Intelligence Law School - Course 1: Lesson 5.7.3 Agency-Level Procedures and Supplementary Directives [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.7 Administrative Rules in U.S. Intelligence Law


5.7.3 Agency-Level Procedures and Supplementary Directives


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5.7.3 Agency-Level Procedures and Supplementary Directives

5.7.3.1 The 2 Categories of Agency-Level Rules under Executive Order 12333

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

Ø  Level 1 is Presidential and NSC Directives, Procedures, and Guidance[1]—which we just covered;  and

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

 

Ø  2 Categories Agency-Level Rules: Procedures and Supplementary Directives: So, that’s two different categories of rules at the agency level:

o   1. Procedures;[3] and

o   2. Supplementary Directives.[4]

 

Ø  Attorney General Approval for Changes to Part 2: Conduct of Intelligence Activities: Remember that for rules implementing Part 1 of 12-Triple-Three—the pseudo-organic-statute part—the agency heads can issue the rules on their own authority.

o   This kind of organizational management directive is not the primary focus of the courses on IntelligenceLaw.com.

o   We’re focused primarily on domestic intelligence activities of U.S. agencies that affect American citizens.

o   As a result, it’s the agency procedures and supplementary directives relevant to Part 2 that we’re interested in—the part governing the actual conduct of intelligence activities targeting or affecting Americans.[5]   

o   It’s important to remember that rules having anything to do with Part 2 have to be approved by the Attorney General before they can come into force.[6] 

 

o   National Security Fanaticism vs. The Rule of Law (Agency Heads vs. Attorney General):

§  The NSA Director, for example, can’t change any rules in USSID 18 on his own authority alone.[7]

§  Not even the Secretary of Defense has the power to change DoD Directive 5240.1-R on his own authority.[8]

§  Even the SecDef needs the Attorney General’s approval before he can lay a finger on those safeguards.

§  This is why DoD Regulation 5240.1-R remained unchanged for so long after it was reissued in December of 1982. 

·         It’s not because the Pentagon didn’t want to water down these protections during all that time.

·         It’s because not even the Secretary of Defense can change theses minimization procedures unilaterally.

 

§  The reason AG approval is required is because these rules affect the rights of individuals, not just agency management like the rules in Part 1.

§  Before this AG approval requirement was added back before the Watergate Scandal broke, if the Secretary of Defense wanted to surveil an American protesting the Vietnam War and the rules wouldn’t allow it for some reason, he’d just change or ignore the rules so he could do whatever he wanted to do.

§  This is precisely the opposite of the rule of law.

§  Placing the nation’s top law enforcement officer in charge of final approval guarantees changes aren’t made arbitrarily.

§  It also guarantees that someone independent of the agencies wanting to perform the intelligence targeting is looking out for the rights of the powerless individuals.

§  In order words, the Americans whose lives will be affected by the resulting intelligence onslaught.

 

Ø  It’s these Attorney-General-authorized agency procedures for Part 2 that will be the bedrock blackletter legal sources we’re going to cover in later courses.

Ø  Specifically, a kind of operational rules known as “minimization procedures.”[9]

 

5.7.3.2 Mandatory Minimization Procedures with Criminal and Civil Penalties

Despite the fact that they’re merely administrative rules some of the restrictions in these AG-authorized minimization procedures are backed up by real statutes.

As a result, there are several areas where violating provisions contained in the mandatory minimization procedures might result in criminal and civil penalties against the intelligence employees who commit the offenses and possibly the managers that approved them on up.

 

Ø  “Electronic Surveillance” and “Physical Searches”: For example, any minimization procedures involving “electronic surveillance”[10] or “physical searches.”[11]

 

Ø  Unlawful Disclosure of Information about U.S. Persons Derived from Foreign Intelligence Surveillance: In addition, any information derived from either “electronic surveillance” or “physical searches” cannot be used or disclosed by federal officers and employees without the consent of the U.S. person, unless used or disclosed in accordance with these mandatory minimization procedures.[12]

Ø  Criminal Penalties: It's actually a felony punishable by 5 years in prison and a $10,000 fine to even disclose information that’s been obtained through "electronic surveillance"[13] or a "physical search"[14] for intelligence purposes within the United States.

o   The only way information can be disseminated legally is through channels authorized by FISA's statutory procedures, which are reflected in the minimization procedures approved by the Attorney General.[15]

 

Ø  Civil Action For Unlawful Disclosure of Information about U.S. Persons: Americans who are the victims of abusive disclosures of intelligence information in violation of FISA can sue the offenders themselves in a separate civil action using a statutory cause of action that FISA creates in its provisions.[16]

o   You can sue for actual and punitive damages as well as your attorney’s fees and investigation and litigation expenses.[17]

o   This is nice because you don’t have to rely on federal prosecutors to enforce the law against people in the Intelligence Community.[18]

 

Ø  Administrative Law with Teeth: This electronic surveillance provision is why the NSA’s warrantless wiretapping scandal was such a serious problem for President Bush, Director Hayden, and countless NSA employees who were ordered to violate FISA’s criminal prohibition by their leaders.[19]

o   So not all administrative rules are meaningless.

 

o   Electronic surveillance and physical searches are two of the few places where Congress has stepped in to give U.S. intelligence law some teeth.[20]

§  They made these and made some legal protections actually binding as a matter of law with real consequences for violations.[21]

 

5.7.3.3 DoD Regulation 5240.1-R: Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons

One of the most important sets of agency-level minimization procedures I want to mention is Department of Defense Regulation 5240.1-R—Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons.[22]

Ø  FISA Minimization Procedures: Not only do they contain rules implementing Executive Order 12333,[23] they also contain FISA’s statutorily mandated minimization procedures for electronic surveillance.[24]

o   This gives them some statutory kick that other rules don’t have.

o   They must be used by all DoD agencies engaged in intelligence activities affecting the rights of United States persons.[25]

 

5.7.3.4 United States Signals Intelligence Directive 18 (USSID 18)

Ø  NSA Signals Intelligence: I should also note that in addition to DoD Regulation 5240.1-R, the NSA has also promulgated a separate set of substantive rules to augment DoD’s regulation and address matters specific to its signals intelligence operations.

o   These SIGINT-specific procedures are found in United States Signals Intelligence Directive 18.[26]

Ø  Military Regulations: In addition to DoD Regulation 5240.1-R, there are also a couple sets of military regulations governing the intelligence operations of individual service branches of the armed forces.[27]

o   For now, if you’re taking a look at a set of these procedures, you should focus on 5240.1-R because it governs all DoD intelligence activities affecting United States persons.

o   It’s important because it applies to all DoD intelligence components and in the U.S. Intelligence Community DoD is by far the biggest player.

 

5.7.3.5 The Attorney General’s Guidelines for Domestic FBI Investigations

And the last set of rules I want to mention aren’t really minimization procedures—The Attorney General’s Guidelines for Domestic FBI Investigations.

Ø  FBI as Role Model: The reason why these rules are so important is because they govern the FBI’s domestic operation, and the FBI is the primary federal agency charged with intelligence investigations within the United States.[28]

o   All other agencies are supposed to play a supporting role when it comes to domestic activities.

o   So even though these Guidelines have been watered down considerably since 9/11,[29] they are still important because they set the standards for America’s top law enforcement agency.

o   Police departments around the country and even around the world often model themselves on the FBI’s example.

o   The FBI’s special role as the world’s premiere law enforcement agency gives these rules special significance in setting the standards for investigative professionalism worldwide.

 

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 (“[...] Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. […]”) (emphasis added).

[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 (“[...] Heads of elements within the Intelligence Community shall issue appropriate procedures and supplementary directives consistent with this order. […]”).

[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 (“[...] 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.”).

[6] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.3, 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 (“Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General […]”) (emphasis added).

[7] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.3, 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 (“Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order, after consultation with the Director. Those procedures shall permit collection, retention, and dissemination of the following types of information: (a) Information that is publicly available or collected with the consent of the person concerned; (b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the Federal Bureau of Investigation (FBI) or, when significant foreign intelligence is sought, by other authorized elements of the Intelligence Community, provided that no foreign intelligence collection by such elements may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons; (c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international drugs, or international terrorism investigation; (d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims, or hostages of international terrorist organizations; (e) Information needed to protect foreign intelligence or counterintelligence sources, methods, and activities from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other elements of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting; (f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility; (g) Information arising out of a lawful personnel, physical, or communications security investigation; (h) Information acquired by overhead reconnaissance not directed at specific United States persons; (i) Incidentally obtained information that may indicate involvement in activities that may violate Federal, state, local, or foreign laws; and (j) Information necessary for administrative purposes. In addition, elements of the Intelligence Community may disseminate information to each appropriate element within the Intelligence Community for purposes of allowing the recipient element to determine whether the information is relevant to its responsibilities and can be retained by it, except that information derived from signals intelligence may only be disseminated or made available to Intelligence Community elements in accordance with procedures established by the Director in coordination with the Secretary of Defense and approved by the Attorney General.”) (emphasis added).

[8] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.3, 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 (“Elements of the Intelligence Community are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures established by the head of the Intelligence Community element concerned or by the head of a department containing such element and approved by the Attorney General […]”) (emphasis added).

[9] See Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1801(h) (2010) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance) (“‘Minimization procedures’, with respect to electronic surveillance, means—(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a) [50 U.S.C. § 1802(a)], procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 [50 U.S.C. § 1805] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.”).

[10] 50 U.S.C. § 1802(a)(2) (2010) ("Electronic surveillance authorization without court order; certification by Attorney General; reports to congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court: [...] (2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 108(a) [50 U.S.C. § 1808(a)].").

[11] 50 U.S.C. § 1822(a)(2) (2010) ("Authorization of physical searches for foreign intelligence purposes [...] (2) A physical search authorized by this subsection may be conducted only in accordance with the certification and minimization procedures adopted by the Attorney General. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 306 [50 U.S.C. § 1826].").

[12] See 50 U.S.C. § 1825(a) (2010) ("Use of information [From Physical FISA Searches] (a) Compliance with minimization procedures; lawful purposes.  Information acquired from a physical search conducted pursuant to this title [50 U.S.C. §§ 1821 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title [50 U.S.C. §§ 1821 et seq.]. No information acquired from a physical search pursuant to this title [50 U.S.C. §§ 1821 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.").

[13] See 50 U.S.C. § 1809(a)(2) (2010) (“Criminal sanctions (a) Prohibited activities.  A person is guilty of an offense if he intentionally—[…] (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code [18 U.S.C. §§ 2510 et seq., 2701 et seq., or 3121 et seq.], or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112 [50 U.S.C. § 1812][.].”); see also 50 U.S.C. § 1809(c) ("Penalties.  An offense described in this section is punishable by a fine of not more than $ 10,000 or imprisonment for not more than five years, or both.").

[14] 50 U.S.C. § 1827(a)(2) (“Penalties (a) Prohibited activities.  A person is guilty of an offense if he intentionally—(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.”); see also 50 U.S.C. § 1827(c) (2010) ("Penalties: (c) Fine or imprisonment.  An offense described in this section is punishable by a fine of not more than $ 10,000 or imprisonment for not more than five years, or both.").

[15] See 50 U.S.C. § 1825(a) (2010) ("Use of information [From Physical FISA Searches] (a) Compliance with minimization procedures; lawful purposes.  Information acquired from a physical search conducted pursuant to this title [50 U.S.C. §§ 1821 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title [50 U.S.C. §§ 1821 et seq.]. No information acquired from a physical search pursuant to this title [50 U.S.C. §§ 1821 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.") (emphasis added); see also 50 U.S.C. § 1827(a)(2) (“Penalties (a) Prohibited activities.  A person is guilty of an offense if he intentionally—(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.”); see also 50 U.S.C. § 1827(c) (2010) ("Penalties: (c) Fine or imprisonment.  An offense described in this section is punishable by a fine of not more than $ 10,000 or imprisonment for not more than five years, or both.").

See also 50 U.S.C. § 1809(a)(2) (2010) (“Criminal sanctions (a) Prohibited activities.  A person is guilty of an offense if he intentionally—[…] (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this Act, chapter 119, 121, or 206 of title 18, United States Code [18 U.S.C. §§ 2510 et seq., 2701 et seq., or 3121 et seq.], or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 112 [50 U.S.C. § 1812][.].”); see also 50 U.S.C. § 1809(c) ("Penalties.  An offense described in this section is punishable by a fine of not more than $ 10,000 or imprisonment for not more than five years, or both.").

[16] See 50 U.S.C. § 1810 (2010) (“Civil liability” […] “An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101(a) or (b)(1)(A) [50 U.S.C. § 1801(a) or (b)(1)(A)], respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 109 [50 U.S.C. § 1809] shall have a cause of action against any person who committed such violation and shall be entitled to recover—(a) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.”); see also 50 U.S.C. § 1828 (2010) ("Civil liability" [...] An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101(a) or (b)(1)(A)[50 U.S.C. § 1801(a) or (b)(1)(A)], respectively, of this Act, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 307 [50 U.S.C. § 1827] shall have a cause of action against any person who committed such violation and shall be entitled to recover—(1) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater; (2) punitive damages; and (3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.").

[17] See 50 U.S.C. § 1810 (2010) (“Civil liability” […] “An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101(a) or (b)(1)(A) [50 U.S.C. § 1801(a) or (b)(1)(A)], respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 109 [50 U.S.C. § 1809] shall have a cause of action against any person who committed such violation and shall be entitled to recover—(a) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.”) (emphasis added); see also 50 U.S.C. § 1828 (2010) ("Civil liability" [...] An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101(a) or (b)(1)(A)[50 U.S.C. § 1801(a) or (b)(1)(A)], respectively, of this Act, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 307 [50 U.S.C. § 1827] shall have a cause of action against any person who committed such violation and shall be entitled to recover—(1) actual damages, but not less than liquidated damages of $ 1,000 or $ 100 per day for each day of violation, whichever is greater; (2) punitive damages; and (3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.")(emphasis added).

[18] Federal prosecutors prosecute less than 2% of all civil rights abuses committed against Americans by intelligence community personnel and other government employees. The FBI is charged with investigating these offenses and some reports indicate that the reason for such lax civil rights enforcement by federal prosecutors stems from the refusal of FBI agents to investigate fellow government investigators and Intelligence Community personnel. See John Frank, City Rarely Prosecutes Civil Rights Complaints, Houston Chronicle, Dec. 1, 2004, available at www.chron.com/news/houston-texas/article/City-rarely-prosecutes-civil-rights-complaints-1509188.php.

[19] The National Security Agency (NSA) is the component of DoD dedicated to signals intelligence operations. For years, the NSA conducted electronic surveillance of U.S. persons in the United States in violation of FISA’s criminal prohibition. After the scandal, the statutory language was strengthened to avoid disingenuous legal reasoning being used to avoid the prohibition. Still, even under the weaker original language in effect at the time, the actions of the NSA clearly represented criminal conduct. FISA, 50 U.S.C. § 1809(a) (2000) ("A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute. . . ."); see also Elizabeth B. Bazan & Jennifer K. Elsea, Congressional Research Serv., Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information (2006) (explaining the legal framework governing signals intelligence collection in the United States and concluding that the NSA’s warrantless surveillance within the United States likely violated FISA); see also David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol, 47 B.C. L. Rev. 505 (2006) (discussing the illegality of NSA’s warrantless surveillance program ultimately renamed the “Terrorist Surveillance Program.”); Letter from Curtis A. Bradley, Richard & Marcy Horvitz Professor of Law, Duke Univ., et al., to the Honorable Bill Frist, Majority Leader, U.S. Senate, et al. (Jan. 9, 2006), available at http://www.cdt.org/security/200601091egalexpertsanalysis.pdf (explaining why the executive order by President George W. Bush permitting domestic electronic surveillance without a court order was not lawful).

[20] The criminal and civil penalties under FISA are not the only legal restrictions on abusive information sharing affecting United States persons.

Criminal Penalties under the Privacy Act: For example, there are also criminal prohibitions that apply to illicit government disclosures under the Privacy Act. See 5 U.S.C. § 552a(i) (2010) (“Criminal penalties. (1) Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $ 5,000. (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $ 5,000. (3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $ 5,000.”).

Civil Remedies under the Privacy Act: There is also a civil cause of action created for certain wrongful disclosures in violations of the Privacy Act. See 5 U.S.C. § 552a(g)(1) (2010) (“Civil remedies. (1) Whenever any agency--(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection; (B) refuses to comply with an individual request under subsection (d)(1) of this section; (C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.”) (emphasis added).

Bivens Actions: And, of course, there are always Bivens actions, which are civil rights actions to redress constitutional torts. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Judicial Review of Agency Action under the APA: There are also suits you can bring against an agency itself under the Administrative Procedure Act but only for declaratory or injunctive relief—no monetary damages. See 5 U.S.C. §§ 701-707. This—plus the fact that judicial review of agency action under the APA is complicated—generally keeps all but the true idealists away. Suing the agency directly does give you the chance to make a difference in how the law is applied nationwide. See generally Congressional Research Serv., General Management Laws: A Compendium, § I(B), RL30795 (MAY 19, 2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30795_5-19-2004.pdf (“Sections 701-706 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions; however, they leave the mechanics regarding judicial review to be governed by other statutes or court rules. Section 701 establishes a presumption of reviewability of agency actions by providing that the action “of each authority of the Government of the United States” is subject to judicial review except where “statutes preclude judicial review,” or “where agency action is committed to agency discretion by law” (Section 701(a)(1),(2)). The Supreme Court has consistently supported the strong presumption of reviewability, requiring a “showing of ‘clear and convincing’ evidence of a ... legislative intent to restrict access to judicial review.”  (Citizens to Protect Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986)).  Moreover, the exception for actions “committed to agency  discretion” is narrowly construed and is applicable only in “rare instances where statutes are drawn in such broad terms that in a given case, there is no law to apply” (Volpe, supra, 401 U.S. at 410). A challenge may be brought by any person who is “adversely affected or aggrieved” by the action “within the meaning of the relevant statute” (5 U.S.C. § 702). Courts deciding the standing of a person challenging a rule also must comply with the limitations on federal court jurisdiction imposed by the “case or controversy” requirement of Article III of the Constitution, which has been interpreted to require that a party bringing an action in federal court demonstrate an “injury in fact,” caused by the violation of a legally protected interest, that is concrete and particularized, and actual or imminent, as opposed to conjectural or hypothetical (see Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 473 (1982); see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). In addition, parties seeking to establish constitutional standing are required to show that their injury “fairly can be traced to the challenged action” and that the injury is likely to be redressed by a favorable judicial decision (Allen v. Wright, 468 U.S. 737 (1984); Valley Forge, supra, at 472).  A person challenging an agency rule who satisfies Section 702*s test is also likely to satisfy the injury requirement for constitutional standing.  Indeed, courts typically merge their discussions of Section 702*s “adversely affected or aggrieved” language with the constitutional injury requirement (see, e.g., Wilderness Society v. Griles, 824 F.2d 4, 11 (D.C. Cir. 1987)). In addition to constitutional requirements, the judiciary has developed prudential rules to constrain the instances in which review may be obtained. Like their constitutional counterparts, these judicially imposed limits on the exercise of federal jurisdiction are “founded in concern about the proper — and properly limited — role of the courts in a democratic society” (see Warth v. Seldin, 422 U.S. 490, 498 (1974)). However, unlike their constitutional counterparts, they may be modified or abrogated by Congress. The prudential components of the standing doctrine require that (1) a plaintiff assert his own legal rights and interests rather than those of third parties; (2) a plaintiff’s complaint be encompassed by the “zone of interests” protected or regulated by the constitutional or statutory guarantee at issue; and (3) courts decline to adjudicate “‘abstract questions of wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches” (Valley Forge, supra, at 472). Any standing inquiry is further complicated in instances when an organization seeks to challenge agency action. An organization may have standing to sue if it has been injured as an entity, and may likewise possess standing to sue on behalf of its members, so long as the members would otherwise have standing to sue in their own right; the interests the organization seeks to protect are germane to its purpose; and neither the claim asserted nor the relief requested requires the participation of individual members (see Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977)). The forum for judicial review of agency rules is determined by statute.  Statutes containing judicial review provisions applicable to rulemaking generally call for direct, pre-enforcement review in the courts of appeals, and usually specify requirements as to venue, timing of review, and scope of review. If there is no specifically applicable judicial review provision governing the agency’s rule, a challenge to the rule will normally be through an action for an injunction or declaratory relief in a district court. Jurisdiction must be obtained through one of the general jurisdictional statutes, the most frequently asserted being 28 U.S.C. § 1331, the so-called “federal question” provision, which gives district courts “original jurisdiction of all civil actions wherever the matter in controversy ... arises under the Constitution, laws, or treaties of the United States.”  Other jurisdictional provisions that may be used are 28 U.S.C. § 1337 (actions arising under commerce-related statutes) and 28 U.S.C. § 1361 (mandamus jurisdiction). Section 706 sets forth the scope of review of agency actions.  In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo.  When a court reviews an agency’s construction of a statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is permissible (see Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984)). The Supreme Court has clarified the limits of this standard, ruling that Chevron deference applies only in instances when Congress has delegated authority to an agency to make rules carrying the force of law, and when the agency interpretation claiming deference was promulgated pursuant to that authority (see United States v. Mead Corp., 533 U.S. 218, 229 (2001)). Agency exercises of judgment or discretion, such as in informal rulemaking or informal adjudication, are reviewed under the “arbitrary, capricious, abuse of discretion” standard.  Under this standard, an agency determination will be upheld if it is rational, based on a consideration of the relevant factors, and within the scope of the authority delegated to the agency by Congress.  The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made.  A court is not to substitute its judgment for that of the agency  (see Motor Vehicle Mfr’s Assoc. v. State Farm Mut. Auto Ins. Co., 463, U.S. 29, 42-43 (1983)). Agency determinations of fact, typically in challenges of agency adjudications, are reviewed under the “substantial evidence” test when the agency determination is reviewed on the record of an agency proceeding required by statute (see Consolo v. FMC, 383 U.S. 607, 618-21 (1966)), citing (Universal Camera v. NLRB, 340 U.S. 474 (1951)).”).

[21] CAVEAT: Outsourcing Loophole: Right now, federal intelligence employees get around these restrictions through what I call “outsourcing.” While the federal employees themselves are prevented from disclosing information gained through these searches, they’re allowed to engage in “information sharing” with state and local authorities, who are then not bound by these limits on dissemination and use. See 50 U.S.C. § 1825(k) (2010) ("Use of information [...] (k) Coordination with law enforcement on national security matters. (1) Federal officers who conduct physical searches to acquire foreign intelligence information under this title [50 U.S.C. §§ 1821 et seq.] may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against— (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.").

State and Local police conduct 90% of the investigations, arrests, and imprisonments carried out across the country. In addition, state and local police and prosecutors are occasionally less professional or ethical than most federal prosecutors and FBI agents. So not only does an intelligence agent wanting to do damage to an American citizen because of their First Amendment activities get to offload all the work, avoid the rules, avoid personal responsibility for anything that happens as a result of his actions, but he also gets a less-professional band of executioners who may be much more likely to be harsh and unfair in their persecution of the American he’s targeted.

[22] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html.

[23] See Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1801(h) (2010) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance) (“‘Minimization procedures’, with respect to electronic surveillance, means—(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a) [50 U.S.C. § 1802(a)], procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 [50 U.S.C. § 1805] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.”).

[24] The statutory delegation of lawmaking power to the Attorney General authorizing him to adopt the binding substantive rules embodied in several sections of DoD Regulation 5240.1-R is located in FISA’s definition of “minimization procedures.” 50 U.S.C. § 1801(h) (2010) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance) (“‘Minimization procedures’, with respect to electronic surveillance, means—(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a) [50 U.S.C. § 1802(a)], procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 [50 U.S.C. § 1805] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.”) (emphasis added).

[25] U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C1.5 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Requests for amendment of these procedures shall be made to the Deputy Under Secretary of Defense (Policy), who shall obtain the written approval of the Secretary of Defense, and, if required, the Attorney General, for any such amendment.”); 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, ¶ C1.4 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Requests for exception to the policies and procedures established herein shall be made in writing to the Deputy Under Secretary of Defense (Policy), who shall obtain the written approval of the Secretary of Defense and, if required, the Attorney General for any such exception.”).

[26] Nat'l Sec. Agency/Cent. Sec. Serv., United States Signals Intelligence Directive 18, (July 27, 1993) [hereinafter USSID 18], available at http://www.gwu.edu/ nsarchiv/NSAEBB/NSAEBB23/07-02.htm (declassified version with some language redacted by the NSA).

[27] See e.g. See Army Regulation 381-10, U.S. Army Intelligence Activities (July 1, 1984) at App. B, available at http://www.fas.org/irp/doddir/army/r381_10.pdf (superseded in 2007).

[28] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.3(b), 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 (“(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the Federal Bureau of Investigation (FBI) or, when significant foreign intelligence is sought, by other authorized elements of the Intelligence Community, provided that no foreign intelligence collection by such elements may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;”); see also Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.3(e), 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 (“(e) Information needed to protect foreign intelligence or counterintelligence sources, methods, and activities from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other elements of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting;”).

[29] For an excellent history of the Attorney General’s Guidelines on Domestic FBI Investigations, you should check out the Electronic Privacy Information Center’s guide on their website. See Electronic Privacy Information Center, The Attorney General’s Guidelines, Epic.org, available at http://epic.org/privacy/fbi/.

 


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