MEMORANDUM TO ALL UNITED STATES ATTORNEYS|
FROM:Jamie S. Gorelick /s/
Deputy Attorney General
SUBJECT: Requirement of Consultation on National Security Issues
With increasing frequency, your offices are faced with
decisions which may have an impact on national security issues. It is
important that we work together to assure prompt, consistent and effective
responses to these issues, and consultation with the Department is the first
step in reaching that goal.
As I am sure most of you are aware, the United States Attorneys'
Offices are required to consult with the Criminal Division with respect to
any national security issue which may arise in a prosecution (USAM 9-90.100). The term "national security
issue" is meant to be a broad one, encompassing any issue relating to "the
national defense, foreign intelligence or foreign counterintelligence,
internal security, and foreign relations."
Accordingly, I ask that each of you make sure that your staff is
aware of the general policy of consultation and notification on national
security issues and of the need to increase their sensitivity to these
matters, particularly in the areas of foreign policy and intelligence. Your
staff should understand the range of matters which are considered national
security issues, and the expectation that consultation will occur even if
there is only a potential national security concern. In addition, I ask
that you take steps in your Office to assure that there is a procedure in
place for identifying national security issues and raising them with your
Office's National Security Coordinator or discussion with Washington.
In some instances Assistant Attorney General approval, if not
approval at a higher level, may be required before a particular
investigative or prosecutorial step may proceed. In a variety of settings,
the Department informs and consults with other agencies such as the National
Security Council, the Central Intelligence Agency, or the Departments of
State or Defense, on cases with national security implications. This
process will be coordinated by the Executive Office for National Security
which reports to them.
National Security issues are sensitive and complex, with
explosive results. Consultation serves your interests as well as those of
the Department of Justice and the Administration as a whole. In addition to
the general policy regarding national security issues discussed above,
described below are a number of particular matters requiring notice to and
consultation with (if not approval of) the Department.
- Prosecution of matters relating to the national
security: Approval of the Criminal Division (or a higher authority) is
required to initiate the prosecution of any of a series of specified
"national security" offenses such as espionage, trafficking in or export of
nuclear materials, controlled technology in or export of nuclear materials,
controlled technology or arms, violations of the foreign agents registration
act (USAM 9-90.020). This requirement
extends to all significant prosecutive decisions (for example, obtaining a
search warrant, commencing a grand jury investigation, offering immunity,
presenting an indictment, obtaining an arrest warrant). The initial point
of contact is the Internal Security Section.
- Prosecutive decisions involving classified information:
The Criminal Division's Internal Security Section 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 9-90.020). In addition, a decision to
decline prosecution based on potential disclosure of classified information
requires approval of the Assistant Attorney General, Criminal Division, as
well as notice to the Congress.
- Moreover, the general requirement of consultation with respect to
national security issues should apply in any instance in which issues
potentially involving intelligence information or the intelligence agencies
arise in a prosecution. These are not only sensitive in the national
security sense, but also must be dealt with carefully and early on as a
matter of investigative and prosecutive strategy. The U.S. Attorneys'
Offices should be particularly sensitive to the increasing emergence of such
issues in international drug trafficking cases, and bring them to the
attention of the Criminal Division.
- Prosecutive decisions or actions involving foreign relations
or treaties: The U.S. Attorney's manual identifies a number of matters
directly involving foreign relations or our international treaties.
Generally, the initial point of contact is the Criminal Division's Office of
International Affairs. These matters include: requesting international
extradition; seeking foreign evidence by letters rogatory or through out
[sic] Mutual Legal Assistance treaties; concluding any agreement to decline
or delay extradition or deportation; AUSA official travel to foreign
- Beyond the specific provisions of the mutual, however, the U.S.
Attorneys' Offices will need to be sensitive to those cases which, by their
very nature, raise foreign policy concerns. The indictment of a high
ranking foreign official, for example, can give rise to significant foreign
policy concerns and thus, pursuant to Presidential directive, must be
coordinated with other agencies. Also, prosecutions which touch, even if
indirectly, on our dealings with countries such as Cuba, Libya, Haiti or
North Korea, should be discussed with Washington, for they may give rise
to issues of extraordinary sensitivity.
- In addition, I want to stress the importance of your personal
attention to a particular problem in extradition cases that threatens
serious harm to bilateral law enforcement relations we have struggled for
years to build. The problem is our failure to meet deadlines for
submission of extradition documents to foreign governments. The result can
be not only release to our defendants, but damage to our relations and our
reputation as a reliable treaty partner. Unfortunately, the failure of one
office affects all of us. Each of you must have in place a system to assure
that documents are completed and sent to Washington with ample time for
translation, certification, and transmittal abroad.
- Actions implicating foreign sovereignty interests: There
are a variety of investigative or prosecutive actions that may be viewed by
a foreign country as infringing on its sovereignty; such issues come within
the national security framework, but they are not necessarily easy to
identify and their potential sensitivity in foreign policy terms may not be
- Examples include the following: extraterritorial abductions
level interagency coordination required); luring fugitives from abroad
(consultation with Criminal Division under general "national security"
policy); issuing subpoenas on U.S. entities to compel production of evidence
in foreign offices (Criminal Division approval); any investigative or
prosecutive act in Switzerland or other Western European countries
(including telephone calls to witnesses or targets originating in the U.S.)
against property located overseas (Criminal Division notification); and
sending agents or confidential informants into foreign countries without
host government approval.
Point of Contact:
- As noted above, for several issues you will find in the U.S.
Attorney's Manual a particular Section of the Criminal Division designated
as your initial point of contact. However, should you have a question about
to whom you should turn or the extent to which a matter may have national
security implications of a matter, and, above all, in any instance involving
an issue of urgency or particular sensitivity, please contact directly
Deputy Assistant Attorney General Mark M. Richard (202-514-2333) or John
Martin, Chief of the Internal Security Section (202-514-1187).
[cited in USAM 9-90.100]