National Security Matters—Prior Approval, Consultation, and Notification Requirements

What Constitutes a Case Affecting, Involving, or Relating to the National Security.

National Security Statutes

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

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

8 U.S.C. § 1185(b) (Travel Control 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. § 3121 (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. § 4801 et seq. (Export Control Reform Act)

50 U.S.C. § 4305(b) (Trading With the Enemy Act)

Other Matters that Affect the National Security

A variety of other Federal statutes may also be used to prevent, disrupt, and prosecute national security threats. Thus, prosecutions pursuant to criminal statutes other than those set forth in 9-90.020(A)(1) may also affect national security (e.g., a case involving wire fraud or hacking by or on behalf of a foreign government in which 18 U.S.C. § 1831 or 18 U.S.C.§ 1030(a)(1) are not specifically included as charges)

deral statutes may also be used to prevent, disrupt, and prosecute national security threats. Thus, prosecutions pursuant to criminal statutes other than those set forth in 9-90.020(A)(1) may also affect national security (e.g., a case involving wire fraud or hacking by or on behalf of a foreign government in which 18 U.S.C. § 1831 or 18 U.S.C.§ 1030(a)(1) are not specifically included as charges).

If a particular matter affects the national security, or if there is a reasonable question about whether a particular matter affects the national security, the USAO shall consult with CES to discuss how the matter should be treated. If the USAO is coordinating with another component of Main Justice, the USAO shall consult directly with CES unless the other component of Main Justice has agreed to facilitate this required consultation.

Consultation and Approval Requirements.

Prosecution of a case involving a national security statute set forth in 9-90.020(A)(1) shall not be instituted without the express approval of the National Security Division or higher authority. In addition, in such cases, CES 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 is filed,

a civil injunctive action is filed,

a prosecution  is declined,

a count is dismissed,

a plea agreement is filed,

a sentencing commitment or other disposition is made,

or an adverse ruling or decision is appealed.

In any other prosecution  that affects the national security, regardless of the specific statute(s) implicated, or if there is a reasonable question about whether a particular matter affects the national security, the USAO shall consult with CES to discuss how the matter should be treated and whether the above prior approval or consultation requirements should apply

ruling or decision is appealed.

In any other prosecution  that affects the national security, regardless of the specific statute(s) implicated, or if there is a reasonable question about whether a particular matter affects the national security, the USAO shall consult with CES to discuss how the matter should be treated and whether the above prior approval or consultation requirements should apply. If the USAO is coordinating with another component of Main Justice, the USAO shall consult directly with CES unless the other component of Main Justice has agreed to facilitate this required consultation.

Consultation with CES is also 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. 3, i.e., cases in which classified information  may be disclosed during the pretrial, trial or appellate stage of the litigation.

Finally, before initiating a prosecution under 2 U.S.C. § 441e, Campaign Contributions by Foreign Nationals, the Registration Unit of CES, (202) 233-0986, shall be consulted.

[cited in

JM 9-2.111

;

JM 9-90.010

;

JM 9-90.300

;

JM 9-90.400

;

JM 9-90.500

;

JM 9-90.550

;

JM 9-90.600

;

JM 9-90.610

;

JM 9-90.620

;

JM 9-90.640

;

JM 9-90.700

;

JM 9-90.720

]

[updated December 2020]