Since the terrorist attacks of September 11, 2001, the U.S. government is increasingly active in monitoring international business transactions and in regulating or restricting business activities in response to the threat of physical, electronic or financial terrorism. Doing business in the 21st century raises a number of national security issues – supply-chain security management; border security; emergency response and recovery; restrictions on the export of certain technologies; and complying with economic trade sanctions, anti-money laundering requirements and anti-corruption regimes.
Gibson, Dunn & Crutcher's extensive experience in all areas of global commerce, coupled with its nationally recognized expertise in dealing with both U.S. and foreign laws and regulations, allows us to handle and solve our clients' most vexing problems.
Our National Security team is drawn from several practice groups throughout the firm, 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 security clearances and wide-ranging capabilities in the full spectrum of national security issues.
Many of the members of our team have served in senior capacities in the federal government, particularly in the agencies and organizations that make, implement and enforce national security laws and regulations. Our team includes lawyers who have held high-level positions in the U.S. Departments of Justice, Treasury and Labor, as well as the White House, the National Security Council and the Office of Management and Budget (OMB). Members of the team include a former U.S. Attorney for Los Angeles, a legal advisor to the National Security Council, two Solicitors for the U.S. Department of Labor, the Associate Director of OMB, and an Assistant General Counsel in the Central Intelligence Agency (CIA)'s Office of General Counsel. While in government, our lawyers also worked closely with every national security-related agency, including the Director of National Intelligence, the CIA, the National Security Agency (NSA), the Defense Security Service and the Department of Homeland Security. Given this wealth of experience, we are prepared to address every aspect of a national security legal or public policy issue facing our clients.
The ongoing conflicts in Iraq and Afghanistan and elsewhere often raise issues that require knowledge of those countries' laws and procedures, and experience with contingency operations. Gibson Dunn lawyers have represented clients across the entire spectrum of battlefield conditions, from peace operations, support and stability operations to full-scale armed conflict and post-conflict environments in locations such as Afghanistan, Iraq and Kuwait. Gibson Dunn is fortunate, and proud, to have on its team over a dozen former military officers. 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.
A number of Gibson Dunn's 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.
Set forth below are some of the most common concerns our clients confront in the national security realm and a brief summary of our experience in those areas. Specific information about the work we do in these areas can be found in the various practice group descriptions.
Economic Sanctions and Embargoes (Office of Foreign Assets Control)
Members of our International Trade and White Collar Defense groups advise 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 the Department of the Treasury, Office of Foreign Assets Control (OFAC) and the Department of State. Lawyers in these groups 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, or 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 or enforcement action.
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 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
As clients expand business opportunities overseas, the risk of corruption and bribery has increased exponentially. Moreover, the Justice Department's recent announcement that it considers Foreign Corrupt Practices Act (FCPA) enforcement to be a national security issue tied to the global fight against terrorism makes the FCPA even more important. Our White Collar Defense and International Trade groups have represented clients in investigations involving alleged violations of the FCPA 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.
Our International Trade, Government Contracts and Public Policy groups have extensive experience assisting both U.S. and foreign companies in transactions subject to review by the Committee on Foreign Investment in the United States (CFIUS). In addition, when companies are determined to be under foreign ownership, control or influence (FOCI), we have assisted in obtaining security clearances and handling other issues to enable our clients to obtain or retain federal government work.
Our Government Contracts group has 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. 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. In addition, we have been called upon to represent U.S. government agencies on several occasions.
Homeland Security/SAFETY Act
Our Government Contracts, Crisis Management and Public Policy groups have counseled companies since September 11, 2001, on issues relating to what has become known as Homeland Security. We have counseled clients on qualifying their products under the SAFETY Act, addressing company-threatening liability for pharmaceutical products, and other first-impression matters.
Our International Trade group advises clients on the restriction of exports on encryption technology. In addition, our Privacy, Cybersecurity and Consumer Protection and White Collar Defense groups represent clients in matters involving charges of computer hacking, intrusion and intellectual property offenses, as well as entities that have been victimized by network security incidents or data breaches.
National Security Civil and Criminal Litigation
Increasingly, our clients are confronting civil litigation and criminal investigations that raise national security issues. Members of our Litigation and White Collar Defense groups have deep experience in such matters. Often the resolution of these cases turns 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.
National Security Public Policy
The members of our Public Policy group also 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 Congress and the Executive Branch. Our team includes a former high-ranking State Department official and a former member of the National Security Council staff responsible for providing advice to White House and Executive Branch policymakers and addressing congressional oversight of national security programs.
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.
Our Public Policy group has extensive experience advising defense and high-tech industry clients in their interaction with federal, state and local governments. 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.
Customs and Imports
Our International Trade group represents clients in compliance, licensing and enforcement matters before the Department of Homeland Security's Bureau of Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). We have particular expertise shepherding our clients through a customs compliance assessment or audit and with the Customs-Trade Partnership Against Terrorism (C-TPAT) program.
Our Labor and Employment group has extensive experience with the full range of employment issues facing employers in the post-9/11 environment, including the E-Verify system, which requires federal government contractors to use an electronic verification system to verify the employment eligibility of new employees.