Intelligence Law School - Course 1: Lesson 7.1.2 Summary of Primary Legal Authority in the Federal System [HTML-Only]

««« Previous Lesson  |  Next Lesson »»»


7.1 Summary of Legal Sources in U.S. Intelligence Law

7.1.2 Summary of Primary Legal Authority in the Federal System

Lecture Audio

Annotated Lecture Transcript

7.1.2 Summary of Primary Legal Authority in the Federal System

The entire body of U.S. intelligence law—as well as all federal law in the United States—is composed of just 4 sources of primary legal authority—3 blackletter sources and the judicial holdings interpreting them.

The 3 blackletter sources are contained in text of:

Ø  The United States Constitution;

Ø  Congressional Statutes;

Ø  Administrative Rules.


Specifically, the primary sources of U.S. intelligence law under each category are:

Ø  Constitutional Law: In the constitutional law category, the most important blackletter provisions are:

o   The First Amendment;

o   Fourth Amendment; and

o   Fifth Amendment.

o   Of those 3 main Amendments, the Fourth Amendment is by far the most important to domestic intelligence operations targeting United States persons.

o   In addition to those 3, the Sixth, Eighth, and Fourteenth Amendments are also important, but to a much lesser extent.

o   Of course, Articles I, II, and III are relevant to understanding the constitutional powers of the 3 branches of government in the intelligence context, but the Amendments are the primary focus of the constitutional law discussion in the substantive courses produced by

o   The Amendments are the focus because they establish the constitutional rights of United States persons affected by domestic intelligence activities—the primary focus of the courses on

Ø  Statutory Law: As far as the second category of primary legal authority is concerned—statutory law—there are many different statutes that govern different aspects of the intelligence cycle and they are scattered throughout the 51 titles of the U.S. Code.

o   The most important statutes discussed in this course are:

§  The National Security Act of 1947; and

§  The Foreign Intelligence Surveillance Act of 1978.

o   The most important Title of the U.S. Code is Title 50, which contains:

§  Chapter 15, dealing with National Security; and

§  Chapter 36, dealing with Foreign Intelligence Surveillance.

o   Title 18 is also important because it contains statutes related to federal criminal law and procedure, which are relevant to domestic FBI investigations targeting Americans.

o   There are several other titles that also contain statutes relevant to U.S. intelligence law, and they are all contained in the free Statutory Law Supplement for U.S. Intelligence Law available on[1]

Ø  Administrative Law: As far as the third category of law is concerned, administrative rules are like statutes, in that different sets of administrative rules govern different activities taking place at the various stages of the intelligence cycle.

o   For example, the most import administrative rules governing domestic intelligence collection are

§  Executive Order 12333;

§  The Attorney General’s Guidelines for Domestic FBI Operations; and

§  Department of Defense Regulation 5240.1-R.

Ø  Judicial Decisions: And of course, there are many judicial cases interpreting each of these primary sources of law, most notably in the area of Fourth Amendment, and the holdings in these decisions are also primary legal authority in their own right.  


These are the 4 general categories of primary legal authority.

There are countless specific substantive and procedural rules governing every aspect of intelligence agency operations, and they will be the subject of future courses on



[1] David Alan Jordan, Statutory Law Supplement for U.S. Intelligence Law (2010), available at


© 2012 David Alan Jordan. All rights reserved.