Criminal Justice & the Rule of Law

Justice Department’s 2014 Policy on the Duty to Search for Exculpatory Evidence in IC or DOD Possession

Robert Chesney
Friday, January 12, 2018, 8:00 AM

Thanks to Professor Greg McNeal at Pepperdine University School of Law, an interesting Justice Department policy document has come to light.

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Thanks to Professor Greg McNeal at Pepperdine University School of Law, an interesting Justice Department policy document has come to light.

Back in 2014, Greg filed a Freedom of Information Act request with DOJ seeking release of a memo that Gary Grindler, then the acting deputy attorney general, apparently wrote in September 2010. The title of the memo says it all: “Policy and Procedures Regarding the Government’s Duty to Search for Discoverable Information in the Possession of the Intelligence Community or Military in Criminal Investigations.”

Happily, if belatedly, DOJ has now produced the memo, and Greg has kindly drawn my attention to it and permitted me to post it here. For those who don’t want to dig through it (it’s only twelve pages, but you are busy people!), here are the highlights:

Context: Why does this issue arise?

It is well-established that prosecutors have an obligation to disclose to the defense information that tends to exculpate the accused (Brady v. Maryland) or that tends to impeach the credibility of the government’s witnesses (Giglio v. United States). And it is well-established that, towards that end, prosecutors have a duty to conduct at least some degree of searching for relevant records known to those who have been “acting on the government’s behalf in the case” (Kyles v. Whitley).

Against this backdrop, questions arise about the scope of the obligation to search for discloseable information. This question looms especially large in connection with a defendant who may have been the subject of intelligence collection or analysis, as that scenario makes it possible that various parts of the intelligence community, or the military apart from the intelligence community, might possess relevant—and probably classified—material. If there have been contacts between the team building the case and someone from such an entity, does it follow that all records from that entity must be searched for Brady and Giglio information?

What does the Grindler memo say about this?

First, it emphasizes that each circumstance is unique, and that the particular facts of the scenario have to control, which makes sense but doesn’t shed much light.

Second, some parts of the memo are redacted, so we don’t have a full picture.

Third, we don’t actually know if this memo remains the controlling policy document. On the other hand, we have no indicating suggesting it is not.

Fourth, this seems a good place to point out that this is a DOJ policy, not a DOD or ODNI or CIA policy, and certainly not a presidential policy document. So, it’s authoritative for federal prosecutors, but by its own terms would not purport to bind those others.

At any rate … on to what we can glean from it!

Describing the Duty to Search (and noting its relevance to the Hybrid/Warsame Model)

Beginning on p.4, the memo describes situations in which it is relatively clear that a search is required. Some of the content here is redacted, but the unredacted portions specify that a search is required where:

  • The IC or DOD element “has taken steps that significantly assist the prosecution”
  • Prosecutors know/have-reason-to-know that the IC or DOD element has relevant information
  • Prosecutors already have access to an IC or DOD database [Note: This is a potentially-significant category, particularly in light of efforts to broaden access to databases and to break down the old criminal/intelligence “wall.”]
  • The defendant makes a “specific and reasonable request” for a particular search.

The memo then gives some examples, the first part of which is redacted. The next example is clear enough, though. It is the “hybrid model” or “Warsame model” of short-term military detention followed by civilian criminal prosecution:

DoD captures the suspect in a zone of active conflict (or during the course of repelling or responding to an act of piracy) and detains and interrogates the suspect before transferring him to the United States for prosecution. (p.5)

The same passage cautions that triggers a duty to search vis-à-vis the unit(s) involved in those specific activities, not all of the IC or DOD.

Note the express reference to the status of the area in which capture occurred, and also the qualifier that U.S. forces did the capturing. Does it follow that the duty does not run to situations in which a capture occurs away from active hostilities, or where another entity does the capturing and turns the person over to the U.S. (as with the John Doe citizen detainee currently in US custody in Iraq (see ACLU v. Mattis))? This seems unlikely, but the policy does appear a bit unexpectedly-specific on this point.

The next example on the list involves suspects under investigation by a Joint Terrorism Task Force (JTTF). In such a case, the memo says, the relevant JTTF’s records must be searched, but it does not follow that the records of all agencies who have personnel participating in that JTTF also must be searched—unless there is some specific reason to think that agency or another JTTF was in fact involved in the case.

Next, the memo addresses situations in which a National Security Division attorney has advised on a case. In that scenario, the search duty runs to that NSD attorney “and his or her supervisors involved in decision-making in the case,” but (by implication) not further within NSD.

Following this, the memo goes out of its way to state that search duties running to the IC are not triggered simply by a prosecutor’s awareness that there is some intelligence collection program that might be relevant to a particular defendant. Then again, the memo notes, surely the criminal investigators in that scenario would be motivated to seek information from the IC in hopes of finding inculpatory information, and in that capacity they might then encounter Brady and Giglio material.

What else does the memo address?

There’s quite a bit more, in fact, including a lot of discussion about the process for prosecutors to interact with the IC and DOD on these matters. I won’t summarize all that here. But do dig in to have a look for yourself!

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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