Assistant Attorney
General of the National Security Division, or higher authority.
Brief synopses of key internal security provisions are provided in
the Criminal Resource Manual at 2059.
Authorization and supervision requirements are found at
USAM 9-90.020. The
Counterespionage Section of the National Security Division
supervises prosecutions involving internal security.
9-90.550
Contempt of Congress2 U.S.C. § 192
The Counterespionage Section has
jurisdiction over prosecutions under 2 U.S.C. § 192 in
which witnesses have Communist Party or other subversive
connections. Under the provisions of 2 U.S.C. § 194,
contempt of Congress cases are referred directly by the Congress to
the United States Attorney, by certification. If such a case is
referred to a United States Attorney, in accordance with the
USAM 9-90.020 he or she
should immediately notify the National Security Division, and no
prosecution shall be initiated without prior authorization by the
National Security Division.
[cited in
USAM 9-69.200]
9-90.600
Export Control and Unlawful Transactions with Foreign Countries
The prosecution of any violation of export
control statutes shall be authorized only in accordance with
USAM 9-90.020 unless otherwise
noted.
The Chief of the Counterespionage Section supervises
prosecutions of export control offenses, and can be reached at
(202) 514-1187.
See also the Criminal Resource Manual at
2060 (Overseas Investigations of Export Control-Related Cases).
[updated April 2005]
9-90.610
Export Administration Act50 U.S.C. App. §§ 2401
to 2420
The Export
Administration Act, 50 U.S.C. App. §§ 2401 to 2420,
and the rules and regulations promulgated thereunder, 15 C.F.R.
§§ 768 to 799, prohibit the exportation of strategic
goods and technologies without a license from the Department of
Commerce. Violations are investigated by the Department of Commerce
and the Customs Service.
The prosecution of Export Administration Act violations
frequently involves foreign policy, national security, and
intelligence issues that require close coordination with the
Department of Commerce, Department of State, the CIA and other
agencies. Therefore, prosecution of Export Administration Act
violations shall not be undertaken without the prior approval of
the National Security Division. See
USAM 9-90.020. However, the United States Attorney is
authorized to take whatever action is necessary to prevent the
commission of an offense where time does not permit seeking prior
authorization. Often an illegal exportation can be prevented by
seizing the items that are about to be exported. Seizure of
strategic goods and technologies that are about to be exported in
violation of the Export Administration Act is authorized by 50
U.S.C. App. Sec. 2411(a)(2)(B) and 3(A), and 22 U.S.C. Sec. 401.
9-90.620
Arms Export Control Act22 U.S.C. § 2778
The Arms Export Control Act,
22 U.S.C. § 2778, and the rules and regulations
promulgated thereunder, 22 C.F.R. § 121-130, prohibit the
importation and exportation of arms, ammunition and implements of
war without a license from the Department of State. Violations are
investigated by the Customs Service.
Unless the unlicensed shipment has no relevance to the foreign
relations of the United States (e.g., smuggling small quantities of
weapons), prosecution of violations of the Arms Export Control Act
should not be undertaken without prior approval of the National
Security Division. See
USAM 9-90.020. However, the
United States Attorney is authorized to take whatever action is
necessary to prevent the commission of an offense where time does
not permit seeking prior authorization. Often an illegal
exportation can be circumvented by seizure of the munitions
pursuant to the provisions of 22 U.S.C. § 401.
[cited in
Criminal Resource Manual 18]
9-90.630
Trading With the Enemy Act50 U.S.C. App.
§ 5(b)/Foreign Assets Control
Pursuant to the authority granted in the
Trading With the Enemy Act, 50 U.S.C.App. § 5(b), the
Secretary of the Treasury has promulgated regulations prohibiting
unlicensed transactions between U.S. nationals and certain
designated foreign countries and their nationals. See 31 C.F.R.
§ 500.101. Investigations of violations of the Foreign
Assets Control regulations are conducted by the Treasury
Department, and cases are referred by that Department to the CES.
The CES must be consulted before charging violations of the Trading
With the Enemy Act.
9-90.640
International Emergency Economic Powers Act50 U.S.C.
§ 1701 et seq.
Pursuant to the International
Emergency Economic Powers Act, 50 U.S.C.
§ § 1701 to 1706, the President is granted
authority to declare a national emergency with respect to any
unusual and extraordinary threat, which has its source outside the
United States, and to take action to meet that threat including the
imposition of controls over property in which any foreign country
or a national thereof has an interest. Criminal violations are
investigated by the Treasury Department. Prosecution of violations
which involve the exportation of property in which a foreign
national or foreign country has an interest shall not be undertaken
without prior approval of the Counterespionage Section of the
National Security Division. See
USAM 9-90.020.
9-90.700
Registration and Lobbying
Provisions
The CES enforces four registration statutes: (1)
the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C.
§ 611 et seq.; (2) the Voorhis Act, 18 U.S.C.
§ 2386; (3) the Act of August 1, 1956, 50 U.S.C.
§ § 851 to 857; and (4) the Federal Regulation
of Lobbying Act, 2 U.S.C. § 261 et seq.; and a related
statute, 18 U.S.C. § 219, which is a conflict of interest
provision. The express prior approval of the National Security
Division or higher authority must be obtained before prosecution
may be initiated under any of these provisions. See
USAM 9-90.020. In addition, the
CES is responsible for the supervision of prosecutions under 2
U.S.C. § 441e, the foreign campaign contribution
prohibition. The CES should be consulted before initiating grand
jury proceedings, or seeking an indictment or filing an information
under these provisions. In addition, the Counterespionage Section
or higher authority must be consulted prior to the dismissal of any
counts pursuant to the Foreign Agents Registration Act of 1938, as
amended 22 U.S.C. § 611 et seq. See
USAM 9-90.020. See also the
Criminal Resource Manual at 2061. For
additional information concerning the Foreign Agents Registration
Act see the Criminal Resource Manual at
2062 and 2063.
[updated February 1998]
9-90.710
Foreign Agents Registration Act22
U.S.C. § 611 et seq.
The Foreign Agents
Registration Act (FARA) requires that agents of foreign principals
engaged in political or quasi-political activities register with
the Attorney General unless exempt. Inquiries regarding
administration and enforcement of FARA should be directed to the
Registration Unit, National Security Division, Department of
Justice, Washington, D.C. 20530. No prosecution under FARA may be
instituted without the express prior approval of the National
Security Division or higher authority. See the
Criminal Resource Manual at 2062 and
2063 for an in depth discussion of FARA.
[updated February 1998]
9-90.720
Public Officials Acting As Agents
Of Foreign Principals18 U.S.C. § 219
It is
illegal for a public official to act as an agent of a foreign
principal in such a manner as to require his/her registration under
the Foreign Agents Registration Act (FARA). See 18 U.S.C.
§ 219. This prohibition does not apply to the employment
of a foreign agent as a special United States Government employee
in any case where the head of the employing agency certifies that
such employment is required in the national interest. No
prosecution under this section should be instituted without the
express authorization of the National Security Division or higher
authority. See
USAM 9-90.020. See also the
Criminal Resource Manual at 2064 and
2065.
Note that Members of Congress are not expressly covered by 18
U.S.C. § 219.
9-90.800
Miscellaneous
Prosecutions pursuant to criminal statutes
not primarily concerned with national security may affect national
security. In such situations, prosecutions shall be instituted and
conducted under the supervision of the Assistant Attorney General,
National Security Division, or higher authority.
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