MEMORANDUM
TO: All United States Attorneys,
All National Security Coordinators
FROM: Jamie Gorelick /s/
Deputy Attorney General
SUBJECT: Provision of Information to Judges and Staff on
National Security Issues; Use of Intelligence Agency Attorneys
As you may know, in January, 1995, the Deputy Director of Central
Intelligence and I formed the Joint Intelligence Community Law Enforcement
Working Group. The law enforcement members of that group, whom I appointed,
are from the Department's Criminal Division, from a large U.S. Attorney's
Office, and from federal law enforcement agencies. They are joined by
representatives from the various intelligence agencies. All members of the
working group are very knowledgeable and experienced in the area of national
security law and related issues.
The working group has prepared written guidelines and standards
pertaining to national security issues for inclusion in the U.S. Attorney's
Manual, including a discussion of the Classified Information Procedures Act
(CIPA), Title 18, United States Code, Appendix III, and the defense of
public authority under Fed. R. Crim. P. 12.3. See this Manual at 2055.
A closely-related issue that the working group has also addressed is
the critical need for judges who have pending before them cases involving
national security issues, as well as their staffs, to be familiar with the
intelligence community, with the operational constraints imposed by law upon
the intelligence community, and with the procedures, including CIPA, for
dealing with classified information during a criminal case. It is essential
that the AUSA assigned to a case involving classified information make every
reasonable effort to inform the court about CIPA and about related national
security issues. The Criminal Division, in particular the Internal Security
Section (ISS)[FN1], is available to assist you in this effort.[FN2]
FN1. Presently pending approval of Congress is a proposed reorganization
of the Criminal Division. Under that plan, the ISS will be replaced by the
National Security Section. Once the effective date of that change is
published, all references herein to the ISS should thereafter be construed
as referring to the new National Security Section.
FN2. The ISS must be consulted with respect to any case in which classified
information may be disclosed, may play a role in any prosecutive decision,
or in which the Classified Information Procedures Act may be utilized. USAM 9-90.000 et seq.
An excellent way to begin the task of informing the court in most
cases involving classified information is by a motion and memorandum of law
seeking a protective order pursuant to CIPA Section 3. In other cases,
where the prosecutor may be uncertain if certain classified information is
subject to the government's discovery obligation, the government may,
pursuant to CIPA Section 4, seek ex parte rulings from the court on
that issue. In that event, an ex parte motion for a CIPA Section 4
hearing may provide an excellent opportunity to inform the court about the
issues and law pertaining to classified information.[FN3}
FN3. For further information about these motions and related issues,
see the new sections on National Security in the U.S. Attorney's Manual,
Section 9-90.000 et seq., or contact the ISS.
In certain instances, the AUSA may also wish to use intelligence
community attorneys, i.e., those who work for the General Counsel of
an intelligence agency, as advisors or consultants on the difficult and
challenging issues related to prosecutions involving classified
information. Although these attorneys represent the interests of the
intelligence community, they are also officers of the court. Moreover,
in cases such as United States v. Noriega and others, they have
provided invaluable assistance both to the courts and to the assigned
Assistant U.S. Attorneys as they wrestled with the difficult due process
issues that arise when a defendant demands access to classified
information.[FN4]
FN4. It is important that the AUSA advise the ISS immediately of any
significant problems and conflicts that develop in these cases.
The prosecuting attorney remains ultimately responsible to maintain
the integrity of the case and the confidence of the Court. In cases
involving classified information, that responsibility includes the overall
management and tactical control of the litigation of intelligence-related
issues. I encourage AUSAs, in meeting that responsibility and in preparing
to educate the court, to consult with ISS as well as with intelligence
community attorneys, and to utilize their knowledge and experience in
helping to structure proceedings to protect the due process rights of the
defendant and the national security needs of the nation.
[cited in USAM 9-90.100] |