The Senate begins debate this month on renewal of the FISA Amendments Act, particularly Section 702, which authorizes our intelligence agencies to access the communications of foreign terrorists from a U.S. company with a valid court order. Congressional debates and media analysis of the laws that govern electronic surveillance frequently cite—and mischaracterize—Executive Order 12333, the framework by which presidents of both parties have organized the worldwide activities of U.S. intelligence for more than three decades. This paper outlines the history and main features of E.O. 12333 and describes the significant constraints it imposes on U.S. intelligence as well as the safeguards for Americans’ civil liberties that have always been part of its fabric. This presidential directive provides important guidance to our intelligence agencies, is fully consistent with the Constitution and U.S. laws, and should not be misunderstood as an unlimited grant of authority to our intelligence agencies that requires corrective action by the Congress or courts.
Executive Order 12333—What It is:
- E.O. 12333 provides both an overarching framework and specific rules governing U.S. intelligence activities. Presidents of both political parties have employed E.O. 12333 over the decades to provide strategic guidance, regulation, and authority to the IC. Specifically, the purpose E.O. 12333 is to:
- Enhance human and technical collection capabilities;
- Prioritize the acquisition of significant foreign intelligence;
- Enable the IC to detect and counter terrorist activities;
- Prevent the spread of weapons of mass destruction; and
- Counter or prevent espionage conducted by foreign powers.
- President Reagan issued E.O. 12333 in 1981 as a step toward fulfilling his campaign promise to revitalize America’s intelligence capabilities. Better intelligence was required to assess more accurately the military strength of the Soviet Union. Notwithstanding amendments to the Order since 1981, Part 1 of E.O. 12333 sets broad aspirational goals for the IC and defines specific duties and responsibilities for executive branch officials and organizations. Part II provides guidelines for the conduct of intelligence activities and describes protections for the legal rights of United States persons and reinforces existing bans on human experimentation and assassination. Part III of the Order outlines general provisions to include the explicit requirement that the IC leadership “cooperate with the Congress in the conduct of its responsibilities for oversight of intelligence activities.”
- In 2008, President Bush significantly revised E.O. 12333 to, among other things, reflect the new structures and priorities created by the Intelligence Reform and Terrorism Prevention Act of 2004. The IRTPA, informed by the recommendations of the 9/11 Commission, established a Director of National Intelligence to lead the IC, codified the roles and responsibilities of the National Counterterrorism Center, and mandated greater information sharing among IC agencies.
- The revised E.O. provides a solid framework for the conduct of U.S. intelligence activities by:
- Describing the roles and responsibilities of the DNI, IC, and the agencies comprising the IC;
- Clarifying the role of the Federal Bureau of Investigation as a member of the IC;
- Emphasizing the need for collaboration in the collection, analysis, and production of intelligence;
- Stressing the importance of intelligence sharing; and
- Underscoring and renewing the commitment to protect, in the conduct of intelligence activities, the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by the Constitution and federal laws.
- The overall goal of E.O. 12333 is to ensure that the president, as well as cabinet members on the National Security Council, has the necessary information to inform decisions that promote the “development and conduct of foreign, defense, and economic policies, and the protection of the United States national interest from foreign security threats.” It directs the IC to collect and provide information needed by the president and in accordance with his or her priorities.
What Executive Order 12333 is Not:
- It does not give the IC authority to target Americans’ electronic communications; the authority to conduct surveillance targeting Americans is generally regulated by federal statute and, in the foreign intelligence context, is generally regulated by the Foreign Intelligence Surveillance Act of 1978, as amended.
- E.O. 12333 is not an unchecked authorization to gather intelligence; rather activities pursuant to the order are supervised and overseen by multiple bodies in the executive and legislative branches of government;
- A novel or unusual directive to gather and disseminate information; rather, it has provided a stable framework for U.S. intelligence activities for more than three decades and allowed IC leaders and professionals the flexibility to adapt to changed conditions and counter shifting national security threats.
Restrictions and Oversight:
- E.O. 12333 imposes multiple restrictions that, combined with relevant federal laws, prevent the IC from targeting U.S. persons’ communications without appropriate legal authorization, adds additional protections when surveillance is conducted pursuant to appropriate legal authorization, provides guidelines for the surveillance efforts, and requires the IC to apply approved minimization procedures when information about U.S. persons is collected during the lawful collection of foreign intelligence. Specifically:
- The IC must use “the least intrusive collection techniques feasible within the United States or directed against United States persons abroad;”
- The IC is not authorized to use “electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices” unless approved by the head of the intelligence agency involved, as well as the Attorney General;
- Information from signals intelligence may not be disseminated to IC elements if they are not “in accordance with procedures established by the [DNI] . . . and approved by the Attorney General;”
- Prohibits, with few exceptions or in the absence of extraordinary approvals and oversight, the CIA from engaging in electronic surveillance within the United States, unconsented physical searches in the United States by elements of the IC other than the FBI, and physical surveillance of a United States person in the United States by elements of the IC other than the FBI.
- The DNI must give “full consideration of the rights of United States persons, whether the information is to be collected inside or outside the United States” when directing the collection, analysis, production, and dissemination of national intelligence.
- The Attorney General is assigned a central role in reviewing and approving information handling procedures proposed by intelligence agencies. For example:
- The Attorney General must approve any guidelines developed by the IC for “how information or intelligence is provided to or accessed by the Intelligence Community. . . and for how the information or intelligence may be used and shared[;]”
- “All policies and procedures for the coordination of counterintelligence activities and the clandestine collection of foreign intelligence inside the United States” are subject to approval by the Attorney General.
- No country in the world subjects its intelligence agencies to the same level of supervision and democratic oversight as the U.S. IC. All activities conducted under E.O. 12333 are supervised by multiple layers of career, appointed, and elected officials and overseen by the:
- National Security Council: The NSC, including an interagency lawyers group, reviews every CIA covert action program and many other sensitive intelligence programs on an annual basis and presents findings and recommendations to the president;
- President’s Intelligence Advisory Board (PIAB) and Intelligence Oversight Board (IOB): The PIAB is a longstanding bipartisan board that provides discreet advice to the president on U.S. intelligence activities. The PIAB may review any matter while the IOB, a subordinate element of the PIAB, reviews questions touching on the legality of IC activities;
- Inspectors General and General Counsels: The activities of each IC agency are now overseen by at least one, and often more than one, inspector general who is appointed by the president, confirmed by the Senate, and whose rights and responsibilities are delineated in statute. Similarly, large IC agencies receive legal advice from a general counsel who is appointed by the president and confirmed by the Senate;
- U.S. Congress: Both the House of Representatives and Senate maintain and staff select committees on intelligence that authorize funds for U.S. intelligence activities; oversee and investigate intelligence activities on behalf of the full Congress and the American public; and pass laws when appropriate that govern U.S. intelligence.
Other Important Intelligence Collection Authorities/ Limitations:
- Unlike E.O. 12333, the Foreign Intelligence Surveillance Act of 1978, as amended, provides specific authorities to conduct electronic surveillance for foreign intelligence purposes targeting U.S. persons. Other federal laws, including the Wiretap Act and the Electronic Communications Privacy Act, provide similar authorities in the criminal context. Moreover, the FISA Amendments Act of 2008, which authorizes the collection in the United States of foreign intelligence targeting foreigners located overseas, also provides additional protections for the rights of U.S. persons by limiting surveillance targeting U.S. persons located abroad.
- Presidential Policy Directive 28, issued by the president on January 17, 2014, requires signals intelligence collected by the IC to provide “appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides [.]” This new and novel requirement is unprecedented and creates a slippery slope towards providing non-U.S. citizens (including foreign intelligence targets located abroad) with Fourth Amendment (or other constitutional and legal) protections, which may significantly hinder U.S. foreign intelligence collection abilities.