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. JM 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 JM 9-90.100]