Intelligence Law School - Course 1: Lesson 4.4.2 The National Security Act of 1947 (50 U.S.C. §§ 401-442a) [HTML-Only]


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LESSON 4: STATUTORY LAW


4.4 Organic and Enabling Statutes (U.S. Code Title 50, Chapter 15: National Security)


4.4.2 The National Security Act of 1947 (50 U.S.C. §§ 401-442a)


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4.4.2 The National Security Act of 1947 (50 U.S.C. §§ 401-442a)

4.4.2.1 The National Security Act Generally

So, what are the major organic statutes and enabling acts relevant to U.S. intelligence law?

 

Ø  The National Security Act of 1947 is the granddaddy of organic statutes.

Ø  It was enacted after World War II to structure the military and intelligence agencies of the United States for their peacetime mission.[1]

Ø  It created the basic organizational structure for the U.S. Intelligence Community, and first set out the powers of many of the central leaders, agencies, and councils that play a role in America’s intelligence effort.

Ø  The National Security Act is codified primarily as Chapter 15 of Title 50 of the U.S. Code, so it’s easy to find.

Ø  Here are some examples of what the National Security Act did:

o   It created the National Security Council;

o   Created the CIA;

o   Created the Department of Defense.

§  Actually, the original act created something called the National Military Establishment, which was later renamed the Department of Defense.

§  They changed the name because somebody figured out that the acronym for National Military Establishment (N-M-E) sounds like “enemy” when you say it out loud.

·         That was a little on-the-nose for the Pentagon’s liking.

·         Can you imagine if DoD had to surveil all those college students and peace activists with a name like “The ENEMY” hanging around its neck?

·         The picket signs alone would be so hilarious it might threaten national security!

 

4.4.2.2 The U.S. Intelligence Community Today

The Intelligence Community has expanded since its creation in 1947, but is still defined in the National Security Act, as amended.[2]

 

As of this taping, the U.S. Intelligence Community includes:

 

Ø  The Office of the Director of National Intelligence.

Ø  The Central Intelligence Agency.

Ø  The National Security Agency.

Ø  The Defense Intelligence Agency.

Ø  The National Geospatial-Intelligence Agency.

Ø  The National Reconnaissance Office.

Ø  Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs.

Ø  The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, and the Department of Energy.

Ø  The Bureau of Intelligence and Research of the Department of State.

Ø  The Office of Intelligence and Analysis of the Department of the Treasury.

Ø  The elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard.

Ø  Such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.[3]

 

The major components of the Intelligence Community involved in domestic intelligence operations targeting American citizens are:

 

Ø  The Office of the Director of National Intelligence

Ø  The Federal Bureau of Investigation; and

Ø  The Department of Defense, which is by far the biggest player in the intelligence community, eating up 80-90% of the yearly intelligence budget[4] as well as more than half of all discretionary spending dollars spent by the entire United States government.[5] DoD is a bloated military bureaucracy that contains most of the agencies considered part of the U.S. Intelligence Community deep within its bowels.[6] DoD intelligence components include:

o   The National Security Agency

o   The Defense Intelligence Agency

o   The National Geospatial-Intelligence Agency

o   The National Reconnaissance Office; and

o   The intelligence elements of the Army, Navy, Air Force, and Marines;

o   Not to mention a whole host of other random offices within DoD that have been created to handle the collection of specialized national intelligence through reconnaissance programs.

Ø  The Department of Homeland Security

 

Except for the FBI and DHS, the powers and duties of all of most important intelligence community agencies and their leadership are set out in the organic and enabling statutes found right here in Title 50, Chapter 15.

 

Ø  Executive Order 12333: Each agency’s role is further clarified by Presidential rules like Executive Order 12333.

Ø  Agency Rules: These agencies then administer their duties as defined by applicable statutes and Presidential rules by issuing internal agency rules that govern how every element of those duties are carried out.

o   We talk about Presidential and agency rules in the next lesson on administrative law.

 

So, if you want to see what organic statutes look like, go to Title 50 of the U.S. Code and flip to Chapter 15—this is the National Security Act.

Take a look at Subchapter A titled “Coordination for National Security.”

And there you’ll find many of the organic statutes for some of the most important agencies and leaders in the U.S. intelligence community.

 

Ø  You’ll see all of the:

o   The Director of National Intelligence,[7]

o   The CIA Director,[8]

o   The National Security Council,[9]

o   The Joint Intelligence Community Council,[10]

o   The National Counterintelligence Executive;[11]

o   And a host of other important officials. Every agency and agency head is created by some form of statute which lays out their mission and powers.

 

4.4.2.3 The Myth of “Charterless” Agencies

So all agencies have some statutory foundation upon which all their powers rest. This doesn’t mean that each tiny agency has its own organic statute.

It just means that all major parent agencies do need an organic statute.

 

Ø  The NSA Example: For example, The NSA was created essentially by a 7-page memorandum sent by President Harry Truman to Secretary of State Dean Acheson and Secretary of Defense Robert Lovett back on October 24, 1952.[12]

o   Still, it always had a statutory basis at its core because it was created within the Department of Defense relying on the statutory authority of the Secretary of Defense in his organic statute.[13]

o   It also received statutory authority later on in various statutes.[14]

Ø  FBI Example: These ostensibly charterless agencies always are created within an existing parent agency using the statutory power already conferred on the President or parent agency by Congress.

o   In the case of the charterless FBI, it was created within the Department of Justice pursuant to the statutory powers of the Attorney General.[15]

 

 

 

Footnotes

[1] National Security Act of 1947, P.L. 80-253, codified as amended as Chapter 15 of Title 50 of the U.S. Code, 50 U.S.C. §§ 401-442a; see also Richard A. Best, Jr., Congressional Research Serv., Proposals for Intelligence Reorganization, 1949-2004 (2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32500_9-24-2004.pdf (“The National Security Act of 1947 (P.L. 80-253) established the statutory framework for the managerial structure of the United States Intelligence Community, including the Central Intelligence Agency (CIA) and the position of Director of Central Intelligence (DCI).  A fundamental intent of this legislation was to coordinate, and to a certain extent centralize, the nascent intelligence efforts of the United States as an emergent superpower in the face of a hostile Soviet Union.”).

[2] See Richard A. Best, Jr., Congressional Research Serv., Proposals for Intelligence Reorganization, 1949-2004 (2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32500_9-24-2004.pdf (“In 1947, the foundation of the present-day Intelligence Community consisted only of the relatively small intelligence components in the Armed Services, the Departments of State and the Treasury, the Federal Bureau of Investigation (FBI), and the fledgling CIA.  Since 1947, however, the Intelligence Community “has greatly expanded in size and acquired a much broader range of responsibilities in the collection, analysis, and dissemination of foreign intelligence.”) (internal footnotes omitted).

[3] See 50 U.S.C. 401a(4) (2010) (“The term "intelligence community" includes the following: (A) The Office of the Director of National Intelligence. (B) The Central Intelligence Agency. (C) The National Security Agency. (D) The Defense Intelligence Agency. (E) The National Geospatial-Intelligence Agency. (F) The National Reconnaissance Office. (G) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs. (H) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, and the Department of Energy. (I) The Bureau of Intelligence and Research of the Department of State. (J) The Office of Intelligence and Analysis of the Department of the Treasury. (K) The elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard. (L) Such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.”).

[4] The intelligence operations conducted by DoD dwarf the operations and budget of every other U.S. intelligence and law enforcement agency combined. For an estimate of Department of Defense’s share of the 2004 intelligence budget, see Stephen Daggett, Congressional Research Serv., The U.S. Intelligence Budget: A Basic Overview (2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS21945_9-24-2004.pdf (“Size and Composition of the Intelligence Budget: The amount spent annually on intelligence has been classified except  for two years in the late 1990s. In October 1997, Directory of Central Intelligence George Tenet announced that the intelligence budget for FY1997 was $26.6 billion, and in March 1998, he announced that the budget for FY1998 was $26.7 billion.  Officials have not released totals since then, nor have they ever provided a breakdown of the intelligence budget by agency or activity. Some information about the composition of the intelligence budget was, however, provided in 1996 by the Commission on the Roles and Capabilities of the U.S. Intelligence Community, co-chaired initially by former Secretary of Defense Les Aspin and former Senator Warren Rudman and, after Secretary Aspin’s death, by Senator Rudman and former Secretary of Defense Harold Brown.2 The Commission did not reveal the total amount spent on intelligence, but it did provide a substantial amount of information on trends in intelligence funding and on the share of the budget for NFIP and other areas. The Commission reported that about two-thirds of the intelligence budget at the time was for NFIP, that almost all of the NFIP budget was for the CIA and DOD, and that about three-fourths of the NFIP budget was for DOD programs. The Commission also printed a graphic that showed relative amounts for major intelligence agencies. Breaking out their rulers, and assuming that the overall intelligence budget was about $30 billion, non-government analysts were then able to make rough estimates of the budgets of the CIA, NRO, NSA, and other agencies. Currently, it is widely estimated in the press that the total intelligence budget has grown to about $40 billion.  The composition of the intelligence budget has likely shifted to some degree since the Commission’s 1996 report, but no official overview of the budget has been produced in the interim.  Some press accounts still estimate that NFIP is about two-thirds of the total, while others guess that the NFIP is about half.  So a reasonable range would put NFIP at between $20 and $27 billion, JMIP at $5-7 billion, and TIARA at $12-15 billion. Within the NFIP account, if three-fourths of the total is still for DOD, then the defense share would range from $15-20 billion, divided among the NRO, NSA, NGA, and DIA, with the bulk for NRO and NSA.  The remaining $5-7 billion of the NFIP budget would be for the CIA, FBI, and other agencies, with the bulk for the CIA.”) (internal footnotes omitted).

[5] Total outlay for Department of Defense expenditures in FY2010 was estimated to be $688 billion. The figure for FY 2011 skyrockets to $719 billion, and these figures don’t even include an additional $123 billion dollars for the Department of Veterans Affairs. See Department of Defense Budget for Fiscal Year 2010, available at https://intelligencelaw.com/files/pdf/law_library/budget/DoD_budget_2010.pdf.

[6] 10 U.S.C. § 1614(2) (“In this subchapter [10 U.S.C. §§ 1601 et seq.]: (2)The term "intelligence component of the Department of Defense" means any of the following: (A) The National Security Agency. (B) The Defense Intelligence Agency. (C) The National Geospatial-Intelligence Agency. (D) Any other component of the Department of Defense that performs intelligence functions and is designated by the Secretary of Defense as an intelligence component of the Department of Defense. (E) Any successor to a component specified in, or designated pursuant to, this paragraph.”); see also U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ DL1.1.8 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Include the following organizations: DL1.1.8.1. The National Security Agency/Central Security Service. DL1.1.8.2. The Defense Intelligence Agency. DL1.1.8.3. The offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs. DL1.1.8.4. The Assistant Chief of Staff for Intelligence, Army General Staff. DL1.1.8.5. The Office of Naval Intelligence. DL1.1.8.6. The Assistant Chief of Staff, Intelligence, U. S. Air Force. DL1.1.8.7. The Army Intelligence and Security Command. DL1.1.8.8. The Naval Intelligence Command. DL1.1.8.9. The Naval Security Group Command. DL1.1.8.10. The Director of Intelligence, U.S. Marine Corps. DL1.1.8.11. The Air Force Intelligence Service. DL1.1.8.12. The Electronic Security Command, U.S. Air Force. DL1.1.8.13. The counterintelligence elements of the Naval Investigative Service. DL1.1.8.14. The counterintelligence elements of the Air Force Office of Special Investigations. DL1.1.8.15. The 650th Military Intelligence Group, SHAPE. DL1.1.8.16. Other organizations, staffs, and offices, when used for foreign intelligence or counterintelligence activities to which part 2 of E.O. 12333 (reference (a)), applies, provided that the heads of such organizations, staffs, and offices shall not be considered as heads of DoD intelligence components for purposes of this Regulation.”).

[7] 50 U.S.C. § 403 (2006) (establishing the position of Director of National Intelligence); see also 50 U.S.C. § 403-1 (2006) (delineating the “responsibilities and authorities of the Director of National Intelligence”); see also 50 U.S.C. § 403-3 (2006) (creating the office of the Director of National Intelligence and establishing its powers and responsibilities).

[8] 50 U.S.C. § 403-4a (2006) (creating the position of Director of the Central Intelligence Agency).

[9] 50 U.S.C. § 402.

[10] 50 U.S.C. § 402-1.

[11] 50 U.S.C. § 402b.

[12] See James Bamford, The Puzzle Palace: A Report on America’s Most Secret Agency 15-19 (1982) (Penguin Books Ed. 1983) (providing a fascinating account of the founding of the National Security Agency); see also James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency 31 (2001) (Anchor Books Ed. 2002) (providing additional historical background behind President Truman’s decision to create the National Security Agency as a replacement for the Armed Forces Security Agency).

[13] President Truman didn’t just rely on his executive power under Article II alone to create the NSA. The President doesn’t have the constitutional authority to create entirely new agencies out of thin air. There must be some sort of statutory foundation. In the case of the NSA, that initial statutory foundation came from the powers vested by Congress in the President and the Department of Defense by the National Security Act of 1947. The NSA wasn’t an independent agency being created from scratch, but rather it was simply a subsidiary agency created within an existing agency—namely the Department of Defense. It wasn’t charged with any new powers that didn’t have a statutory foundation, but rather the NSA consolidated existing powers related to signals intelligence which were rightfully part of the Department of Defense’s military authority contained in its own statutory grant. In creating the NSA, Truman was simply reorganizing existing agency powers by consolidating all of the signals intelligence and cryptanalytic operations of the military service branches and putting them into one agency within the same federal department—the Department of Defense. The President clearly has the constitutional authority to reorganize existing executive agencies based on his power as Chief Executive and head of the Executive Branch spelled out in Article II of the Constitution.

[14] The Truman memo served as the initial organic document for the NSA until Congress was able to enact proper enabling legislation, giving the agency some statutory basis independent of the Secretary of Defense and Department of Defense. See generally National Security Agency Act of 1959, May 29, 1959, P.L. 86-36, §§ 2-17, 73 Stat. 63, as amended Oct. 4, 1961, P.L. 87-367, Title II, §§ 201, 204, 75 Stat. 789; Oct. 11, 1962, P.L. 87-793, § 1001(c), 76 Stat. 864; Sept. 23, 1950, ch 1024, Title III, § 306(2), as added March 26, 1964, P.L. 88-290, 78 Stat. 170; Aug. 14, 1964, P.L. 88-426, Title III, § 306(h), 78 Stat. 430; Oct. 6, 1964, P.L. 88-631, § 3(d), 78 Stat. 1008; Sept. 6, 1966, P.L. 89-554, § 8, 80 Stat. 632, 660; Oct. 8, 1966, P.L. 89-632, § 1(e), 80 Stat. 878; Dec. 30, 1969, P.L. 91-187, § 2, 83 Stat. 850; Oct. 14, 1980, P.L. 96-450, Title IV, § 402(a), 94 Stat. 1978; Dec. 4, 1981, P.L. 97-89, Title VI, §§ 601-603, 95 Stat. 1154-1156 ; June 6, 1986, P.L. 99-335, Title V, § 507(a), 100 Stat. 628, effective Jan. 1, 1987; Oct. 27, 1986, P.L. 99-569, Title V, § 505, 100 Stat. 3200; Nov. 30, 1989, P.L. 101-193, Title V, § 505(b), 103 Stat. 1709; Nov. 30, 1989, P.L. 101-194, Title V, § 506(c)(2), 103 Stat. 1759, effective Jan. 1, 1991; P.L. 102-88, Title V, § 503, 105 Stat. 436; Dec. 4, 1991, P.L. 102-183, Title IV, § 405, 105 Stat. 1267; Oct. 24, 1992, P.L. 102-496, Title III, § 304(a), Title IV, § 405, 106 Stat. 3183, 3186; Oct. 24, 1992, P.L. 102-496, Title VIII, § 803(b), 106 Stat. 3253; Oct. 14, 1994, P.L. 103-359, Title VIII, § 806(b)(2), 108 Stat. 3442; Feb. 10, 1996, P.L. 104-106, Div A, Title X, Subtitle F, § 1064(b), 110 Stat. 445; Sept. 23, 1996, P.L. 104-201, Div A, Title XVI, Subtitle B, § 1633(b)(1), 110 Stat. 2751; Dec. 28, 2001, P.L. 107-108, Title V, § 506, 115 Stat. 1406; Nov. 27, 2002, P.L. 107-306, Title VIII, Subtitle E, § 841(f), 116 Stat. 2432; Dec. 13, 2003, P.L. 108-177, Title III, Subtitle E, § 377(c), Title V, § 501, 117 Stat. 2630, 2633; Dec. 23, 2004, P.L. 108-487, Title V, § 501, 118 Stat. 3950; Oct. 17, 2006, P.L. 109-364, Div A, Title IX, Subtitle D, § 933, 120 Stat. 2363.

[15] In 1979, Congress considered creating a specific statutory charter for the FBI after it was revealed that agents had grossly abused their investigative power by engaging in covert actions intended to discredit Dr. Martin Luther King Jr. and others fighting for racial equality during the Civil Rights movement. This charter never made it out of committee, but a statutory charter for the Bureau has remained a topic of conversation on Capitol Hill and is reconsidered from time to time when current events bring regulatory deficiencies to the public’s attention. See generally Todd Masse, Congressional Research Serv., The FBI: Past, Present, and Future (2003) ("Although prior Congresses have discussed the development of a legislative charter for the FBI, no such single authoritative document outlining FBI jurisdiction and responsibilities exists."); see also Id. at Footnote 29 ("The FBI Charter Act of 1979 was developed in the wake of revelations in the 1960s and early 1970s that the FBI and other U.S. intelligence agencies were investigating U.S. citizen activity deemed then to be “subversive.” Subsequent investigation found many of the government’s activities during this tumultuous period of U.S. history were indeed illegal. For a summary of the FBI Charter Act, see “FBI Charter Act of 1979 (S. 1612),” Hearings before the House Committee on the Judiciary, 96th Congress, Aug., Sept., Oct. 1979. Although the FBI Charter Act was referred to the Judiciary Committee and hearings were held, it was not reported out of the Committee. For a summary of historical abuses committed by U.S. law enforcement and intelligence agencies, see the Church Committee Report.").

 


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