National Security

Overview

Gibson, Dunn & Crutcher offers clients worldwide a wide array of the most current, experienced and connected practitioners in national security to navigate the physical, cyber, and financial threats global businesses face, as well as the government efforts to address them.  Our team includes an unparalleled collection of former U.S. federal officials who served in senior capacities at the Central Intelligence Agency (CIA), National Security Council (NSC), White House, U.S. Department of Justice (DOJ), Department of the Treasury (Treasury), Department of State, Office of Management and Budget (OMB), and other agencies that make, implement, and enforce U.S. security laws and regulations.

Gibson Dunn's National Security Practice Group is uniquely equipped to address every aspect of a national security legal or public policy issue.  We offer a comprehensive range of services, including a counseling practice focused on businesses operating internationally as they work to comply with federal laws and regulations governing cross-border economic transactions.  We represent government contractors and other companies involved in classified government programs.  As the U.S. government increasingly looks to the private sector to assist with counterterrorism and other national security efforts, including by making demands for information and imposing security mandates, our lawyers have been at the forefront of cutting-edge questions concerning government access to data.  And we handle the special challenges presented by civil litigation as well as criminal, regulatory, and congressional investigations that raise national security issues. 

National security matters are among the most important and difficult legal issues confronting all major corporations.  Our team understands how the U.S. government approaches the full range of national security legal questions – including military and intelligence matters.  We can help clients navigate this changing and challenging landscape.

Our Team

Our National Security Practice Group draws on the experience and knowledge of many of the firm's world-renowned practice groups, including Crisis Management, Financial Institutions, Government Contracts, International Trade, Labor and Employment, Public Policy, Litigation, and White Collar Defense and Investigations.  The national security team includes partners, senior lawyers and others with extensive government experience, top secret security clearances and wide-ranging capabilities in the full spectrum of national security issues.

As noted, many of our team members have served in senior U.S. government national security positions, including high-level positions in the DOJ and Treasury, the CIA, the White House, NSC, and OMB.  Among many others, we have a former General Counsel of the CIA, a former Acting Associate Attorney General of the United States (the third-ranking position at DOJ), a former Solicitor General of the United States, three former U. S. Attorneys and many other former federal prosecutors, a former legal advisor to the NSC, a former Special Counsel to the President for National Security Affairs, a former Associate Director of OMB, and a former Assistant Secretary of State for Economic, Energy and Business Affairs.  While in government, our lawyers worked closely with every national security-related agency, including the Office of the Director of National Intelligence, the CIA, the Department of Defense (DoD), the National Security Agency (NSA), the Defense Security Service, the Federal Bureau of Investigation and the Department of Homeland Security.  Gibson Dunn is also fortunate, and proud, to have on our team over a dozen former military officers.

A number of Gibson Dunn team members either currently hold, or have recently held (and can reactivate on short notice), security clearances through the Top Secret/SCI level.  This allows us to get involved rapidly in matters where access to classified material is required and time is of the essence.

We advise clients in the areas of:

  • Classified programs
  • Government access to information
  • National security litigation and investigations
  • Cross-border economic activities
  • Cybersecurity
  • National security public policy

Classified Programs

When corporate executives are approached by the U.S. intelligence community (including the CIA and the NSA), or the DoD, and asked to assist with a sensitive and classified project in the interest of national security, they look for legal guidance about how to protect the corporation against legal risk and appropriately manage the project internally.  Gibson Dunn has the experience to provide that kind of targeted legal advice concerning highly sensitive relationships with the intelligence community and other U.S. national security agencies.

The lawyers in our government contracts and aerospace and related technologies groups have decades of experience providing counseling and litigation services to defense industry and commercial clients regarding national security implications of their business relationships with the U.S. government.  Several of our lawyers handled contracting issues or litigation concerning classified programs while in government, so we can bring special insight in addressing these issues.  We have been involved in numerous hearings and disputes, conducted entirely in the "black world," on precedent-setting cases involving the State Secrets privilege and the Defense Production Act.  We have represented clients in matters involving the CIA, the NSA, the National Reconnaissance Office, the National Geospatial-Intelligence Agency, and other federal agencies involved in intelligence gathering and analysis.  We regularly work with companies before the Defense Security Service and assist them in satisfying the regulatory requirements of the National Industrial Security Program (NISP) that are driven by foreign investments or acquisitions.  We can advise clients on how best to address any challenge in protecting classified information associated with classified contracts.

We are also experienced in advising clients operating in areas of conflict.  Gibson Dunn lawyers have represented clients across the entire spectrum of battlefield conditions, from peace operations and support and stability operations to full-scale armed conflict and post-conflict environments in locations such as Afghanistan, Iraq and Kuwait.  Our lawyers have extensive experience representing contractors and individuals in theater and are highly knowledgeable about the laws, regulations and challenges clients face when performing work in a battlefield environment.

Government Access to Information

Government demands for information from companies through voluntary requests, warrants, or other compulsory process increasingly present novel questions given technological advances in encryption, the global nature of data storage, and government surveillance capabilities and authorities. 

Companies have a strong interest in protecting the privacy of their customer information, and encryption is of course a vital tool for consumers and thus for the commercial interests of providers. On the other hand, law enforcement and intelligence agencies have a legitimate need for assistance in urgent national security investigations and in obtaining compliance with valid court orders for personal information.  U.S. companies are subject to surveillance orders from law enforcement and the intelligence community under a number of statutes, including the Wiretap Act, the Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCA).  In addition, the Wiretap Act and SCA allow civil lawsuits challenging the use of personal information brought by individuals or through class actions. 

U.S. officials in recent years have expressed the view that cooperation from the private sector will be increasingly necessary for the government to obtain the information it needs to pursue urgent national security investigations and other law enforcement operations.  In the absence of legislation to strike the right balance in the context of current technology, these questions increasingly will be resolved through negotiation with the Executive Branch or, failing that, in the courts.  Gibson Dunn has played a leading role in cases addressing these questions.  We can challenge surveillance orders, including requirements that customers not be notified of such orders in certain circumstances.  With our unparalleled combination of experience in representing tech companies and managing these issues in government, our national security practice group tackles and solves the most difficult data access questions our clients face.

National Security Litigation and Investigations

Increasingly, our clients are confronting civil litigation and criminal investigations that raise national security issues, and Gibson Dunn has deep experience in such matters.  With our Appellate and Constitutional Law Practice Group, our team is prepared to handle difficult legal questions at every level.  And the Transnational Litigation Practice Group specializes in protecting clients against claims in U.S. and other courts stemming from overseas activities, as well as reducing and eliminating the risks posed by foreign litigation.

National security litigation and investigation matters often turn on classified information, and our lawyers are well versed in the complex procedures for handling classified information in the federal courts, including the Classified Information Procedures Act and the State Secrets privilege.  We are also experienced in specialized doctrines that may arise in such cases, such as sovereign and official immunity, and executive and deliberative process privilege.  Our lawyers have experience with litigation involving misuse of classified information, including potential compulsion of reporters and criminal prosecutions, as well as security clearance disputes.  

National security litigation and investigations often present situations in which Gibson Dunn's experience in crisis management is critical, including executing a strategic communication plan, responding to potential congressional interest, engaging with the Executive Branch, and otherwise guiding clients through difficult events.

Cross-Border Economic Activities

Our national security team helps global businesses comply with federal laws and regulations governing cross-border economic activities.

Foreign Investment.  The continuing rise in cross-border transactions, in combination with the U.S. government's attention to national security considerations associated with such transactions, require clients increasingly to turn to counsel for advice in complying with federal regulations designed to protect national security.  For example, review by the Committee on Foreign Investment in the United States (CFIUS) will continue to be a critical focus of the U.S. government as national security concerns escalate about investment by certain countries and as foreign investment affects critical U.S. technologies and infrastructure.  Gibson Dunn has extensive experience assisting both U.S. and foreign companies in transactions subject to CFIUS review.  In addition, when companies are determined to be under foreign ownership, control or influence (FOCI), we have assisted in obtaining security clearances for company employees and handling other issues to enable our clients to obtain or retain federal government work.

Economic Sanctions and Embargoes (Office of Foreign Assets Control).  Gibson Dunn advises both U.S. and foreign clients engaged in international commerce on a wide array of issues stemming from compliance with U.S. sanctions and embargoes administered and enforced by Treasury, Office of Foreign Assets Control (OFAC), and the Department of State.  Our lawyers have substantial experience assisting companies with conducting compliance assessments and risk audits, advising on the scope and applicability of particular sanctions regulations, liaising with key officials and regulators to obtain guidance or insight on policy focus and direction, and preparing requests for official advisory opinions or licenses.  When a company is concerned that sanctions violations may have occurred, we frequently assist in the internal investigation to uncover the facts, prepare and submit any self-disclosures and, if necessary, represent the company during the course of a subsequent government investigation and/or enforcement action.  

Export Controls.  Our international trade and government contracts groups advise clients on a wide range of U.S. government restrictions on the export of goods and technologies.  Our clients regularly consult us for advice on complying with the Export Administration Regulations and the International Traffic in Arms Regulations.  We assist clients in developing effective programs to ensure compliance with license conditions and reporting requirements, and in responding to enforcement actions.  We also assist clients in obtaining licenses and other authorizations from the U.S. Commerce Department's Bureau of Industry and Security (BIS) and the State Department's Directorate of Defense Trade Controls (DDTC). 

Foreign Corrupt Practices Act and International Bribery Compliance and Investigations.  In recent years, the DOJ has identified FCPA enforcement as a national security issue tied to the global fight against terrorism.  As clients expand business opportunities overseas, the risk of corruption and bribery has increased exponentially.  Gibson Dunn has represented clients in investigations involving alleged FCPA violations since the inception of the law.  Our lawyers regularly advise clients on all aspects of the FCPA and multinational corruption issues, including: initial advice, training, establishment and implementation of effective compliance programs, representation in internal and government investigations involving suspected FCPA and international corruption violations, Securities and Exchange Commission implications of FCPA issues, merger and acquisition due diligence related to corporate transactions, and special engagements such as serving in corporate compliance monitorships.

Anti-Money Laundering.  Members of our financial institutions and white collar defense groups have extensive knowledge of U.S. and foreign anti-money laundering laws and regulations, both as government lawyers and private practitioners.  We provide advice on anti-money laundering and forfeiture laws, currency transaction reporting, the identification and reporting of suspicious activity, wire transfer and other record-keeping requirements.  We advise and represent financial institutions in audits and exams conducted by a number of regulators and help prepare our clients to successfully complete the exercises in the most cost-effective manner.  We also defend financial institutions and other regulated entities against investigations and prosecutions for failure to prevent or report illegal money laundering and failure to follow the "know-your-customer" requirements and other requirements of the USA PATRIOT ACT.  Our clients include banks and financial service companies, as well as major international businesses, including manufacturers and distributors of appliances, consumer electronics, computers, and other goods.

Cybersecurity

The U.S. government's focus on the risks of cyber attacks and the need for preparedness, together with the increased publicity surrounding such attacks, has resulted in a strong desire by clients to mitigate the associated legal risk.  Gibson Dunn's Privacy, Cybersecurity and Consumer Protection Practice Group has a demonstrated history of helping companies successfully navigate the complex and rapidly evolving laws, regulations, and industry best practices relating to privacy, cybersecurity and consumer protection.  We have substantial experience assisting companies with all facets of cybersecurity, including helping clients develop policies and procedures before an incident arises, as well as counseling clients through the important steps that must occur immediately after breach situations and navigating the federal and state government investigations and private litigation that increasingly accompany cybersecurity incidents.  Due diligence regarding cybersecurity considerations has become increasingly important in the context of mergers and acquisitions, and we have great familiarity with handling these issues.  And for those clients that work with the U.S. government, we advise regarding compliance with rules related to safeguarding government information from cyber attacks.  Gibson Dunn is proud to have been named one of the seven "Law Firms Best at Cybersecurity" in BTI Consulting Group's 2017 report based on in-depth interviews with more than 320 corporate counsel at the world's largest companies.

Our capabilities are global.  Cybersecurity and privacy are global issues, and Gibson Dunn draws on its international team to seamlessly advise clients on sophisticated multijurisdictional matters.  The practice group includes lawyers in Brussels, London, Paris, Munich, Beijing, Singapore and Hong Kong who are not only exceptionally knowledgeable on relevant data protection and privacy laws at the national level, but are experienced in advising companies on European Union and Chinese developments, such as the EU Privacy Shield and upcoming General Data Protection Regulation, and coordinating multinational approaches. 

National Security Public Policy

Members of our public policy group have extensive experience with effecting public policy change on national security matters.  We are prepared to help build strategies regarding national security policy matters pending before both the U.S. Congress and the Executive Branch.  Our team includes former government officials who were responsible for providing advice to White House and Executive Branch policymakers and addressing congressional oversight of national security programs.  We can bring that perspective to bear in advising clients in their interactions with the federal government on policy and regulatory matters.  We have prepared clients to testify before congressional committees, assisted foreign firms in obtaining approvals from regulatory agencies to acquire U.S. defense contractors, defended technology clients against hostile takeover bids based on national security concerns, and assisted defense and aerospace firms with advocacy issues both in the United States and in foreign countries.