With the concurrence of the appropriate Deputy Assistant Attorney General (DAAG), National Security Division, or of the DAAG's designated National Security Division Section Chief, the Department attorney or the assigned AUSA may seek access to classified information in the custody and control of one or more of the United States intelligence agencies. The National Security Division's Counterintelligence and Export Control Section (CES) has primary responsibility to assist all Departmental officials and USAOs on all matters related to national security, including approval of requests for production of preexisting classified information in connection with an anticipated or ongoing criminal prosecution. Other sections of the National Security Division may also assist, according to the subject matter of the activity involved in a particular prosecution. Occasionally, a law enforcement agency may also possess documents that are classified for national security purposes and which should be reviewed in connection with a criminal case. The procedures discussed herein also apply to those documents.

The Classified Information Procedures Act (CIPA), Title 18, United States Code, App. III, is the mechanism by which the disclosure of classified information must be controlled during the course of a criminal prosecution. CES is responsible to insure proper adherence to CIPA, at the pre-trial, trial, and appellate stages of a prosecution. CES personnel will assist the prosecuting attorney in properly drafting a request to an intelligence agency for production of its information and/or materials for review by the AUSA and will provide advice and consultation regarding review and use of those materials.

There are certain unique requirements that apply to cases involving classified information. First, only the Attorney General, the Deputy Attorney General, the Associate Attorney General or the Assistant Attorney General (AAG), National Security Division, can authorize the declination of a prosecution for national security reasons. CIPA sections 12 and 14. Such declinations must be included in a report submitted to Congress pursuant to the requirements of section 13 of CIPA. This report is initially prepared by the CES.

Further, classified information that is or may be relevant to a criminal prosecution cannot be utilized, even for discovery purposes, without coordinating with the agency that is responsible for classifying or declassifying that information. This rule applies to oral disclosures of classified information, such as certain statements by present or former government employees, or contract employees who hold or held security clearances and were given access to classified information. See also JM 9-90.240.

Because of regulatory limitations on dissemination of classified information, special considerations apply to investigations that involve classified information. First, when interviewing witnesses, classified information may be discussed only if the witnesses have appropriate security clearances and the agency that classified the information has approved such disclosure. Second, although the grand jurors are precluded under Fed. R. Crim. P. 6(e)(2) from disclosing matters occurring before the grand jury, a prosecutor nevertheless may not disclose classified information to the grand jury except by agreement of the agency responsible for classifying that information. Third, witnesses, subjects or targets of an investigation who have lawfully acquired classified information cannot lawfully disclose such information to their uncleared attorneys. Those attorneys should therefore either obtain a securit y clearance that would allow access to the classified information or seek to have the information declassified. If the defense attorney chooses the latter alternative, the prosecutor must file a motion requesting the court to issue a protective order that controls the use of that classified information and protects it from disclosure to unauthorized persons. For guidance on how to handle classified information during investigations or before the grand jury, see JM 9-90.230 and contact the CES.

[updated January 2020]