LESSON 5: ADMINISTRATIVE LAW
5.1 Introduction to Administrative Law
5.1.5 Structure of this Lesson
Annotated Lecture Transcript
Since administrative law is so complicated, I’ve structured this lesson so I begin by explaining all of the fundamentals about each source of administrative law generally before getting into the specifics of administrative law in the intelligence context.
The application of standard administrative law gets distorted severely when applied to intelligence agencies for some reason.
Intel agencies aren’t regulatory agencies like the EPA or FCC or any other agency that has to operate under the Administrative Procedure Act 24 hours a day.
Intel agencies don’t often regulate the public—at least directly through rulemaking.
It’s understandable why they may be a bit less seasoned in applying the uniform framework to their activities.
The result has been that administrative law in the Intelligence Community is a bit messed up.
It’s messed up from top to bottom throughout the Executive Branch—from the President and National Security Council at the top, all the way down to the individual agencies making up the U.S. Intelligence Community.
The nomenclature is messy.
The application of fundamental principles is messy.
And because the judiciary refuses to hear any cases involving intelligence agencies, there is never any guidance to help them straighten things out.
As a result, I start out by thoroughly explaining the standard framework of administrative law as applied by all other agencies of the federal government.
I explain this primary framework thoroughly, going through each producer of administrative rules and explaining the specifics about the law governing their rulemaking 99% of the time.
I start with agency-level administrative law in order to introduce the ordinary legal framework of administrative law that’s established under the Administrative Procedure Act (or APA).
After agency rules I move to branch-level administrative law.
I start with ordinary Presidential rules first—like executive orders and proclamations and memoranda.
Next I quickly go through Congressional and Judicial Branch Rules—like the Federal Rules of Evidence or the Court Rules for the Foreign Intelligence Surveillance Court.
After every producer of agency and branch-level rules has been covered, and all the basic law is understood, I explain some fundamentals about judicial review of administrative law and agency action.
Finally, once you know everything there is to know about the fundamentals of administrative law as it applies 99% of the time, I move on to the 1% and explain the specifics of administrative law in the intelligence law context.
In the last section, I focus in on the U.S. Intelligence Community, and I explain the sui generis structure of Presidential regulations, NSC directives, and agency procedures.
I focus in on what’s important for Course I:Introduction to Legal Sources in U.S. Intelligence Law—teaching you the basic structure of how these rules fit together.
I give little detail about what these rules actually say.
I’m trying to save most of the talk about substance for Course IV on “Administrative Law and Intelligence.”
Once you’ve mastered the basic framework in Course, I can spend every second of the rest of the courses on IntelligenceLaw.com talking about nothing but substance—confident that all of you listening to those lectures understand these complex fundamentals better than many practicing attorneys.
 See generally Foreign Intelligence Surveillance Court Rules of Procedure, available at http://www.uscourts.gov/rules/fisa.html; see also Procedures for the Review of Petitions Filed Pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, As Amended, available at http://www.uscourts.gov/rules/fisa.html; see also Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“The FISC and the Court of Review may establish rules and procedures, and may take such actions, as are reasonably necessary to administer their responsibilities under FISA. [50 U.S.C. § 1803(f)(1), added by P.L. 109-177, Subsection 109(d)] The FISC has established the Foreign Intelligence Surveillance Court Rules of Procedure, and Procedures for the Review of Petitions Filed Pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, As Amended have also been adopted.”).
 U.S. Dep't of Defense, Instruction No. 5025.01, Part II (Oct. 28, 2007) (“DoD issuance. One of the following 6 types of issuances published by the Department of Defense: DoDD, DoDI, DoDM, DTM, AI, and DoD Publication. The term “DoD Publication” shall be discontinued upon reissuance of all DoD Publications as DoDMs.”).