Contacts with the Intelligence Community Regarding Criminal Investigations or Prosecutions

Generally.

Although both are arms of the Executive Branch, the Federal law enforcement and intelligence communities have very distinct identities, mandates, and methods. For the purpose of this chapter, the law enforcement community (LEC) includes all Federal investigative and prosecutive agencies. The intelligence community (IC) includes the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, and the National Reconnaissance Office. It also includes the intelligence components of the Department of State, Federal Bureau of Investigation, Department of Treasury, Department of Energy, and the respective military services. The mission of the LEC is to identify, target, investigate, arrest, prosecute, and convict those persons who commit crimes in violation of Federal laws. The mission of the IC is to perform intelligence activities necessary for the conduct of foreign relations and the protection of the national security, including the collection of information and the production and dissemination of intelligence; and the collection of information concerning espionage, international terrorist activities, and international narcotics activities.

The Federal LEC must carry out its mission in accordance with the provisions of the United States Constitution, case law, statutes, and rules of procedure and evidence. Its compliance with those constraints is continually monitored by the judicial branch. Through its internal affairs and professional responsibility offices, the components of the LEC also perform self-monitoring of the legality of its investigative activities.

The IC carries out its mission in accordance with the United States Constitution, the National Security Act of 1947 and other statutes, case law, and with select Executive Orders issued by the President, primarily E.O. 12958 (issued by President Clinton on October 14, 1995)

sponsibility offices, the components of the LEC also perform self-monitoring of the legality of its investigative activities.

The IC carries out its mission in accordance with the United States Constitution, the National Security Act of 1947 and other statutes, case law, and with select Executive Orders issued by the President, primarily E.O. 12958 (issued by President Clinton on October 14, 1995). The IC's compliance with legislative constraints is monitored by the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee On Intelligence (HPSCI). The IC also polices itself through its various inspectors general offices.

The two communities occasionally find themselves mutually affected by a criminal case, such as when a defendant seeks access to classified information to assist in his/her defense. When that occurs, an issue of major concern to both communities is the adequate protection of sensitive intelligence sources and methods. This protection is accomplished by the prosecutor through the invocation of CIPA, and by the IC, by placing restrictions on access to the information, or by including special warnings and caveats that restrict the use of the information.

Although coordination on matters of common concern is critical to the proper functioning of the two communities, prosecutors must be aware of the concomitant need of both communities to maintain a well-delineated separation between criminal prosecutions and foreign intelligence activities, in which less-stringent restraints apply to the government. Not to do so may invite the perception of an attempt to avoid criminal law protections by disguising a criminal investigation as an intelligence operation. The judicial response to that may be the suppression of evidence in the criminal case, e.g.,

United States v. Truong Dinh Hung

, 629 F.2d 908 (4th Cir. 1980).

Approval to Request a File Search

less-stringent restraints apply to the government. Not to do so may invite the perception of an attempt to avoid criminal law protections by disguising a criminal investigation as an intelligence operation. The judicial response to that may be the suppression of evidence in the criminal case, e.g.,

United States v. Truong Dinh Hung

, 629 F.2d 908 (4th Cir. 1980).

Approval to Request a File Search.

Initial contacts with the IC by the Department of Justice (Department), or by any United States Attorney's Office (USAO), for the purpose of requesting a search of IC files in connection with a criminal investigation or prosecution must be approved by the National Security Division's (CES). A request to the CES by a USAO for a search of IC files for preexisting intelligence information relevant to a criminal investigation or indictment must be in writing and must have been approved by the United States Attorney (USA) or a senior designee, e.g., the First Assistant, or the National/International Security Coordinator.

Such requests shall be undertaken only when there exist objective articulable facts justifying the conclusion that

within specific files, or category of files, there will likely be information of which the prudent prosecutor should be aware in deciding whether, or against whom, or for what offenses to seek an indictment from the grand jury;

there are intelligence-related issues likely to arise post-indictment that the prosecutor should address preemptively, and that searching IC files is likely to duce information helpful to resolving those issues; or

there are documents or information within the intelligence community that fall reasonably within the scope of the prosecutor's affirmative discovery obligations to the defendant, as that scope has been defined by the Federal courts.

That the information within the possession of the intelligence community is classified shall have no effect either on the prosecutor's obligation to undertake the review of IC files or on the legally-mandated scope of that review

munity that fall reasonably within the scope of the prosecutor's affirmative discovery obligations to the defendant, as that scope has been defined by the Federal courts.

That the information within the possession of the intelligence community is classified shall have no effect either on the prosecutor's obligation to undertake the review of IC files or on the legally-mandated scope of that review. Similarly, except as modified by CIPA, the prosecutor's obligation to produce to the defendant information found during that review is unaffected by the classified nature of that information.

The Search Request.

Immediately upon the prosecutor's conclusion, based on the principles outlined above, that a search of IC files is appropriate, the prosecutor should consult with the district National/International Security Coordinator and initiate telephonic contact with the National Security Division's CES. The USA or his/her designee must approve the AUSA's request before it is submitted to the CES.

See

paragraph B, supra. The CES, in consultation with the Office of Intelligence Policy and Review (OIPR), will determine whether a search of IC files is appropriate. If there is a determination that a search of IC files is appropriate under the circumstances described by the prosecutor, the prosecutor will be required to prepare a written search request to be submitted to the IC agencies through the CES.

In line with the Department's general policy, search requests must be focused, narrowly drawn, and based upon carefully reasoned and case-specific grounds. Each request should be accompanied by a prosecution memorandum that sufficiently identifies the individual and corporate targets of the investigation (e.g., full name, known aliases, date of birth, place of birth, social security number, citizenship, etc.); that summarizes the evidence already known about those targets (specifically that which the prosecution believes justifies a search of IC files)

ch request should be accompanied by a prosecution memorandum that sufficiently identifies the individual and corporate targets of the investigation (e.g., full name, known aliases, date of birth, place of birth, social security number, citizenship, etc.); that summarizes the evidence already known about those targets (specifically that which the prosecution believes justifies a search of IC files). Ordinarily, the prosecutor should confine the search request to a period of time that conforms with that of the underlying criminal activity that necessitates the search and that specifies the type of information that is sought (e.g., what, if any, witting relationship the person has had or currently has with an IC agency, payments made to the person, criminal activity known by the IC agency to have been committed by the person in question, etc.). If the prosecutor's search request pertains to witnesses who will testify for the government, the same information should be provided as to them.

The prosecutor should avoid asking an IC agency any conceptual questions or to draw any conclusions about the entities named, especially conclusions of a legal nature. Rather, the search request should present questions that require answers consisting of discrete facts that will enable the prosecutor to draw conclusions concerning the broader conceptual issues extant in his/her case.

Submitting the Search Request to the IC.

The National Security Division, CES, acting on behalf of the prosecutor, will formally transmit the search request to the appropriate element(s) of the IC. In some cases, that request may be followed by a planning and strategy meeting between the assigned prosecutors, the CES, and representatives of the appropriate IC agencies.

To expedite the pace of the search, the prosecutor should request that each IC agency obtain limited third agency waivers from other IC agencies for purposes of the initial review of documents in response to the search request

In some cases, that request may be followed by a planning and strategy meeting between the assigned prosecutors, the CES, and representatives of the appropriate IC agencies.

To expedite the pace of the search, the prosecutor should request that each IC agency obtain limited third agency waivers from other IC agencies for purposes of the initial review of documents in response to the search request. Except with certain very sensitive types of classified information, this will normally allow an agency that possesses a responsive classified document originated by another agency to produce that document to the prosecutors without having first to obtain the permission of the originating agency. Any subsequent disclosure or dissemination beyond the prosecutor's initial review of the documents must first be approved by the originating agency.

Review of Documents Identified by the IC as Responsive to the Search Request.

Members of the prosecution team (including the attorneys and investigators) must have all necessary security clearances before they will be permitted access to classified information. This may be accomplished by contacting the Security Programs Staff for the Executive Office for United States Attorneys. In some instances when delay should be avoided, an uncleared AUSA may have the National/International Security Coordinator or an attorney from the CES review selected documents. During the review of classified information, it is crucial that all regulations pertaining to the handling of classified information be observed. The Justice Management Division's Security and Emergency Planning Staff will assist the prosecutor in taking the necessary measures in the USAO's to physically and administratively protect any classified information that is determined to be relevant to a particular case.

The prosecutor must also be prepared to undertake appropriate measures for keeping track of the IC documents that are produced in response to a search request

n's Security and Emergency Planning Staff will assist the prosecutor in taking the necessary measures in the USAO's to physically and administratively protect any classified information that is determined to be relevant to a particular case.

The prosecutor must also be prepared to undertake appropriate measures for keeping track of the IC documents that are produced in response to a search request. Depending on the volume of documents produced, the administrative burden of that process may be enormous. A critical part of that burden will be the establishment of procedures for identifying what documents are produced by the IC agencies, and, thereafter, for indexing those documents that the prosecutor has reviewed and determined to be relevant to the case. In all events, classified documents obtained from the IC must be secured in the appropriate Department approved receptacle and segregated from investigative documents produced by law enforcement agencies. The Department's Security and Emergency Planning Office and CES are available to advise the prosecutor on such matters.

[updated January 2020]