Intelligence Law School - Course 1: Lesson 5.7.2 Presidential and NSC Directives, Procedures, and Guidance [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.7 Administrative Rules in U.S. Intelligence Law


5.7.2 Presidential and NSC Directives, Procedures, and Guidance


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5.7.2 Presidential and NSC Directives, Procedures, and Guidance

5.7.2.1 The 3 Categories of Presidential NSC Rules under Executive Order 12333

Now I’d like to talk about Presidential NSC Directives.

Executive Order 12-Triple-Three breaks down intelligence law rules into 2 tiers:

Ø  Level 1: Presidential and NSC Directives, Procedures, and Guidance;[1] and

Ø  Level 2: Internal Agency Procedures and Supplementary Directives.[2]

 

Let’s talk about the top tier first.

 

Ø  Level 1: Presidential and NSC Directives, Procedures, and Guidance: Section 3.2 says that—at the top level—the President and National Security Council will issue directives, procedures, and guidance to implement Executive Order 12-Triple-Three’s provisions.[3]

 

Ø  3 Categories Presidential and NSC Rules: So, that’s three different categories of Presidential and NSC Rules to govern the intelligence community:

o   1. Directives;[4]

o   2. Procedures;[5] and

o   3. Guidance.[6]

 

Ø  During the Administration of President Barack Obama, these three special NSC Rules were called:

o   Presidential Study Directives; and

o   Presidential Policy Directives.

Ø  Homeland Security Presidential Directives: President Obama has also used another category of NSC rules that was created during the previous administration by President George W. Bush.

o   They’re called Homeland Security Presidential Directives or “HSPDs.”[7]

§  HSPDs don’t have to be published in the Federal Register but they’re typically made available online at WhiteHouse.gov immediately after issuance.[8]

§  They’re also eventually published in the Weekly Compilation of Presidential Documents—for any of you old-school researchers who still prefer paper to online research.

§  HSPDs address domestic security concerns.[9]

 

Ø  Presidential Policy Directive 1: Presidential Policy Directives are more broad in their application.

o   President Obama’s Presidential Policy Directive 1, for example, streamlined operations by reorganizing the National Security Council system, combining the NSC Staff with the Homeland Security Staff into a joint National Security Staff (NSS).

Ø  Prepared by the NSC: The National Security Council (NSC) and its staff prepares this special set of national security documents issued by the President.[10]

o   They are usually classified, so you won’t have access,[11] but you should still know what they are in case you ever make it as an intelligence lawyer.[12]

 

Ø  Additional Nomenclature: Just remember that the specific names they use for these NSC directives, procedures, and guidelines change all the time—practically with each new President.

o   I’ll tell you some of the other names used by past Presidents in a minute, but first I have to explain some background.

 

5.7.2.2 The Role of the National Security Council

To understand these special Presidential NSC directives you really have to understand a little background about the role of the National Security Council and where it fits into the President’s management of America’s national security bureaucracies.

 

Ø  NSC Mission: For those of you who aren’t familiar with the NSC, it’s an organization within the Executive Office of the President[13] charged with advising the President on matters related to national security and military affairs.[14]

o   It was established by the National Security Act of 1947.[15]

§  Its statutory mandate is to “to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security" and to perform "such other functions as the President may direct.”[16]

o   Not an ordinary “Agency:” Keep in mind, when you’re thinking about NSC directives, that the NSC is not a sub-agency down in the Executive Branch somewhere below the President—like pretty much every other agency we’re going to talk about in U.S. intelligence law.

§  It’s a Council composed of major Executive Branch leaders and chaired by the President.

·         The President is the NSC, to a large extent.

·         You can think of the President as the head coach of a football team called the “National Security Council” and the other Council Members are his Defensive Coordinator and Assistant Coaches.  

·         The President himself chairs the meetings of the NSC;[17] it’s his advisory group.

·         The other members of the NSC—it’s “Principals”—are people like the Secretary of Defense and Vice President.[18]

o   Advisory Role: The National Security Council—with the President at its helm—is “the highest ranking executive branch entity that provides support to the President for review of, guidance for, and direction to the conduct of all foreign intelligence, counterintelligence, covert actions, and attendant policies and programs.”[19]

Ø  NSC Staff: Now there is an agency-like organization known as the “NSC staff” that supports the National Security Council, but the NSC staff is not a separate Executive Branch agency like the Department of Defense—it’s part of the White House itself—an arm of the Executive Office of the President.

o   The NSC staff numbers about 150 people and is headed by an Executive Secretary,[20] who reports to the President’s National Security Adviser.[21]

o   Just as with the National Security Adviser position, the President appoints the NSC staff’s Executive Secretary without the need for Senate confirmation.[22]

o   Senate confirmation is constitutionally required for the appointment of any “Officer” of the U.S. Government.

§  The reason this NSC Executive Secretary doesn’t have to be confirmed is because the NSC is special—it’s not a separate agency outside the White House; its sole purpose is to directly advise the President.

§  That’s why Congress doesn’t have a say, and you don’t see lengthy confirmation hearings on C-Span about NSC Staff positions.

§  Congress can’t limit the President’s choice of such intimate advisors on the White House staff—it might violate the separation of powers.[23]

 

5.7.2.3 Historical Nomenclature

So, as I said, President Barack Obama calls his NSC directives:

Ø  Presidential Study Directives; and

Ø  Presidential Policy Directives.

 

Historically, these NSC directives have been issued under a laundry list of different names because each new President typically renames the series when they take office.

Here are some of the names these NSC directives have gone by:

Ø  Dwight D. Eisenhower: President Eisenhower called his NSC Directives:

o   NSC Policy Papers[24]

Ø  John F. Kennedy and Lyndon Johnson: Presidents Kennedy and Johnson both called theirs:

o   National Security Action Memoranda[25]

Ø  Richard Nixon: President Nixon used the term “memoranda” as well, but broke the series into two separate issuances. Nixon called his NSC Directives, either

o   National Security Study Memoranda;[26] or

o   National Security Decision Memoranda[27]

Ø  Jimmy Carter: President Carter named his NSC issuances either:

o   Presidential Review Memoranda;[28] or

o   Presidential Directives[29]

Ø  Ronald Reagan: President Reagan named his NSC rules:

o   National Security Study Memoranda;[30] or

o   National Security Decision Directives[31]

Ø  George H.W. Bush: President George H.W. Bush—a former DCI—named his NSC rules:

o   National Security Reviews;[32]

o   National Security Directives.[33]

o   And he also had National Space Policy Directives.[34]

§  National Space Policy Directives were a unique set of Presidential policy instruments born out of recommendations by President Bush’s National Space Council—an organization he created by Executive Order in 1989.[35]

Ø  Bill Clinton: President Clinton named his NSC rules:

o   Presidential Review Directives;[36] and

o   Presidential Decision Directives.[37]

Ø  George W. Bush: President George W. Bush named his NSC rules:

o   National Security Presidential Directives; and

o   Homeland Security Presidential Directives.

§  The Bush Administration was especially secretive about what went into some of these NSC directives, many of which detail his security policies in the aftermath of 9/11.[38]

Ø  Barack Obama: And again, President Barack Obama names his NSC directives:

o   Presidential Study Directives;

o   Presidential Policy Directives; and also

o   Homeland Security Presidential Directives.

 

That’s it. That’s all of them.

Ø  Administrative Law Joke: And yes, if your eyes glazed over in the middle of that list—almost every name I just told you was just a little bit different than all the others.

o   Welcome to administrative law in the National Security Council.

 

5.7.2.4 Other Presidential Rules Related to Intelligence or National Security

So, those are the names of the main Presidential NSC directives you need to know about.

There are also a few other types of Presidential rules used by Presidents for certain national security functions.

Ø  Military Orders: For example, “military orders” are Presidential rules that can be issued to military leaders.[39]

o   They call them “orders,” but they’d really be “rules.”

Ø  Presidential Findings: There’s also a special type of Presidential rule called a “finding,”[40] which is just a type of rule used by the President to authorize “covert actions.”[41]

 

And that’s really it for Presidential-Level rules in the intelligence context.

Next, we cover the meat and potatoes of U.S. intelligence law: agency-level “procedures” and “supplementary directives.”

 

Footnotes

[1] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order. Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. No procedures to implement Part 2 of this order shall be issued without the Attorney General's approval, after consultation with the Director. The Attorney General shall provide a statement of reasons for not approving any procedures established by the head of an element in the Intelligence Community (or the head of the department containing such element) other than the FBI. In instances where the element head or department head and the Attorney General are unable to reach agreements on other than constitutional or other legal grounds, the Attorney General, the head of department concerned, or the Director shall refer the matter to the NSC.”).

[2] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“[...] Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. […]”).

[3] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order. Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. No procedures to implement Part 2 of this order shall be issued without the Attorney General's approval, after consultation with the Director. The Attorney General shall provide a statement of reasons for not approving any procedures established by the head of an element in the Intelligence Community (or the head of the department containing such element) other than the FBI. In instances where the element head or department head and the Attorney General are unable to reach agreements on other than constitutional or other legal grounds, the Attorney General, the head of department concerned, or the Director shall refer the matter to the NSC.”).

[4] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order.”) (emphasis added).

[5] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order.”) (emphasis added).

[6] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.2, 46 Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No. 13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed. Reg. 45325 (July 30, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html (“The President, supported by the NSC, and the Director shall issue such appropriate directives, procedures, and guidance as are necessary to implement this order.”) (emphasis added).

[7] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“In the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center in New York City and the Pentagon in suburban Washington, DC, President George W. Bush established, with E.O. 13228 of October 8, 2001, the Office of Homeland Security and the Homeland Security Council within the Executive Office of the President to assist with the planning and coordination of federal efforts to combat terrorism and maintain the domestic security of the United States. On October 29, 2001, the President issued the first instrument in a new series denominated Homeland Security Presidential Directives (HSPDs) “that shall record and communicate presidential decisions about the homeland security policies of the United States.””).

[8] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“HSPDs are not published in the Federal Register, but are available from the White House website upon issuance and are subsequently published in the Weekly Compilation of Presidential Documents.”).

[9] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“The initial directive concerned the organization and operation of the Homeland Security Council. By late November 2008, 24 of these directives had been issued. Some, like HSPD-13 (NSPD-41), HSPD­14 (NSPD-43), HSPD-16 (NSPD-47), HSPD-20 (NSPD-51), and HSPD-24 (NSPD-59) were also issued concurrently as National Security Presidential Directives.”).

[10] Since its creation, the NSC has served the President by preparing detailed studies and policy directives concerning matters of national security. See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Shortly after the creation of the National Security Council (NSC) in 1947, supporting staff began producing four types of policy papers: basic comprehensive policy statements on a broad variety of national security problems, together with pertinent political, economic, and military implementation strategies; situation profiles of large geographic areas or specific countries; assessments of mobilization, arms control, atomic energy, and other functional matters; and organizational statements on NSC, foreign intelligence, and internal security structure and activities. The initial products in the series reportedly were of the geographical type; the first comprehensive policy statement was completed and given NSC approval in November 1948.” [Citing Stanley L. Falk, “The National Security Council Under Truman, Eisenhower, and Kennedy,” Political Science Quarterly, vol. 79, September 1964, pp. 409-410.].).

[11] See Congressional Research Serv., General Management Laws: A Compendium, § I(A), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“While most major federal administrative law instruments — such as executive orders, presidential proclamations, and agency rules and regulations — are published in the Federal Register and Code of Federal Regulations, not all such authorities are so produced.  During the past few years, concern has been expressed from time to time in Congress about certain national security directives of the President not being subject to accountability or publication under the Federal Register Act.  They have been variously denominated as National Security Decision Memoranda during the Nixon-Ford Administrations, as Presidential Directives during the Carter Administration, as National Security Decision Directives during the Reagan Administration, as National Security Directives during the George H. W. Bush Administration, and as Presidential Decision Directives by the Clinton Administration.  In 1988, a House subcommittee held hearings on a proposal to amend the Federal Register Act to provide accountability in the use of these presidential directives.  A complication in so legislating is that these instruments are usually all security classified.  Another type — Homeland Security Presidential Directives — was launched by President George W. Bush in late October 2002.  This development sparked renewed congressional concern about accountability for these presidential directives.”).

[12] These documents are typically classified and not made available to the public. Some older directives have been declassified and are available online or in the Presidential Library of the President who issued them. See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“With each succeeding President, national security instruments of varying denominations and character evolved from the NSC policy papers. In general, they were not required to be published in the Federal Register, were usually security classified at the highest level of protection, and were available to the public after a great many years had elapsed, usually at the official library of the President who had approved them. Many of the more recent ones remain officially secret.”).

[13] The Executive Office of the President (EOP) was created in 1939 to house the special set of advisory agencies that are directly responsible for advising and assisting the President with carrying out the duties of the Presidency. For a concise yet comprehensive introduction to many agencies composing the Executive Office of the President see Harold C. Relyea, Congressional Research Serv., The Executive Office of the President:  An Historical Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-606_11-26-2008.pdf (describing the EOP as follows: “Established in 1939, the Executive Office of the President (EOP) consists of a group of federal agencies immediately serving the President.  Among the oldest of these are the White House Office, where many of the President’s personal assistants are located, and the Office of Management and Budget, which was established as the Bureau of the Budget in 1921 and by transfer became one of the original EOP units in 1939.  Entities have been placed within the EOP by both presidential action and congressional determination.  Some components have endured; others have been brief experiments. Some have been transferred to other quarters of the executive branch; others have been abolished with no successor.  In large measure, the tenure and durability of an Executive Office agency is dependent upon its usefulness to the President — as a managerial or coordinative auxiliary, a national symbol, or a haven of political patronage, among other considerations.”).

[14] 50 U.S.C. § 402(a) (2010) ("[...] The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security."); see also50 U.S.C. § 402(b) (2010) ("Additional functions.  In addition to performing such other functions as the President may direct, for the purpose of more effectively coordinating the policies and functions of the departments and agencies of the Government relating to the national security, it shall, subject to the direction of the President, be the duty of the Council—(1) to assess and appraise the objectives, commitments, and risks of the United States in relation to our actual and potential military power, in the interest of national security, for the purpose of making recommendations to the President in connection therewith; and (2) to consider policies on matters of common interest to the departments and agencies of the Government concerned with the national security, and to make recommendations to the President in connection therewith."); see also generally Harold C. Relyea, Congressional Research Serv., The Executive Office of the President:  An Historical Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-606_11-26-2008.pdf (describing the NSC as follows: “Established by the National Security Act of 1947 (61 Stat. 496), the council was transferred to the Executive Office of the President by Reorganization Plan 4 of 1949. Its statutory function is to advise the President with respect to the integration of domestic, foreign, and military policies relating to national security. Chaired by the President, the council includes among its statutory members the Vice President, the Secretary of State, and the Secretary of Defense. Each President may also designate other officials to attend and participate in council meetings on a regular basis. The Director of National Intelligence and the chairman of the Joint Chiefs of Staff serve as statutory advisers to the council. Although the council has been statutorily authorized to have a presidentially appointed executive secretary since its creation, leadership of its staff has been exercised for many years by each President’s national security assistant, who is actually a member of the White House Office staff. The work of the council is also conducted through various working groups and special policy instruments.”).

[15] See National Security Act of 1947, as amended, 50 U.S.C. § 402(a) (2010) (National Security Council "(a) Establishment; presiding officer; functions; composition.  There is hereby established a council to be known as the National Security Council (hereinafter in this section referred to as the "Council"). The President of the United States shall preside over meetings of the Council: Provided, That in his absence he may designate a member of the Council to preside in his place. The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security. The Council shall be composed of— (1) the President; (2) the Vice President; (3) the Secretary of State; (4) the Secretary of Defense; (5) the Secretary of Energy; (6) the Director for Mutual Security; (7) the Chairman of the National Security Resources Board; and (8) The Secretaries and Under Secretaries of other executive departments and of the military departments, the Chairman of the Munitions Board, and the Chairman of the Research and Development Board, when appointed by the President by and with the advice and consent of the Senate, to serve at his pleasure.").

[16] 50 U.S.C. § 402(a) (2010) ("[...] The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security."); see also50 U.S.C. § 402(b) (2010) ("Additional functions.  In addition to performing such other functions as the President may direct, for the purpose of more effectively coordinating the policies and functions of the departments and agencies of the Government relating to the national security, it shall, subject to the direction of the President, be the duty of the Council—(1) to assess and appraise the objectives, commitments, and risks of the United States in relation to our actual and potential military power, in the interest of national security, for the purpose of making recommendations to the President in connection therewith; and (2) to consider policies on matters of common interest to the departments and agencies of the Government concerned with the national security, and to make recommendations to the President in connection therewith.").

[17] See National Security Act of 1947, as amended, 50 U.S.C. § 402(a) (2010) (National Security Council "(a) Establishment; presiding officer; functions; composition.  [...] The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.”).

See National Security Act of 1947, as amended, 50 U.S.C. § 402(a) (2010) (“[…] The Council shall be composed of— (1) the President; (2) the Vice President; (3) the Secretary of State; (4) the Secretary of Defense; (5) the Secretary of Energy; (6) the Director for Mutual Security; (7) the Chairman of the National Security Resources Board; and (8) The Secretaries and Under Secretaries of other executive departments and of the military departments, the Chairman of the Munitions Board, and the Chairman of the Research and Development Board, when appointed by the President by and with the advice and consent of the Senate, to serve at his pleasure.").

[18] See National Security Act of 1947, as amended, 50 U.S.C. § 402(a) (2010) (“[…] The Council shall be composed of— (1) the President; (2) the Vice President; (3) the Secretary of State; (4) the Secretary of Defense; (5) the Secretary of Energy; (6) the Director for Mutual Security; (7) the Chairman of the National Security Resources Board; and (8) The Secretaries and Under Secretaries of other executive departments and of the military departments, the Chairman of the Munitions Board, and the Chairman of the Research and Development Board, when appointed by the President by and with the advice and consent of the Senate, to serve at his pleasure.").

[19] Exec. Order No. 12,333, § 1.2(a), 3 C.F.R. 200 et seq. (1982), reprinted in 50 U.S.C. § 401 note (2000) (“The National Security Council (NSC) shall act as the highest ranking executive branch entity that provides support to the President for review of, guidance for, and direction to the conduct of all foreign intelligence, counterintelligence, and covert action, and attendant policies and programs.”); see also National Security Act of 1947, as amended, 50 U.S.C. § 402(a) (2010) (“The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.”).

[20] 50 U.S.C. § 402(c) (2010) (“Executive secretary; appointment; staff employees.  The Council shall have a staff to be headed by a civilian executive secretary who shall be appointed by the President. The executive secretary, subject to the direction of the Council, is hereby authorized, subject to the civil-service laws and the Classification Act of 1923, as amended [5 U.S.C. §§ 5101 et seq. and 5331 et seq.], to appoint and fix the compensation of such personnel as may be necessary to perform such duties as may be prescribed by the Council in connection with the performance of its functions.").

[21] See Richard A. Best Jr., Congressional Research Serv., The National Security Council: An Organizational Assessment, Footnote 19 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30840_6-9-2009.pdf (“The position of National Security Adviser is to be distinguished from the position of Executive Secretary of the NSC, which was created by statute but has, since the beginning of the Eisenhower Administration, been essentially an administrative and logistical one. National Security Adviser positions are funded not as part of the NSC but as part of the White House Office, reflecting the incumbent’s status as that of an adviser to the President.”); see also Id. at Footnote 16 (noting that the position of National Security Adviser “has been a continuing one, although its title has varied over the years (Special Assistant for National Security Affairs, Assistant to the President for National Security Affairs, National Security Adviser). An adviser or an assistant to the President arguably has a position of greater independence from congressional oversight than the incumbent of a position established by statute; see Richard Ehlke, ‘Congressional Creation of an Office of National Security Adviser to the President,’ reprinted in U.S. Congress, 96th Congress, 2d session, Senate, Committee on Foreign Relations, The National Security Adviser: Role and Accountability, Hearing, April 17, 1980, pp. 133-135.”).

[22] See Richard A. Best Jr., Congressional Research Serv., The National Security Council: An Organizational Assessment (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30840_6-9-2009.pdf (“As has been noted, Congress’s role in NSC matters and its relationship with the NSC are limited. The Senate does not approve the appointment of the National Security Adviser, although it does confirm statutory NSC members Congress does have authority over the designation of those positions that are to have statutory NSC membership, as well as budgetary authority over the NSC. In 2007, as part of the Energy Independence and Security Act of 2007 (P.L. 110-140, section 932) Congress added the Secretary of Energy to the NSC. However, Congress has little direct say in matters of NSC organization, procedure, role, or influence, although a number of hearings on these topics have been held. The NSC is not a primary and regular source of national security information for Congress. National security information is for the most part provided by those departments and agencies that are represented on the NSC. The NSC, as a corporate entity, rarely testifies before or briefs Congress on substantive questions, although in some Administrations informal briefings have been provided. The NSC is an organ devoted to the workings of the executive branch in the broad area of national security. Its role is basically that of policy analysis and coordination and, as such, it has been subject to limited oversight and legislative control by Congress. Both in its staff organization and functioning, the NSC is extremely responsive to the preferences and working methods of each President and Administration. It would be difficult to design a uniform NSC structure that would meet the requirements of chief executives who represent a wide range of backgrounds, work styles, and policy agendas although some observers believe that the general pattern established in the final years of the Reagan Administration and followed by successive Presidents is likely to endure. There is unlikely to be a desire to drastically reduce the role of the NSC staff and most observers suggest that elevating the policymaking role of the National Security Adviser at the expense of the Secretary of State leaves Presidents subject to strong criticism.”).

[23] Some attempts were made at the end of Jimmy Carter's presidency to make some of the NSC staff positions Senate-confirmable, but such calls were ultimately rejected. Had the effort succeeded, such a move by Congress might have been deemed an unconstitutional violation of the separation of powers because of the intimacy of the NSC’s advisory role to the President. See Richard A. Best Jr., Congressional Research Serv., The National Security Council: An Organizational Assessment (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30840_6-9-2009.pdf (“Brzezinski’s outspokenness and his public role in policymaking became an issue, and led to calls for Senate confirmation of NSC advisers and closer congressional oversight of the NSC staff.”).

[24] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“The production of NSC policy papers continued under President Eisenhower. Almost any official in the NSC system, from the President on downward, could suggest topics for policy papers. In response, a preliminary staff study might be prepared within the NSC Planning Board, a new body composed of assistant secretary-level officers representing agencies having statutory or presidentially designated membership on the council. A first draft, drawn from the preliminary staff study, would be produced by the agency having primary policy interest, followed by various reviews, revisions, and, ultimately, presentation to the President. A new component of the NSC policy papers during this period was a “financial appendix” indicating the fiscal implications of proposed policy. [Citing Falk, “The National Security Council Under Truman, Eisenhower, and Kennedy,” pp. 421-422; Cutler, “The Development of the National Security Council,” p. 450] The sequential numbering system for NSC papers that had been begun by the Truman Administration was continued by the Eisenhower Administration. About 270-300 NSC policy papers were accounted for at the end of President Eisenhower’s second term. Many of them went through major revisions after their initial issuance, some undergoing three or four such overhauls. Indeed, in their preparations for their successors, Eisenhower Administration officials updated almost every operative NSC paper, approving no fewer than 18 revamped policies during Eisenhower’s last month in office.” [Citing I. M. Destler, “The Presidency and National Organization,” in Norman A. Graebner, ed., The National Security: Its Theory and Practice, 1945-1960 (New York: Oxford University Press, 1986), p. 239]).

[25] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“During the Presidency of John F. Kennedy, NSC policy papers were superseded by a new type of instrument denominated National Security Action Memoranda (NSAM). Their generation began with a Cabinet official or a senior presidential assistant. This manager coordinated development of a draft position paper with other responsible individuals, often through the use of ad hoc interdepartmental working groups. Fiscal considerations were integrated into the body of the document and no longer appeared in a separate “financial appendix.” Discussion of and debate over the final text continued all the way to and into the Oval Office. Once the President approved the recommendations of the position paper, his decision was recorded by responsible agency or NSC staff in a brief NSAM. [Citing Falk, “The National Security Council Under Truman, Eisenhower, and Kennedy,” pp. 430-431] President Lyndon B. Johnson largely continued these arrangements, and approximately 370 NSAMs were produced during the Kennedy-Johnson years.”).

[26] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“When Richard Nixon became President, he appointed Henry Kissinger as his national security adviser. Kissinger recruited a substantial and influential NSC staff, and they produced national security position papers which were designated National Security Study Memoranda (NSSM). They were developed through the use of various interdepartmental working groups composed of high level representatives from pertinent agencies. Beginning with a study answering 26 questions on Vietnam, multiple NSSMs were immediately assigned. During his first hundred days, Kissinger reportedly called for the preparation of 55 such study memoranda, with a total of 85 inaugurated in 1969, another 26 initiated in 1970, and 27 apportioned during the first nine months of 1971. The NSSMs were among the resources used by the President when determining national security policy, which he would express in National Security Decision Memoranda (NSDM).”) (internal citations omitted).

[27] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“The NSSMs were among the resources used by the President when determining national security policy, which he would express in National Security Decision Memoranda (NSDM). However, according to a Kissinger biographer, “the most important decisions were made without informing the bureaucracy, and without the use of NSSMs or NSDMs.” [Citing Seymour M. Hersh, The Price of Power: Kissinger in the Nixon White House (New York: Summit Books, 1983), p. 35] Both types of instruments continued to be produced during the presidential tenure of Gerald Ford. Almost 250 NSSMs were generated during the Nixon-Ford years, and, perhaps more important, at least 318 presidentially approved NSDMs were issued.”).

[28] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“The presidential national security studies and dicta emanating from the NSC system during the administration of President Jimmy Carter were called Presidential Review Memoranda (PRM) and Presidential Directives (PDs). Approximately 30 PRMs reportedly “were issued in the first half of 1977, over half of them during the President’s first week in office.” [Citing Philip A. Odeen, “Organizing for National Security,” International Security, vol. 5, Summer 1980, p. 114] President Carter is credited with issuing 63 PDs during his tenure.”).

[29] See Id.

[30] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“President Ronald Reagan designated his instruments in the national security series as National Security Study Memoranda (NSSM) and National Security Decision Directives (NSDD). During his tenure, President Reagan issued 325 NSDDs.”).

[31] See Id.

[32] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“National security studies were called National Security Reviews (NSRs) by President George H. W. Bush, and his policy instruments were denominated as National Security Directives (NSDs). [Citing U.S. General Accounting Office, National Security: The Use of Presidential Directives to Make and Implement U.S. Policy, GAO Report GAO/NSIAD-92-72 (Washington: January 1992)] He is credited with having issued 79 NSDs, as well as seven National Space Policy Directives (NSPDs).”).

[33] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“National security studies were called National Security Reviews (NSRs) by President George H. W. Bush, and his policy instruments were denominated as National Security Directives (NSDs). [Citing U.S. General Accounting Office, National Security: The Use of Presidential Directives to Make and Implement U.S. Policy, GAO Report GAO/NSIAD-92-72 (Washington: January 1992)] He is credited with having issued 79 NSDs, as well as seven National Space Policy Directives (NSPDs).”).

[34] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (noting that President George H.W. Bush issued seven National Space Policy Directives (NSPDs) during his presidency.”).

[35] Exec. Order 12675, April 20, 1989, 3 C.F.R., 1989 Comp., pp. 218-221.

[36] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“For President William Clinton, Presidential Review Directives (PRDs) were the equivalent of the NSSMs of the Reagan Administration and the NSRs of the Bush Administration.”).

[37] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“the Presidential Decision Directives (PDDs) of the Clinton Administration were equivalent to the NSDDs of the Reagan Administration and the NSDs of the George H. W. Bush Administration. President Clinton is credited with issuing 75 PDDs. Also, between January 25, 1994, and September 19, 1996, President Clinton signed eight separate and distinct PDDs arising from National Science and Technology Council deliberations.”).

[38] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Although President George W. Bush and his national security advisers have provided little detail about his directives in this series, the first such instrument, dated February 13, 2001, and approved for public release by the National Security Council staff on March 13, indicates that they are denominated National Security Presidential Directives (NSPDs) and may serve double duty for both decision and review purposes. The initial NSPD pertained to the organization of National Security Council policy and coordination subgroups. By late November 2008, 59 of these directives had been issued. Some, like NSPD-41 (HSPD-13), NSPD-43 (HSPD-14), NSPD­47 (HSPD-16), NSPD-51 (HSPD-20), and NSPD-59 (HSPD-24) were also issued concurrently as Homeland Security Presidential Directives.”).

[39] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“CFR Title 3 compilations for the 1938-1943 and 1943-1948 periods contain the texts of 12 presidential directives denominated as military orders. The first of these was issued on July 5, 1939, and the last on October 18, 1948. Ten of them bear the signature of President Roosevelt; the other two were signed by President Truman. These directives appear to have been issued by the President in conjunction with the execution of his duties as Commander-in-Chief and pertain to matters concerning armed forces administration and personnel. Indeed, half of them bear the Commander-in-Chief title below the President’s signature. Moreover, while all of them make reference to “the authority vested in me as President of the United States and as Commander-in-Chief of the Army and Navy of the United States,” two also cite a specific Article of War and six also cite explicit statutory authority for their issuance. No directives of this designation were subsequently produced in the Federal Register or CFR Title compilations until November 2001, when President George W. Bush issued a controversial military order on the detention, treatment, and trial, by military tribunals, of noncitizens alleged to be terrorists.” [Citing Federal Register, vol. 66, November 16, 2001, pp. 57833-57836]) (some internal citations omitted).

[40] See Harold C. Relyea, Congressional Research Serv., Presidential Directives: Background and Overview (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Presidential findings, as such, initially appeared in the Federal Register and CFR Title 3 compilations as instruments determining that certain conditions of the Agricultural Trade Development and Assistance Act of 1954, as amended, had been satisfied and, therefore, sales of agricultural commodities could proceed. Presidential findings of this type were reproduced in CFR Title compilations as administrative orders. [Citing 3 C.F.R., 1966-1970, pp. 1006-1008] In 1974, the reference to a presidential finding took on its current popular meaning when Congress adopted the so-called Hughes-Ryan amendment to the Foreign Assistance Act of that year. Set out in section 662 of the statute, it prohibited the expenditure of appropriated funds by or on behalf of the Central Intelligence Agency for intelligence activities “unless and until the President finds that each such operation is important to the national security of the United States and reports, in a timely fashion, a description and scope of such operation to the appropriate committees of Congress.” [Citing 88 Stat. 1795, at 1804] The requirements of this provision subsequently went through a series of transformations, the vestiges of which were recently codified in the Intelligence Authorization Act, Fiscal Year 1991, but this act still requires a written presidential finding satisfying certain conditions set forth in the statute for covert actions to occur. [Citing 105 Stat. 429, at 442] Such presidential findings, which are security classified, are to be “reported to the intelligence committees as soon as possible” after being approved “and before the initiation of the covert action authorized by the finding.” Thus, these findings are not published in the Federal Register or reproduced in CFR Title 3 compilations.”).

[41] 50 U.S.C. § 413b(e) (2010) (defining “covert action” as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities; (2) traditional diplomatic or military activities or routine support to such activities; (3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or (4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.”).

 


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