792
Incentives for Subjects and Targets of Criminal
Investigations and Defendants in Criminal Cases to Provide Foreign
Intelligence Information
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| January 10, 2007
| To: | All Federal Prosecutors
| From: | Paul J. McNulty
Deputy Attorney General
| Subject: | Incentives for Subjects and Targets of
Criminal Investigations and Defendants in Criminal Cases to Provide Foreign
Intelligence Information
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The number one priority of the Department of Justice and of the federal
government as a whole is the protection of the United States and its
citizens against acts of terrorism and similar threats to our national
security. It is critical to this effort that we utilize all means,
consistent with the Constitution and federal law, to gather valuable foreign
intelligence (FI) information. ("Foreign intelligence information"
encompasses a wide range of information that would be of value to the
government, including information that assists the United States in
combating international terrorism; that aids in detecting the efforts of
foreign powers to conduct intelligence activities directed at the United
States; or that generally relates to the national defense or foreign affairs
of the United States.[FN1]) Since the
terrorist attacks of September 11, 2001,
the Department has increased substantially the number of agents, analysts,
and prosecutors who focus on the collection, analysis, and dissemination of
FI information. Although these steps have improved our intelligence
capabilities, opportunities for the collection and dissemination of FI
informationincluding significant opportunities to identify potential �
human
sourcesalso arise in the work of many federal prosecutors who do not
specialize in this area. For that reason, today I am issuing a separate
memorandum requiring all federal prosecutors to be trained on the
identification and utilization of FI information.
It is important, however, not only to train prosecutors on FI-related
issues, but also to create incentives for subjects and targets of criminal
investigations, and criminal defendants, to provide FI information. Federal
statutes, the Sentencing Guidelines, and Department policies offer strong
incentives for criminal defendants to provide "substantial assistance" in
the investigation and prosecution of other persons who have committed
criminal offenses. See, e.g., 18 U.S.C. § 3553(e);
U.S.S.G. § 5K1.1; Fed. R. Crim. P. 35(b). But these provisions do
not generally apply to subjects, targets, and defendants who possess
information with substantial FI value that, even if disclosed, would not
result in a criminal investigation or prosecution. This situation could
arise in a variety of circumstances. For instance, a terrorism defendant
might identify a weakness in an airport security system but know of no one
who has exploited that weakness to commit a crime. Or a defendant may be
able to assist in recruiting a human intelligence source in a foreign
nation, even though he has no information that that person has committed any
crime.
This memorandum is intended to identify several specific means that �
federal
prosecutors should consider to reward subjects, targets, and defendants for
providing valuable FI information. These means are not newthey exist in
current guidelines and policiesbut it has not to date been clarified �
that
they can apply in this context. Nor are the means discussed below
exclusive. Consistent with applicable federal law and Department policies,
federal prosecutors should consider other appropriate incentives that could
be offered to subjects, targets, and defendants to provide valuable FI
information, including seeking exceptions to such policies from the
appropriate decision-making official.
At the same time, the process of obtaining FI information from subjects,
targets, and defendants raises significant issues that will require careful
coordination with the Department's National Security Division (NSD) and the
Federal Bureau of Investigation (FBI). While federal prosecutors often will
be in a position to identify FI information, they will rarely be in a
position to assess the value of that information, and also may not be aware
of the sensitivities involved in sharing that information with third
parties. For that reason, it is critical that federal prosecutors who
believe that a particular subject, target, or defendant possesses valuable
FI information work closely with the FBI, which as a member of the
Intelligence Community will be able to make these assessments. In addition
to close coordination with the FBI, federal prosecutors also must obtain
approval from the NSD before offering certain incentives described in this
memorandum.[FN2] Coordination �
procedures
are set forth in greater detail in
Part II of this memorandum.
I. INCENTIVES
This section sets forth five categories of incentives that may be used,
under appropriate circumstances that will be described below, to encourage
subjects, targets, or defendants to provide FI information. These
incentives are: declining to pursue or dismissing readily provable charges;
filing substantial assistance motions; granting immunity from criminal
prosecution; recommending executive clemency; and recommending or supporting
actions by other government officials.[FN3]
�- Charging or Agreeing to a Guilty Plea to Less Than the Most Serious
Readily Provable Offense
�
- Federal prosecutors generally must charge and pursue the most serious
readily provable offense or offenses that are supported by the facts of the
case. See Department Policy Concerning Charging Criminal Offenses,
Disposition of Charges, and Sentencing (Sept. 22, 2003) ("Ashcroft
Memorandum"). In exceptional circumstances, however, federal prosecutors
may decline to pursue or may dismiss readily provable charges with the
written or otherwise documented approval of an Assistant Attorney General,
United States Attorney, or designated supervisory attorney. By this
memorandum, I am clarifying that the provision of valuable FI information by
a subject, target, or defendant can constitute an "exceptional circumstance"
under the Ashcroft Memorandum that, assuming the other relevant
circumstances of the case make it appropriate, could justify an agreement
not to pursue, or to dismiss, readily provable charges. In order to forgo
such charges for this purpose, federal prosecutors must federal prosecutors
must obtain the written or otherwise documented approval of both (i) one of
the supervisory officials set forth in the Ashcroft Memorandum; and (ii) the
Assistant Attorney General for National Security.
� - Criminal Substantial Assistance Motions�
- There is a wide range of statutes that criminalize activities relating to
terrorism and to the conduct of espionage by foreign powers. As a result, a
defendant who provides valuable foreign intelligence information may often
at the same time be substantially assisting in the investigation or
prosecution of another person who has committed a crime. For instance, a
defendant who provides intelligence concerning a potential terrorism plot
will often also provide information that substantially assists in the
investigation of another person who has committed a terrorism-related
criminal offense. As such, that defendant may be eligible for a motion for
a downward departure under U.S.S.G. §5K1.1; a motion to reduce sentence
below the mandatory minimum sentence under 18 U.S.C. § 3553(e); or a
motion
to reduce sentence under Federal Rule of Criminal Procedure 35(b).
By this memorandum, I am clarifying that, assuming the other relevant
circumstances of the case make it appropriate, a federal prosecutor may move
for a downward departure and/or recommend a greater departure (in districts
where such recommendations are made) for a defendant who has provided
valuable FI information that also is valuable to a criminal investigation or
prosecution. Similarly, a federal prosecutor may seek a departure (or
increased departure) for a defendant who has provided valuable FI
information (that is not of value to a criminal case) in addition to
substantial assistance in criminal matters.[FN4]
- It must be emphasized that this incentive should be offered only after
careful consideration, as it may result in the disclosure of FI information
in federal court proceedings. Accordingly, special steps must be taken
before a federal prosecutor may move for a downward departure for a
defendant who has provided valuable FI information that also is valuable to
a criminal investigation or prosecution. In accordance with the
coordination procedures set forth in Part II of this memorandum, before
entering into any agreement (formal or informal) with a defendant based upon
the defendant's commitment to provide valuable FI information, a federal
prosecutor must ensure the value of the information, and obtain an
assessment of the risks associated with disclosing the value of that
information to the defendant.[FN5]
Federal prosecutors must consult with the NSD
before entering into such an agreement.
- Federal prosecutors must also obtain certain approvals prior to presenting
any information to a court concerning a proposed downward departure based
upon a defendant's provision of FI information. Before filing any motion
under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or Fed. R.
Crim. P. 35(b) based in any part on a defendant's provision of such
information, or failing to object to or otherwise supporting such a motion
(whether orally or in writing), federal prosecutors must obtain the written
or otherwise documented approval of both (i) the Assistant Attorney General
(if applicable) or the United States Attorney overseeing the underlying
case; and (ii) the Assistant Attorney General for National Security. Absent
such approvals, a federal prosecutor must object to the consideration of
valuable FI information as a ground for imposition of a sentence below the
relevant Guidelines range.[FN6]
� - Immunity�
- In appropriate cases, federal prosecutors may seek a court order of �
immunity
from criminal prosecution under 18 U.S.C. § 6003 for, or enter
into a use (proffer) or derivative-use immunity agreement with, a subject,
target, or defendant in exchange for providing valuable FI information.
Like obtaining important information relevant to criminal investigations and
prosecutions, collecting valuable FI information may be "necessary to the
public interest" within the meaning of the federal immunity statute, see 18
U.S.C. § 6003(b)(1), and therefore may be an appropriate basis for
a grant of immunity, assuming that the subject, target, or defendant "has
refused or is likely to refuse to testify or provide other information on
the basis of his privilege against self-incrimination."
- Immunity can be an extremely powerful incentive for an individual facing
criminal exposure to divulge FI information. Of course, it is also a
significant benefit that must be extended consistent with the federal
immunity statute and Department and component policy. By this memorandum, I
am clarifying that federal prosecutors may seek a court order granting a
subject, target, or defendant immunity, or enter into an immunity agreement
with such an individual, in order to obtain his or her testimony about
matters that would constitute valuable FI information.
- Federal prosecutors should keep in mind, however, that testimony about FI
matters, whether before a grand jury or a public tribunal, often will raise
significant issues, and in many cases will not be in the Government's
interest. Before seeking an order to compel such testimony, federal
prosecutors therefore must (i) follow the approval procedure set forth in
Title 9 of the United States Attorney's Manual for court-ordered immunity or
office policy for immunity agreements; and (ii) obtain the written or
otherwise documented approval of the Assistant Attorney General for National
Security. As discussed in greater detail below, it is also critical that
federal prosecutors coordinate with the FBI before seeking a court order
granting immunity or entering into an immunity agreement in exchange for the
provision of valuable FI information.
� - Executive Clemency�
- Federal prosecutors may recommend executive clemency for a convicted
defendant who has provided valuable FI information. Although presidential
pardons and sentence commutation are extraordinary remedies that are rarely
granted, grounds for such clemency traditionally have included cooperation
with investigative or prosecutorial efforts that has not been adequately
rewarded by other official action.
The decision to grant executive
clemency rests in the exclusive discretion of the President, who is assisted
by the Department's Pardon Attorney. In formulating the Department's
proposed recommendation in a clemency matter, the Pardon Attorney in turn
routinely seeks the recommendation of the United States Attorney for the
district of conviction and, if the cooperation assisted investigative or
prosecutorial proceedings in a different district,
of the United States Attorney for the district where the cooperation
occurred. By this memorandum, I am clarifying that in formulating a
recommendation regarding a request for executive clemency, an Assistant
Attorney General or United States Attorney may consider, along with other
all relevant circumstances of the case, whether and to what extent the
defendant provided valuable FI information. Federal prosecutors must
consult with the NSD before recommending executive clemency be granted, in
full and in part, to reward a convicted defendant's provision of FI
information.
� - Support for Action by Other Officials�
- Federal prosecutors also may reward subjects, targets, and defendants for
providing valuable FI information by recommending and supporting action by
other government officials. Such action may include:
- Bringing the individual's assistance to the attention of foreign, state,
or local prosecutors who may have brought or may be considering bringing
charges.
- Recommending and supporting favorable action on the immigration status
of the individual and his or her family, including the granting of parole or
S-visas to allow them to reside and work lawfully in the United States.
- Recommending a place or conditions of confinement within the Bureau of
Prisons.
- Recommending and supporting payments or other financial rewards by
intelligence or law enforcement agencies to the individual in exchange for
his or her work as an asset or source.[FN7]
Federal prosecutors must not promise any action by other government
officials, who will make their own independent decisions, but must agree
only to recommend or support such action. Because FI information can be
extremely sensitive, federal prosecutors also must be careful not to
disclose FI information inappropriately in the course of recommending
favorable treatment for a subject, target, or defendant. In addition,
federal prosecutors must consult with the NSD before recommending favorable
treatment from other government officials as a reward for subject, target,
or defendant's provision of FI information.
II. COORDINATION
Federal prosecutors working with subjects, targets, and defendants who
offer to provide valuable FI information must coordinate with the FBI from
the earliest stages of such cooperation. When a federal prosecutor becomes
aware that a subject, target, or defendant may have valuable FI information,
he or she should contact the relevant FBI office (usually the local field
office or, in the case of Department trial attorneys who are not partnering
with a United States Attorney's Office (USAO), FBI Headquarters) for
assistance in the collection of the information. The FBI will be in a
position to determine the potential value of the information, a
determination which will be critical to a decision about what incentives it
may be appropriate to offer to the subject, target, or defendant. This
assessment will be made by involving an FBI agent in the debriefing of the
subject, target, or defendant. No benefits should be offered by a federal
prosecutor prior to consultation with the FBI.
The FBI also will ensure that any FI information obtained will be
disseminated to appropriate Intelligence Community and national security
officials. For these reasons, among others, it is critical that federal
prosecutors consult closely with intelligence professionals at the FBI
promptly upon determining that a subject, target, or defendant may possess
valuable FI information. Should a federal prosecutor obtain information
that he or she believes concerns a threat, that prosecutor should
immediately notify the FBI. After this notification is made to the FBI, the
federal prosecutor should (in consultation with the FBI to ensure the
appropriate handling of sensitive or classified information) also
disseminate that information through existing priority reporting channels,
such as through the USAO Anti-Terrorism Coordinator to the Regional or
National Anti-Terrorism Coordinator in the Counterterrorism Section of the
NSD, or through an Urgent Report. Should a federal prosecutor have any
doubts about how to promptly and appropriately disseminate foreign
intelligence information, he or she should contact the NSD or consult with
Intelligence Research Specialists (IRS) at the USAOs.
Finally, federal prosecutors also must be aware that the disclosure of
FI information may pose a serious risk to the national security.
Prosecutors should proceed with caution before disclosing such information
to subjects, targets, and defendants; defense counsel; judges; court
personnel; or the public. Federal prosecutors must consult with the NSD and
the FBI before taking any step that could result in such a disclosure.
Moreover, as previously discussed, NSD approval or consultation is required
before a federal prosecutor may offer certain incentives to a subject,
target, or defendant to provide FI information.
III. CONCLUSION
Subjects and targets of criminal investigations, and criminal
defendants, are potentially rich sources of valuable FI information that may
prove critical to thwarting terrorist attacks, espionage, sabotage, and
other threats to our national security. Pursuant to this memorandum and the
other memorandum I am issuing today, all federal prosecutors should be
focused on opportunities to collect FI information in criminal matters and
creative in finding ways to encourage subjects, targets, and defendants to
provide valuable FI information. Through this memorandum, I also am
directing the NSD to review annually the implementation of this memorandum;
such reviews shall include a report on the extent to which these incentives
are offered by the USAOs.
Questions regarding this memorandum should be directed either to Deputy
Assistant Attorney General J. Patrick Rowan or Deputy Assistant Attorney
General Brett C. Gerry of the NSD, at 202-514-1057.
cc:
| The Director, Federal Bureau of Investigation
The Director of National Intelligence
The Assistant Attorney General, Criminal Division
The Assistant Attorney General, National Security Division
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FN 1. A more comprehensive definition �
of
"foreign intelligence information,"
which will be used for purposes of this memorandum, is set forth in Rule
6(e)(3)(D)(iii) of the Federal Rules of Criminal Procedure:
(a) information, whether or not it concerns a United States person, that
relates to the ability of the United States to protect against
- actual or potential attack or other grave hostile acts of a foreign
power or its agent;
- sabotage or international terrorism by a foreign
power or an agent of a foreign power; or
- clandestine intelligence
activities by an intelligence service or network of a foreign power or by
its agent; or
(b) information, whether or not it concerns a United States person, with
respect to a foreign power or foreign territory that relates to
- the national defense or the security of the United States; or
- the conduct of the foreign affairs of the United States.
FN 2. It is expected that the NSD, in
making determinations concerning
whether incentives should be offered, will coordinate as appropriate with
the FBI and other members of the Intelligence Community.
FN 3. As with the provision of any
benefit to a suspect, target, or
defendant, records must be maintained of any promises to, agreements with,
or benefits conferred upon such an individual so that the govemtnent can
satisfy its discovery obligations in the event that it later sponsors that
person as a witness.
FN 4. This section also encompasses
situations in which third parties
provide substantial assistance on behalf of a defendant.
FN 5. Any written agreement should �
also
be drafted in a manner that requires
the defendant to refrain from Mher disclosures of the FI information to the
fullest extent permitted by law. Subsequent to the issuance of this
memorandum, the NSD will distribute model language for inclusion in such
agreements.
FN 6. Sections II.A
and II.B set
forth incentives for the provision of valuable FI information applicable at
both the beginning (charging) and ending (sentencing) stages of the
prosecutorial process. Given that these options offer strong and readily
available incentives to defendants to provide valuable FI information, cases
in whlch defendants provide such information do not justify a Booker
variance under current Department policy. See Department Policies and
Procedures Concerning Sentencing (Jan. 28, 2005) ("Comey Memorandum").
Moreover, it is not clear that the provision of FI information falls under
any of the factors that the sentencing court may consider under 18 U.S.C. 9
3553(a). Accordingly, federal prosecutors may not seek Booker
variances in exchange for the provision of FI information and must oppose a
defendant's motion for such a variance based on the defendant's provision of
FI information.
FN 7. In addition to these rewards, a
prosecutor for the government could
also recommend or support the placement of an individual and his or her
family in a witness security program or their relocation to a safer
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