Document: Justice Department Updates U.S. Attorneys’ Manual

On Sept. 25, the Justice Department announced the arrival of a revised edition of the U.S. Attorneys’ Manual—now known as the “Justice Manual.” As Bobby Chesney flagged, among the additions to the manual is a new section on “Disclosure of Foreign Influence Operations,” which may be of interest to Lawfare readers. The section is available here and in full below.

9-90.730 - Disclosure of Foreign Influence Operations

Foreign influence operations include covert actions by foreign governments intended to sow divisions in our society, undermine confidence in our democratic institutions, and otherwise affect political sentiment and public discourse to achieve strategic geopolitical objectives. Such operations are often empowered by modern technology that facilitates malicious cyber activity and covert or anonymous communications with U.S. audiences on a mass scale from abroad.

Our Nation’s democratic processes and institutions are strong and must remain resilient in the face of this threat. It is the policy of the Department of Justice to investigate, disrupt, and prosecute the perpetrators of illegal foreign influence activities where feasible. It is also the Department’s policy to alert the victims and unwitting targets of foreign influence activities, when appropriate and consistent with the Department’s policies and practices, and with our national security interests.

It may not be possible or prudent to disclose foreign influence operations in certain contexts because of investigative or operational considerations, or other constraints. In some circumstances, however, public exposure and attribution of foreign influence operations can be an important means of countering the threat and rendering those operations less effective.

Information the Department of Justice collects concerning foreign influence operations may be disclosed as follows:

• To support arrests and charges for federal crimes arising out of foreign influence operations, such as hacking or malicious cyber activity, identity theft, and fraud.

• To alert victims of federal crimes arising out of foreign influence operations, consistent with Department guidelines on victim notification and assistance. See Attorney General Guidelines for Victim and Witness Assistance (May 2012), available at: https://www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf; see also 34 U.S.C. § 20141 (Victims’ Rights and Restitution Act); 18 U.S.C. § 3771 (Crime Victims’ Rights Act).

• To alert unwitting recipients of foreign government-sponsored covert support, as necessary to assist in countering the threat.

• To alert technology companies or other private sector entities to foreign influence operations where their services are used to disseminate covert foreign government propaganda or disinformation, or to provide other covert support to political organizations or groups.

• To alert relevant Congressional committees to significant intelligence activities, consistent with statutory reporting requirements and Executive Branch policies.

• To alert the public or other affected individuals, where the federal or national interests in doing so outweigh any countervailing considerations. For example, there may be an important federal or national interest in publicly disclosing a foreign influence operation that threatens to undermine confidence in the government or public institutions; risks inciting violence or other illegal actions; or may cause substantial harm, alarm, or confusion if left unaddressed. On the other hand, in some cases, public disclosure of a foreign influence operation may be counterproductive because it may amplify or otherwise exacerbate the foreign government’s messaging, or may re-victimize the victim.

In performing these functions, the Department will be mindful of the following principles and policies:

• Partisan political considerations must play no role in efforts to alert victims, other affected individuals, or the American public to foreign influence operations against the United States. Such efforts must not be for the purpose of conferring any advantage or disadvantage on any political or social group or any individual or organization.

• In considering whether and how to disclose foreign influence operations, or the details thereof, the Department will seek to protect intelligence sources and methods, investigations, and other U.S. government operations.

• Foreign influence operations will be publicly identified as such only when the Department can attribute those activities to a foreign government with high confidence. Disinformation or other support or influence by unknown or domestic sources not acting on behalf of a foreign government is beyond the scope of this policy.

• Where a criminal or national security investigation during an election cycle is at issue, the Department must also be careful to adhere to longstanding policies regarding the timing of charges or taking overt investigative steps. See, e.g., U.S. Dept. of Justice, Federal Prosecution of Election Offenses 8-9, 84–85 (8th ed. 2017).

The Department (including the FBI) will not necessarily be the appropriate entity to disclose information publicly concerning a foreign influence operation. Where a Department component is considering whether to alert the general public to a specific foreign influence operation, consultation with the National Security Division is required. Nothing in this policy is intended to impair information sharing undertaken by Department components for investigative or intelligence purposes.

[new September 2018]