JM 9-2.138
1. Nationwide Enforcement Policy is Required
Matters involving the Weapons of Mass Destruction (WMD) statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), may involve international terrorism, in which case they are already covered by the policy set forth in JM 9-2.136. Even if the matters do not involve international terrorism, however, the importance and sensitivity of these matters requires a consistent national approach as established in the following policy. The policy is coordinated by the National Security Division. The Counterterrorism Section (CTS) is the point of contact for these matters.
During business hours, the main CTS number is (202) 514-0849. After business hours, CTS attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.
2. What Constitutes a WMD Matter
The Department is seeing an increasing number of investigations involving the use of chemical, biological, radiological, and nuclear (CBRN) material and agents, as well as large scale explosive devices intended to cause catastrophic damage and weapons that seek to combine CBRN and ordinary explosives. The requirements in this section apply in all investigations in which the USAO contemplates charging an offense under the WMD statutes (18 U.S.C. §§ 175, l75b, 175c, 229, 831, 832, 2332a, and 2332h), regardless of the statutory violation initially presented or ultimately charged and regardless of the referring agency.
3. Exception for "Routine" WMD-related Hoax and Threat Matters
The USAO is not required to follow the approval requirements of this section if the case is a "routine" threat or hoax case. A case is not routine if (1) the USAO intends to charge an offense under the WMD statutes; (2) the matter affects other districts; or (3) the matter is expected to attract national public or media attention. Notification to CTS of routine hoax and threat matters is still encouraged.
4. Notification and Consultation Requirements
Initiation. When the USAO opens any WMD matter, the USAO shall promptly notify CTS. The notification should include the names and identifiers, if known, of the subjects of the investigation and a general overview of the investigation. Whenever feasible, notification should be made in advance of any action by the USAO, and otherwise as soon as possible, but the USAO should not delay in taking any necessary investigative action, particularly where such action is covert. Notification may be made by email or telephone (or by secured means where necessary), 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 another district that could be affected by the new matter, CTS will so inform the USAO and will advise the other district of the new matter.
Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or CTS has opened a related matter, the USAO shall not issue a grand jury subpoena or apply for a pen register or trap and trace order that may affect the related matter without first consulting with CTS and the other district.
Significant Developments and Case Preparation. The USAO shall notify CTS of any significant development in the investigation and prosecution of the matter, including the filing of a search warrant; the filing of a material witness warrant; 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 a plea agreement; the initiation and results of trials; and the results of sentencings and appeals. (As discussed in subsection E below, some of these same court actions also require prior approval of the Assistant Attorney General of the National Security Division.) The USAO is also encouraged to consult with CTS on issues such as investigative tactics and strategies, discovery, jury instructions, sentencing issues, the use of expert witnesses, and the use of cooperating witnesses and cooperating defendants from other jurisdictions.
Information Sharing with the USAO. When CTS becomes aware of information from any source that may be relevant to a WMD matter pending in a USAO, including relevant investigative action that may be planned in another district, CTS shall share that information with the USAO as soon as practicable, to the extent authorized by the originator of the information. Where relevant information known to CTS cannot be shared with a USAO due to originator requirements, CTS shall request that the originator authorize such sharing.
5. Approval Requirements
Prior, express approval of the Assistant Attorney General (AAG) of the National Security Division (or his or her designee) is required for the following court actions involving a WMD matter:
Where prior approval is required, the USAO should make the application for approval through CTS. Submission to CTS of a prosecution memorandum and a copy of the proposed application, indictment, information, or complaint is normally required prior to seeking AAG approval, although CTS may waive this requirement in a particular case. The final draft of any proposed charge must be provided to CTS before final AAG approval will be given. 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 contemplated 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.
In cases requiring approval, once a charge has been filed in court, a copy of a 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. Such a file of 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.
6. AAG Concurrence Requirement for Plea Agreements
The USAO must seek the prior concurrence of the AAG before entering into a plea agreement in a WMD matter. If the AAG does not concur to the entry of the plea agreement, the disagreement shall be resolved by the Deputy Attorney General.
7. Exigent Circumstances
If exigent circumstances require a USAO to take immediate action in a WMD matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify CTS of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide CTS 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.
[updated July 2007]