Internal FBI Memorandum re: Conducting FBI Investigations Overseas

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U.S. Department of Justice
Federal Bureau of Investigation
Washington. D.C. 20535
July '11, 2002
MEMORANDUM TO ALL SPECIAL AGENTS'IN CHARGE
. RE: CONDUCTING FBI. INVESTIGATIONS OVERSEAS
This memorandum reiterates guidelines for conducting FBI investigations
overseas. 'It should be read and retained by all Special Agents as a guide for international
investigations and. international travel.-
As our domestic investigative responsibilities become increasingly intertwined
with criminality in 'other countries, we must continually enhance our ability to conduct complex
investigations and to acquire evidence from abroad. To do so requires close coordination and a
thorough understanding of the procedures to be followed.
Some of our most important and visible investigations are international and
multinational in scope: - They are putting greater demands on the FBI, especially in the field.
More and more case Agents are being faced with the challenge of obtaining evidence from
abroad. More Agents are.traveling internationally than ever before in furtherance of domestic
cases and extraterritorial investigations.
• Given this explosion of international activity, it is incumbent on FBI employees
whose responsibilities or assignments take them into the international arena to realize that
carrying out our law enforcement mission overseas is different from doing so in the United
States. Just as the laws of every country are different, so are the rules, protodols, and practices
used to enforce them. Simply put, you cannot do the FBI's businegs internationally in the same
way you do it in the United States.
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The foundation of the FBI's international prOgram is the Legal Attache (Legat). •
Each Legat is the Director's personal representative in the foreign countries in which he/she
resides or has regional responsibilities. Their job is to respond to the FBI's domestic and
extraterritorial 'investigative needs. They can accomplish this because they have developed
partnerships and fostered cooperation with their foreign counterparts on every level and are
familiar with investigative rules, protocols, and practices that differ from country to country.
This is the Legat's primary responsibility.
Each agent must utilize the Legats in all of their overseas contacts. Although we
are increasing our Legat ranks, the overall number of agents posted overseas will remain small,
comprising less than one percent of the our total agent , workforce. In instances where it is more
expedient to have direct contact between domestic employees and foreign services, contact must
be brokered through the appropriate Legat or conducted with his/her authorization and
concurrence.
To best. utilize our Legat system, investigators and managers in the United States
must have a firm understanding of the Legat's role, the mission of the FBI overseas, and how that
role and mission differ from that of agents and offices in the United States. FBI Agents abrbad
do not have the law enforcement authority they possess in the United States. FBI. Agents do not
have arrest powers, subpoena powers, or the authority to conduct investigations in other
countries without the approval of the host government. The Legat's authority to conduct ..
investigations,.or secure approval for and coordinate agent investigations abroad, varies greatly,
It must be determined by each Legat on a country-by-country, case-by-case basis. This means
that all international investigation not specifically authorized is strictly prohibited, whether it be
conducted in person or by telephone, over the Internet, or in other ways. The consequences .of
breaching agreements, treaties, or international, laws can be counterproductive. It can cause
evidence and cases to be lost, agents to be detained and expelled from countries, and long- •
standing international relationships to be negatively impacted or even ruined..
In addition to the Legat's responsibility to the host country, Legats are also
responsible to U.S. Ambassadors overseas. The FBI is obligated by a Memorandum of
Understanding between the Departments of Justice, State, and Treasury to keep the Chief of
Mission "fully and currently informed" with respect to all activities and operations of FBI
employees in that country. The Legats must be completely aware of all FBI activities in their
territories so that they can meet their obligations to both the host country and the U.S.
Ambassador.
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The Legats continue to encounter inappropriate actions on the part of agents who
are apparently. unaware of international rules. There have been a number of areas where
problems exist associated with investigative activity from the field or liaison travel on the part of
managers from the field and FBIHQ. Most of the instances can be explained by inexperience or
'a lack of familiarity with international procedures. This memorandum sets out the areas of
concern and procedures which must be followed by domestic employees.
• Travel
.•
- All official, international travel must be approved by the Substanti -ve unit at .
FBIHQ and by the appropriate division head. Once these approvals are received, the traveler(s)
must transmit an electronic communication (EC) to the appropriate Legat requesting "country
clearance," which is granted by the Chief of Mission or his designee at the relevant American
Embassy. In the case of travel in support of counterterrorism investigations, country clearance
is obtained through the Office of the Coordinator for Counterterrorism, DOS, with concurrent .
notice provided to Office of International Operations and the appropriate Legat Office. Country
clearance is necessary for an FBI employee to travel to any country as a representative of the
executive branch of the U.S: government. The Chief of Mission, in most cases the Ambassador,
is responsible for all American activities and operations occurring in the country to which he/she.
is accredited. Country clearance is the Chief of Mission's authority for the traveler to do U.S.
business in that country. The Chief of Mission relies upon the recommendation and approval of
the in his/her decision-making process. The request must be submitted as far in advance as
possible; as Legats must go throUgh an approval process Within their embassies.
Travelers must have an "official". passport when on FBI business in a foreign
country. It is improper to travel abroad on FBI business on a tourist passport. Official passports
can be obtained by contacting the Office of International Operations, Protocol Affairs Unit, at
FBIHQ, but the acquisition procedure takes time. It is recommended that all appropriate Bureau
employees, agent and support, apply for and maintain a valid official passport for possible -
international travel. Do not wait until shortly before departure.to make the request for apassport.
In some instances, countries. may require an official -visa if the travel is for official business., .
Travelers should make inquiry with the Legat and the ProtoCol Affairs Unit to determine whether
an official visa will be necessary.
Prisoner transit through a third country presents unique issues, as does an agent
stopover in a third country en route to another destination. These issues should be discussed with
the Legat of the third country as soon as it is determined the FBI will be part of the escorting
team and/or its itinerary calls for a stop in a third country.
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If
The aforementioned guidelines apply to all foreign travel', including travel of FBI
personnel detailed or seconded to other U.S. federal agencies, who travel overseas as part of their
detail or secondment.
Leads in Foreign Countries
Investigation in foreign countries is conducted through host country liaison .
contacts developed and maintained by the Legat. Each host country determines the kinds of
investigative activity which can be conducted independently by a Legat. For example, a country
may allow some level of informal contact with its citizens with the concurrence of local police or
judicial authority. Other countries forbid such contact. Many host governments perinit the •
informal exchange of police-to-police information (e.g., record checks, public record acquisition)
between Legat and local law enforcement, but forbid more involved investigation such as •
interviews of individuals. •
Direct contact with host country citizens by telephone, mail, Internet, or . in person
by any FBI employee is strictly prohibited unless the contact,is approved by FBIHQ and the
Legat. Those types of direct contact are universally viewed as infringements on national
sovereignty. The Office of International Operations is experiencing a significant number of
instances where FBI Agents are placing telephone calls to foreign banks, businesses, and
individuals, assuming that these are legitimate investigative techniques. In some instances;
Legats have been threatened with expulsion over such 'sovereignty issues.
•Agents who seek to conduct investigations that require joint, sustained, .
international coordination (including Mexico and Canada) must notify the Legat for the purpose
of initiating and facilitating contact with foreign counterparts. This also enables the Legat to
remain fully abreast of all FBI activities in that country and ensures that agents can be apprised
of relevant issues related to that country, allowing them a full understanding of circumstances
which could affect their case.
The, increased travel of FBI investigative personnel to foreign countries and
relationships with classmates at FBI National Academy sessions has boosted the contacts •
between FBI personnel and foreign law enforcement and intelligence service officials. In some
instances, there has been direct contact from the foreign service officials to field office FBI
personnel requesting record checks or other investigative assistance. FBI personnel. are reminded
to refer these officials to the respective Legat for action. Additionally, the FBI Agent contacted
should notify the Legat of this contact for appropriate follow-up.
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Except for a small number of recently opened offices, Legats are on-line in the
FBI's, Automated Case Support (ACS) system. Overseas leads must be uploaded in ACS, which
allows the Legat to retrieve it expeditiouSly. A lead must be set to the Legat on an EC for the
Legat to be aware that the communication exists in ACS. Moreover, this is the means the
Bureau employs to capture Legat work levels and ensure the Legat offices are adequately staffed
to handle their caseload. Leads' that are not uploaded are subject to delay, administrative-control
problems, and return to the office seeking investigation. The paper, copy of a communication
containing a lead not uploaded will be transmitted to the Legat by diplomatic pouch. However,
pouch-transit time can take up to two months.
Collection of Evidence
Evidence (including interviews, documents, or information prOvided by local law
enforcement) may be obtained through letters rogatory or a mutual legal assistance treaty •
(MLAT) request. Letters rogatory are the customary method of obtaining assistance from
overseas in the absence of a treaty or other agreement. A letter rogatory is a request from a judge
in the United States to a judicial officer in a foreign country for assistance, which would
constitute a violation of that country's sovereignty if done without the sanction of the foreign
court. Letters rogatory generally include background information, the facts of the case, an
articulation of the assistance requested, the text of the starutes, and a promise of reciprocity.
Such letters are prepared by the U.S. Attorney's Office and the U.S. Department of Justice's
Office of International Affairs in coordination with the FBI field office, FBI Headquarters, and'
the appropriate Legat. FBIHQ can assist you in understanding the letters rogatory process and
can refer you to the Office of International Affairs at the Department of JUstice to facilitate the
.effort. The United States has entered into an increasing number of MLATs with other countries •
which have the force of law. and define the obligation to provide assistance, the scope of •
assistance, and the contents of the request with specific countries. The MLATs.shorten the letter
rogatory process and provide a direct, formal procedure for making and receiving request's
between Justice Ministries. As a general rule, any type of investigative assistance which would
require a compulsory process ,to accomplish in the United States (federal grand jury subpoena,
search warrant, court order, etc..) must be sought employing a letter rogatory or MLAT request.
Because MLATs and other treaties and agreements are negotiated with each country separately,
each one differs from the next. The International Operations Section at FBIHQ can assist you in
understanding these treaties and help you, working with the U.S. Attorney's Office and DOD's
Office of International Affairs, to make a formal request utilizing this technique.
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Evidence' obtained through these legal channels can, if properly authenticated and
otherwise obtained in a manner meeting U.S. requirements, be used in court proceedings in the
United States.
In addition to the formal methods described above, a number of other methods for •
obtaining assistance have been used in certain situations in certain countries. They include
informal police-to-police requests, joint investigations.with foreign•police agencies whereby
evidence is shared, and requests through Interpol. The Legats will know in each instance what is
the appropriate means of obtaining assistance and should be consulted prior to undertaking
international action.
Extradition
International extradition is the foi lila' process by which a perSon found in one
country is . surrendered to another country for trial or punishment. The process is regulated by
treaty and conducted between the U.S. government and the'govemment of a foreign country. It
differs considerably from interstate extradition or interstate rendition. Extradition, in most
instances, may be granted only pursuant to a treaty. Responsibility for extradition matters lies .
with the Department of Justice and the Department of State. A simple telephone call to a foreign
police agency will not result in having a subject arrested and returned to the United States.
Legats cannot execute arrests in foreign countries.
• There are a number of circumstances which can complicate thereturn of a U.S. .
fugitive to the United States: Agents should be aware of these circumstances and the alternatives
to extradition which exist. Some of these potential complications include: the subject is 8. citizen
of the country of refuge, and that country does not extradite its nationals; the crime which is--
charged in the United States is not considered a crime in the country of refuge; although the .
Ameridan statute of limitations has not run out, that might not lie the case in the foreign country;.
or, the crime charged in theUnited States might -be considered a political offense iri the country
of refuge, prOviding a defense to extradition. Alternatives to the extradition process include
deportation or informal rendition, "luring" the fugitive to the United States or a third country
from which extradition is possible, or, in rare cases, foreign prosecution. Exploration of these
alternatives can be pursued with the U.S.. Attorney's 'Office, DOJ's Office of International
Affairs, or FBIHQ.
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Subpoenas
Technically, it is possible pursuant to U.S. law to have &subpoena issued for a .
national or resident of the United States in a foreign country, directing the witness to appear
before a U.S. court. There are some practical considerations, however. The Legats cannot
simply serve American process in other countries. It may be a violation of sovereignty. Foreign
laws may restrict the serving of such subpoenas, especially when the witness is a dual national.
'U.S. Attorney's Offices work closely with the DOD's Office of International Affairs to select a
method of obtaining the witness's presence in the United States. In some cases this will be done
in concert with an American consular official acting on a request by the Department of State. In
other cases a formal MLAT or letter of request seeking service of the . subpoena will be required.
Informants/Cooperating Witnesses
While the use of informants and cooperating witnesses is well-established and
accepted in the federal criminal justice system, such techniques may not be acceptable in foreign
countries. Having cooperating witnesses participate in undercover investigations is considered •
illegal in many countries; under the theory that they are provoking the criminal activity. The
theory makes the operation of informants and cooperating witnesses overseas a sensitive area.
The Legat must be consulted before any international direction or tasking of an•informant
is considered. The Legat must be aware each time an informant or cooperating witness travels
to his/her territory, so that the Legat can fulfill the FBI's obligation to keep the
Ambassador/Chief of Mission appropriately notified of certain investigative activities.
This can be done without disclosing the informant's identity.
Other Investigative Techniques
Agents sometimes request such investigative techniques as physical surveillance,
electronic surveillance, and consensual monitoring. Again, foreign countries generally are more
restrictive in the use of such techniques. It is the rare occasion when Legats will be able to
arrange for electronic surveillance and consensual monitoring to be conducted on behalf of
domestic offices.
No one can reasonably be expected to have a working knowledge of laws,
Protocols, and practices related to conducting an investigation in every foreign country, nor is
there a need. Thisis the role of each Legat, FBI Headquarters, U.S. Attorney's Offices, and the
Department of Justice. But it is critical that FBI investigators and managers understand the
distinctions between conducting investigations in the United States and in foreign countries.
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In every case, the Legats must be made aware of official travel and operations
within their territory. This serves to maximize an effective investigation and maintain their.
• hard-earned standing as the permanent FBI presence in that territory. Legats are responsible for
the conduct of all investigative matters overseas, including cases where domestic FBI Agents are
. deployed from the extraterritorial squads. That is, the Legat is there to ensure that the anticipated
investigation proposed by the office of origin does not raise a sovereignty issue with the host
government and that all matters. have been coordinated with the embassy in accordance with the
Chief of Mission mandate. The Legats must be part of the investigative planning and decision
making in order to fulfill the Director's expectations with respect to their role in overseas .
investigations.
Please consider the Legats as your greatest asset when you encounter 'a need to do
business.abroad. They are the FBI's experts for the'region in which they work. I insist that the.
agents and managers utilize the Legats whenever international contacts are required. The Office
of International Operations is available to assist field and Headquarters agents. with planned
overseas travel and/or investigation.
Robert S. Mueller, III
Director
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