Executive Order 12036 1-11. The

Executive~ Order 12036 Proposed Executive Order Reason for Change

1-11. The Department of Defense. 1.11 The Department of Defense. The Secretary of The Secretary of Defense Defense shall: shall:

1-1101. Collect national (a) Collect national Technical change. foreign intelligence and be foreign intelligence and be responsive to collection tasking responsive to collection tasking by the NITC. by the Director of Central · Intelligence; I I 1-1102. Collect, produce (b) Collect, produce and Technical change. and disseminate foreign military disseminate military and and military-related intelligence military-related foreign intelli information, including scien- · gence and counterintelligence as tific, technical, political, required for execution of the geographic and economic. informa Secretary's responsibilities; tion as required for execution of the Secretary's responsibilities;

1-1103. Conduct programs (c) Conduct programs and and missions necessary to fulfill missions necessary to fulfill national and tactical foreign national, departmental and intelligence requirements; tactical foreign intelligence requirements;

43 E~ecutive Order 12036 Proposed ~x e c~ t ive Orae r Reason for Change

(1.11 Continued)

1-1104. Conduct counter (d) Conduct counter Unnecessary language intelligence activities in intelligence activities in eliminated. support of Department of Defense support of Department of Defense components outside the United components outside the United States in coordination with the States in coordination with the CIA, and within the United States CIA, and within the United States in coordination with the FBI in coordination with the FBI, pursuant to procedures agreed pursuant to procedures agreed upon by the Secretary of Defense upon by the Secretary of Defense and the Attorney General, and and the Attorney General; produce and disseminate counter intelligence studies and reports;

1-1105. Direct, operate, (j) Direct, operate, Same as Section 1-1105 of control and provide fiscal control and provide fiscal Executive Order 1 2036. management for the National Secu management for the National rity Agency and for defense and Security Agency and for defense military intelligence and and military intelligence and national reconnaissance entities; national reconnaissance entities; and

1-1106. Conduct, as the (e) Conduct, as the executive agent of the United executive agent of the United States Government, signals States Government, signals intelligence and communications intelligence and communications security activities, except as security activities, except as otherwise directed by the NSC; otherwise directed by the NSC;

1-1107. Provide for the (f) Provide for the timely transmission of critical timely transmission of critical intelligence, as defined by the intelligence, as defined by the Director of Central Intelligence, Director of Central Intelligence, within the United States Govern within the United States Govern ment; ment;

44 I Executive Order 12036 Propos e~ ~?ecu tive Order Reason for Change

(1.11 Continued)

1-1108. Review budget This section of Executive data and information on Depart Order 12036 was eliminated as ment of Defense programs within unnecessary. .(See Section the National Foreign Intelligence l.ll(j) of the new Order.) Program and review budgets submitted by program managers to the Director of Central Intelli gence to ensure the appropriate relationship of the National Foreign Intelligence Program elements to the other elements of the Defense program; This section of Executive 1-1109. Monitor, evaluate Order 12036 was eliminated as and conduct performance audits of unnecessary. (See Section Department of Defense intelli l.ll(j) of the new Order.) gence programs;

1-1110. Carry out or (g) Carry out or contract contract for research, develop for research, development and ment and procurement of technical procurement of technical systems systems and devices relating to and devices relating to authorized intelligence func authorized intelligence func tions; tions;

45 • , F.xecutive Order 12036 Proposec S x e c u tiv ~~ Order Reason for Change

( 1.11 Continued) 1-1111. Together with the Director of Central Intelligence, Moved and modified. (See ensure that there is no unneces Section l.S(g) of the new Order. sary overlap between national foreign intelligence programs and Department of Defense intelli gence programs and provide the Director of Central Intelligence all information necessary for this purpose;

1-1112. Protect the secu (h) Protect the security rity of Department of Defense of Department of Defense installations, activities, infor installations, activities, mation and personnel by appro property, information, and priate means including such employees by appropriate means, investigations of applicants, including such investigations of employees, contractors and other applicants, employees, contrac persons with similar associations tors, and other persons with with the Department of Defense as similar associations with the are necessary; and Department of Defense as are necessary;

(i) Establish and This section was added to maintain military intelligence clarify and confirm DOD authority relationships and military to conduct military intelligence intelligence exchange programs liaison activities with foreign with selected cooperative foreign defense establishments and inter defense establishments and inter national organizations, in national organizations, and accordance with policies ensure that such relationships formulated by the DCI. and programs are in accordance with policies formulated by the Director of Central Intelligence;

46 - Executive Order 1 2036 P r opose~ E~p c u ti ve Or d e r

(1.11 Continued)

1-1113. Conduct such (k) Conduct such adminis administrative and technical trative and technical support support activities within and activities within and outside the outside the United States as are United States as are necessary to necessary to perform the perform the functions described functions described in section in sections (a) through (j) 1-1101 through _l-1112 above. above.

47 . Executive Order 12036 Proposed Executive Ord er Reason for Change

1-12. Intelligence Components 1.12 Intelligence Components Utilized by the Secretary of Utilized by the Secretary of Defense. Defense. In carrying out the responsibilities assigned in In carrying out the section 1.11, the Secretary of responsibilities assigned in Defense is authorized to utilize sections 1-1101 through 1-1113, the following: the Secretary of Defense is authorized to utilize the follow ing:

1-1201. Defense Intelli (a) Defense'Intelligence gence Agency, whose responsibil Agency, whose responsibilites ites shall include: shall include:

(a) Production or, (1) Collection, "Collection" was added to through tasking and coordination, production, or, through tasking recognize existing DIA collection provision of military and and coordination, provision of activities. military-related intelligence for military and military-related the Secretary of Defense, the intelligence for the Secretary of Joint Chiefs of Staff, other Defense, the Joint Chiefs of · Defense components, and, as Staff, other Defense components, appropriate, non-Defense and, as appropriate, non-Defense agencies; agencies;

(b) Provision of mili (2) Collection and tary intelligence for national provision of military intelli foreign intelligence products; gence for national foreign intelligence and counterintelli gence products;

48 Executive' Order 12036 Propose~ Executive Order Reason for Change

(1-12. Continued) (l.12(a) Continued)

(c) Coordination of all (3) Coordination of Technical change to Department of Defense intelli all Department of Defense recognize existing practice. gence collection requirements for intelligence collecti~n require departmental needs; ments;

(d) Management of the (4) Management of Defense Attache system; and the Defense Attache system; and

(e) Provision of foreign (5) Provision of intelligence and counterintelli foreign intelligence and counter gence staff support as directed intelligence staff support as by the Joint Chiefs of Staff. directed by the Joint Chiefs of Staff.

1-1202. National Security (b) National Security Agency (NSA), whose responsibil Agency, whose responsibilities ities shall include: shall include:

(a) Establishment and (1) Establishment operation of an effective unified and operation of an effective organization for signals intelli unified organization for signals gence activities, except for the intelligence activities, except delegation of operational control for the delegation of operational over certain operations that are control over certain operations conducted through other elements that are conducted through other of the Intelligence Community. elements of the Intelligence No other department or agency may Community. No other department engage in signals intelligence or agency may engage in signals activities except pursuant to a intelligence activities except delegation by the Secretary of pursuant to a delegation by the Defense. Secretary of Defense;

49 Executive Order 12036 Proposed Sxecutive Ord e r Reason for Change

(1-1202. Continued) (l.12(b) Continued)

(b) Control of signals (2) Control of intelligence collection and signals intelligence collection processing activities, including and processing activities, assignment of resources to an including assignment of resources appropriate agent for such to an appropriate agent for such periods and tasks as required for periods and tasks as required for the direct support of military the direct support of military commanders; commanders;

(c) Collection of (3) Collection of Technical change. signals intelligence information signals intelligence information for national foreign intelligence for national foreign intelligence purposes in accordance with task purposes in accordance with ing by the NITC; guidance from the Director of Central Intelligence;

( d) Processing of (4) Processing of Technical c hange. signals intelligence data for signals intelligence data for national foreign intelligence national foreign intelligence purposes consistent with purposes in accordance with standards for timeliness estab- guidance from the Director of 1 ished by the Director of Central Central Intelligence; Intelligence;

(5) Dissemination (e) Dissemination of Technical c hange. signals intelligence information of signals intelligence infor for national foreign intelligence mation for national fore i gn purposes to authorizeq elements intelligence purposes to of the Government, including the authorized elements of the military services, in accordance Government, including the with guidance from the NITC; military services, in accordance with guidance from the Director of Central Intelligence;

so Executive Order 12036 Proposed ~ xe c u t i ve Orde r

(1-1202. Continued) (l.12(b) Continued)

(f) Collection, process (6) Collection, ing, and dissemination of signals processing and dissemination of intelligence information for signals intelligence information counterintelligence purposes; for counterintelligence purposes;

(g) Provision of signals (7) Provision of intelligence support for the signals intelligence support for cond4ct of military operations in the conduct of military accordance with tasking, priori operations in accordance with ties and standards of timeliness tasking, priorities, and assigned by the Secretary of standards of timeliness assigned Defense. If provisions of such by the Secretary of Defense. If support requires use of national provision of such support collection systems, these systems requires use of national will be tasked within existing collection systems, these systems guidance from the Director of will be tasked within existing Central Intelligence; guidance from the Director of Central Intelligence;

(h) Executing the (8) Executing the responsibilites of the Secretary responsibilites of the Secretary of Defense as executive agent for of Defense as executive agent for the communications security of the communications security of the United States Government; the United States Government;

(i) Conduct of research (9) Conduct of and development to meet needs of research and development to meet th~ United States for signals needs of the United States for intelligence and communications signals intelligence and commu security; nications security;

51 Executive Order 12036 Pr oposed ~~~cuti ve Order Reason for Change

(1-1202. Continued) (l.12(b) Continued)

(j) Protection of the (10) Protection of "Property" and "employees" security of its installations, the security of its installa have been added for clarity and activities, information and tions, activities, property, completeness. personnel by appropriate means information, and employees by including such investigations of appropriate means, including such applicants, employees, contrac investigations of applicants, tors and other persons with employees, contractors, and other similar associations with the NSA persons with similar associations as are necessary: and with the NSA as are necessary;

(k) Prescribing, within (11) Prescribing, its field of authorized opera within its field of authorized tions, security regulations operations~ security regulations covering operating practices, covering operating practices, including the transmissibn, including the transmission, handling and distribution of handling and distribution of signals intelligence and commu signals intelligence and commu nications security material nications security material within and among the elements within and among the elements under control of the Director of under control of the Director of the NSA, and exercising the the NSA, and exercising the necessary supervisory control to necessary supervisory control to ensure compliance with the regu ensure compliance with the regu lations. lations;

52 I Executive Order 12036 Pr oposed EYscu t ive Or der Reason for Change

(l.12(b) Continued)

(12) Conduct of This section was added to foreign cryptologic liaison clarify and confirm NSA's relationships, with liaison for authority to conduct foreign intelligence purposes conducted cryptologic l iaison activities. in accordance with policies Such liaison for intelligence formulated by the Director of purposes (liaison on other than Central Intelligence; and communications security matters), must be in accordance with (13) Conduct of such policies formulated by the DCI. administrative and technical support activities within and outside the United States as are This provision was added necessary to perform the to clarify and confirm NSA's functions described in sections authority to conduct support (1) through (12) above, including activities and procurement. procurement.

\ 1-1203. Offices for the (c) Offices for the collection of specialized intel collection of special~zed ligence through reconnaissance intelligence through reconnais programs, whose responsibilities sance programs, whose responsi shall include: bilities shall include:

(a) Carrying out consol (1) Carrying out idated reconnaissance programs consolidated reconnaissance for specialized intelligence; programs for specialized intelli gence;

53 Executive Order 12036 P r oposed Fxecutive 0 Lder Reason for Change

(1.1203. Continued) (l.12(c) Continued)

(b) Responding to task ( 2) Responding to Technical change. ing through the NITC; and tasking in accordance with procedures established by the Director of Central Intelligence; and

(c) Delegating authority ( 3) Delegating to the various departments and authority to the various depart agencies for research, develop ments and agencies for research, ment, procurement, and operation development, procurement, and of designated means of collec operation of designated means of tion. collection.

1-1204. The foreign (d) The foreign intelli intelligence and counterintelli gence and counter~ntelligence gence elements of the military elements of the A~my, Navy, Air services, whose responsibilities Force, and Marine Corps, whose shall include: responsibilities ~hall include:

54 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-- -~ ·- ·-

Executive Order 12036 Propoeed Sxecuti v e Order Reason for Change

(1-1204. Continued) {l.12(d) Continued)

{a) Collection, produc (1) Collection, Technical changes only. tion and dissemination of production and dissemination of military and military-related military and military-related foreign intelligence, including foreign intelligence and counter intormation on indications and intelligence, and information on warnings, foreign capabilities, the foreign aspects of narcotics plan and weapons systems, production and trafficking. When scientific and technical develop collection is conducted in ments and narcotics production response to national for eign and trafficking. When collection intelligence requirements, it is conducted in response to will be conducted in accordance national foreign intelligence with guidance from the Director requirements, it will be tasked of Central Intelligence. by the NITC. Collection of Collection of national foreign national foreign intelligence, intelligence, not otherwise not otherwise obtainable, outside obtainable, outside the United the United States shall be States shall be coordinated with coordinated with the CIA, and the CIA, and such collection such collection within the United within the United States shall be States shall be coordinated with coordinated with the FBI; the FBI;

{b) Conduct of counter (2) Conduct of Unnecessary language intelligence activities outside counterintelligence activities eliminated. · the United States in coordination outside the United States in with the CIA, and within the coordination with the CIA, and United States in coordination within the United States in with the FBI, and production and coordination with the FBI; and dissemination of counterintelli gence studies or reports; and

55 Executive .Order 12036 Proposed Execu tive Orde r

(1-1204. Continued) (l.12(d) Continued)

(c) Monitoring of the ( 3) Moni.tor ing of development, procurement arid the development, procurement and management of tactical intelli management of tactical intelli gence systems and equipment and gence systems and equipment and conducting related research, conducting related research, development, and test and evalua development, and test and evalua tion activities. tion activities.

· 1-1205. Other offices (e) Other offices within within the Department of Defense the Department of Defense appropriate for conduct of the appropriate for conduct of the intelligence missions and respon intelligence missions and respon sibilities assigned to the Secre sibilities assigned to the Secre tary of Defense. If such other tary of Defense. If such other off ices are used for intelligence offices are used for intelligence purposes, the provisions of ptirposes, the provisions of Section 2-101 through 2-309 of Part 2 of this Order shall apply this Order shall apply to those to those off ices when used for off ices when used for those those purposes. purposes.

1-13. The Department of Energy. 1.13 The Department of Energy. The Secretary of Energy The Secretary of Energy shall: shall:

1-1301. Participate with (a) Participate with the the Department of State in Department of State in overtly overtly collecting political, collecting information with economic and technical · informa respect to foreign energy tion with respect to foreign matters; energy matters;

56 E;ecutive Order 12036 Proposed FxP~ u ti ve Ord er

(1-1301. Continued) (1.13 Continued)

1-1302. Produce and (b) Produce and dissemi disseminate for~ign intelligence nate foreign intelligence necessary for the Secretary's necessary for the Secretary's responsibilities; responsibilities;

1-1303. Participate in (c) Participate in formulating intelligence collec formulating intelligence collec tion and analysis requirements tion and analysis requirements where the special expert capa where the special experl bility of the Department can capability of the Department can contribute; and contribute; and 1-1304. Provide expert (d) Provide expert technical, analytical and technical, analytical and research capability to other research capability to other agencies within the Intelligence agencies within the Intelligence Community. Community. 1-14. The Federal Bureau of 1.14 The Federal Bureau of Investigation. Investigation. Under the super vision of the Attorney General Under the supervision of and pursuant to such regulations the Attorney General and pursuant as the Attorney General may to such regulations as the establish, the Director of the Attorney General may establish, FBI shall: the Director of the FBI shall:

57 • Executive Order 12036 Proposed Executive Order Reason for Change

(1-14. Continued) (1.14 Continued)

1-1401. Within the United (a) Within the United States conduct counterintelli States conduct counterintelli gence and coordinate counter gence and coordinate counter intelligence activities of other intelligence activities of other agencies within the Intelligence agencies within the Intelligence Community. When a counterintel Community. When a counter ligence activity of the FBI intelligence activity of the FBI involves military or civilian involves military or civilian personnel of the Department of personnel of the Department of Defense, the FBI shall coordinate Defense, the FBI shall coordinate with the Department of Defense: with the Department of Defense:

1-1402. Conduct counter (b) Conduct counter This provision has been intelligence activities outside intelligence activities outside reworded to make it parallel to the United States in coordination the United States in coordination the provision for CIA coordina with the CIA, subject to the with the CIA as required by tion with the FBI on counter approval of the Director of procedures agreed upon by the intelligence activities within Central Intelligence: Director of Central Intelligence the United States. (See Section and the Attorney General: T.8(c) Of tne new· Order).

58 .. Eiecutive Order ~2036 Proposed Executive Order Reason for Change

(1.14 Continued)

1-1403. Conduct within {c) Conduct within the New language has been the United States, when requested United States, when requested by added to permit- FBI support to by officials of the Intelligence officials of the Intelligence communications security Community designated by the Community designated by the activities when requested by the President, lawful activities President, activities undertaken Director of NSA. The existing undertaken to collect foreign to collect foreign intelligence provision has been interpreted to intelligence or support foreign or support foreign intelligence not permit such support. intelligence collection require collection requirements of other ments of other agencies within agencies within the Intelligence the Intelligence Community; Community, or, when requested by the Director of ihe National Security Agency, to support the communications security activi ties of the United States Government;

1-1404. Produce and {d) Produce and dissemi disseminate foreign intelligence, nate foreign intelligence and counterintelligence and counter counterintelligence; and intelligence studies and reports; and

1-1405. Carry out or {e) Carry out or contract contract for research, develop for research, development and ment and procurement of technical procurement of technical systems systems and devices relating to and devices relating to the the functions authorized above. functions authorized above.

59 Executive Order 12036 Reason for Change

1-15. The Drug Enforcement DEA has been eliminated Administration. from the new Order because it has never really functioned as a Under the supervision of member of the Intelligence the Attorney General and pursuant Community and because its to such regulations as the activities are primarily, if not Attorney General may establish, solely, for law enforcement pur the Administrator 9f DEA shall: poses. Provisions for DEA's or its · successor's interface with 1-1501. Collect, produce the Intelligence Community have and disseminate intelligence on been preserved. (See Sections the foreign and domestic aspects l.5(e), (f) and (g"f{)f the new of narcotics production and Order. trafficking in coordination with other agencies with responsibili ties in these areas;

1-1502. Participate with the Department of State in the overt collection of general foreign political, economic and agricultural information relating to narcotics production and trafficking; and

1-1503. Coordinate with the Director of Central Intelli gence to ensure that the foreign narcotics intelligence activities of DEA are consistent with other foreign intelligence programs.

60 Executive Order 12036 Proposed Executive Order Reason for Change

SECTION 2 PART 2

RESTRICTIONS ON CONDUCT OF INTELLIGENCE INTELLIGENCE ACTIVITIES ACTIVITIES

2.1 Adherence to Law. 2.1 Need. Accurate and timely The new order, unlike information about the capabili Executive Order 12036, emphasizes 2-101. Purpose. Infor ties, intentions and activities that collection of accurate and mation about the capabilities, of foreign powers, organizations, timely intelligence is a priority intentions and activities of or persons and their agents is objective and that such collec foreign powers, organizations, or essential to informed decision tion will be aggressively pursued persons and their agents is making in the areas of national in a manner that· is lawful and essential to informed decision defense and foreign relations. respectful of the principles upon making in the areas of national Collection of such information is which the United States was defense and foreign relations. a priority objective and will be founded. The measures employed to acquire pursued in an aggressive, such information should be innovative and responsible manner responsive to legitimate govern that is consistent with the· mental needs and must be Constitution and applicable law conducted in a manner that and respectful of the principles preserves and respects estab- upon which the United States was 1 ished concepts of privacy and founded. civil liberties.

61 Executive Order 12036 Proposed Executive Order Reason for Change

2-102. Principles of 2.2 Purpose. This Order is The new provision stresses Interpretation. Sections 2-201 intehded to enhance human and through 2-309 set forth limita technical collection techniques, the intent of the new order to tions which, in addition to other especially those undertaken enhance intelligence activities. applicable laws, are intended to abroad, and the acquisition of achieve the proper balance significant foreign intelligence, between protection of individual as well as the detection and rights and acquisition of essen countering of international tial information. Those sections terrorist activities and do not authorize any activity not espionage conducted by foreign authorized by sections 1-101 powers. Set forth below are through 1-1503 and do not provide certain general principles that, any exemption from any other law. 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 inter ests. 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.

62 • .. . Executive Order 12036 Proposed Executive Order Reason for Change

/ 2-208. Collection of 2.3 Collection of Infor- New section 2.3 c l early Nonpublicly Available Infor mation. Agencies within the / and affirmatively authorizes mation. No agency within the Intelligence Community are collection, retention and Intelligence Community may authorized to collect, retain or dissemination of· U.S. person collect, disseminate or store disseminate information concern information for the stated information concerning the ing United States persons only in intelligence . purposes. Its activities of United States accordance with procedures estab counterpart in Executive Or derI persons that is not availabl~ lished by the head of the agency 12036 is negati ve in tone and publicly, unless it does . so with concerned and approved by the imposes l i mitations upon s uch their consent or as permitted by Attorney General, consistent with activities. procedures established pursuant the authorities provided by to section 2-201. Those proce Part 1 of this Order. Those dures shall limit collection, procedures shall permit collec storage, or dissemination to the tion, retention and dissemination following types of itiformation: of the following types of infor mation:

(a) Information concern (a) Information that is The substance of the new ing corporations or other publicly available or collected subsection was taken from the commercial organizations or with the consent of the person stem of section 2-208 of activities that constitutes concerned, or through cooperating Executive Order 12036. foreign intelligence or counter sources; intelligence;

63 Executive Order 12036 Proposed Executive Order Reason for Change

(2-208. Continued) (2.3 Continued)

(f) Information (b) Information consti- Th i s subsecti on grants authority to collect foreign constituting foreign intelligence tuting foreign intelligence or or counterintelligence gathered counterintelligence, including intel l igence and is intended to consolidate and speci fy the cir abroad or from electronic such information concerning surveillance conducted in corporations or other commercial cumstances under which such compliance with section 2-202 or organizations. Collection within intellige nce may be collected i n from cooperating sources in the the llntted States of foreign-- the United States from or con United States; !ntell1gence not otherwise cerning Un ited States persons by obtainable shall be undertaken by agencies of the Intel ligence Community. The current Order the FBI or, when si~nif14f,ant foreitn inteTf1gence ls sought, (Section 2-208(f) ) l imits s uch by ot er auEnorized agencies of collection to information the Intelligence Community, obtained from "cooperating provided that no foreign intelli sources. " It shoul d be a gence collection by such agencies sufficient safeguard to limit the may be undertaken for the purpose authority of the Intel ligence of acquiring information concern Community to engage in such ing the domestic activities of collection in only sigriif icant nited st'ates persons. cases which could not concern the domestic activities of U.S. persons.

64 Executive Order 12036 Proposed Execu tive Order Reason for C han~e

(2-208. Continued) (2.3 Continued)

(g) Information about a (c) Information obtained This subsection s i mplifies person who is reasonably believed in the course of a lawful foreign and standardizes the criteria for to be acting on behalf of a intelligence, counterintelli foreign intelligence, counter foreign power, engaging in inter-. gence, international narcotics or intelligence, narcotics and national terrorist activities or international terrorism investi terrorism investigations, and narcotics production or traffick gation: permissible retention and ing, or endangering the safety of dissemination of information a person protected by the United derived therefrom. The sub States Secret Service or the section eliminates the Department of State: ambiguities and inconsistencies of its counterparts in. Executive Order 12036.

65 . Executive Order 12036 Proposed Executive Order Reason for Change

(k) Information (d) Information needed to This subsection consoli concerning persons or activities protect the safety of any person that pose a clear threat to any dates three separate provisions or organizations, including those of Executive Order 12036 and facility or personnel of any who are targets, victims or removes arbitrary and unnecessary agency within the Intelligence hostages of international limits on collection needed to Community. Such information may terrorist organizations; be retained only by the agency protect the safety of any persons threatened and if appropriate, by or organizations. the United States Secret Service and the FBI.

65A Executive Order 12036 Proposed Executive Order Reason for Change

(2-208. Continued) (2.3 Continued)

( c) Information concern- (e) Information needed to This s ubsection is ing present or former employees, protect foreign intelligence or expanded to permit collec tion present or former intelligence counterintelligence sources or abroad for this purpose of agency contractors or their methods from unauthorized disclo individuals other than employees present or fo.rmer employees, or sure. Collection within the and others wi th similar relati on applicants for any such employ United States shall be undertaken shi ps to intelligence agenci es. ment or contracting, which is by the FBI except that other needed to protect foreign agencies of the Intelligence intelligence or counterintelli Community may also collect such gence sources or methods from information concerning present or unauthorized disclosure; former employees, present or former intelligence agency contractors or their present or for-mer employees, or applicants for any such employment or contracting;

(e) Information (f) Informati on concern concerning persons who are ing persons who are reasonably reasonably believed to be believed to be potential sources poten'tial sources or contacts, or contacts for the purpose of but only for the purpose of determining their suitability or determining the suitability or credibility; i credibility of such ~ersons;

66 . Executive Order 12036 Proposed Executive Order

(2-208. Continued) (2.3 Continued)

(b) Information arising (g) Information arising out of a lawful counterintel out of a lawful personnel, ligence or personnel, physical or physical or communicatipns communications security investi security investigation; gation;

( h) Information acquired (h) Information acquired by overhead reconnaissance not by overhead reconnaissance not directed at specific United directed at specific United States persons; States persons;

[See § 2-310(a)} (i) Incidentally obtai ned information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and [See § 2-310(d)} (j) Information necessary for administrative purposes.

67 E~ecutive Order 12036 Proposed ExecQtive Order Reason for Cpang~

In addition, agencies within the This new paragraph will Intelligence Community may facilitate dissemination of disseminate information, other information within the Intelli than information derived from gence Community concerning U.S. signals intelligence, to each persons. It will be of most-- appropriate agency within the benefit to agencies with counter Intelligence Community for intelligence responsibilities. purposes of allowing the Under Executive Order 12036, no recipient agency to determine dissemination of information whether the information is concerning U.S. persons can occur relevant to its responsibilities until a determination has been and can be retained by it. made that the information is within one of the categories designated in Section 2-208. This requires the disseminating agency to make an administrative determination before it can dis seminate the information. This new provision will allow dis semination of information, other than information derived from signals intelligence, without the delay occasioned by the admin istrative determination that the information falls within the categories listed in the new Section 2.3. Rather, the infor mation is relevant to its responsibilities before the agency can retain it. Signals intelligence information, because of the possible constitutional implications raised by the manner in which it is acquired, is subject to separate dissemination procedures. 67A Executive Order 12036 Reason for Change

Deleted:

(d) Information needed El iminated as unnecessary solely to identify individuals in in view of other expanded contact with those persons categories in Section 2.3. described in paragraph (c) of this section or with someone who is the subject of a lawful foreign intelligence or counter intelligence investigation;

(i) Information concern El iminated as unnecessary ing United States persons abroad in view of new subsection 2.3 ( d). that is obtained in response to requests from the Department of State for support of its consular responsibilities relating to the welfare of those persons;

(j) Information El iminated as unnecessary collected, received, disseminated in view of other expanded or stored by the FBI and neces categor i es in Section 2.3. sary to fulfill its lawful investigative responsibilities; or

68 • E~ecutive Order 12036 Proposea Executive Order Reason for Change

2-2. Restrictions on Certain 2.4 Collection Techniques. Section 2.4 consolidates Collection Techniques. Agencies within the Intelligence Community shall use the least several separate provisions of Executive Order 12036. 2-201. General Provi- intrusive collection techniques sions. feasible within the United States or directed against United States (a) The activities persons abroad. Agencies are not described in section 2-202 authorized to use such techniques through 2-208 shall be undertaken as electronic surveillance, only as permitted by this Order unconsented physical search, mail and by procedures established by surveillance, physical surveil- · the head of the agency concerned lance, or monitoring devices and approved by the Attorney unless they are in accordance General. Those procedures shall with procedures established by protect constitutional rights and the head of the agency concerned privacy, ensure that information and approved by the Attorney is gathered by the least General. Such procedures shall intrusive means possible, and protect constitutional and other limit use of such information to legal rights and limit use of lawful governmental purposes. such information to lawful governmental purposes. These procedures shall not authorize:

[Section 2-20l(b) is set out opposite § 2.5 of new Order.]

69 ~ Executive Order 12036 Proposed E x~ c u tive Order Reason for Change

(2.4. Continued)

2-202. Electronic (a) The CIA to engage in The prohibiti on found in Surveillance. The CIA may not electronic surveillance within Executive Order 1 2036 on CIA use engage in any electronic surveil the United States except for the of electronic surveillance with in lance within the United States. purpose of training, testing, or the United States is retained. No agency within the Intelligence conducting countermeasures to Electronic surveilla nce for Community shall engage in any hostile electronic surveillance; training , testing , or conduc ting electronic surveillance directed countermeasures to hostile e l ec against a United States person tronic surveillance is permi tted , abroad or designed to intercept a as under the old Order and the communication sent from, or Foreig n I ntel l igence Surveilla nce intended for receipt within, the Act of 1 978. United States except as permitted by the procedures established pursuant to section 2-201. Training of personnel by agencies in the Intelligence Community in the use of electronic communica tions equipment, testing by such agencies of such equipment, and the use of measures to determine the existence and capability of electronic surveillance equipment being used unlawfully shall not be prohibited and shall also be governed by such procedures. Such activities shall be limited in scope and duration to those necessary to carry out the train ing, testing or countermeasures purpose. No information derived from communications intercepted in the course of such training, testing or use of countermeasures may be retained or used for any

70 •. Executive Order .12036 Proposed Executive Or.der Reason for Change

(2-202. Continued) (2.4 Continued)

other purpose. Any electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act as well as this Order.

2-204. Physical (b) Unconsented physical Searches. No agency within the searches in the United States by Intelligence Community except the agencies other than the FBI, FBI may conduct any unconsented except for: physical searches within the United States. All such searches (1) Searches by Section 2.4(b)(l) conducted by the FBI, as w~ll as counterintelligence elements of authorizes the counterin tell i all such searches conducted by the military services d i rected gence e l ements of the mi litary any agency within the Intellignce against military personnel services to conduct -unconsented Community outside the United within the United States or physical searches against active States and directed against abroad for intelligence purposes, duty military personnel. Unde r United States persons, shall be when authorized by a military Executive Order 12036, only the undertaken only. as permitted by commander empowered to approve FBI is permitted to cond uct procedures established pursuant physical searches for law unconsen t ed physic al s'earches to section 2-201. enforcement purposes, based upon within the United States. a finding of probable cau se to believe that such persons are acting as agents of foreign powers; and

(2 )_ Searches by Under Section 2.4(b)(2 ) , CIA of personal property of CIA will be permitted to conduct non-United States persons a search of a non-u.s. person's . lawfully in its possession. personal property l awfully in its possession. Under Executive Order 12036, such property acquired abroad or entrusted to a CIA asse t coul d not be opened in the United States unless the 71 opening is accomplished by the FBI. Executive Order 12036 Proposed Ex e cutive Order Reason for Change

(2.4 Continued)

2-206. Physical Surveil (c) Physical surveillance lance. The FBI may conduct of a United States person in the physical surveillance directed United States by agencies other against United States persons or than the FBI, except for: others only in the course of a lawful investigation. Other (1) Physical The new Order expands the agencies within the Intelligence surveillance of present or former authority to conduct physical Community may not undertake any employees~ present or former surveillance in the United States physical surveillance directed intelligence agency contractors to encompass former empl oyees and against a United States person or their present or former others with s i milar rel ationships unless: employees, or applicants for any to the Intelligence Community . such employment or contracting; and

( 2) Physical surveillance of a military person employed by a nonintelligence element of a military service.

(d) Physical surveillance The new Ord er e liminates of a United States person abroad to collect foreign intelligence, the requ irement of a reasonable except to obtain significant belief that a person is acti ng o n information that cannot reason behalf o f a foreign power or ably be .acquired by other means. engag ing in terror i st o r nar cotics activities before he may be physically sur veilled abroad. The new Order substi tutes the requirement that i f the p u rpose of t he physical $Urv eil lance is to acquire foreign intellig ence, the i nformation sought must be sign ificant and can not be acq uir e d by other means. Physical s urveil lance for other than foreign intel ligence purposes (counte r intelligenc e, 72 terrorism, narcotic s) c o uld be in the course o f a lawful i nvest i gation. • Executive Order 12036

(2-206. Continued)

(b) The surveillance is Elimi nated. See corrunent on page 72 . conducted solely for the purpose of identifying a person who is in contact with someone who is the subject of a foreign intelligence or counterintelligence investiga tion; or

(c) That person is being Elimi nated . See corrunent on page 72 . surveilled for the purpose of protecting foreign intelligence and counterintelligence sources and methods from unauthorized disclosure or is the subject of a lawful counterintelligence, personnel, physical or communica tions security investigation.

73 • Executive Order 12036

(2-206. Continued)

(d) No surveillance Eliminated . See comment under paragraph (c) of this on pa ge 72 . section may be conducted within the United States unless the person being surveilled is a present employee, intelligence agency contractor or employee of such a contractor, or is a military person employed by a non-intelligence element of a military service. Outside the United States such surveillance may also be conducted against a former employee, intelligence agency contractor or employee of a contractor or a civilian person employed by a non-intelligence element of an agency within the Intelligence Community. A person who is in contact with such a present or former employee or contractor may also be surveilled, but only to the extent necessary to identify that person.

74 • Executive Order 12036 Proposed Execut i ve Orcer Reason for Change

(2-206. continued)

(a) The surveillance is conducted outside the United States and the person being surveilled is reasonably believed to be acting on behalf of a foreign power, engaging in inter national terrorist activities, or engaging in narcotics production or trafficking;

2-203. Television [See § 2.4 of new Order.] Section 2.4 of the new Cameras and Other Monitoring. No Order covers this s ubject sub agency within the Intelligence stantively and eliminates the Community shall use any need for a separate provision as electronic or mechanical device in Executive Order 12036. surreptitiously and continuously to monitor any person within the United States, or any United States person abroad, except as permitted by the procedures established pursuant to section 2-201. Any monitoring which constitutes electronic surveil lance as defined in the Foreign Intelligence Surveillance Act of 1978 shall be conducted in accor dance with that Act as well as this Order.

75 Executive Order 12036 Proposed Exec u tive Order Reason for Change

2-205. Mail Surveil (See sections 2.4 and 2.8 Sections 2.4 and 2.8 of lance. No agency within the of new Order.) the new Order cover this subject Intelligence Community shall open substantively and eliminate the mail or examine envelopes in need for separate provisions as United States postal channels, in Executive Order 12036. except in accordance with applicable statutes and regula tions. No agency within the Intelligence Community shall open mail of a United States person abroad except as permitted by procedures established pursuant to section 2-201. Section 2.8 of the new 2-301.· Tax Infor [See § 2.8 of new Order.] Order covers this subject sub mation. No agency within the stantively and eliminates the Intelligence Community shall need for a separate provision as examine tax returns or tax infor in Executive Order 12036. mation except as permitted by applicable law.

76 Executive Order 12036 Proposed Ex ~ ~uti ve Orde~ Reason for Change

2-201. (b) Activities described 2.5 Attorney General This provision delegates in section 2-202 through 2-205 Approval. The Attorney General authority to the Attorney for which a warrant would be hereby is delegated the power to General to approve the required if undertaken for law approve the use for intelligence use of intrusive techniques enforcement rather than intelli purposes, within the United under defined circumstances. gence purposes shall not be States or against a United States It eliminates the need for a undertaken against a United person abroad, of any technique separate President ial delegation, States person without a judicial for which a warrant would be as is currently the case under warrant, unless the President has required if undertaken for law E.O. 120 36. authorized the type of activity enforcement purposes, provided involved and the Attorney General that such techniques shall not be has both approved the particular undertaken unless the Attorney activity and determined that General has determined in each there is probable cause to case that there is probable cause believe that the United States to believe that the technique is person is an agent of a foreign directed against a foreign power power. Electronic surveillance, or an agent of a foreign power. as defined in the Foreign Intelli Electronic surveillance, as gence Surveillance Act of 1978, defined in the Foreign Intelli shall be conducted in accordance gence Surveillance Act of 1978, with that Act, as well as this shal) be conducted in accordance Order. with that Act, as well as this Order.

77 Executive Order 12036 Proposed Executive Order Reason for Change

2-3. Additional Restrictions and Limitations.

2-308. Restrictions on 2.6 Assistance to Law Enforce- The new Order generally Assistance to Law Enforcement ment Authorities. Agencies authorizes assistance permitted Authorities. Agencies within the within the Intelligence Community under Executive Order 12036. Intelligence Community other than are authorized to: Subsection (d) .goes somewhat the FBI shall not, except as beyond Executive Order 12036, expressly authorized by law: however, by making it clear that any other assistance may be pro (a) Provide services, vided to law enforcement equipment, personnel or authorities if not precluded by facilities to the Law Enforcement applicable law. This provision Assistance Administration (or its is included to give the Intelli successor-agencies) or to state gence Community a uthority to or local police organizations of provide assistance unless pro the United States; or hibited by the Posse Comitatus Act or the National Security Act (b) Participate in or of 1947. fund any law enforcement activity within the United States.

2-309. Permissible Assistance to Law Enforcement Authorities. The restrictions in section 2-308 shall not preclude:

(a) Cooperation with (~) Cooperate with appro appropriate law enforcement priate law enforcement agencies agencies for the purpose of· for the purpose of protecting the protecting the personnel and employees, information, property facilities of any agency within and facilities of any agency the Intelligence Community; within the Intelligence Community;

78 Executive Order i2036 Proposed Executive Order Reason for Change

(2-309. Continued) (2.6 Continued)

(b) Participation in law (b) Unless otherwise enforcement activities in accor precluded by law or this Order, dance with law and this Order, to par~icipate in law enforcement investigate or prevent clandes activities to investigate or tine intelligence activities by prevent clandestine intelligence foreign powers, international activities by foreign powers, or narcotics production and international terrorist or trafficking, or international narcotics activities; terrorist activities; or

(c) Provision of (c) Provide specialized specialized equipment, technical equipment, technical knowledge, knowledge, or assistance of or assistance of expert personnel expert personnel for use by any for use by any department or department or agency or, when agency, or, when lives are lives are endangered, to support endangered, to support local law local law enforcement agencies. enforcement agencies. Provision Provisions of assistance by of assistance by expert personnel expert personnel shall be shall be approved in each case by governed by procedures approved the General Counsel of the by the Attorney General. providing agency; and

(d) Render any other This provision was added assistance and cooperation to law to make it clear that enforcement authorities not other lawful assistance precluded by applicable law. to law enforcement authorities is permitted.

79 Executive Order 12036 Proposed Executive Order Reason for Change

2-303. Restrictions on 2.7 Contracting. Agencies The new Order eliminates Contracting. No agency within within the Intelligence Community the requirement for Attorney the Intelligence Community shall are authorized to enter into General procedures, but otnerwise enter into a contract or arrange contracts or arrangements for the retains the prohibition on con ment for the provision of goods provision of goods or services cealed contracts with academic or services with private with private companies or institutions. companies or institutions in the institutions in the United States United States unless the agency and need not reveal the sponsor sponsorship is known to the ship of such contracts or appropriate officials of the arrangements for authorized company or · institution. In the intelligence purposes. Contracts case of any company or institu or arrangements with academic tion other than an academic institutions may be undertaken institution, intelligence agency only with the consent of appro sponsorship may be concealed priate officials of the where it is determined pursuant institution. to procedures approved by the Attorney General, that such concealment is necessary to maintain essential cover or proprietary arrangements for authorized intelligence purposes. This Section, not high- [See §§ 2-205 and 2-301 of E.O. 2.8 Consistency With Other 12036.] Laws. Nothing in this Order 1 ighted in Executive Order 12036, shall be construed to authorize embodies the principle that the Order does not exempt the any activity in violation of the Constitution or statutes of the Intelligence Community from the United States. requirements of law. It supports the elimination of some provi sions of Executive Order 12036 that ~erely repeat the .require ments of current law, such as Section 2-205 concerning mail surveillance.

80 Executive Order 12036 Proposed Executive Order Reason for Change

2-207. Undisclosed 2.9 Undisclosed Participation The new Order does not Participation in Domestic Organi in Organizations Within the siqnificantly alter the zations. No employee may join, United States. No one acting on regulation of undisclosed or otherwise participate in, any behalf of agencies within the participation. No exceptions , organization within the United Intelligence Community may join other than those already con States on behalf of any agency or otherwise participate in any tained within Executive Order within the Intelligence Community organization in the United States 12036 hav e been made to permit without disclosing their intelli on behalf of any agency within the influencing of organizations gence affiliation to appropriate the Intelligence Community in the Un ited States. officials of the organization, without disclosing his intelli except as permitted by procedures gence affiliation to appropriate established pursuant to section officials of the organization, 2-201. Such procedures shall except in accordance with proce provide for disclosure of such dures established by the head of affiliation in all cases unless the agency concerned and approved the agency head or a designee by the Attorney General. Such approved by the Attorney General participation shall be authorized finds that nondisclosure is only if it is essential to essential to achieving lawful achieving lawful purposes as purposes, and that finding is determined by the agency head or subject to review by the Attorney designee. No such participation General. Those procedures shall may be undertaken for the purpose further limit undisclosed partic of influencing the activity of ipation to cases where: the organization or its members except in cases where:

(a) The participation is (a) The participation·is undertaken on behalf of the FBI undertaken on behalf of the FBI in the course of a lawful inves in the course of a lawful inves tigation; tigation; or

81 Executive Order 12036 Proposed Executive Order

(2-207. Continued) (2.9 Continued)

(b) The organization (b) The organization concerned is composed primarily concerned is composed primarily of individuals who are not United of individuals who are not United States persons and is reasonably States persons and is reasonably believed to be acting on behalf believed to be acting on behalf of a foreign power; or of a foreign power.

(c) The participation is strictly limited in its nature, scope and duration to that neces sary for other lawful purposes relating to foreign intelligence and is a type of participation approved by the Attorney General and set forth in a public docu ment. No such participation may be undertaken for the purpose of influencing the activity of the organization or its members.

2-302. Restrictions on 2.10 Human Experimentation. No Experimentation. No agency agency within the Intelligence within the Intelligence Community Community shall sponsor, contract shall sponsor, contract for, or for or conduct research on human conduct research on human subjects except in accordance subjects except in accordance with guidelines issued by the with guidelines issued by Depart Department of Health and Human ment of Health, Education and Services. The subject's informed Welfare. The subject's informed consent shall be documented as consent shall be documented as required by those guidelines. required by those guidelines.

82 Executive Order 12036 Proposed Executive Order Reason for Change

2-305. Prohibition on 2.11 Prohibition on Assassina Assassination. No person tion. No person employed by or employed by or acting on behalf acting on behalf of the United of the United States Government States Government shall engage shall engage in, or conspire to in, or conspire to engage in, engage in, assassination. assassination.

2-307. Restrictions on 2.12 Indirect Participation. The wording in the .new Indirect Participation in No agency of the Intelligence Order is changed from· that in Prohibited Activities. No agency Community shall participate in or Executive Order 12036, which of the Intelligence Community request any person to undertake refer$ to applicable law, to shall request or otherwise activities forbidden by this substitute the more objective encourage, directly or Order. indirectly, any person, organiza standard of participation in activities forbidden by the new tion, or government agency to Order. undertake activities forbidden by this Order or by applicable law.

2-304. Restrictions on Personnel Assigned to Other Eliminated as unnecessary. Agencies. An employee detailed to another agency within the federal government shall be responsible to the host agency and shall not report to the parent agency on the affairs of the'host agency unless so directed by the host agency. The head of the host agency, and any successor, shall be informed of the employee's relationship with the parent agency.

83 Executive Order 12036 Pr8posed Executive Order

2-306. Restrictions on [See§ l.8(e) of new Order.] Special Activities. No component of the United States Government except an agency within the Intelligence Community may conduct any special activity. No such agency except the CIA (or the military services in wartime) may conduct any special activity unless the President determines, with the SCC's advice, that another agency is more likely to achieve a particular objective.

2-310. Permissible Dissemination and Storage of Information. Nothing in sections 2-201 through 2-309 of this Order shall prohibit:

(a) Dissemination to [See § 2.3(i) of new Order.] appropriate law enforcement agencies of information which indiciates involvement in activi ties that may violate federal, state, local or foreign laws;

(b) Storage of Infor mation required by law to be retained;

I 84 : Executive Order 12036 Proposed Executive Order

(2-306. Continued)

(c) Dissemination of [See S 2.3 of the new Order.] information covered by section 2- 208( a)-( j1 to agencies within the Intelligence Community or entities of cooperating foreign governments; or

(d) Lawful storage or [See S 2.3(j) of new Order.] dissemination of information solely for administrative purposes not related to intel- 1 igence or security.

85 Proposed Executive Order Reason For Change

SECTION 4 PART 3

GENERAL PROVISIONS GENERAL PROVISIONS

3.1 Congressional Oversight. This provisi on recognizes The duties and responsibilities that Congressional oversight of of the Director of Central intelligence activities shail be Intelligence and the heads of as provided by statute. In other departments, agencies, and addition, it specifies that the entities engaged in intelligence statutory oversight provisions activities to cooperate with the shall apply to all special Congress in the conduct of its activities. This is to ensure responsibilities for oversight of that special activities in the intelligence activities shall be United States will be reportable as provided in title 50, United to the Congress to the same States Code, section 413. The extent as such activities abroad. requirements of section 662 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. · §2422), and section 501 of the National Security Act of 1947, as amended (50 u.s.c. §413), shall apply to all special activities as defined in this Order.