Office Of Enforcement Operations' Policy And Statutory Enforcement Unit
by Mary Healy
II. Subpoenas for testimony or records of members of the news media; interrogations, arrests, and criminal charges against members of the news media; and search warrants directed at members of the news media or others holding documentary materials in relation to some form of public communication
In all matters within the supervisory jurisdiction of the Criminal Division, the PSEU reviews all requests for authorization to issue subpoenas directed to members of the news media or for telephone toll records of members of the news media. The Unit also examines all requests for authorization to interrogate, arrest, or criminally charge a member of the news media for an offense related to the performance of official media duties. These requests are governed by 28 C.F.R. § 50.10. Additionally, the PSEU has joint responsibility, together with the Computer Crime and Intellectual Property Section (CCIPS) of the Criminal Division, for reviewing requests to apply for a search warrant directed at the seizure of work product or other documentary materials possessed by anyone holding them in relation to some form of public communication, including journalists. These requests are statutorily limited by the Privacy Protection Act, 42 U.S.C. §§ 2000aa- 2000aa-12.
A. Subpoenas for testimony or records of members of the news media
One of the most sensitive and complex areas of the PSEU's work involves the review of proposals from United States Attorneys' offices to issue subpoenas directed to members of the news media for testimony or evidence or for their telephone toll records. In recognition of the historical and enduring importance of freedom of the press in American society, Department policy directs that government attorneys should ordinarily refrain from imposing upon members of the news media any form of compulsory process which might impair the news gathering function. Members of the Department must balance the public's interest in the free dissemination of ideas and information with the public's interest in effective law enforcement and the fair administration of justice in all cases. See United States Attorneys' Manual (USAM) 9- 13.400; 28 C.F.R. § 50.10.
The Attorney General's authorization is normally required before the issuance of any subpoena to a member of the news media or for the telephone toll records of a member of the news media. 28 C.F.R. § 50.10(e). However, in cases where the media member, or his or her representative, agrees to provide the material sought and that material has been published or broadcast, the United States Attorney or the responsible Assistant Attorney General may authorize issuance of the subpoena. Thereafter, the authorizing office must submit a report to the Office of Public Affairs, detailing the circumstances surrounding the issuance of the subpoena. Id.
Before issuing a subpoena to a member of the news media, or for telephone toll records of a member of the news media, Department attorneys must take all reasonable steps to attempt to obtain the information through alternative sources or means. Id. § 50.10(b). In addition, Department attorneys must first attempt negotiations with the media aimed at balancing the interests of the trial or grand jury with the interests of the media before issuing a subpoena to a member of the news media. Id. § 50.10(c). Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue. Id. § 50.10(d). As noted above, besides being required by the regulation, where the material sought to be obtained or authenticated has already been published or broadcast in some form, obtaining the media's prior agreement to provide the material or authenticating testimony, either voluntarily or in response to a subpoena, may benefit the United States Attorney's office by obviating the need for obtaining the Attorney General's prior approval to issue the subpoena.
If negotiations with the media fail or the desired material has not been previously published or broadcast, the Attorney General's authorization is required. Department attorneys seeking to issue a subpoena to a member of the news media, or for telephone toll records of a media member, must submit a written request for such authorization to the PSEU. The request must contain the following.
Specific principles applicable to authorization requests for subpoenas to members of the news media are set forth in 28 C.F.R. § 50.10(f)(1)-(6), and for subpoenas for telephone toll records of members of the news media in 28 C.F.R. § 50.10(g)(1)-(4). The Department considers the requirements of 28 C.F.R. § 50.10 applicable to the issuance of subpoenas for the journalistic materials and telephone toll records of deceased journalists. In light of the intent of the regulation to protect freedom of the press, news gathering functions, and news media sources, the requirements of 28 C.F.R. § 50.10 do not apply to demands for purely commercial or financial information unrelated to the news gathering function. Id. § 50.10(m). Any questions regarding the regulation, or otherwise concerning subpoenas to the media, should be directed to the PSEU at (202) 305-4023.
B. Interrogations, arrests, and criminal charges against members of the news media
Except in cases involving exigent circumstances, Department attorneys must obtain the express approval of the Attorney General prior to the interrogation or arrest of a member of the news media in connection with either of the following two instances.
C. Search warrants directed at members of the news media or others holding documentary materials in relation to some form of public communication
Search warrants directed at the seizure of any work product materials or other documentary materials possessed by a person reasonably believed to have a purpose of disseminating to the public a newspaper, book, broadcast, or other similar form of public communication, are governed by the Privacy Protection Act of 1980 (PPA), 42 U.S.C. §§ 2000aa-2000aa12. The PPA prohibits the use of such search warrants except under limited circumstances specified within the Act and provides that violations of the Act may result in the imposition of civil penalties against the government. Relevant provisions of the PPA, the text of which is set forth at Criminal Resource Manual 661, are summarized at USAM 9-19.240. Government attorneys should be particularly aware of the potential for triggering the protections of the PPA in executing computer searches. Some computers that may contain nonprotected evidence of a crime, such as child pornography, often also contain legitimate PPAprotected materials, such as draft newsletters on topics of public interest.
All applications for warrants issued under the PPA must be authorized by a Deputy Assistant Attorney General of the Criminal Division. Questions and requests for approval regarding computer-related search warrants should be directed to the CCIPS of the Criminal Division. Whenever proposed computer-related searches involve the traditional media, CCIPS will coordinate its review with the PSEU. Questions and requests for approval regarding all noncomputer media-related searches should be directed to the PSEU.
III. Closure of judicial proceedings
Pursuant to 28 C.F.R. § 50.9, government attorneys may not move for, or consent to, the closure of any judicial proceeding without the express prior authorization of the Deputy Attorney General. The PSEU assists U.S. Attorneys' offices by providing advice in the area of court closures, reviewing requests to close proceedings and, when appropriate, recommending that the Deputy Attorney General grant the authorization necessary to move or consent to closure.
Both federal law and Department policy recognize a strong presumption against closing proceedings, rooted in both the Sixth Amendment right of the accused to a public trial and other adversary proceedings, see, e.g., Waller v. Georgia, 467 U.S. 39 (1984), and in the qualified First Amendment right of the press and public to access a criminal trial and related hearings, see, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Closure of a courtroom in connection with a criminal proceeding may constitutionally occur under limited circumstances where closure is narrowly tailored toward preserving an important interest. See, e.g., Waller, 467 U.S. at 47; Globe Newspaper, 457 U.S. at 606-07; Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir. 1997). Such overriding government interests may include protecting the safety of an informant or the integrity of an ongoing investigation, see, e.g., United States v. De Los Santos, 810 F.2d 1326, 1334 (5th Cir. 1987), or protecting the identity of an undercover police witness, see, e.g., Ayala, 131 F.3d at 72. These general principles are encapsulated at 28 C.F.R. § 50.9, which sets forth the Department's policy and the applicable procedures and policies governing courtroom closures.
Any government attorney wishing to close a portion of a judicial proceeding, or to consent to a litigant's request for closure, must first submit a written request seeking the Deputy Attorney General's authorization to do so. Whenever closure is sought in a case or matter under the supervision of the Criminal Division, the request, and any related questions, should be directed to the PSEU. In addition to setting forth the relevant factual and procedural background, the request should include a detailed explanation of the need for closure, addressing each of the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In particular, the request should address how an open proceeding will create a substantial likelihood of danger to specified individuals, how ongoing investigations will be jeopardized, or how a person's right to a fair trial will be impaired. The request should also consider whether there are any reasonable alternatives to closure, such as delaying the proceeding, if possible, until the reasons for closure cease to exist. The request should be submitted sufficiently in advance of the proceeding in question to allow time for its adjudication within the Department.
Assuming that authorization to close the proceedings is granted, government attorneys have an obligation to review the records of the closed proceedings every sixty days to determine whether the reasons for closure still apply. 28 C.F.R. § 50.9(f). As soon as the justification for closure ceases to exist, the government must file a motion to have the records unsealed. Id. U.S. Attorneys' offices should acknowledge this obligation in their closure requests and advise the PSEU when the records are unsealed. The PSEU will periodically seek updates from U.S. Attorneys' offices regarding the status of closed proceedings.
IV. Disclosure of grand jury material to state and local law enforcement officials
Prior to submitting any request to a court to disclose grand jury material to a state or local law enforcement official pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(iv), a United States Attorney must request permission, in writing, from the Assistant Attorney General of the Division with supervisory jurisdiction over the matter that was presented to the grand jury. See USAM 9.11-260. See also Advisory Committee Notes on the 1985 Amendments ("The Committee is advised that it will be the policy of the Department of Justice under this amendment [now codified at F.R.Cr.P. 6(e)(3)(E)(iv)] to seek such disclosure only upon approval of the Assistant Attorney General in charge of the Criminal Division."), available at http://www.law.cornell. edu/rules/frcrmp/NRule6.htm. For any matter falling under the supervisory jurisdiction of the Criminal Division, the PSEU has responsibility for reviewing such requests and recommending their approval or denial to the Deputy Assistant Attorney General who has been empowered to authorize disclosure.
It is the policy of the Department to share grand jury information with state or local officials, for the purpose of enforcing state law, whenever it is appropriate to do so. See USAM 9-11.260. Nevertheless, government attorneys should keep in mind that this policy is subject to the Advisory Committee notes to the amended Rule 6(e) that "Federal grand juries [should not] act as an arm of the State," and that a substantial need should exist to support the disclosure. The need to investigate or to prosecute ongoing or completed state or local felony offenses will generally be deemed substantial. Id. Government attorneys considering also take into account the potential impact of disclosure upon any pending or anticipated federal investigations or prosecutions. See, e.g., USAM 9-2.031 (Dual and Successive Prosecution Policy ["Petite Policy"]).
United States Attorneys proposing to seek an order allowing the disclosure of grand jury materials to a state or local law enforcement official should provide the following information, in writing, to the PSEU.
As with all other matters within its purview, the PSEU invites AUSAs to contact the Unit at (202) 305-4023 with any general or case-specific questions concerning grand jury disclosure pursuant to Rule 6(e)(3)(E)(iv).
V. The S Visa Program: arranging for cooperating aliens to remain in the United States
The PSEU is responsible for reviewing all applications for S nonimmigrant visa status and all subsequent applications for adjustment of status to legal permanent resident, and recommending approval or disapproval of such applications to the Deputy Assistant Attorney General of the Criminal Division delegated with authority to certify the applications to the Department of Homeland Security (DHS). The PSEU also coordinates the development and implementation of the S visa program in conjunction with sponsoring law enforcement agencies and the DHS.
A. The S Visa Program
The Violent Crime Control Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994), amended the Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 208 (1952) (codified in scattered sections of 8 U.S.C.) to establish a new "S" nonimmigrant visa classification available to a limited number of aliens who supply critical, reliable information necessary to the successful investigation and/or prosecution of a criminal organization, or who supply critical, reliable information concerning a terrorist organization, if the alien is eligible to receive a State Department reward under the Rewards for Justice Program. See 8 U.S.C. § 1101(a)(15)(S); 22 U.S.C. § 2708.
Essentially, the S visa program provides a means for ensuring that an alien witness or informant who would otherwise be inadmissible or subject to removal from the United States, for example, due to his or her prior criminal history, may lawfully remain in the United States for purposes of assisting law enforcement authorities. The program also helps to protect witnesses who would likely be subject to danger, as a result of their cooperation, if they were deported. Once the PSEU notifies the DHS's Immigration and Customs Enforcement (ICE) that an S visa application is pending with OEO, the alien will not be deported prior to a final decision being rendered on the application. While the application is pending, an alien may be given employment authorization and, subject to ICE discretion, may be released from ICE detention if in custody.
The S visa program grants S nonimmigration status for up to three years to alien witnesses or informants who: 1) possess critical, reliable information about a criminal organization or enterprise; 2) are willing to supply, or have supplied, such information to federal or state law enforcement authorities or a federal or state court; and 3) whose presence in the United States is essential to the success of an authorized criminal investigation or prosecution of an individual involved in the criminal organization or enterprise. See 8 U.S.C. § 1101(a)(15)(S). No more than 200 aliens meeting these criteria may be granted S nonimmigrant status per fiscal year. Id. § 1184(k)(1). An additional fifty slots are available for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program. Id. See also 22 U.S.C. § 2708(a). These annual numerical limitations have never been reached. The parents, spouse, and children of an eligible alien witness or informant are also eligible for S nonimmigrant status, and such derivative applicants do not count toward the numerical limits.
Characteristics rendering an alien inadmissible to the United States, such as drug trafficking, a criminal conviction, the commission of a crime of moral turpitude, or unlawful entry into the United States, are waived by the DHS when S nonimmigrant status is granted. Aliens who comply with the conditions of the S visa program are eligible to apply for adjustment of status to lawful permanent resident.
B. Applying for S Visas
S Visa applications must be sponsored by a law enforcement agency (LEA) and endorsed by an agency headquarters official and by the United States Attorney for the district in which the relevant investigation or prosecution occurred. See 8 C.F.R. § 212.4. Federal and state law enforcement agencies, courts, United States Attorneys, and local prosecutors, are considered to be law enforcement agencies for purposes of S visa sponsorship. However, prosecutors and courts may not wish to serve as the official sponsor of an S visa application because of the obligations assumed by the sponsoring agency, including monitoring the alien, reporting to the Criminal Division regarding the alien's compliance with the terms of S visa status after S nonimmigrant status is granted, and requesting permission to apply for adjustment of status to lawful permanent resident.
To apply for an S visa, a sponsoring LEA should submit a completed application package to the PSEU for processing. Applications may be obtained from the PSEU or from ICE, but are also generally available through the sponsoring LEA. Based upon the information contained in the application, the PSEU assesses whether an alien is eligible for an S visa and which grounds of inadmissibility set forth in 8 U.S.C. § 1182 require waiver.
In determining whether an S visa is appropriate, the Criminal Division balances the value of an alien's cooperation against the factors making an alien inadmissible. To enable this assessment, the sponsoring LEA and the U.S. Attorney's office endorsing the application should ensure that the application contains: 1) a thorough and accurate description of the nature and import of the investigation or prosecution; 2) a detailed explanation of the nature, extent, and import, of the alien's cooperation, including the results of the alien's cooperation; and 3) complete information about each applicable ground of inadmissibility, including any extenuating circumstances. The PSEU also uses the information contained in the application to obtain the views of the Criminal Division components with jurisdiction over the underlying investigation or prosecution as to the significance of the matter or case in which the alien is providing assistance.
Once the PSEU completes its analysis, the OEO makes a recommendation to a Deputy Assistant Attorney General of the Criminal Division who has been delegated authority by the Assistant Attorney General to decide whether or not the application merits certification. Applications certified for approval by the Criminal Division are forwarded to the DHS, which has the authority to waive the applicable grounds of inadmissibility and grant the S visa.
Upon granting the application, the DHS notifies the OEO and the sponsoring LEA. While the alien is in S visa status, the sponsoring LEA is required to monitor the alien and file quarterly and annual reports with the PSEU, notifying the Criminal Division of the alien's whereabouts and whether the alien has complied with the conditions of S visa status. See 8 U.S.C. § 1184(k)(4) (conditions of status).
C. Adjustment of status to lawful permanent resident
An alien may remain in S visa status for no more than three years. Prior to the end of that period, the sponsoring LEA may apply for adjustment on behalf of the alien (and any eligible family members) to lawful permanent resident status. See 8 U.S.C. § 1255(j). The LEA should submit an adjustment application form and supporting memoranda, together with current National Crime Information Center reports for the alien and any eligible family members, directly to the PSEU. (The LEA submits a separate set of documents to the DHS.) On the basis of the adjustment application materials, the Criminal Division determines whether the alien has complied with the conditions of S visa status and whether adjustment of status is appropriate, and forwards its recommendation to the DHS, which renders a final decision. Notably, if the necessary documents to seek adjustment of status are not filed before the end of the three year period, the alien may be deported and the sponsoring LEA must reinitiate the S visa application process.
D. Additional information
Additional information regarding the S visa program may be found in the United States Attorneys' Manual at 9-72.000, in the Criminal Resource Manual at 1861-1867, or by contacting the PSEU at (202) 305-4023.
Originally appeared in US Attorney's Bulletin, January 2007, Vol. 55, Number 1.
Mary Healy has been an attorney with PSEU since January 2006. Before then, she spent time as an investigative attorney with the Department's Office of Inspector General and was a trial attorney with the Criminal Section of the Civil Rights Division. She also clerked for U.S. District Court Judge A. David Mazzone for the District of Massachusetts.
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