Intelligence Law School - Course 1: Lesson 5.7.4 The Role of Executive Branch Lawyers [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.7 Administrative Rules in U.S. Intelligence Law


5.7.4 The Role of Executive Branch Lawyers


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5.7.4 The Role of Executive Branch Lawyers

5.7.4.1 Special Role of Executive Branch Lawyers in Internal Oversight

And finally, in the absence of meaningful judicial oversight of domestic intelligence activities by the courts,[1] it’s left to the in-house lawyers working inside the Intelligence Community to play a central role in determining their agency’s degree of respect for the rule of law.[2]

They do this by drafting, interpreting, and monitoring compliance with administrative law.  

Ø  The General Counsel’s Office inside different intelligence agencies are charged with ensuring compliance with applicable administrative rules.[3]

o   They will often draft internal administrative memoranda clarifying how the rules are to be applied in the case of ambiguities in the language or whenever questions arise.

Ø  These memos also fall into the category of administrative rules, and are typically classified as either interpretive rules or general statements of policy, depending on the nature of their content.

 

5.7.4.2 The Role of the Attorney General

And I want to end our discussion of administrative law with a special note about the one person who is the most important factor in upholding the rule of law throughout the entire U.S. Intelligence Community—I’m talking about the United States Attorney General.

The Attorney General plays a central role in setting the moral and ethical compass for the entire U.S. Intelligence Community.

The AG’s role is most critical when it comes to the conduct of domestic intelligence activities affecting the rights of 300 million Americans.

This one human being holds ultimate approval authority for all mandatory rules governing intelligence activities covered by Part 2 of Executive Order 12-Triple-3.[4]

This is in addition to a whole host of other singular responsibilities that places the AGs and their national security deputy at the center of most of the critical legal questions presented in U.S. intelligence law.

 

As technology advances intelligence activities are growing increasingly dominant in controlling individual freedom in our wired world.

Unless Congress steps in with a comprehensive framework statute to govern all 5 stages of the intelligence cycle, this world, and all individual freedom in it, will increasingly be dominated by an intelligence community governed only by limitless discretion.

The current legal framework makes clear that it will be the strength of each individual Attorney General’s personal commitment to individual rights that will define the scope of every American’s liberty in the Information Age possibly for many more decades to come.

 

Footnotes

[1] See generally Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006) (an essay from a Yale Law School symposium entitled "The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power").

[2] See generally Dorian D. Greene, Ethical Dilemmas Confronting Intelligence Agency Counsel, 2 Tulsa J. Comp. & Int'l L. 91 (1994).

[3] See e.g. U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C1.3.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“All questions of interpretation shall be referred to the legal office responsible for advising the DoD intelligence component concerned. Questions that cannot be resolved in this manner shall be referred to the General Counsel of the Military Department concerned, or, as appropriate, the General Counsel of the Department of Defense for resolution.”).

[4] Remember, this Attorney General approval is only required for agency rules governing the actual conduct of intelligence activities—the stuff covered in Part 2, the “pseudo framework statute” for intelligence activities. Rules dealing with the other stuff covered in Part 1—the “pseudo organic statute” for the Intelligence Community—they do not need any AG approval prior to issuance. 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.”) (emphasis added).

 


© 2012 David Alan Jordan. All rights reserved.