Grand jurors do not have the security clearances required for access to classified information. Accordingly, disclosure of such information to a grand jury may only be done with the approval of the agency responsible for classifying the information sought to be disclosed.

There are measures that a prosecutor can take that will increase the likelihood that the appropriate intelligence agency will approve the use of its information before the grand jury. First and foremost is the use of an unclassified summary of the information prepared by the prosecutor in concert with the IC agency. In other instances, the agency may simply be able to declassify the particular document(s) involved, in whole or in part, by excising certain portions that make the document particularly sensitive but that are not relevant to the use desired by the prosecutor.

Of greater difficulty would be the request of a prosecutor that an intelligence agency officer or asset testify as a witness before the grand jury. If a target of the grand jury investigation was, or is, an intelligence officer, asset, or other employee of the intelligence community, in addition to the usual concerns related to the appearance of a target before the grand jury, the prosecutor must take care to protect against "retaliatory" testimony by that individual, in the form of unauthorized disclosure of classified information. Accordingly, prior to any grand jury appearance by such target, the Assistant United States Attorney, in coordination with the CES, must consult with any intelligence agency whose information may be disclosed by the target's testimony. As a rule, because hearsay testimony is permissible before the grand jury, the prosecutor will likely have alternatives, such as the testimony of a summary witness, which would obviate the need for the agency officer's testimony before the grand jury. If a summary witness is not a viable option, however, the prosecutor must obtain the approval of the CES before making any effort to secure the presence before the grand jury of an intelligence agency officer or asset. The CES will assist the prosecutor as much as possible in arranging for that testimony or in structuring an alternative thereto that will provide essentially the same information to the grand jury.

[cited in JM 9-90.200]