9-90.020 National Security Matters -- Prior Approval, Consultation, and Notification Requirements

1. Authority to Conduct Prosecutions Relating to the National Security. The enforcement of all criminal laws affecting, involving or relating to the national security, and the responsibility for prosecuting criminal offenses, such as conspiracy, perjury and false statements, arising out of offenses related to national security, is assigned to the Assistant Attorney General (AAG) of the Criminal Division.
   All prosecutions affecting, involving or relating to the national security shall be conducted, handled, or supervised by the AAG, Criminal Division, or higher authority. 28 C.F.R. § 0.61. The ISS of the Criminal Division, under the supervision of the AAG or a higher authority, conducts, handles, and supervises prosecutions affecting, involving or relating to the national security.

   Prosecution of a case affecting, involving, or relating to the national security shall not be instituted without the express authorization of the Criminal Division or higher authority. The Criminal Division shall be consulted before an arrest is made, a search warrant is obtained, a grand jury investigation is commenced, immunity is offered, an indictment is presented, an information filed, or a civil injunctive action filed, a prosecution is declined, a count is dismissed, a sentencing commitment or other disposition is made, or an adverse ruling or decision is appealed in cases affecting, involving, or related to the national security as defined in this section.

   Criminal provisions affecting, involving, or relating to the national security are:

   2 U.S.C. § 192 (Contempts of Congress Related to National Security)

   8 U.S.C. § 1185(b) (Travel Controls of Citizens)

   18 U.S.C. § 219 et seq. (Officers and Employees of the United States Acting as Foreign Agents)

   18 U.S.C. § 791 et seq. (Espionage; Unauthorized Disclosure of Classified Information)

   18 U.S.C. § 951 et seq. (Neutrality Laws)

   18 U.S.C. § 1030(a)(1) (Computer Espionage)

   18 U.S.C. § 1542 et seq. (Passport Violations Related to National Security)

   18 U.S.C. § 1924 (Unauthorized Removal and Retention of Classified Documents or Material)

   18 U.S.C. § 1831 (Economic Espionage)

   18 U.S.C. § 2151 et seq. (Sabotage)

   18 U.S.C. § 2381 et seq. (Treason, Sedition and Subversive Activities)

   22 U.S.C. § 611 et seq. (Foreign Agents Registration)

   22 U.S.C. § 2778 (Arms Export Control Act)

   42 U.S.C. § 2274 to 2278, 2284, and other Atomic Energy Violations that Affect National Security (Atomic Energy Act)

   50 U.S.C. § 421 (Intelligence Identities Protection Act)

   50 U.S.C. § 782 et seq. (Communication of Classified Information by Government Officer or Employee)

   50 U.S.C. § 851 et seq. (Registration of Person Who Has Knowledge Concerning Espionage Activities)

   50 U.S.C. § 1701 et seq. (International Emergency Economic Powers Act)

   50 U.S.C. § 2401 et seq. (Export Administration Act)

   50 U.S.C. App. § 5(b) (Trading With the Enemy Act)

   Consultation Requirements. Consultation with the ISS is required in all cases in which classified information plays a role in the prosecutive decision, and all cases that require the protections afforded by the Classified Information Procedures Act, 18 U.S.C. app. §§ 1-16, i.e., cases in which classified information may be disclosed during the pretrial, trial and appellate stages of the litigation.

   Before initiating a prosecution under 2 U.S.C. § 441e, Campaign Contributions by Foreign Nationals, the Registration Unit of the Internal Security Section, (202) 514-1216, should be consulted.

9-90.050 National/International Security Coordinators in United States Attorneys' Offices

9-90.100 General Policies Concerning Prosecutions For Crimes Directed at National Security and for Other Crimes in which National Security Issues May Arise

The Criminal Resource Manual contains copies of policy memoranda from the Deputy Attorney General

September 21, 1994, Memorandum from Deputy Attorney General concerning Requirement of Consultation on National Security Issues	Criminal Resource Manual at 2049
May 5, 1995, Memorandum From Deputy Attorney General Concerning Provision of National Security Information to Judges Staff and Use of Intelligence Agency Attorneys	Criminal Resource Manual at 2050
May 5, 1995, Memorandum from Deputy Attorney General Concerning Focal Points for Initial Contacts with Intelligence Community in Criminal Cases	Criminal Resource Manual at 2051

9-90.200 Policies and Procedures for Criminal Cases That Involve Classified Information

9-90.210 Contacts with the Intelligence Community Regarding Criminal Investigations or Prosecutions

1. 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 Criminal Division's (ISS). A request to the ISS 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

   1. 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;

   2. 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

   3. 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 Criminal Division's ISS. The USA or his/her designee must approve the AUSA's request before it is submitted to the ISS. See paragraph B, supra. The ISS, 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 ISS.

   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 Criminal Division, ISS, 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 ISS, 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 ISS 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 ISS are available to advise the prosecutor on such matters.

9-90.230 Disclosure Of Classified Information to the Grand Jury

9-90.240 Classified Information Procedures Act (CIPA)

1. notify ISS if a district court or appellate court will not accept a substitution proposed by the government under section 6(c);
2. obtain the prior approval of the Solicitor General to file an interlocutory appeal under Section 7(a) of CIPA; and
3. immediately notify ISS if it becomes likely that an intelligence agency employee will testify in any criminal case.

9-90.300 Policies for the Prosecution of Espionage, Export and Other Internal Security Offenses

9-90.400 Atomic Energy Act

9-90.440 Other Prohibited Transactions Involving Nuclear Materials -- 18 U.S.C. § 831

9-90.500 Internal Security

9-90.550 Contempt of Congress -- 2 U.S.C. § 192

9-90.600 Export Control and Unlawful Transactions with Foreign Countries

9-90.610 Export Administration Act -- 50 U.S.C. App. §§ 2401 to 2420

9-90.620 Arms Export Control Act -- 22 U.S.C. § 2778

9-90.630 Trading With the Enemy Act -- 50 U.S.C.App. § 5(b)/Foreign Assets Control

9-90.640International Emergency Economic Powers Act -- 50 U.S.C. § 1701 et seq.

9-90.700Registration and Lobbying Provisions

9-90.710Foreign Agents Registration Act -- 22 U.S.C. § 611 et seq.

9-90.720Public Officials Acting As Agents Of Foreign Principals -- 18 U.S.C. § 219

9-90.800Miscellaneous