1. 1. National Coordination

   Matters involving torture (18 U.S.C. §§ 2340-2340B), war crimes (18 U.S.C. § 2441), and genocide (18 U.S.C. §§ 1091-1093), female genital mutilation (18 U.S.C. § 116), and recruitment or use of child soldiers (18 U.S.C. § 2442) raise issues of national and international concern. Successful prosecution of these matters requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities. The responsibility for this coordination is assigned to the Criminal Division and, in particular, its Human Rights and Special Prosecutions Section (HRSP). If a matter involving torture, war crimes, genocide, or recruitment or use of child soldiers also involves international terrorism, responsibility for coordination will be assigned to the Counterterrorism Section of the National Security Division as provided in this section and JM 9-2.136.

   During business hours, the main HRSP number is (202) 616-2492. After business hours, HRSP attorneys and supervisors may be reached by calling the Justice Command Center at (202) 514-5000.

2. 2. Matters Involving Torture, War Crimes, Genocide, Female Genital Mutilation or Recruitment or Use of Child Soldiers

   The requirements in this section apply in all investigations in which the USAO contemplates—

   1. 1. charging or proving at sentencing torture (18 U.S.C. §§ 2340-2340B), a war crime (18 U.S.C. § 2441), genocide (18 U.S.C. §§ 1091-1093), female genital mutilation (18 U.S.C. § 116), or recruitment or use of child soldiers (18 U.S.C. § 2442); or
   2. 2. charging any other offense (such as a violation of 18 U.S.C. §§ 1001, 1425, or 1546) where proof of the other offense (i.e., of the false statement or fraud) will require the government to either define torture, war crimes, genocide, female genital mutilation or recruitment or use of child soldiers; or to prove that torture, a war crime, genocide, female genital mutilation, or recruitment or use of child soldiers was committed;
   3. 3. proving a “serious human rights offense” under Sentencing Guideline § 2L2.2(b)(4) (defined as genocide, torture, war crimes, and the use or recruitment of child soldiers).

3. 3. Notification Requirements

   Initiation. When the USAO opens any torture, war crimes, genocide, female genital mutilation, or child soldiers matter, the USAO shall promptly notify the Human Rights and Special Prosecutions Section (HRSP) of the Criminal Division. 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 undercover. Notification may be made by email or telephone (or by secured means where necessary). If after notification, HRSP determines that there are related matters pending in another district that could be affected by the new matter, HRSP will so inform the USAO and will advise the other district of the new matter.

   HRSP shall immediately notify CTS of all notifications made by a USAO under this paragraph. If CTS determines that a matter involves international terrorism, CTS will assume coordination of the matter pursuant to JM 9-2.136. When CTS assumes coordination of a torture, war crimes, genocide, or child soldiers matter involving international terrorism, the approval, notification, and consultation requirements of JM 9-2.136 apply. For all other cases, the following requirements apply.

4. 4. Consultation Requirements

   Grand Jury Subpoenas and Pen/Trap Orders. Where a USAO is aware that another USAO or HRSP 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 HRSP and the other district.

   Significant Developments and Case Preparation. The USAO shall notify HRSP 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; the filing of a sentencing memorandum relying on USSG § 2L2.2(b)(4); 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 Criminal Division.) The USAO is also encouraged to consult with HRSP 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 HRSP becomes aware of information from any source that may be relevant to a torture, war crimes, genocide, female genital mutilation, or child soldiers matter pending in a USAO, including relevant investigative action that may be planned in another district, HRSP 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 HRSP cannot be shared with a USAO due to originator requirements, HRSP shall request that the originator authorize such sharing.

5. 5. Approval Requirements

   Prior, express approval of the Assistant Attorney General (AAG) of the Criminal Division (or his or her designee) is required for the following court actions involving a torture, war crimes, female genital mutilation, or recruitment or use of child soldiers, or genocide matter:

   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; and
   6. 6. other specific court filings as requested by the AAG;
   7. 7. proving a serious human rights offense under USSG § 2L2.2(b)(4) (defined as genocide, torture, war crimes, and the use or recruitment of child soldiers).

   Where prior approval is required, the USAO should make the application for approval through HRSP. Submission to HRSP of a prosecution memorandum and a copy of the proposed application, indictment, information, complaint, or sentencing memorandum based on USSG § 2L2.2(b)(4) is normally required prior to seeking AAG approval, although HRSP may waive this requirement in a particular case. The final draft of any proposed charge or draft sentencing memorandum based on USSG § 2L2.2(b)(4) must be provided to HRSP before final AAG approval will be given. Attorneys are encouraged to seek informal guidance from HRSP 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 HRSP is unable to respond within the time frame suggested by the USAO, HRSP 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 HRSP. HRSP 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 HRSP 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 HRSP the verdict on each count of the indictment and the sentence(s) received by each defendant.

6. 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 torture, war crimes, genocide, female genital mutilation, or child soldiers 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. 7. Exigent Circumstances

   If exigent circumstances require a USAO to take immediate action in a torture, war crimes, genocide, female genital mutilation, or child soldiers matter without complying with the notification, consultation, concurrence, or prior approval requirements set forth above, the USAO must promptly notify HRSP of any action taken and of the exigent circumstances that precluded obtaining prior approval. The USAO shall also provide HRSP 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 April 2018]