Intelligence Law School - Course 1: Lesson 5.7.1 Executive Order 12333: United States Intelligence Activities


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LESSON 5: ADMINISTRATIVE LAW


5.7 Administrative Rules in U.S. Intelligence Law


5.7.1 Executive Order 12333: United States Intelligence Activities


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Annotated Lecture Transcript

5.7.1 Executive Order 12333: United States Intelligence Activities

5.7.1.1 Background

You made it!

Congratulations on making it through the review of administrative law as it’s understood 99% of the time in federal agencies.

Now we’re moving into the good stuff.

This section is going to give you an overview of the unusual framework of administrative rules used in the intelligence context.

 

The most important presidential rule in U.S. intelligence law is Executive Order 12333, United States Intelligence Activities.[1]

Executive Order twelve-triple-3 is the primary presidential rule governing the general management and structure of the U.S. Intelligence Community.

It was first issued in 1981 by President Reagan as a replacement for President Carter’s previous Presidential rule on the same topic.

Carter’s rule had replaced the rule issued by President Ford in 1976 during the height of Congressional investigations into domestic intelligence abuses.

 

Ford first issued the order after the Watergate Scandal in an attempt to stave off meaningful statutory regulation by Congress.

Ford was mostly successful, but Congress did enact the Foreign Intelligence Surveillance Act and some of the general management statutes on ethics and oversight we’ve already discussed.[2]

 

Unlike the orders of Presidents Ford and Carter, President Reagan’s Executive Order 12-Triple-3 is still in force today.

It’s been amended many times by subsequent Presidents, but they don’t repeal it and start over from scratch like with the previous rules.

 

5.7.1.2 Part 1: Goals, Direction, Duties, and Responsibilities With Respect to the National Intelligence Effort [Pseudo Organic Statute for the U.S. Intelligence Community]

Twelve-Triple-3 is broken down into a Preamble[3] and 3 parts:

 

Ø  Part 1 as a Pseudo Organic Statute: Part 1, deals with “Goals, Direction, Duties, and Responsibilities With Respect to the National Intelligence Effort;”

o   In the absence of an intelligence-specific organic statute for the U.S. Intelligence Community, beyond the military-centric National Security Act of 1947,[4] Part 1 of Executive Order 12-Triple-3 serves as a pseudo organic statute or “charter” for the Community.

o   Part 1 sets the general duties[5] of intelligence agencies and their leadership.[6]

o   Section 1.7 goes through the entire Intelligence Community agency-by-agency listing each agency’s specific responsibilities.[7]

o   If you’ve ever asked yourself questions like:

§  What are the agencies in the intelligence community?[8]

§  And what do each of them do?

§  Section 1.7 gives you most of the answers.

§  Executive Order 12-Triple-3—and Part 1 in particular—is like an organic statute for the Intelligence Community—it’s just not an actual “statute.”

 

5.7.1.3 Part 2: Conduct of Intelligence Activities [Pseudo Framework Statute for U.S. Intelligence Activities]

Ø  Part 2 as a Pseudo Framework Statute: Now, if Part 1 is like a “pseudo organic statute” for the U.S. Intelligence Community then Part 2 is like a “pseudo framework statute” governing how it carries out its activities.

o   Part 2 states the general purpose[9] of intelligence activities and places general restrictions on certain types of collection techniques[10] and tactics.[11]

o   For example, Section 2.11 contains the much-discussed ban on assassinations.[12]   

Ø  Part 2’s Special Mandatory Rule-of-Law Requirements: But Section 2.3 is most important for our discussion of administrative rules, because Section 2.3 requires agencies “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 […][13]

o   And most important of all, Section 2.3 requires that these rules be “approved by the Attorney General […].”[14]

 

5.7.1.4 Part 3: General Provisions

The last part of Executive Order 12-Triple-3 is Part 3.

And it has a few general provisions that are relevant to this special “rule-of-law” requirement.

Ø  3.2 Implementation: Section 3.2 deals specifically with these mandatory internal directives intelligence agencies have to use whenever they conduct intelligence activities affecting United States persons. It sets out the general, 2-tiered hierarchy.

o   Level 1: Presidential and NSC Directives, Procedures, and Guidance: It says that—at the top level—the President and National Security Council will issue directives, procedures, and guidance to further implement Executive Order 12-Triple-Three’s provisions.[15]

o   Level 2: Internal Agency Procedures and Supplementary Directives: Then at the bottom level, it authorizes the heads of the individual agencies in the intelligence community to issue “appropriate procedures and supplementary directives consistent with [12-Triple-Three’s mandates].”[16]

o   Attorney General Approval for Changes to Part 2: Conduct of Intelligence Activities: Normally, for rules implementing Part 1, the agency heads can issue the rules on their own authority.

§  But for anything having to do with Part 2—governing the conduct of intelligence activities—the agency heads can’t issue or change any rules on their own.[17]

·         The have to get approval from the Attorney General first, before any new rules or changes can take effect.[18]

·         This goes for anything covered in Part 2—Part 2 is the part of 12-Triple-Three governing the actual conduct of intelligence activities on the ground.[19]

·         For an agency to issue or change any of its internal procedures governing how its employees conduct their intelligence activities, those changes can only be made with the approval of the Attorney General.[20]

o   This is very significant.

o   It means that if the director of an intelligence agency wants to change an old set of internal procedural rules governing how his agency’s employees carry out their intelligence activities, that director can’t change anything until he first submits his proposed changes to the Attorney General for approval.[21]

§  The AG has to consult with the DNI when deciding whether to approve the proposed rules, but ultimately it is the Attorney General who has final say on all disputes over matters of law.[22]

§  For disputes between the AG and an agency head over non-legal issues, if they can’t be resolved through consultation between the Attorney General, the agency head, and the DNI, then they can submit the dispute to the NSC to make the final decision.[23]

Ø  Remember, this AG approval is required only for agency rules governing the actual conduct of intelligence activities—the stuff covered in Part 2 of 12333, the “pseudo framework statute” for intelligence activities.[24]

o   No AG approval is requires for an agency head to promulgate rules dealing with the other stuff covered in Part 1—Part 1 is the “pseudo organic statute” for the Intelligence Community.[25]

 

Ø  3.3 Procedures:

o   Congressional Oversight: Still, any new rules or rule changes have to be made available to Congress, through the House and Senate Intelligence Committees.[26]

§  This is regardless of whether they deal with Part 1 or Part 2.

§  Whenever an Intelligence Community agency exercises this non-legislative rulemaking power and issues new or modified procedural rules interpreting Executive Order 12333’s provisions, Section 3.3 requires them to make those new rules available to the House and Senate Intelligence Committees to make sure Congress is fully informed of the changes.[27]

o   Binding Effect: Section 3.3 also states that these rules are binding and “all activities […] that require procedures shall be conducted in accordance with existing procedures.” [28]

§  [HYPOTHETICAL EXPLICATION]

·         So what does this mean?

·         Well, let’s say you’re a DIA intelligence officer and you really want to conduct some hard-core intelligence activities targeting an American journalist, scholar, or peace activist.

§  You check out Department of Defense Regulation 5240.1-R—which contains the Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons.[29]

§  It turns out they limit you to targeting only actual spies and terrorists,[30] not professors or journalists.

§  You think this is completely bogus and want to break the rules and target those Americans anyway.

§  You figure that they’re only administrative rules, and it’s not even completely certain whether they’re legislative or non-legislative, because the nomenclature and issuance procedures are so strange and ad hoc.

§  [QUESTION] Can you just go ahead and break them?

§  [PAUSE - ANSWER] The answer is that you can, but not legally.  

·         Executive Order 12-Triple-Three makes it clear that you’re always legally required to follow the existing rules and procedures until new rules are validly promulgated in accordance with all mandatory procedures including ultimate approval by the Attorney General.[31]

·         So if you break DoD Regulation 5240.1-R you’ll be breaking the law.

·         Whether or not that means anything to you is a completely separate question altogether.

 

Ø  3.7 General Provisions: [Question] So what does happen to our hypothetical DIA counterintelligence guy who decides to flout the rules and targets the American journalist, scholar, or peace activist anyway?

o   After all, Executive Order 12333 purports to be a legislative rule with the force and effect of law.[32]

o   It requires that all intelligence activities be conducted in accordance with its provisions and in accordance with agency-level[33] procedures like DoD Regulation 5240.1-R.[34]

o   It states that all validly issued existing rules must be followed until new rules amending or replacing them are validly issued.[35]

o   This guy knowingly and willfully violates these rules in order to target the First Amendment activities of an American citizen who has no connection to a foreign power or international terrorism even though these connections are essential to lawful targeting of civilian United States persons.   

o   [QUESTION] Can the American sue to enforce Executive Order 12 Triple-Three’s requirement that its rules be followed?

§  [PAUSE - ANSWER] The simple answer is no.  

§  It’s because of one of the last provisions in Part 3 of Executive Order 12 Triple-Three—Section 3.7(c).[36]

o   Disclaimer: Section 3.7(c) contains that one-sentence legal disclaimer that intelligence agencies love to use to pull the teeth out of any legal protections they provide.

§  After all those rules protecting individual rights throughout Executive Order 12-Triple-3, Section 3.7(c) designates the entire order unenforceable by saying that it’s only intended for internal management.[37]

§  It says that the rules in twelve triple-three create no substantive or procedural rights enforceable at law or in equity by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.[38]

§  This one little sentence makes 12333’s requirements meaningless—at least for the people harmed by the abuse.

§  This sentence makes the assassination ban, the limits on collection techniques, and every other safeguard contained in 12 Triple-Three utterly useless to the American civilians they purport to protect—at least useless for holding agents who violate their rights accountable in court.

§  You can only sue to enforce legal rights.

§  The one-sentence disclaimer in Section 3.7(c) means that you have no rights—at least not under Executive Order 12-triple-three.

o   If you’re looking for justice, you’ll have to look elsewhere to find it.

o   Boilerplate like this is why a real[39] framework statute for domestic intelligence activities is needed so desperately.[40]

§  Administrative rules like Executive Order 12-Triple-Three may even do more harm than good.

·         These agencies fill up massive repositories with truck-loads of administrative directives and procedures all filled to the brim with words about protecting people’s rights.

·         This creates a blissful illusion of adequate regulation.

§  But just in case you get too comfortable and think your rights mean you can criticize Pentagon intelligence abuses, or protest the Iraq War, or even be a journalist for the New York Times, Section 3.7(c) should remind you of a simple truth about all these Executive Orders and rules we’re going to study in later courses on IntelligenceLaw.com:  

·         Unless you’ve got a statute enacted by Congress defending your rights, all you’ve got is paper—

·         … with some words typed on it.

·         [PAUSE FOR EFFECT]

 

And that’s all I’m going to say about 12-Triple-3, at least for now.

Despite the weakness of its protections, it’s all we’ve got in most cases.

In the absence of a comprehensive framework statute to govern all stages of the intelligence cycle, this Executive Order will remain centrally important to understanding Americans’ rights in U.S. intelligence law.

 

Footnotes

[1] Exec. Order No. 12,333, United States Intelligence Activities, 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.

[2] See Richard A. Best, Jr., Congressional Research Serv., Proposals for Intelligence Reorganization, 1949-2004 (2004), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL32500_9-24-2004.pdf (“The Executive Branch Response, 1976-1981: Concurrent with, and subsequent to, these legislative initiatives, the Executive Branch, in part to head off further congressional action, implemented some of the more limited recommendations contained in their respective proposals.  Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan each issued detailed Executive Orders (E.O.) setting guidelines for the organization and management of the U.S. Intelligence Community.” […] “President Reagan continued the trend towards enhancing the DCI’s community-wide budgetary, tasking, and managerial authority.  On December 4, 1981, he issued Executive Order 12333, detailing the roles, responsibilities, missions, and activities of the Intelligence Community.  It supplanted the previous orders issued by Presidents Ford and Carter. E.O. 12333 remains the governing executive branch mandate concerning the managerial structure of the Intelligence Community. E.O. 12333 designates the DCI “as the primary intelligence advisor to the President and NSC on national foreign intelligence.” In this capacity, the DCI’s duties include the implementation of special activities (covert actions), liaison to the nation’s foreign intelligence and counterintelligence components, and the overall protection of the community’s sources, methods, and analytical procedures. It grants the DCI “full responsibility for [the] production and dissemination of national foreign intelligence,” including the authority to task non-CIA intelligence agencies, and the ability to decide on community tasking conflicts.  The order also sought to grant the DCI more explicit authority over the development, implementation, and evaluation of NFIP. To a certain extent, E.O. 12333 represented a relaxation of the restrictions placed upon the community by Carter.  Although it maintained the prohibition on assassination, the focus was on “authorizations” rather than “restrictions.” “Propriety” was removed as a criterion for approving operations.  Arguably, the Reagan Administration established a presumption in favor of government needs over individual rights.  However, in the absence of legislation, the DCI continued to lack statutory authority over all aspects of the Intelligence Community, including budgetary issues.”) (internal footnotes omitted).

[3] See Exec. Order No. 12,333, United States Intelligence Activities, Preamble, 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 (“Timely, accurate, and insightful information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons, and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available. For that purpose, by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947 [50 U.S.C. §§ 401 et seq.], as amended (Act), and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows:”).

[4] Although the National Security Act of 1947 created the Central Intelligence Agency, the primary focus of the Act was not to regulate intelligence activities. The National Security Act was focused primarily on restructuring the United States military after World War II. See National Security Act of 1947, 50 U.S.C. § 401 (2010) (Declaration of policy "In enacting this legislation, it is the intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security; to provide a Department of Defense, including the three military Departments of the Army, the Navy (including naval aviation and the United States Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense; to provide for their unified direction under civilian control of the Secretary of Defense but not to merge these departments or services; to provide for the establishment of unified or specified combatant commands, and a clear and direct line of command to such commands; to eliminate unnecessary duplication in the Department of Defense, and particularly in the field of research and engineering by vesting its overall direction and control in the Secretary of Defense; to provide more effective, efficient, and economical administration in the Department of Defense; to provide for the unified strategic direction of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land, naval, and air forces but not to establish a single Chief of Staff over the armed forces nor an overall armed forces general staff.").

[5] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 1.4, 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 (“Consistent with applicable Federal law and with the other provisions of this order, and under the leadership of the Director, as specified in such law and this order, the Intelligence Community shall: (a) Collect and provide information needed by the President and, in the performance of executive functions, the Vice President, the NSC, the Homeland Security Council, the Chairman of the Joint Chiefs of Staff, senior military commanders, and other executive branch officials and, as appropriate, the Congress of the United States; (b) In accordance with priorities set by the President, collect information concerning, and conduct activities to protect against, international terrorism, proliferation of weapons of mass destruction, intelligence activities directed against the United States, international criminal drug activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents; (c) Analyze, produce, and disseminate intelligence; (d) Conduct administrative, technical, and other support activities within the United States and abroad necessary for the performance of authorized activities, to include providing services of common concern for the Intelligence Community as designated by the Director in accordance with this order; (e) Conduct research, development, and procurement of technical systems and devices relating to authorized functions and missions or the provision of services of common concern for the Intelligence Community; (f) Protect the security of intelligence related activities, information, installations, property, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the Intelligence Community elements as are necessary; (g) Take into account State, local, and tribal governments' and, as appropriate, private sector entities' information needs relating to national and homeland security; (h) Deconflict, coordinate, and integrate all intelligence activities and other information gathering in accordance with section 1.3(b)(20) of this order; and (i) Perform such other functions and duties related to intelligence activities as the President may direct.”).

[6] See e.g. Exec. Order No. 12,333, United States Intelligence Activities, ¶ 1.6, 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 heads of elements of the Intelligence Community shall: (a) Provide the Director access to all information and intelligence relevant to the national security or that otherwise is required for the performance of the Director's duties, to include administrative and other appropriate management information, except such information excluded by law, by the President, or by the Attorney General acting under this order at the direction of the President; (b) Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures; (c) Report to the Intelligence Oversight Board, consistent with Executive Order 13462 of February 29, 2008 [note to this section], and provide copies of all such reports to the Director, concerning any intelligence activities of their elements that they have reason to believe may be unlawful or contrary to executive order or presidential directive; (d) Protect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the Director; (e) Facilitate, as appropriate, the sharing of information or intelligence, as directed by law or the President, to State, local, tribal, and private sector entities; (f) Disseminate information or intelligence to foreign governments and international organizations under intelligence or counterintelligence arrangements or agreements established in accordance with section 1.3(b)(4) of this order; (g) Participate in the development of procedures approved by the Attorney General governing production and dissemination of information or intelligence resulting from criminal drug intelligence activities abroad if they have intelligence responsibilities for foreign or domestic criminal drug production and trafficking; and (h) Ensure that the inspectors general, general counsels, and agency officials responsible for privacy or civil liberties protection for their respective organizations have access to any information or intelligence necessary to perform their official duties.”).

[7] For example, the responsibilities of the CIA Director are listed in Section 1.7(a). See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 1.7(a), 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 Central Intelligence Agency: The Director of the Central Intelligence Agency shall: (1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence; (2) Conduct counterintelligence activities without assuming or performing any internal security functions within the United States; (3) Conduct administrative and technical support activities within and outside the United States as necessary for cover and proprietary arrangements; (4) Conduct covert action activities approved by the President. No agency except the Central Intelligence Agency (or the Armed Forces of the United States in time of war declared by the Congress or during any period covered by a report from the President to the Congress consistent with the War Powers Resolution, Public Law 93-148) may conduct any covert action activity unless the President determines that another agency is more likely to achieve a particular objective; (5) Conduct foreign intelligence liaison relationships with intelligence or security services of foreign governments or international organizations consistent with section 1.3(b)(4) of this order; (6) Under the direction and guidance of the Director, and in accordance with section 1.3(b)(4) of this order, coordinate the implementation of intelligence and counterintelligence relationships between elements of the Intelligence Community and the intelligence or security services of foreign governments or international organizations; and (7) Perform such other functions and duties related to intelligence as the Director may direct.”).

[8] The composition of the U.S. Intelligence Community is set by Congress in the National Security Act, but the statutory definition leaves room for additional members to be added at the President’s discretion. Discretionary members may also be designated jointly by the Director of National Intelligence and the head of the department or agency concerned. See 50 U.S.C. § 401a(4) (2010) (Title 50—Chapter 15: National Security—Subchapter A: Coordination for National Security) (“As used in this Act: (4) The term "intelligence community" includes the following: (A) The Office of the Director of National Intelligence. (B) The Central Intelligence Agency. (C) The National Security Agency. (D) The Defense Intelligence Agency. (E) The National Geospatial-Intelligence Agency. (F) The National Reconnaissance Office. (G) Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs. (H) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal Bureau of Investigation, and the Department of Energy. (I) The Bureau of Intelligence and Research of the Department of State. (J) The Office of Intelligence and Analysis of the Department of the Treasury. (K) The elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard. (L) Such other elements of any other department or agency as may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency concerned, as an element of the intelligence community.”).

[9] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.2, 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 (2.2 Purpose: “This Order is intended to enhance human and technical collection techniques, especially those undertaken abroad, and the acquisition of significant foreign intelligence, as well as the detection and countering of international terrorist activities, the spread of weapons of mass destruction, and espionage conducted by foreign powers. Set forth below are certain general principles that, in addition to and consistent with applicable laws, are intended to achieve the proper balance between the acquisition of essential information and protection of individual interests. Nothing in this Order shall be construed to apply to or interfere with any authorized civil or criminal law enforcement responsibility of any department or agency.”).

[10] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.4, 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 shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element concerned and approved by the Attorney General, after consultation with the Director. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize: (a) The Central Intelligence Agency (CIA) to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance; (b) Unconsented physical searches in the United States by elements of the Intelligence Community other than the FBI, except for: (1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and (2) Searches by CIA of personal property of non-United States persons lawfully in its possession; (c) Physical surveillance of a United States person in the United States by elements of the Intelligence Community other than the FBI, except for: (1) Physical surveillance of present or former employees, present or former intelligence element contractors or their present or former employees, or applicants for any such employment or contracting; and (2) Physical surveillance of a military person employed by a nonintelligence element of a military service; and (d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.”).

[11] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.9, 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 one acting on behalf of elements of the Intelligence Community may join or otherwise participate in any organization in the United States on behalf of any element of the Intelligence Community without disclosing such person's intelligence affiliation to appropriate officials of the organization, except in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director. Such participation shall be authorized only if it is essential to achieving lawful purposes as determined by the Intelligence Community element head or designee. No such participation may be undertaken for the purpose of influencing the activity of the organization or its members except in cases where: (a) The participation is undertaken on behalf of the FBI in the course of a lawful investigation; or (b) The organization concerned is composed primarily of individuals who are not United States persons and is reasonably believed to be acting on behalf of a foreign power.”).

[12] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 2.11, 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 person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”).

[13] The head of a department containing an intelligence agency may also establish these rules to bind the subordinate agency, but the department head still needs the approval of the Attorney General for these rules to come into effect if they deal with the conduct of intelligence activities under Part 2 of Executive Order 12333. 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.”) (emphasis added); see also 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 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html.

[14] 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).

[15] 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.”).

[16] 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. […]”).

[17] 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).

[18] 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).

[19] 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.”).

[20] 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.”).

[21] 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.”).

[22] 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 (“[...]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).

[23] 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 (“[...]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).

[24] 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).

[25] 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. […]”) (emphasis added).

[26] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.3, 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 (“The activities herein authorized that require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order 12333 [this note]. New procedures, as required by Executive Order 12333, as further amended, shall be established as expeditiously as possible. All new procedures promulgated pursuant to Executive Order 12333, as amended, shall be made available to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”) (emphasis added).

[27] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.3, 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 (“The activities herein authorized that require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order 12333 [this note]. New procedures, as required by Executive Order 12333, as further amended, shall be established as expeditiously as possible. All new procedures promulgated pursuant to Executive Order 12333, as amended, shall be made available to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”).

[28] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.3, 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 (“The activities herein authorized that require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order 12333 [this note]. New procedures, as required by Executive Order 12333, as further amended, shall be established as expeditiously as possible.”) (emphasis added).

[29] 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.

[30] DoD Regulation 5240.1-R can be troublesome for DoD intelligence employees wanting to use “counterintelligence” as a pretext to target American journalists, scholars, and peace activists. The regulation forbids the intentional collection of “counterintelligence” about United States persons who are not “reasonably believed to be engaged in, or about to engage in, intelligence activities on behalf of a foreign power, or international terrorist activities.” American journalists and scholars researching and writing about intelligence matters have a constitutional right to do so. The First Amendment activities of these American citizens cannot be lawfully targeted by counterintelligence agents if those Americans don’t work for a foreign power and aren’t engaged in terrorism. Ideally, any targeting assessment that concludes that an American journalist, scholar, or peace activist is a proper target for DoD counterintelligence activities must include a reasonable basis for the analyst’s belief that the target is indeed working for a foreign power or engaged in international terrorism. See generally U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C2.3.4 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Information may be collected about a United States person if the information constitutes counterintelligence, provided the intentional collection of counterintelligence about United States persons must be limited to: C2.3.4.1. Persons who are reasonably believed to be engaged in, or about to engage in, intelligence activities on behalf of a foreign power, or international terrorist activities. C2.3.4.2. Persons in contact with persons described in subparagraph C2.3.4.1., above, for the purpose of identifying such person and assessing their relationship with persons described in subparagraph C2.3.4.1., above.”).

The “foreign intelligence” pretext is equally problematic when it comes to targeting American journalists, scholars, and peace activists. Among other things, the regulation forbids DoD intelligence agencies from intentionally collecting foreign intelligence about any United States person unless they are an officer, employee, or agent of a foreign power. If faithfully applied by DoD intelligence personnel, domestic American journalists, scholars, and peace activists with no foreign ties or travel should rarely qualify for “foreign intelligence” targeting even under the loosest interpretation of the foreign agent requirement. See generally U.S. Dep't of Defense, Reg. No. 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C2.3.3 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“the intentional collection of foreign intelligence about United States persons shall be limited to persons who are: C2.3.3.1. Individuals reasonably believed to be officers or employees, or otherwise acting for or on behalf, of a foreign power; C2.3.3.2. An organization reasonably believed to be owned or controlled, directly or indirectly, by a foreign power; C2.3.3.3. Persons or organizations reasonably believed to be engaged or about to engage, in international terrorist or international narcotics activities; C2.3.3.4. Persons who are reasonably believed to be prisoners of war; missing in action; or are the targets, the hostages, or victims of international terrorist organizations; or C2.3.3.5. Corporations or other commercial organizations believed to have some relationship with foreign powers, organizations, or persons.”).

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, ¶ C2.5 (Dec. 1982), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/dodr_5240-1-R_1982.html (“Within the United States, foreign intelligence concerning United States persons may be collected only by overt means unless all the following conditions are met: C2.5.1. The foreign intelligence sought is significant and collection is not undertaken for the purpose of acquiring information concerning the domestic activities of any United States person; C2.5.2. Such foreign intelligence cannot be reasonably obtained by overt means; C2.5.3. The collection of such foreign intelligence has been coordinated with the Federal Bureau of Investigation (FBI); and C2.5.4. The use of other than overt means has been approved in writing by the head of the DoD intelligence component concerned, or his single designee, as being consistent with these procedures. A copy of any approval made pursuant to this section shall be provided the Deputy Under Secretary of Defense (Policy).”) (emphasis added).

[31] 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.”).

[32] See Exec. Order No. 12,333, United States Intelligence Activities, Preamble, 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 (asserting a statutory foundation for the issuance of Executive Order 12333 by stating “[...] by virtue of the authority vested in me by the Constitution and the laws of the United States of America, including the National Security Act of 1947 [50 U.S.C. §§ 401 et seq.], as amended (Act), and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows:”) (emphasis added).

[33] 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.”) (emphasis added).

[34] 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.

[35] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.3, 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 (“The activities herein authorized that require procedures shall be conducted in accordance with existing procedures or requirements established under Executive Order 12333 [this note]. New procedures, as required by Executive Order 12333, as further amended, shall be established as expeditiously as possible.”) (emphasis added).

[36] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.7(c), 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 (“This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.”).

[37] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.7(c), 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 (“This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.”).

[38] See Exec. Order No. 12,333, United States Intelligence Activities, ¶ 3.7(c), 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 (“This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.”).

[39] FISA only covers “electronic surveillance” and defines the term so strangely that almost no modern cyber or technological surveillance is covered. This leaves almost all new technological surveillance techniques completely unregulated. Also, the Intelligence Community lacks a central organic statute and relies on the weak, unenforceable provisions of Executive Order 12333 to give the illusion of adequate regulation. Although the National Security Act of 1947 did create the Central Intelligence Agency, the primary focus of the Act was not to regulate intelligence activities, but to restructure the U.S. military after World War II. A statutory foundation that is specifically focused on the special problems presented by modern intelligence activities is needed in order to bring concrete legal protections into the currently unregulated wilderness of U.S. intelligence law. As intelligence technology continues to advance, only a concrete statutory foundation can protect Americans’ rights in the Information Age. See generally National Security Act of 1947, 50 U.S.C. § 401 (2010) (Declaration of policy "In enacting this legislation, it is the intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security; to provide a Department of Defense, including the three military Departments of the Army, the Navy (including naval aviation and the United States Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense; to provide for their unified direction under civilian control of the Secretary of Defense but not to merge these departments or services; to provide for the establishment of unified or specified combatant commands, and a clear and direct line of command to such commands; to eliminate unnecessary duplication in the Department of Defense, and particularly in the field of research and engineering by vesting its overall direction and control in the Secretary of Defense; to provide more effective, efficient, and economical administration in the Department of Defense; to provide for the unified strategic direction of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land, naval, and air forces but not to establish a single Chief of Staff over the armed forces nor an overall armed forces general staff.").

[40] This type of provision allows agencies to set standards for employee conduct without inadvertently giving an outside party standing to challenge abusive conduct using the agency’s own rules as ammunition. It is fairly common boilerplate for non-legislative presidential and agency rules to insert some sort of disclaimer explicitly stating that the rules create no enforceable rights or benefits. See e.g. U.S. Dep’t of Justice, The Attorney General's Guidelines for Domestic FBI Operations, ¶ I(D)(2) (Sept. 29, 2008), available at https://intelligencelaw.com/html-only/law_library/admin/current/agency_rules/ag_guidelines_2008.html (“These Guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter, civil or criminal, nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the Department of Justice.”).

 


© 2012 David Alan Jordan. All rights reserved.