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792

Incentives for Subjects and Targets of Criminal Investigations and Defendants in Criminal Cases to Provide Foreign Intelligence Information

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
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 information—including significant opportunities to identify potential human sources—also 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 new—they exist in current guidelines and policies—but 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]

  1. 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.

  2. 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]

  3. 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.

  4. 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.

  5. 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

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 location.

[updated July 2007] [cited in USAM 9-27.120]