A. The Need for a Consistent and Coordinated National Enforcement Strategy for International Terrorism Matters.

Faced with the growing threat of international terrorism and in order to implement this nation's obligations under various international conventions designed to prevent and punish acts of terrorism, Congress has enacted significant legislation to expand the jurisdiction of the United States to investigate and prosecute terrorist activities occurring within and outside the territorial jurisdiction of the United States. Following the terrorist attacks of September 11, 2001, the Attorney General implemented various initiatives to ensure an aggressive, consistent, and coordinated national enforcement program to prevent, disrupt, and punish international terrorism. The Department and the Congress also emphasized the need for robust sharing of information related to terrorism between and among Department components and other Executive Branch agencies, including the need for relevant information collected at headquarters components to flow to the field as well as information flowing from the field to headquarters. In view of the expanded Federal criminal jurisdiction over and importance of international terrorism matters and the obvious need to ensure a well-coordinated Federal response to such matters, the following policy is established in regard to international terrorism, including terrorist acts planned or committed outside the territorial jurisdiction of the United States over which Federal criminal jurisdiction exists and those within the United States involving international terrorists and terrorist groups. The coordination is conducted by the National Security Division (NSD) and, in particular, by its Counterterrorism Section (CTS).

B. What Constitutes an "International Terrorism" Investigation.

The requirements in this section apply to all investigations involving an identified link to international terrorism. If the United States Attorney's Office (USAO) or the referring agency has opened the investigation as an international terrorism matter (such as an FBI 315 file), or if the matter is being investigated as an international terrorism matter by a Joint Terrorism Task Force, the matter will presumptively qualify as an international terrorism investigation. In addition, other investigations in which links to international terrorism are identified after the investigation is initiated will qualify at that point as international terrorism matters for purposes of this section, regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency. If there is any question about whether a matter involves international terrorism, all doubt should be resolved in favor of consultation with CTS.

The notification, consultation, and information-sharing provisions of this section apply in all international terrorism matters. The approval requirements depend on whether the Federal statute to be utilized in certain court actions is listed in Category 1 below, in which case approval is presumptively required, or Category 2, in which case approval is presumptively not required.

1. 1. International Terrorism Statutes (Category 1)

   The Federal statutes listed in this subsection represent the intent of Congress to expand the jurisdiction of the United States to investigate and prosecute international terrorism or are utilized regularly in international terrorism matters. If a Category 1 statute is being used in a terrorism investigation that is not entirely domestic— i.e., a terrorism investigation that involves foreign nationals, foreign locations, or connections to foreign countries or groups— the matter shall be deemed an international terrorism matter. This includes use of a listed statute as the object of a conspiracy or as a predicate for a RICO or other offense.

   1. • Terrorist Acts Abroad Against United States Nationals (18 U.S.C. § 2332)
   2. • Terrorism Transcending National Boundaries (18 U.S.C. § 2332b)
   3. • Hostage Taking (18 U.S.C. § 1203)
   4. • Aircraft Piracy (49 U.S.C. § 46502)
   5. • Aircraft Sabotage (18 U.S.C. § 32)
   6. • Conspiracy Within the United States to Murder, Kidnap, or Maim Persons or to Damage Certain Property Overseas (18 U.S.C. § 956)
   7. • Providing Material Support to Terrorists (18 U.S.C. § 2339A)
   8. • Providing Material Support to Designated Terrorist Organizations (18 U.S.C. § 2339B)
   9. • Prohibition Against Financing of Terrorism (18 U.S.C. § 2339C)
   10. • Violations of IEEPA (50U.S.C. § 1705(b)) involving E.O. 12947 (Terrorists Who Threaten to Disrupt the Middle East Peace Process); E.O. 13224 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism or Global Terrorism List); and E.O. 13129 (Blocking Property and Prohibiting Transactions With the Taliban)
   11. • Harboring Terrorists (18 U.S.C. § 2339)
   12. • Terrorist Attacks Against Railroads and Mass Transportation Systems (18 U.S.C. § 1992)
   13. • Use of Biological, Nuclear, Chemical or Other Weapons of Mass Destruction (18 U.S.C. §§ 175, 175b, 229, 831, 2332a)
   14. • Sabotage of Nuclear Facilities or Fuel (42 U.S.C. § 2284)
   15. • Crimes Against Internationally Protected Persons (18 U.S.C. § § 112, 878, 1116, l201(a)(4))
   16. • Bombings of places of public use, Government facilities, public transportation systems and infrastructure facilities (18 U.S.C. § 2332f)
   17. • Production, Transfer, or Possession of Variola Virus (Smallpox) (18 U.S.C. § 175c)
   18. • Participation in Nuclear and WMD Threats to the United States (18 U.S.C. § 832)
   19. • Missile Systems designed to Destroy Aircraft (18 U.S.C. § 2332g)
   20. • Production, Transfer, or Possession of Radiological Dispersal Devices (18 U.S.C. § 2332h)
   21. • Receiving Military-Type Training from an FTO (18 U.S.C. § 2339D)
   22. • Narco-Terrorism (21 U.S.C. § 960A)
   23. • Animal Enterprise Terrorism (18 U.S.C. § 43)

2. 2. Other International Terrorism Matters (Category 2)

   A variety of other Federal statutes may also be used to prevent, disrupt, and punish international terrorists. These include the statutes listed below as well as many other Federal offenses including, but not limited to, fraud offenses, immigration offenses, firearms charges, drug crimes, and false statement, perjury, and obstruction of justice offenses. While these statutes may be used in a variety of contexts, some not involving terrorism at all and others involving only domestic terrorism, if the investigation in which the statute is used involves an identified link to international terrorism, including but not limited to any link or reference to a designated Foreign Terrorist Organization (FTO), it is encompassed by the policy set forth in this section.

   1. • Arsons and Bombings (18 U.S.C. §§ 842(m), 842(n), 844(f), 844(i))
   2. • Unlicensed Money Remitter Charges (18 U.S.C. § 1960)
   3. • Protection of Computers (18 U.S.C. § 1030)
   4. • False Statements (18 U.S.C. § 1001)
   5. • Violence at International Airports (18 U.S.C. § 37)
   6. • Killings in the Course of Attack on a Federal Facility (18 U.S.C. § 930(c))
   7. • Crimes in the Special Aircraft Jurisdiction other than Aircraft Piracy (49 U.S.C. §§ 46503-46507)
   8. • Crimes Committed Within the Special Maritime and Territorial Jurisdiction of the United States (l8 U.S.C. §§ 7, 113, 114, 115, 1111, 1112, 1201, 2111)
   9. • Destruction of Interstate Gas or Hazardous Liquid Pipeline Facilities (49 U.S.C. § 60123(b))
   10. • Destruction of Communication Lines (18 U.S.C. § 1362)
   11. • Destruction of National Defense Materials, Premises, or Utilities (18 U.S.C. § 2155)
   12. • Sea Piracy (18 U.S.C. § 1651)
   13. • Violence against Maritime Navigation and Maritime Fixed Platforms (18 U.S.C. §§ 2280, 2281)
   14. • International Traffic in Arms Regulations (22 U.S.C. § 2778, and the rules and regulations promulgated thereunder, 22 C.F.R. § 121-130)
   15. • Genocide (18 U.S.C. § 1091)
   16. • Torture (18 U.S.C. § 2340A)
   17. • War Crimes (18 U.S.C. § 2441)
   18. • Recruitment or Use of Child Soldiers (18 U.S.C. § 2442)
   19. • False Information and Hoaxes (18 U.S.C. § 1038)

C. Channels for Communications Between the USAO and the National Security Division.

Communications regarding the notification, consultation, information-sharing, and approval requirements of this section should normally be made between the Anti-Terrorism Advisory Council (ATAC) Coordinator or other designated Assistant United States Attorneys (AUSAs) in the USAO and the Regional ATAC Coordinator or designated Trial Attorney in the Counterterrorism Section (CTS). If necessary, including if the usual contact is unavailable, communications may also be directed from the National Security Division to supervisory AUSAs or to the United States Attorney, and from the USAO to the CTS National ATAC Coordinator, a CTS supervisor, or the CTS Chief or the AAG or his/her staff. Communications need only be made through a single channel; multiple communications on the same matter are not required. If a substantive offense being discussed is within the area of responsibility of another section of the National Security Division (e.g., Arms Export Control Act-Counterintelligence and Export Control Section) or the Criminal Division (e.g., Torture—Human Rights and Special Prosecutions Section (HRSP)), CTS will be responsible for coordinating the matter with that section.

The main CTS telephone number is (202) 514-0849. After business hours, all CTS attorneys and the CTS duty officer may be reached by calling the Justice Command Center at (202) 514- 5000.

D. USAO Notification of CTS is Required Regarding Initiation of and Significant Developments in All International Terrorism Matters.

Initiation. The USAO shall notify CTS when any international terrorism matter is opened. The notification should include the names and identifiers, if known, of subjects of the investigation and a general overview of the investigation, so that CTS may attempt to identify linkages to, and deconflict the investigation with, investigations that may be ongoing in other districts or within CTS and may raise any concerns about the proposed investigation. To allow this process, notification should be made in advance where practicable and otherwise as soon as possible, but the USAO should not delay in taking necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone; or, as necessary to protect classified and sensitive information, by secure fax or telephone; and may utilize the standard Case Notification Form available from CTS if preferred. If after notification, CTS determines that there are related matters pending in other districts that could be affected by investigative action in the new matter, CTS will so inform the USAO and will advise the other districts of the new matter.

Significant Developments. In all international terrorism matters, the USAO shall notify CTS of significant developments in the investigation and prosecution, including the filing of search warrants; the filing of material witness warrants; the application for electronic surveillance; the declination of the matter without filing of charges; the filing and dismissal of criminal or immigration charges; the entering of plea agreements; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection H below, in certain international terrorism matters, some of these court actions also require prior approval of the National Security Division.) CTS will be responsible for reporting to the Department's leadership on such developments, although the USAO should also send Urgent Reports on such matters as required by JM Chapter 1-13.000.

E. USAO Consultation with CTS is Encouraged in All International Terrorism Investigations and is Required Before Issuing Grand Jury Subpoenas in Overlapping Investigations.

Consultation between USAOs and CTS is encouraged in all international terrorism matters. Consultation at the inception of an investigation facilitates consideration of the full range of investigative tools now available and discussion of investigative strategy. Consultation on significant investigative and prosecution developments also facilitates coordination, as necessary and appropriate, with other Department components and with other law enforcement, intelligence, defense and other agencies; such coordination is often done in practice, and sometimes must be done pursuant to Attorney General guidelines or by request of the other components and agencies, at the headquarters level. Consultation promotes careful evaluation of intelligence, defense, foreign policy and other governmental interests that often affect investigative tactics and strategies, charging decisions, discovery (including such issues as defendants' access to detained enemy combatants), use of classified information, use of expert witnesses and cooperating witnesses and defendants from other jurisdictions, jury instructions, sentencing issues, and similar concerns.

Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has a related international terrorism matter opened, the USAO shall not issue grand jury subpoenas or apply for a pen register or trap and trace order that may impact such related matters without first consulting with CTS and the other district.

F. CTS is Required to Share Relevant Information With Affected USAOs.

When CTS becomes aware, through contacts with USAOs, other National Security Division and Criminal Division Sections and Department components, including the FBI, other agencies, or otherwise, of information that may be relevant to an international terrorism matter pending in a USAO, including relevant investigative action that may be planned in another district and issues regarding FISA searches or electronic surveillance, CTS shall share that information directly with the USAO as soon as practicable and to the extent authorized by the originator of the information. Where relevant information is known to CTS but cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.

G. CTS Intranet Website Will Be Accessible to USAOs.

To the extent practical and permitted by classification, need-to-know, operational security, court sealing, and similar restrictions, CTS should also share available information about activities in terrorism matters generally with all USAOs. A large amount of such information, including the CTS Daily Reports, is available to USAOs through the CTS intranet website. United States Attorneys, ATACs, and other AUSAs with a need to know may obtain licenses allowing access to the CTS website by contacting EOUSA.

H. Prior Express Approval of the Assistant Attorney General of the National Security Division or His Designee is Presumptively Required Regarding Certain Court Actions in Category 1 Matters, and is Required in Category 2 Matters Where Requested By the Assistant Attorney General.

Prior express approval of the Assistant Attorney General of the National Security Division (AAG) or his designee is presumptively required for certain court actions involving the international terrorism-focused (Category 1) statutes. Prior approval is required in other (Category 2) international terrorism matters only upon AAG request. Prior approval is required for the following court actions:

1. 1. Filing an application for a search warrant.
2. 2. Filing an application for a material witness warrant.
3. 3. Filing a criminal complaint or information or seeking the return of an indictment.
4. 4. Filing a superseding complaint or information, or seeking the return of a superseding indictment.
5. 5. Dismissing a charge for which AAG approval was initially required, including as part of a plea agreement. (See also the discussion of other plea agreements later in this Section.)
6. 6. Other specific court filings as requested by the AAG.

In other words, if the court document in an international terrorism matter utilizes a Category 1 statute listed in subsection B.1. above, the AAG or his designee must approve the action in advance unless the AAG advises the USAO that he does not seek to exercise approval authority in the particular matter or with regard to the particular court filing. For example, the AAG may determine after reviewing a routine search warrant in a Category 1 case that he does not need to review any similar search warrants in that particular case. This approval requirement applies whether the Category 1 statute is used as a substantive offense or as the object of a conspiracy or a predicate offense for a RICO or other violation. The approval requirement also applies to "hoax" and "threat" cases that utilize Weapons of Mass Destruction or other Category 1 statutes.

In the many other international terrorism matters in which court documents do not utilize one of the Category 1 statutes—such as cases using one of the more general Category 2 statutes described in subsection B.2. above—then prior approval is required only if the AAG advises the USAO that he wishes to exercise approval authority for some or all of the court actions in the particular matter. Note that in cases not requiring AAG approval, the USAO should still notify CTS of these sorts of court actions as significant developments in the matter, as discussed in subsection D above.

If the United States Attorney believes that AAG approval is not warranted in a case in which the AAG has requested to exercise approval authority for some or all of the court actions in the particular matter, the United States Attorney may appeal to the Deputy Attorney General for a determination of whether such approval is necessary.

Indictments, Informations, and Complaints. Where prior approval is required, the USAO should make the application for approval through CTS. In such cases, submission to CTS of a prosecution memorandum and a copy of the proposed indictment, information, or complaint is normally required prior to seeking authorization for charges, although CTS may waive this requirement in a particular case. The final draft of the proposed charge must be provided to CTS before final AAG approval will be sought. Attorneys are encouraged to seek informal guidance from CTS throughout the investigation and well before a final indictment and prosecution memorandum are submitted for review. The submitting AUSA must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the investigatory action and the proposed date by which the USAO needs a response. If CTS is unable to respond within the time frame suggested by the USAO, CTS must immediately notify the USAO to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a prosecution will be authorized quickly and efficiently.

Significant Filings. In approval cases, once charges have been filed in court, a copy of the file-stamped charging document shall be provided to CTS. CTS shall also be notified and provided copies of any significant court rulings in the case. In addition, copies of motions, jury instructions and briefs filed by the USAO, as well as the defendant(s), should be forwarded to CTS for retention in a central reference file. The government's briefs and motions will provide assistance to other USAOs handling similar matters. Once a verdict has been obtained, the USAO shall forward to CTS the verdict on each count of the indictment and the sentence(s) received by each defendant.

Plea Agreements. Before entering into a plea agreement in a case in which court documents utilize one of the Category 1 statutes (or cases using Category 2 statutes in which the AAG makes a request), the USAO shall notify and seek the concurrence of the AAG, with any disagreement to be resolved by the Deputy Attorney General.

I. Exigent Circumstances.

If exigent circumstances require a USAO to take immediate action in an international terrorism matter without complying with the consultation or prior approval requirements set forth above, the USAO must notify CTS of any action taken as soon as practicable thereafter and the exigent circumstances that precluded obtaining prior approval. The USAO shall provide copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed. Any disagreements will be resolved by the Deputy Attorney General.

J. Attorney General Certification Under 18 U.S.C. § 2332.

Pursuant to statute, the written certification of the Attorney General is required to allege a violation of 18 U.S.C. § 2332. This certification represents a finding that the offense was intended to coerce, intimidate or retaliate against a government or civilian population. Application for this certification should be made through CTS, allowing sufficient lead time for review and transmittal to the Attorney General.

K. Guidance Relating to Charging Certain Transnational Criminal Organizations with Terrorism and Other National Security Offenses

The Attorney General issued a guidance memorandum on July 21, 2020. The existing JM provisions relating to any consultation or approval requirements for terrorism and other national security offenses remain unchanged, so please refer to the relevant JM section(s) for the applicable requirements.

[updated January 2021] [cited in JM 9-60.700; JM 9-63.181; JM 9-63.221; JM 9-65.811]