A New Executive Order on Intelligence Activities

Following a lengthy interagency review process, the White House yesterday unveiled its amendments to Executive Order 12333, the foundational document on “United States Intelligence Activities” that was originally issued by President Reagan in 1981.

The new executive order reflects institutional changes that have occurred in recent years. In particular, it reinforces the authority of the Director of National Intelligence to oversee, coordinate and direct the activities of the sixteen-member intelligence community.

The ACLU found reason to criticize the revised order, which it said weakened protections against domestic spying. Members of Congress objected because they said they were not adequately consulted. To me, the changes seemed unexpectedly minor and in some cases positive.

The new executive order affirms, for example, that “The United States Government has a solemn obligation… to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.” Such a statement, in a presidential order that is intended to direct a rule-driven bureaucracy, is not nothing.

The old Reagan order did not even mention the words “civil liberties” or “privacy.” (Nor did it mention the term “covert action,” which the new order uses instead of the old euphemism “special activities.”)

To criticize (or praise) the provisions of the new executive order is to presume its status as a controlling document and a definitive source on intelligence policy. But a more troubling question is how much the order actually matters.

At a White House press briefing yesterday, one unnamed reporter [update 8/4/08: it was Pamela Hess of the Associated Press] asked: “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?”

A “senior administration official” replied: “I think 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.”

But the question seems to be better than the answer, particularly since the Bush Administration’s so-called Terrorist Surveillance Program may have violated the terms of this very executive order on intelligence activities.

“The administration’s warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities,” said Sen. Russ Feingold, who was briefed on the program as a member of the Senate Intelligence Committee.

“Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration,” he said.

The new Feingold/Whitehouse bill described above that prohibits secret modifications or waivers of published executive orders would close this loophole. In so doing, it would also bolster the integrity and credibility of intelligence directives like Executive Order 12333.