Bush Amends Executive Order 12333

July 31, 2008. President Bush signed a document titled "Executive Order: Further Amendments to Executive Order 12333, United States Intelligence Activities".

See also, EO 12333 [40 pages in PDF], as amended, short document titled "Statement by the Press Secretary", and White House news office transcript of news teleconference of undisclosed officials.

Former President Ronald Reagan signed the original EO 12333 in 1981. It has been amended several times since.

This is the fundamental Presidential document for the intelligence agencies. It provides some direction as to their activities and operations. As amended, it remains fundamentally vague on issues relating to intercepting and monitoring communications, including voice communications, accessing stored communications, including e-mail, and use of other new information technologies by intelligence agencies.

One official speaking in the above referenced teleconference stated that EO 12333 "has a daily and significant impact on the activities of the intelligence community and the relationships in that important community. At the highest level, of course, the aim here is to create a more effective intelligence community, where these 16 agencies can be better integrated, work more collaboratively with one another, and also share more information freely."

This official continued that "the order was simply out of date. It needed to be updated to conform to the new intelligence structures, to the intelligence reform law passed in 2004, reflect the roles and responsibilities of the Director of National Intelligence, and also provide implementing guidelines for a number of the recommendations from the 9/11 and the WMD commissions."

Some members of Congress are displeased with the lack of Congressional consultation in the drafting of this order.

For example, Rep. Pete Hoekstra (R-MI), the ranking Republican on the House Intelligence Committee, stated in a release that "The president is within his authorities to sign an executive order, but his administration is wrong to suggest that Congress was in any way involved or consulted in this process."

He added that "the text of the order was not provided to the intelligence committee until 30 minutes before the committee was briefed and after it had been released on the Web. Given the impact that this order will have on America’s intelligence community, and this committee's responsibility to oversee intelligence activities, this cannot be seen as anything other than an attempt to undercut congressional oversight."

Communications Privacy and Civil Liberties. The just released order amends EO 12333 with the following language: the government "has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law".

However, another official stated in the teleconference that "The longstanding protections and safeguards, in other words, that are in place or that were in place and have been in place in the original executive order remained unchanged in this revised order."

One reporter asked this: "On the matter of civil liberties, I think one of the concerns that you're going to hear is the terrorist surveillance program or the warrantless wiretapping program went on despite the civil liberties protection. So what do you have to say to folks that say, essentially, it's nice that you have this stuff in the executive order, but it doesn't necessarily mean anything when a President gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?"

One official responded that "what we would say to that is that the executive order reaffirms the nation's longstanding commitment to protecting civil liberties. It maintains all of the protections that are in place to do so. It requires that all procedures have to be approved by the Attorney General. With respect to the terrorist surveillance program, I'm really not going to speak in any detail to that. The administration has spoken to it previously."

Surveillance, Communications and New Technologies. The just released item does little to provide any further transparency regarding the activities and operations of intelligence agencies involving surveillance, especially concerning new technologies.

The just released item states that "The authority delegated pursuant to this paragraph, including the authority to approve the use of electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978, as amended, shall be exercised in accordance with that Act."

The Foreign Intelligence Surveillance Act (FISA), most recently amended by HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", is itself a model of vagueness and muddled drafting on matters of communications surveillance and data acquisition.

The just released item provides that the Department of Homeland Security (DHS), through the U.S. Secret Service, shall "determine the existence and capability of surveillance equipment being used against" the President, Vice President, Executive Office of the President, Secret Service protectees, and U.S. officials.

What little information EO 12333 contains about communications and stored data is found in Section 2.4, titled "Collection Techniques", Section 2.5, titled "Attorney General Approval", and the incomplete definitions section.

Section 2.4 provides that intelligence agencies "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 searches, 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 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."

It continues that these procedures shall not authorize 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", "Unconsented physical searches in the United States by elements of the Intelligence Community". However, the FBI is excepted, as are certain searches by military counterintelligence, and the CIA.

EO 12333 continues that these procedures shall not authorize "Physical surveillance of a United States person in the United States by elements of the Intelligence Community". FBI surveillance is excepted, as is certain other surveillance.

EO 12333 continues that these procedures shall not authorize "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."

Section 2.5 provides that "The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. The authority delegated pursuant to this paragraph, including the authority to approve the use of electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978, as amended, shall be exercised in accordance with that Act."

EO 12333 defines the term "electronic surveillance" as "acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter."

However, it does not then define "electronic communication" or "party to an electronic communication".

The just released order maintains the existing ban on assassinations.