Practices

National Security

Overview

Wiley Rein has an unparalleled ability to assist clients on a broad range of national security issues. We counsel U.S. and foreign companies in matters before the U.S. Department of Defense (DOD), the U.S. Intelligence Community the Committee on Foreign Investment in the United States (CFIUS), Team Telecom, and the Defense Security Service (DSS) – and provide assistance with CFIUS and DSS mitigation agreements and network security agreements (NSAs). Our National Security Practice has more than two decades of experience handling matters related to export controls, including the International Traffic in Arms Regulations (ITAR) and economic sanctions. Our professionals also partner with the firm’s Election Law & Government Ethics Practice to provide full-service representation in Foreign Agents Registration Act (FARA) matters.

Wiley Rein has noteworthy experience assisting parties with acquisitions or transactions that require the approval of DSS, an agency within DOD. Any acquisitions by non-U.S. buyers of a company holding a facility security clearance (FCL) are subject to DSS approval. Companies subject to Foreign Ownership, Control or Influence (FOCI) cannot receive or retain an FCL unless FOCI has been effectively mitigated through an agreement or other mechanism approved by DSS. We have represented a wide range of companies with transactions subject to DSS jurisdiction, from the due diligence phase to implementation to FOCI mitigation measures. Members of Wiley Rein’s National Security Practice consistently work with key U.S. government decision-makers to help craft successful FOCI mitigation instruments, which may include board resolutions, security control agreements, special security agreements, or more complex proxy agreements or voting trusts. We work to ensure efficient coordination between the review process at DSS and the often parallel, but independent, review by CFIUS, so that neither process impedes the other.

Wiley Rein has been called upon to represent companies and associations in litigation and counseling regarding sensitive and difficult national security obligations and issues. As the government looks to stay one step ahead of terrorists, private industry is confronted with novel questions and demands and faces a perilous legal climate which includes multiple class action lawsuits alleging violations of rights. Wiley Rein counsels clients on the Wiretap Act, the Foreign Intelligence Surveillance Act (FISA), the SAFETY Act, and other national security issues that relate to government contracting, intellectual property, and the like. Our attorneys have top security clearances and stand ready to assist in any project touching on national security.

Wiley Rein’s National Security Practice is further strengthened by the broad and diverse expertise of professionals in the firm’s other areas of specialty, including the Government Contracts; International Trade; Export Controls; Economic Sanctions; Anti-Money Laundering; FCPA; Privacy and Cybersecurity; Telecom, Media & Technology; Public Policy; and Corporate practices.

CFIUS

When a transaction involves a foreign investment in a U.S. business, companies and investors need guidance to assess the deal’s national security implications. Our Team of legal and policy experts comprises several former government professionals who understand the opaque inner workings of CFIUS – including the former U.S. Treasury Deputy Assistant Secretary for Investment Security and Policy, who drafted new CFIUS law provisions in FIRRMA, and the former Director of the Foreign Investment Review Staff for the National Security Division at the U.S. Department of Justice (DOJ), who oversaw the DOJ’s participation in the CFIUS. Wiley Rein has insider knowledge of the CFIUS process and people; our team has worked on thousands of CFIUS and Team Telecom transactions, including negotiation of national security agreements in matters requiring the mitigation of FOCI over U.S. government contractors. In addition, the firm has long-standing relationships with members of Congress and Executive branch officials involved in national security matters, and we have worked directly with congressional committee staff and members of Congress to review and explain potentially sensitive transactions.

We advise U.S. companies, foreign multinationals, venture capitalists, and global private equity investors, including those from sensitive countries, on national security reviews before CFIUS and foreign investment regulators on a global basis. Our representations have included the leading transactions and most complex CFIUS reviews in the aerospace/defense, software/IT, telecommunications, energy, transportation, advanced technologies, chemicals, pharmaceuticals, infrastructure, and finance sectors. Several of our representations set the bar for U.S. government mitigation of national security threats in several large sectors. As a result, we have substantial expertise assisting parties with transactions that involve sophisticated technology, classified information, and critical technology and infrastructure.

Team Telecom

Wiley Rein has served as regulatory counsel in some of the largest transactions involving national security reviews of foreign investment in the U.S. communications sector. Our Team has unsurpassed experience obtaining license transfers and authorizations from the Federal Communications Commission (FCC) when foreign ownership is present and national security review is required. In recent years, we have guided startups, global telecommunications carriers, innovative technology companies, investors, and traditional media companies through the foreign investment review processes conducted by Team Telecom – the interagency group primarily comprised of the DOJ, the U.S. Department of Homeland Security (DHS), CFIUS, and DSS. For example, we represented Deutsche Telekom and T-Mobile before CFIUS and Team Telecom in the combination with MetroPCS. And we worked with NTT DOCOMO and DOCOMO Pacific in the transfer of control of MCVGH to DOCOMO Guam Holdings, Inc. In CFIUS and Team Telecom proceedings that were not made public, we have assisted additional companies holding FCC common carrier authorizations, submarine cable landing licenses, and declaratory rulings related to mobile and satellite radio licenses. Wiley Rein’s extensive knowledge and practical experience related to matters involving Team Telecom is as broad as it is deep. Our attorneys are highly sought-after because of their significant expertise on the range of national security issues that impact foreign investment in the U.S. communications sector, and for their ability to handle transactions in nearly every industry sector subject to national security reviews – especially those involving sophisticated technology, classified information, and critical technology and infrastructure.

Representative Experience

Our National Security Practice provides clients a full range of services before, during, and after a transaction. Our matters include:

  • Counseled the largest global supplier of computer storage equipment through the CFIUS process, pertaining to investment by a Chinese company.
  • Advised in the sale and acquisition of numerous U.S. communications assets, including terrestrial and mobile companies.
  • Counseled on the sale of U.S. cellular communications assets to a European telecommunications company.
  • Ongoing representation since 2006 of a global top-five mobile operator and its U.S. subsidiaries in CFIUS, Team Telecom, and FCC matters, including: multiple transaction reviews; negotiation of multiple national security mitigation agreements; successful transfers of control and new issuance of FCC submarine landing licenses, international common carrier authorizations, and Section 310(b)(4) declaratory rulings; and continuing engagement with Team Telecom concerning multiple compliance reviews and approval processes.
  • Assisted a major U.S. producer of semiconductor technology with its sale to a Chinese company.
  • Assisted a Fortune-10 U.S. company through the CFIUS process in conjunction with its joint venture with a government-controlled Middle Eastern company in the oil and gas sector.
  • Advised multiple private equity and hedge fund organizations in their assessment of transactions that have national security implications, covering the full range of U.S. industries.
  • Ongoing representation since 2000 of a global satellite communications provider in CFIUS, Team Telecom, DSS, and FCC matters, including: transaction reviews, design and implementation of corporate-wide programs to comply with a national security mitigation agreement, and ongoing engagement with Team Telecom on compliance reviews and necessary approvals.
  • Ongoing representation since 2010 of a global telecommunications carrier and its U.S. subsidiaries on FCC, CFIUS, Team Telecom, and DSS matters, including transactional advice and engagement with the U.S. government in multiple national security reviews.
  • Assisted a major New York private equity fund in its acquisition of one of the largest defense and energy contractors to the U.S. government.
  • Advised in multiple sales of U.S. defense contractors to foreign buyers and secured CFIUS approval and security clearances from DSS with respect to companies involved in classified government programs.
  • Counseled a major foreign government-controlled satellite company in its acquisition of substantial satellite communications assets serving the United States and the international community.
  • Assisted a Chinese company in the CFIUS process in conjunction with its ownership pursuit of a well-known U.S. aviation company.
  • Represented a multinational non-U.S. company before DSS, organized its new U.S. subsidiary to perform classified contracts, and assisted in gaining all required clearances.
  • Advised a rising U.S. cybersecurity company as the seller to a UK company in the CFIUS process.
  • Assisted buyers, sellers, institutional investors, private fund complexes, and foreign sovereign wealth funds with foreign investments in U.S. computer, defense, and natural resources companies.
  • Counseled a large Canadian telecommunications company through the CFIUS process in its acquisition of a U.S. cable services provider.
  • Advised a major U.S. consultancy firm on the DSS process and FOCI considerations consistent with the National Industrial Security Program Operating Manual (NISPOM).
  • Represented a Canadian sovereign wealth fund in the CFIUS process as it sought to purchase U.S. energy interests.
  • Represented a Middle Eastern shipping company in its successful acquisition of a U.S. logistics firm with extensive classified government contracts.
  • Advised a U.K. engineering and infrastructure construction firm in its purchase of an advanced technology and engineering company in the United States.
  • Represented clients in various FARA matters including registrations, guidance regarding compliance issues, and advisory opinion requests.
  • Served as counsel on FCC, Team Telecom, and CFIUS matters for a national U.S. wireless carrier and its foreign-owned parent in a 2013 merger with a competitor.
  • Representation for more than 20 years of a legacy Asian communications provider regarding the U.S. regulatory landscape, including representation on FCC, CFIUS, and Team Telecom issues with respect to successful acquisitions of U.S. communications assets.
  • Ongoing representation of multiple private equity firms and investment banks on CFIUS, Team Telecom, and FCC matters regarding successful acquisitions of financial interests in FCC licensees, including providers of satellite, mobile, and submarine cable services.
  • Advised a European-based multinational concerning divestment from the U.S. market while minimizing risks of CFIUS, Team Telecom, and FCC delays.
  • Represented a leading U.S. telecom company on CFIUS and Team Telecom issues involved in the build-out of a submarine cable system and in multiple successful divestments of assets outside the continental United States, with each proceeding requiring negotiation of national security mitigation agreements.

In addition, Wiley Rein has participated in the litigation and debate over national security, executive power, state secrets, and related issues by representing amici before the courts of appeals and in the Supreme Court of the United States.

Trial Courts and Courts of Appeals

Wiley Rein has filed several briefs in the courts of appeals concerning state secrets and other issues central to national security litigation.

  • Wiley Rein represented the Foundation for Defense of Democracies (FDD) as amicus in the Ninth Circuit in a case challenging a government contractor’s alleged participation in the Central Intelligence Agency’s (CIA) program of extraordinary rendition. Wiley Rein filed an amicus brief arguing that the case should be dismissed under the state secrets doctrine. Mohamed v. Jeppesen Dataplan (9th Cir.).
  • Wiley Rein represented the U.S. Telecom Association (USTA) in litigation in the Ninth Circuit challenging the National Security Agency’s (NSA) Terrorist Surveillance Program and the alleged cooperation of telecommunications carriers in that program. Wiley Rein filed a brief arguing that the case should be dismissed under the state secrets doctrine. Hepting v. AT&T Inc. (9th Cir.).
  • Wiley Rein represented the Foundation for the Defense of Democracies as an amicus in support of the government in the Sixth Circuit in litigation arising out of the American Civil Liberties Union’s (ACLU) challenge to the NSA’s Terrorist Surveillance Program. ACLU v. NSA (6th Cir.).
  • Wiley Rein represented Keeler and Tate Management in litigation in the Eastern District of Virginia challenging the alleged participation of government contractors in the CIA’s program of extraordinary rendition. El-Masri v. Tenet (E.D. Va.).
  • Wiley Rein represented AECOM in a lawsuit alleging fraud and breach-of-subcontract agreements related to a 2007 competition for a classified contract with the Intelligence Community. Wiley Rein was instrumental in convincing DOJ to intervene in the state court action, remove it to federal court, and move to dismiss the case by invoking the state secrets privilege. After Wiley Rein filed a brief supporting the Government’s motion and argued in support of dismissal, the court dismissed the lawsuit on state secrets grounds. Wever v. AECOM National Security Programs, Inc. (E.D. Va.).

Supreme Court Practice

  • Wiley Rein represented six former attorneys general in a major national security case, successfully arguing that plaintiffs lacked Article III standing to challenge the constitutionality of national security legislation. Clapper v. Amnesty International.
  • Wiley Rein represented the Washington Legal Foundation (WLF) as an amicus in support of the U.S. Navy in a challenge to the Navy’s use of mid-frequency active sonar in anti-submarine warfare training off the Pacific Coast. Winter v. Natural Resources Defense Council.
  • Wiley Rein represented the Foundation for the Defense of Democracies as an amicus in support of the government in a challenge to the Military Commissions Act. Boumediene v. Bush.
  • Wiley Rein represented a distinguished group of former government officials (including three former attorneys general) and retired military officers as amici in support of the government in a challenge to the government’s use of military commission to try and punish captured Al Qaeda combatants. Hamdan v. Rumsfeld.
  • Wiley Rein represented law professors and law students as amici in support of petitioner in the Supreme Court challenge to the Solomon Amendment. Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Contact Us

Daniel B. Pickard
202.719.7285 | dpickard@wileyrein.com

Tracye Winfrey Howard
202.719.7452 | twhoward@wileyrein.com

Our People

Name Position Telephone Email
Moshe B. BroderAssociate202.719.4186Download vCard
Daniel P. BrooksAssociate202.719.4183Download vCard
Megan L. BrownPartner202.719.7579Download vCard
Jon W. BurdPartner202.719.7172Download vCard
Tessa CapelotoOf Counsel202.719.7586Download vCard
Nova J. DalySenior Public Policy Advisor202.719.3282Download vCard
Michael L. DiakiwskiAssociate202.719.4081Download vCard
Matthew J. GardnerPartner202.719.4108Download vCard
Anna M. GomezPartner202.719.7261Download vCard
Vesna K. Harasic-YaksicAssociate202.719.4506Download vCard
Jennifer D. HindinPartner202.719.4975Download vCard
Tracye Winfrey HowardPartner202.719.7452Download vCard
Peter S. Hyun *Partner202.719.4499Download vCard
Madeleine M. LottenbachAssociate202.719.4193Download vCard
Kevin J. MaynardPartner202.719.3143Download vCard
Usha NeelakantanOf Counsel202.719.7209Download vCard
Daniel B. PickardPartner202.719.7285Download vCard
Lori ScheetzOf Counsel202.719.7419Download vCard
John R. ShanePartner202.719.7222Download vCard
Meredith G. SingerAssociate202.719.7507Download vCard
Richard C. Sofield *Partner202.719.4500Download vCard
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*Not admitted to the District of Columbia Bar. Supervised by principals of the firm who are members of the District of Columbia Bar.

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