National Security, Defense and Intelligence

Holland & Knight's National Security, Defense and Intelligence Team uses its in-depth understanding of government operations and political perspectives, combined with significant knowledge of our clients' unique and evolving needs, to advance their strategic objectives before U.S. national security and defense agencies, including the 17 member agencies of the U.S. Intelligence Community, as well as before Congress. Our interdisciplinary team has extensive hands-on experience in national security, defense and intelligence-related issues to help ensure representation tailored to and capable of resolving each client's legal and policy needs.

Our lawyers and policy professionals understand the legal and policy framework in which national security issues arise, as well as the government processes in which sensitive decisions are made. Our team includes the former general counsel of the Office of the Director of National Intelligence (ODNI) and former senior officials of both the U.S. Department of Homeland Security (DHS) and U.S. Department of Justice (DOJ), including former U.S. Attorneys, and the former deputy general counsel of DHS. In addition, our team includes two former members of Congress and a former House Armed Services Committee minority staff director, all of whom have firsthand experience with the National Defense Authorization Act (NDAA) and appropriations process.

The team focuses on representing clients who regularly operate in and support the national security and defense sectors, as well as clients whose activities typically fall outside the government sphere but may require assistance with national security issues. For example, we regularly counsel clients on issues associated with:

• the defense authorization and appropriations process
• contracting with U.S. intelligence and defense agencies
• mergers and acquisitions featuring government contractors and classified programs
• transactions with national and industrial security implications, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS) and issues raised by Foreign Ownership, Control or Influence (FOCI)
• export controls regulatory regimes, including International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR)
• security clearance suitability and reform
• data privacy and cybersecurity incident response
• anti-money laundering compliance, and
• investigations and complex civil litigation involving national security agencies and issues

Extensive Experience and Collaboration

Our National Security, Defense and Intelligence Team works collaboratively with the firm's more than 2,000 attorneys and policy professionals practicing in over 200 areas of law across the globe to provide comprehensive representation to help meet your legal needs. The team works in tandem with other experienced attorneys at the firm in a wide range of areas to focus on the matters that are most important to our clients, including:

NDAA and Defense Appropriations. Our attorneys and policy advisors assist clients with NDAA and defense appropriations matters through a combination of policy depth, political prowess, media savvy and access to nationwide resources across a range of practices. Our team has years of experience working with members of both the U.S. House and Senate in a bipartisan manner to secure funding for clients. The team includes two former members of Congress who have firsthand experience with the NDAA and appropriations process, as well as a former minority staff director at the U.S. House of Representatives' Committee on Armed Services (HASC), who was responsible for the development, negotiation and passage of the annual NDAA. We have successfully advocated for our clients' priorities to be included in the NDAA and defense appropriations bills by leveraging our team's relationships and deep understanding of these processes.

Government Contracts. We offer representation to government contractors of all sizes, including some of the largest aerospace and defense contractors, as well as midsize and small businesses. Team members advise on National Industrial Security Program Operating Manual (NISPOM) procedures and requirements, counsel companies on the impact that a change in ownership structure can have on their security clearances, assist government contractors in developing and negotiating appropriate mitigation mechanisms, such as Special Security Agreements (SSA), Security Control Agreements (SCA), Proxy Agreements (PA) and associated board resolutions, and represent clients in matters arising before the Defense Counterintelligence and Security Agency (DCSA).

International Procurement. Our lawyers provide comprehensive legal services in the area of international procurement, including guidance on the Trade Agreements Act, Buy American Act, Berry Amendment, export controls, FOCI mitigation, foreign military sales, ITAR, EAR and Foreign Corrupt Practices Act (FCPA). We also work with contractors who perform in support of overseas/contingency operations and who market defense articles and services to foreign governments or who work with non-U.S. team members. This includes representing clients with the U.S. Department of Defense (DOD), U.S. Department of State and U.S. Agency for International Development (USAID) contracts.

FOCI Concerns. We advise clients on U.S. laws regarding FOCI that generally prohibit a foreign-owned or foreign-controlled U.S. company from obtaining the facility security clearance necessary to bid on and perform classified U.S. government contracts. In doing so, we have substantial experience in advising clients on negotiations with the DOD, DOJ and U.S. Department of Energy, as well as members of the Intelligence Community and Team Telecom, to develop FOCI mitigation plans. In addition, our attorneys are well versed in how transactions might be structured to best anticipate FOCI concerns.

Security Strategies. Our lawyers work closely with the White House and DOD, DOJ, State Department, U.S. Department of the Treasury and U.S. Department of Health and Human Services, as well as other agencies, to help prepare our clients for and establish counterterrorism, emergency response and federal law enforcement initiatives. We defend clients in civil and criminal investigations and enforcement actions involving national security matters. We also routinely provide preparation and representation in congressional hearings and investigations.

Representative Engagements

NDAA and Defense Appropriations

• Advocated for a new federal defense program that would create a repair and replacement program for undersea cables; our team worked with the chair and ranking member of the House Armed Services Committee's Subcommittee on Seapower and Projection Forces to ensure that the program was included in the FY 2020 NDAA conference report; after a two-year battle to convince both authorizers and appropriators, $10 million was allocated in the 2019 Omnibus for this effort
• Obtained a $5 million plus-up in the FY 2020 Defense Appropriations Research, Development, Test, and Evaluation (RDT&E) budget on behalf of a university client for materials research

CFIUS, FOCI and Other Foreign Investment Matters

• Advised on the foreign purchase of U.S. high-tech defense contractor
• Advised on the establishment of a U.S. facility to provide defense services related to U.S. and foreign combat aircraft
• Provided advice regarding negotiation and restructuring of U.S. classified contracts to allow foreign purchase
• Provided advice regarding private equity investments in cleared government contractors for the DOD and Intelligence Community agencies

Government Contracts

• Represent entities threatened with suspension and debarment or other forms of exclusion from participation in government contracting, including responding to show cause notices, developing corrective action plans and negotiating administrative agreements with agency suspension and debarment officials
• Successfully defended a protest of DOD contract award to our client for training on space and missile defense systems valued at $125 million
• Successfully protested the terms of a solicitation issued by the U.S. Army Corps of Engineers, for operations and maintenance (O&M) services at sites and facilities in Afghanistan

Mergers and Acquisitions

• On behalf of corporate clients supporting the U.S. Intelligence Community and warfighter missions, advise on the full range of mergers and acquisitions transactions that businesses may encounter, including issues associated with industrial security and classified contracting activities
• Represented a non-U.S. public company acquirer of a public company, Intelligence Community government contractor in a $1 billion tender offer

Data Security and Privacy

• Represent clients in large-scale data breaches, including those involving DOD data security requirements for government contractors
• Advise client on report to FBI regarding use of its products by foreign nation-state hackers to perpetrate cyberattacks
• Develop cyber breach incident response plans that function as a playbook for guiding the client's response through an incident investigation and key decision points

Investigations and Litigation

• Represented a multibillion-dollar U.S. government contractor before the State Department and U.S. Air Force against allegations of violating ITAR, resulting in no fines being imposed
• Conducted a nationwide internal investigation for a leading military contractor related to allegedly fraudulent reporting to the government, involving scrutiny by the Air Force Office of Special Investigations (AFOSI) and congressional Oversight and Armed Services committees
• Represented a U.S. defense contractor in connection with multiagency federal investigation regarding U.S. Intelligence Community programs and insider threat issues