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U.S. Intelligence Law . n 2011 Administrative Law Supplement for U.S. Intelligence Law DAVID ALAN JORDAN This Document is in the Public Domain. No Rights Reserved. 2011 Administrative Law Supplement for U.S. Intelligence Law (November 2011) By David Alan Jordan Editor-in-Chief/Principal Lecturer IntelligenceLaw.com IntelligenceLaw.com Creative Commons Supplement Series United States of America, 2011 _______________________________ Page 2 To the Center for Democracy & Technology and OpenCRS.com [www.cdt.org & http://opencrs.com] _______________________________ Page 3 Preface This supplement contains the administrative rules most relevant to the courses on IntelligenceLaw.com. Specifically, this supplement contains a selection of presidential orders, agency directives, administrative guidelines, and court rules that govern domestic intelligence operations affecting United States persons. This publication is a work in progress. A more comprehensive second edition is scheduled for release in 2012. DAVID ALAN JORDAN November, 2011 _______________________________ Page 4 Summary of Contents Preface ____________________________________________ 4 Summary of Contents __________________________________ 5 Table of Contents _____________________________________ 6 I. PRESIDENTIAL RULES ______________________________ 18 Executive Order 12,333: United States Intelligence Activities ________ 19 Executive Order 12,949: Foreign Intelligence Physical Searches ______ 46 Executive Order 13,526: Classified National Security Information ___ 48 Executive Order 12,958: Classified National Security Information (Superseded) _________________________________________ 88 II. AGENCY RULES __________________________________ 112 Department of Defense Regulation 5240.1-R: Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons _____________________________________________ 113 Department of Defense Directive 5240.01 ____________________ 169 The Attorney General’s Guidelines for Domestic FBI Operations ____ 175 III. COURT RULES __________________________________ 214 Foreign Intelligence Surveillance Court Rules _________________ 215 Appendix to the FISA Court Rules: Procedures for Review of Petitions Filed Pursuant to Section 501(F) of the Foreign Intelligence Surveillance Court Act of 1978 ______________________________________ 223 Alien Terrorist Removal Court Rules ________________________ 230 _______________________________ Page 5 Table of Contents Preface ____________________________________________ 4 Summary of Contents __________________________________ 5 Table of Contents _____________________________________ 6 I. PRESIDENTIAL RULES ______________________________ 18 Executive Order 12,333: United States Intelligence Activities ________ 19 Preamble _______________________________________________________ 20 PART 1: Goals, Directions, Duties, and Responsibilities with Respect to United States Intelligence Efforts ________________________________________________ 20 1.1 Goals ______________________________________________________ 20 1.2 The National Security Council _____________________________________ 21 (a) Purpose ____________________________________________________ 21 (b) Covert Action and Other Sensitive Intelligence Operations _________________ 21 1.3 Director of National Intelligence ___________________________________ 21 1.4 The Intelligence Community ______________________________________ 28 1.5 Duties and Responsibilities of the Heads of Executive Branch Departments and Agencies ______________________________________________________ 29 1.6 Heads of Elements of the Intelligence Community _______________________ 30 1.7 Intelligence Community Elements __________________________________ 31 (a) THE CENTRAL INTELLIGENCE AGENCY ___________________________ 31 (b) THE DEFENSE INTELLIGENCE AGENCY ___________________________ 32 (c) THE NATIONAL SECURITY AGENCY _______________________________ 32 (d) THE NATIONAL RECONNAISSANCE OFFICE ________________________ 33 (e) THE NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY ________________ 33 (f) THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS ______________________________ 34 (g) INTELLIGENCE ELEMENTS OF THE FEDERAL BUREAU OF INVESTIGATION 34 (h) THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF THE COAST GUARD ______________________________________________________ 34 (i) THE BUREAU OF INTELLIGENCE AND RESEARCH, DEPARTMENT OF STATE; THE OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF THE TREASURY; THE OFFICE OF NATIONAL SECURITY INTELLIGENCE, DRUG ENFORCEMENT ADMINISTRATION; THE OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF HOMELAND SECURITY; AND THE OFFICE OF INTELLIGENCE AND COUNTERINTELLIGENCE, DEPARTMENT OF ENERGY ___ 35 (j) THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE __________ 35 1.8 The Department of State ________________________________________ 35 1.9 The Department of the Treasury ___________________________________ 36 1.10 The Department of Defense _____________________________________ 36 1.11 The Department of Homeland Security ______________________________ 37 1.12 The Department of Energy ______________________________________ 37 _______________________________ Page 6 1.13 The Federal Bureau of Investigation ________________________________ 37 Part 2: Conduct of Intelligence Activities __________________________________ 38 2.1 Need ______________________________________________________ 38 2.2 Purpose ___________________________________________________ 38 2.3 Collection of Information ________________________________________ 38 2.4 Collection Techniques __________________________________________ 39 2.5 Attorney General Approval ______________________________________ 40 2.6 Assistance to Law Enforcement and other Civil Authorities _________________ 40 2.7 Contracting _________________________________________________ 41 2.8 Consistency with Other Laws _____________________________________ 41 2.9 Undisclosed Participation in Organizations within the United States __________ 41 2.10 Human Experimentation _______________________________________ 42 2.11 Prohibition on Assassination _____________________________________ 42 2.12 Indirect Participation _________________________________________ 42 2.13 Limitation on Covert Action _____________________________________ 42 Part 3: General Provisions ___________________________________________ 42 3.1 Congressional Oversight ________________________________________ 42 3.2 Implementation ______________________________________________ 42 3.3 Procedures _________________________________________________ 43 3.4 References and Transition _______________________________________ 43 3.5 Definitions _________________________________________________ 43 3.6 Revocation _________________________________________________ 45 3.7 General Provisions ____________________________________________ 45 Executive Order 12,949: Foreign Intelligence Physical Searches ______ 46 Section 1______________________________________________________ 46 Section 2 _____________________________________________________ 46 Section 3 _____________________________________________________ 46 Executive Order 13,526: Classified National Security Information ___ 48 Preamble _______________________________________________________ 50 Part 1—Original Classification _________________________________________ 50 Sec. 1.1. Classification Standards _____________________________________ 50 Sec. 1.2. Classification Levels _______________________________________ 51 Sec. 1.3. Classification Authority _____________________________________ 51 Sec. 1.4. Classification Categories ____________________________________ 53 Sec. 1.5. Duration of Classification ____________________________________ 53 Sec. 1.6. Identification and Markings __________________________________ 54 Sec. 1.7. Classification Prohibitions and Limitations ________________________ 55 Sec. 1.8. Classification Challenges ____________________________________ 57 Sec. 1.9. Fundamental Classification Guidance Review ______________________ 57 Part 2—Derivative Classification _______________________________________ 58 Sec. 2.1. Use of Derivative Classification ________________________________ 58 Sec. 2.2. Classification Guides _______________________________________ 59 Part 3—Declassification and Downgrading ________________________________ 59 Sec. 3.1. Authority for Declassification _________________________________ 59 Sec. 3.2. Transferred Records _______________________________________ 61 Sec. 3.3. Automatic Declassification ___________________________________ 61 Sec. 3.4. Systematic Declassification Review _____________________________ 66 Sec. 3.5. Mandatory Declassification Review _____________________________ 66 Sec. 3.6. Processing Requests and Reviews ______________________________ 68 Sec. 3.7. National Declassification Center _______________________________ 69 Part 4--Safeguarding _______________________________________________ 70 Sec. 4.1. General Restrictions on Access ________________________________ 70 Sec. 4.2. Distribution Controls ______________________________________ 72 Sec. 4.3. Special Access Programs ____________________________________ 73 _______________________________ Page 7 Sec. 4.4. Access by Historical Researchers and Certain Former Government Personnel 74 Part 5—Implementation and Review ____________________________________ 75 Sec. 5.1. Program Direction ________________________________________ 75 Sec. 5.2. Information Security Oversight Office ___________________________
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