2049. September 21, 1994, Memorandum From Deputy Atty General Concerning Requirement Of Consultation On National Security Issues
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 prosecutorial 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 (JM 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 potentially 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 (JM 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. (JM 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 countries.
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 beExamples include the following: extraterritorial abductions (senior 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 JM 9-90.100]