No. 1

Distinguishing Between Operational and Intelligence Activities

A Legal Framework

By Major Alexander Morningstar

We want the intelligence community to be aggressive in protecting us, but we want it to adhere to the law at all times. Of course, this requires that the laws applicable to the intelligence community be clear and readily understood, which is not always the case.1

Intelligence gathering, or “spying,” is one of the oldest professions.2 In fact, the practice of intelligence has been a key component of U.S. military operations since the formation of the U.S. military. Recognized as a critical military strategy, George Washington spent more than 10 percent of his military operational funds on surveillance and intelligence.3 The practice of intelligence continued to expand and develop over time. However, perceived abuses by the intelligence community, specifically the collecting of intelligence on U.S. persons (USPs) discovered in the 1970s, led to Congress initiating the Church and Pike Committees to investigate potential intelligence violations.4 These actual and perceived abuses led to the passing of Executive Order 12333 (EO 12333),5 which implemented a more robust intelligence oversight system.6

Given the increased complexity of the legal requirements surrounding the practice of intelligence, a judge advocate’s (JA’s) ability to competently advise military intelligence practitioners is paramount. Intelligence law is a specialized practice area of national security law that requires a unique framework of legal analysis. However, there are currently few resources available to JAs who are new intelligence law practitioners. This article provides JAs with a basic understanding of intelligence and how to distinguish intelligence and operational activities. It will then provide a framework with which to analyze intelligence law issues by discussing the intelligence process, the structure of the intelligence community (IC), and the law and regulations governing intelligence activities.7

A Background on Intelligence

What is Intelligence?

Judge advocates should be able to distinguish between what intelligence is and is not.8 United States military doctrine defines intelligence as “the product resulting from the collection, processing, integration, evaluation, analysis, and interpretation of available information concerning foreign nations, hostile or potentially hostile forces or elements, or areas of actual or potential operations.”9 The definition of intelligence also includes “the activities that result in the product,”10 which will hereinafter be referred to as the “practice of intelligence.”11 More concisely, intelligence is information that has been gathered and analyzed to answer an intelligence requirement.12 Intelligence requirements are simply identified information gaps.13

In order to collect and analyze intelligence, the intelligence community utilizes a structured intelligence process. The six phases of the intelligence process are: (1) planning and direction; (2) collection; (3) processing and exploitation; (4) analysis and production; (5) dissemination and integration; and (6) evaluation and feedback.14 Judge advocates advise during all phases of the intelligence process; however, getting involved early in the process may assist with identifying potential issues.

There are seven primary intelligence disciplines, often referred to as the different “INTs.”15 A JA will most likely face issues involving human intelligence (HUMINT), counter intelligence (CI), signals intelligence (SIGINT), and open-source intelligence (OSINT). The relevance of the type of intelligence discipline will be discussed further below. However, the legal framework of analysis provides a starting point for analyzing most intelligence law issues, regardless of the intelligence discipline.

Judge advocates advise during all phases of the intelligence process; however, getting involved early in the process may assist with identifying potential issues. (Credit: Jani Riley, TJAGLCS)

The Intelligence Community (IC)

Understanding the practice of intelligence requires knowing the general structure of the Intelligence Community (IC) and its key players. Although most JAs providing intelligence law support may not deal directly with the larger IC, it is beneficial to have a general understanding of the overall structure and where military intelligence operations fit into the larger picture.

The National Security Act of 1947 established the general structure of today’s IC.16 The IC is composed of eighteen intelligence agencies,17 now led by the Director of National Intelligence (DNI).18 For a military practitioner, the most relevant members of the IC are those falling under the Department of Defense (DoD), including the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the National Geospatial-Intelligence Agency (NGA), the National Reconnaissance Office (NRO), and the intelligence elements of the military services.19 The military service intelligence components—the Soldiers, Sailors, Airmen, Marines, and Guardians who conduct intelligence on behalf of the military services—are the JA’s primary clients regarding intelligence law issues. Yet, a military practitioner should have a general awareness of the larger IC to determine which other agency regulations may apply to certain DoD intelligence activities and to have a better understanding of intelligence oversight.20

Intelligence Oversight

Although the United States has employed intelligence activities for hundreds of years, intelligence oversight became a primary focus in the 1970s after the public discovered that members of the IC had been collecting intelligence on USPs without proper justification and beyond their authorities.21 This led to congressional investigations,22 as well as the creation of the Senate Select Committee on Intelligence (SSCI) in 197623 and the House Permanent Select Committee on Intelligence (HPSCI) in 1977.24 Both of these committees are charged with the oversight of intelligence activities, and in the case of the HPSCI, also the oversight of intelligence-related activities.25

The most important milestone for intelligence oversight was President Ronald Reagan’s EO 12333, which remains the foundational document regarding intelligence oversight in the United States IC.26 Executive Order 12333 represented a major shift in the collection of intelligence, balancing national security interests with the constitutionally protected right to privacy of USPs.27 An in-depth analysis of intelligence oversight is outside of the scope of this article; however, for the new intelligence law practitioner, it is critical to have a general understanding of the authoritative documents and why intelligence oversight exists.28 Although JAs are not responsible for conducting intelligence oversight in their units, their units will ask for advice on oversight matters.29

Intelligence Activities

The practice of intelligence refers to conducting intelligence activities. However, the determination of what qualifies as an intelligence activity is not always clear. The DoD defines intelligence activities as “all activities that the DoD Components conduct pursuant to [EO 12333].”30 In addition, the definitions section of EO 12333 appears to define intelligence activities as “all activities that elements of the . . . [IC] are authorized to conduct pursuant to . . . [EO 12333].”31 However, the practical definition of intelligence activities is not in the definitions section of EO 12333 but rather in paragraph 1.7, which identifies the elements, or members, of the IC and lists their assigned missions.32 The activities listed in paragraph 1.7 constitute the functional definition of what qualifies as an intelligence activity under the EO.33 These definitions are vague and not particularly helpful to new intelligence law practitioners. To provide clarity, this article characterizes intelligence activities as the collection, processing, and analysis of information for an intelligence purpose. This interpretation is intentionally simplistic to assist the reader in learning to distinguish between intelligence activities and activities that fall outside of intelligence.

It is important for JAs to be aware that some activities will closely resemble intelligence activities but are not intelligence activities. These operational activities may be referred to by some practitioners as “intelligence-related activities.”34 Operational activities may use similar techniques or “tradecraft,”35 but accomplish an operational objective instead of satisfying an intelligence requirement.36 The traditional military activities of tactical intelligence37 and operational preparation of the environment (OPE)38 are good examples of operational activities.39 As operational activities, their conduct and review falls under operational authorities, not intelligence authorities.40 The purpose of the proposed activity, as well as the methods and personnel used, determines whether the activity is an intelligence activity or a non-intelligence activity.

President Harry S. Truman signed the National Security Act into law in the Oval Office, Washington D.C., on 26 July 1947. One of the most notable pieces of legislation is the National Security Act of 1947 (as amended), which is still the primary basis for U.S. intelligence law. (Credit: National Archives)

Intelligence Law

To analyze intelligence law issues, a JA must first be aware of the laws and regulations that apply. This may include any international laws, as well as the extensive number of domestic laws, regulations, and policies that apply to intelligence activities. Next, a JA must have a framework that addresses the key legal concerns in analyzing intelligence issues. Finally, a JA reviewing proposed intelligence activities should be on guard for any potential USP issues, which would trigger further analysis.

What Laws and Regulations Apply?

International Law and Authority

Judge advocates who have advised on national security law issues are familiar with the requirement to analyze both domestic legal authority as well as international legal authority.41 However, international law does not directly address intelligence law.42 There are no international treaties or conventions that provide positive authority43 to conduct intelligence activities.44 Additionally, there is very little substantive discussion of the rules that apply to intelligence in customary international law.45 However, while international law does not affirmatively authorize conducting intelligence, neither does it prohibit its practice.46 There is broad consensus that international law neither prohibits nor permits intelligence activities.47 For this reason, when conducting legal reviews of intelligence issues, the focus will be on domestic law and authorities.

Domestic Law and Authority

There are many sources under domestic law that discuss the practice of intelligence activities.48 In fact, being able to positively trace the authority to conduct intelligence activities back to a statute, or even the Constitution, is one of the primary considerations in reviewing intelligence activities. Although the Constitution does not directly address intelligence, there is agreement that the President has the inherent authority to direct intelligence operations under his Commander in Chief and foreign affairs powers under Article II, Section 2.49

Congress has also provided numerous express, statutory grants of authority to the DoD to conduct intelligence under both Titles 10 and 50 of the U.S. Code. 10 U.S.C. § 113 defines the authority of the Secretary of Defense (SECDEF).50 50 U.S.C. § 3038 assigns the SECDEF with responsibilities pertaining to the National Intelligence Program and ensures that DoD intelligence elements meet the need of operational military forces.51 Whether the intelligence activity is supporting military intelligence requirements or national intelligence requirements will determine which authority is used.52 10 U.S.C. § 137 then delegates the SECDEF’s intelligence-related authorities to the Undersecretary of Defense for Intelligence.53

Additionally, Congress has passed specific legislation addressing intelligence activities and creating the IC. One of the most notable pieces of legislation is the National Security Act of 1947 (as amended), which is still the primary basis for U.S. intelligence law.54 Other important amendments and additions to the area of positive domestic intelligence law include the Foreign Intelligence Surveillance Act (FISA) of 1978, which created the Foreign Intelligence Surveillance Court (FISC),55 and the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, which, among other changes, established the position of the DNI.56

In addition to the many statutes addressing intelligence, there are also numerous executive orders, administrative regulations, instructions, manuals, and other documents, both unclassified and classified, that provide the day-to-day guidance that intelligence professionals use to carry out their vital missions. As discussed briefly above, EO 12333 (as amended) remains the most important guidance on intelligence activities.57 Although an in-depth analysis of EO 12333 is outside of the scope of this article, the importance of this document to an intelligence law practitioner is difficult to overstate. Executive Order 12333 provides much more than just intelligence oversight. It identifies the members of the IC, assigns functional managers to certain disciplines of intelligence, and establishes procedures for conducting certain intelligence activities.58

DoD Directive (DoDD) 5240.0159 and DoD Manual (DoDM) 5240.0160 are of almost equal importance to members of the DoD as EO 12333. These documents implement EO 12333 for members of the DoD intelligence enterprise. Together, they provide members of the DoD with specific guidance on the practice of intelligence and are good starting points for any JA analyzing intelligence law issues. In addition to these documents, several other DoD directives, instructions, and manuals, as well as intelligence community directives (ICDs) and National Security Council Intelligence Directives (NSCIDs) provide specific guidance depending on the issue or intelligence discipline. The following section will discuss the application of these laws within a legal framework.

The IC consists of eighteen intelligence agencies, now led by the DNI. (Credit: Office of the Director of National Intelligence

Legal Framework of Analysis

This section provides JAs with a framework to analyze intelligence issues.61 The four steps of this legal framework are: (1) Does the proposed activity have an intelligence purpose?; (2) Does the unit have the authority to conduct the proposed activity?; (3) Does the unit have permission to conduct the proposed activity?; and (4) What rules and restrictions apply to the specific intelligence discipline? While conducting this four-step analysis, JAs should also note whether the desired information relates to USPs. The collection of information related to USPs will require additional analysis, as discussed below.

Executive Order 12333 represented a major shift in the collection of intelligence, balancing national security interests with the constitutionally protected right to privacy of USPs. (Credit: Office of the Director of National Intelligence)

Does the Proposed Activity Have an Intelligence Purpose?

The first and most fundamental question that a JA will address when analyzing an intelligence issue is whether the proposed activity qualifies as an intelligence activity. The purpose of the proposed activity determines this.62 Intelligence practitioners may also refer to an intelligence “purpose” as an intelligence “mission” or intelligence “requirement.”63 If the activity—the collection, processing, or analysis of information—has an intelligence purpose, it is an intelligence activity. If it has some other purpose, such as an operational purpose, then it is generally not an intelligence activity.64

In many circumstances, whether a proposed activity has an intelligence purpose or an operational purpose will be apparent. Often, commanders and intelligence personnel should have a good idea as to the intended purpose of the proposed activity. At times, however, the purpose may be less clear. This could be for several reasons, to include that the commander may be focusing on the larger picture, such as accomplishing the overall mission, and may not be focused on the purpose of each proposed activity to accomplish that mission. When it is unclear, the JA should work with the intelligence personnel and the commander to identify the purpose by distinguishing between intelligence and operational objectives.

If the commander determines that the proposed activity does not have an intelligence purpose, then recognizing that the proposed activity is not an intelligence activity addresses the legal issue. In that case, the JA should analyze the issue under a different framework, not the intelligence legal framework in this article. The unit would conduct the proposed activity under other authorities, such as operational authorities, and not intelligence authorities,65 because purpose drives authorities.66 However, if the commander determines that the proposed activity does have an intelligence purpose, then the next step is to analyze the unit’s authorities.

(Credit: scaliger – stock.adobe.com)

Does the Unit Have the Authority to Conduct the Proposed Activity?

The next question a JA will address is whether the unit has the authority to conduct the proposed activity. There are two primary legal approaches to interpret the law and authority: a permissive approach and a restrictive approach.67 A permissive legal approach presumes that a proposed action is allowed unless otherwise specifically prohibited.68 Command authority, the general inherent authority that a commander has to conduct operations not otherwise prohibited by law or statute, is an example of a permissive legal approach.69 On the other hand, a restrictive legal approach prohibits an action unless there is a positive grant of authority to perform that action.70 Fiscal law is an example of a restrictive legal approach;71 the Constitution requires specific authorization, in the form of an appropriation, for the expenditure of Government funds.72

Intelligence law takes a quasi-restrictive approach.73 Although not as restrictive as fiscal law, which requires specific appropriations by Congress prior to any expenditure, intelligence law requires positive authority prior to conducting intelligence activities.74 Therefore, it is helpful to think of intelligence law like fiscal law in this manner. This comparison demonstrates to both JAs and commanders that intelligence is not an area where commanders should rely on inherent command authority, but instead should be able to trace proposed actions to specific grants of authority.

The ability to trace the delegation of authority to conduct intelligence activities is a critical part of conducting the legal review. The authority to conduct intelligence activities originates in the Constitution and in statute,75 but in the military intelligence context, the proper delegation of authority flows from the President through the SECDEF76 and then to other subordinate commands. These individuals have statutory authority to conduct intelligence activities and can delegate those authorities and missions to subordinate military commanders and units to conduct those activities.77

The authority to conduct intelligence activities in the military is often delegated in the form of an execute order (EXORD)78 or an operations order (OPORD).79 Often, the best way to identify these delegations of intelligence authorities is by speaking with the unit’s intelligence section, the S2 or G2.80 The intelligence section should be tracking delegated authorities and be able to provide a copy of the relevant EXORDs or OPORDs.81 A unit should not cite to DoD or Army directives, manuals, or regulations as positive grants of authority. These documents discuss how to conduct intelligence activities; however, they do not provide the positive authority to conduct intelligence activities.82

To trace the positive grant of authority, start with the EXORD. The Chairman of the Joint Chiefs of Staff (CJCS) issues the EXORD by the authority and direction of the President or the SECDEF.83 The EXORD can delegate the statutory or constitutional authority that those individuals respectively hold to conduct intelligence activities.84 The EXORD should clearly identify what intelligence authorities it grants and to whom the EXORD grants them. However, the analysis normally does not stop there. While there are EXORDs for specific missions, as well as broader operational EXORDs, most individual units derive their authority from subordinate OPORDs.

The next document delegating authority will likely be an OPORD issued by a combatant command or a subordinate command.85 It is not uncommon for several units in the operational chain of command to issue subordinate OPORDs. It is therefore important for the JA to trace the authority to conduct intelligence activities from the original EXORD through any subordinate OPORDs to determine whether the unit proposing an intelligence activity has the necessary authority to conduct that activity. If the delegation of authority flows down to the unit through these documents, that unit has the authority to conduct the proposed intelligence activity.86 If the unit does not have the appropriate delegation, the JA should notify the commander and the S2 that the unit does not have the authority to conduct the proposed activity. At that time, the commander can decide to accomplish his intent by other means or request the necessary delegation of authorities to conduct the proposed intelligence activity.

Does the Unit Have Permission to Conduct the Proposed Activity?

After establishing that (1) a proposed activity has an intelligence purpose, and (2) the unit has the necessary authorities to conduct the proposed activity, the next question is whether the unit has the necessary permissions. This is generally a question regarding the unit coordinating and deconflicting a specific intelligence activity.87 The DoD, as one member of the IC, is not the only agency conducting intelligence activities.88 To ensure coordination across the IC, EO 12333 assigns different agencies and agency heads as functional managers of certain intelligence disciplines.89 Any intelligence activities in these areas first require interagency coordination with the functional manager or his designee to obtain permission to conduct a proposed activity. For example, any proposed HUMINT activities would first require coordination through the appropriate Defense HUMINT Executor90 with the Director of the Central Intelligence Agency, or his designee, as the functional manager for human intelligence.91

To determine whether a unit has the permission to conduct an intelligence activity, a JA must also look at any coordination requirements that accompany a delegation of authority. The EXORD or OPORD delegating intelligence authorities for a specific activity might also require coordinating with higher commands, other IC members, or specific individuals in a theater of operations.92 This coordination is necessary to ensure proposed intelligence activities do not negatively impact one another. Personnel in S2 or G2 will conduct the actual coordination and deconfliction.93 The JA should confirm with the S2 or G2 that they have taken all necessary actions and have received any necessary permissions. The S2 or G2 should discuss the status of permissions directly with the commander. Once the unit completes all of this, they have the necessary permissions to conduct the proposed intelligence activity.

What Rules and Restrictions Apply to the Specific Intelligence Discipline?

The final step in the legal framework of analysis for a proposed intelligence activity is looking at the rules and restrictions that apply to the intelligence discipline involved in the proposed activity. Whereas the previous steps are generally applicable to most intelligence issues, this step will vary between intelligence disciplines. All the intelligence disciplines have different rules and restrictions that create unique considerations in a legal review. Often, the lines between intelligence disciplines blur, and an issue could involve more than one intelligence discipline and, therefore, more than one set of rules or restrictions. This part of the analysis often requires classified resources that provide specific guidance on the tactics and techniques for intelligence collection. Although this article does not provide in-depth guidance to the different rules governing the various intelligence disciplines, Appendix A provides resources for further assistance.94

United States Persons

In addition to the above legal framework, a JA reviewing intelligence law issues should always be aware of the implications and considerations regarding the collection of USP-related information. The protection of USPs’ privacy interests was a primary factor in reforming intelligence oversight and is one of the most significant considerations regarding intelligence law issues.95 Information relating to USPs triggers additional analysis that the intelligence personnel and the JA must consider prior to conducting the proposed activity.96

Executive Order 12333 defines a USP as:

[1] a United States citizen, [2] an alien known by the intelligence element concerned to be a permanent resident alien, [3] an unincorporated association substantially composed of United States citizens or permanent resident aliens, or [4] a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments.97

This is a broad definition that includes more than just individual U.S. citizens. Furthermore, a person or organization located in the United States is presumed to be a USP unless there is sufficient information to prove otherwise.98

Executive Order 12333, DoDD 5240.01, and DoDM 5240.01 provide the authorities and specific guidance that a JA should apply when reviewing a proposed intelligence activity that involves USPs.99 First and foremost, elements of the IC may only collect, retain, or disseminate information relating to USPs in accordance with the provisions of EO 12333, and for the DoD, DoDM 5240.01.100 There is a common misconception that this prohibits the collection of intelligence relating to USPs. This is incorrect; however, any proposed intelligence activity that relates to information concerning USPs raises a red flag and requires further analysis.

Department of Defense Manual 5240.01 provides the specific framework for the collection of USP information.101 It is organized by “procedures” that direct the appropriate ways to collect, retain, and disseminate information regarding USPs, as well as the specific requirements and processes for special collection techniques such as electronic surveillance, concealed monitoring, physical searches, and undisclosed participation in organizations.102 It also requires that any collection involving USPs uses the least-intrusive means, which includes collecting information that is publicly available, obtaining consent from the person concerned, or obtaining the information through other means that do not require a judicial warrant.103 This article will not comprehensively discuss the requirements and procedures regarding proposed activities that relate to USPs; however, DoDM 5240.01 provides a straight-forward and detailed process for practitioners reviewing intelligence law matters involving USP issues.104

There are seven primary intelligence disciplines, often referred to as the different “INTs.” A JA will most likely face issues involving HUMINT, SIGINT, and OSINT. (Credit: Katie Hernandez, TJAGLCS)

Conclusion

Intelligence law is a specialized practice area of national security law. In recent years, the ability of a JA to advise on intelligence law issues has become crucial.

This article is not intended to make a JA an expert on intelligence law issues. Instead, it is designed as a tool for JAs who are unfamiliar with this practice area and face an intelligence law issue. Whether working for an intelligence unit, such as a military intelligence brigade or U.S. Army Intelligence and Security Command, a special forces unit, or another operational unit in a deployed environment, intelligence law issues may arise. When faced with these scenarios, this framework will guide JAs through the comprehensive analysis of legal issues to effectively support military intelligence operations. TAL

MAJ Morningstar is the Chief of National Security Law in the Office of the Staff Judge Advocate, U.S. Army North (Fifth Army), at Joint Base San Antonio, Fort Sam Houston, Texas.

Notes

1. James A. Baker III, Former Sec’y of State under President George H.W. Bush, Introduction at the Harvard Journal on Legislation Symposium: National Security Reform (Apr. 12, 2007), in 45 Harv. J. on Legis. 199 (2008).

2. Paul Reynolds, The World’s Second Oldest Profession, BBC News (Feb. 26, 2004), http://news.bbc.co.uk/2/hi/americas/3490120.stm (referencing the Book of Joshua in the Bible where Joshua sent spies to collect information before entering the Promised Land).

3. Laura K. Donohue, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age 1-2 (2016). Congress provided President Washington with a “secret service fund” to be used “for spies, if the gentleman so pleases.” See id. (quoting former Senator John Forsyth).

4. See generally James E. Baker, In the Common Defense: National Security Law for Perilous Times 77-78, 130 (2007). The Church and Pike committees were named after their chairpersons, Senator Frank Church and Congressman Otis Pike. Id. at 77.

5. Exec. Order No. 12333, 3 C.F.R. 200 (1982) [hereinafter EO 12333], amended by Exec. Order No. 13284, 3 C.F.R. 161 (2003); Exec. Order No. 13355, 3 C.F.R. 218 (2004); and Exec. Order No. 13470, 3 C.F.R. 218 (2008) (codified as amended at 50 U.S.C. § 3001).

6. See Kevin W. Kapitan, An Introduction to Intelligence Oversight and Sensitive Information: Department of Defense Rules for Protecting Americans’ Information and Privacy, Army Law., Apr. 2013, at 3, 4–7.

7. The practice of intelligence can involve classified means, methods, and procedures discussed in a number of classified documents, instructions, and manuals. However, many of the underlying documents and framework concerning intelligence are not classified. This article will direct the reader to classified references, the names of which are not classified, that will assist in further analyzing specific intelligence law issues and provide a more in-depth understanding of intelligence law. See infra Appendix A.

8. See generally Mark M. Lowenthal, Intelligence: From Secrets to Policy 1 (5th ed. 2012).

9. Joint Chiefs of Staff, Joint Pub. 2-0, Joint Intelligence, at GL-15 (26 May 2022) (emphasis added) [hereinafter Joint Pub. 2-0].

10. Id. (emphasis added).

11. See infra Section “Intelligence Activities.”

12. An intelligence requirement is “any subject, general or specific, upon which there is a need for the collection of information, or the production of intelligence.” Joint Pub. 2-0, supra note 9, at GL-16.

13. See generally Joint Pub. 2-0, supra note 9, at III-3 fig.III-2, para 4(b).

14. See Joint Pub. 2-0, supra note 9, at III-2 to III-54. See generally Lowenthal, supra note 8, at 57-70.

15. The seven primary disciplines of intelligence are: human intelligence (HUMINT), signals intelligence (SIGINT), open-source intelligence (OSINT), measurement and signature intelligence (MASINT), geospatial intelligence (GEOINT), technical intelligence (TECHINT), and counter intelligence (CI). See Joint Pub. 2-0, supra note 9, app. B at B-2 fig.B-1. See also Nat’l Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook 211 (2022) [hereinafter Op Law Handbook].

16. See National Security Act of 1947, Pub. L. No. 235, 61 Stat. 496 (1947) (codified as amended at 50 U.S.C. § 3002 (2017)) (originally codified as 50 U.S.C. § 401 (2006)). See also Lowenthal, supra note 8, at 31.

17. The eighteen intelligence agencies comprising the intelligence community (IC) are the Office of the Director of National Intelligence (ODNI), the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the National Reconnaissance Office (NRO), the National Geospatial-Intelligence Agency (NGA), the Department of Energy’s Office of Intelligence and Counter-Intelligence, the Department of Homeland Security’s Office of Intelligence and Analysis and U.S. Coast Guard Intelligence, the Department of Justice’s Federal Bureau of Investigation and the Drug Enforcement Agency’s Office of National Security Intelligence, the Department of State’s Bureau of Intelligence and Research, the Department of the Treasury’s Office of Intelligence and Analysis, and the intelligence elements of the five DoD services: the Army, Navy, Marine Corps, Air Force, and Space Force. Op Law Handbook, supra note 15, at 212.

18. The Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 replaced the Director of Central Intelligence with the Director of National Intelligence as the senior intelligence official and head of the IC. See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1011(a), 118 Stat. 3638.

19. See generally Op Law Handbook, supra note 15, at 212–23.

20. Certain intelligence disciplines have designated functional managers. Therefore, the policies and directives these functional managers establish are controlling for all members of the IC conducting intelligence activities within that intelligence discipline, to include the DoD. See infra notes 91-92 and accompanying text.

21. See generally Baker, supra note 4, at 77–78, 130.

22. See id. (referencing the Church and Pike Committees). See also S. Rep. No. 94-755 (1976).

23. See About the Committee, U.S Senate Select Comm. on Intel., https://www.intelligence.senate.gov/about (last visited Feb. 15, 2023).

24. See History and Jurisdiction, U.S. House of Representatives Permanent Select Comm. on Intel., https://republicans-intelligence.house.gov/about/history-and-jurisdiction.htm (last visited Mar. 22, 2023).

25. See id.; see also infra note 34.

26. See Kapitan, supra note 6, at 6, 8.

27. See Kapitan, supra note 6, at 7.

28. For a more in-depth discussion of intelligence oversight, see Major John C. Tramazzo, An Intelligence Law Primer for the Second Machine Age, Army Law., no. 3, 2019, at 35.

29. See generally U.S. Dep’t of Army, Reg. 381-10, U.S. Army Intelligence Activities para. 1-6 (27 Jan. 2023) (requiring that commanders “seek legal advice from their supporting U.S. legal advisor” prior to conducting certain intelligence activities).

30. U.S. Dep’t of Def., 5240.01, Procedures Governing the Conduct of DoD Intelligence Activities 49 (8 Aug. 2016) [hereinafter DoDM 5240.01], accord U.S. Dep’t of Def., Dir. 5148.13, Intelligence Oversight 16 (26 Apr. 2017).

31. EO 12333, supra note 5, para. 3.5(g).

32. See EO 12333, supra note 5, para. 1.7.

33. See EO 12333, supra note 5, para. 1.7.

34. The definition of intelligence-related activities is still heavily debated, primarily driven by concerns regarding oversight. However, prior to the definition’s removal in 2017, Joint Pub. 1-02 defined “intelligence-related activities” as:

Those activities outside the consolidated defense intelligence program that: respond to operational commanders’ tasking for time-sensitive information on foreign entities; respond to national intelligence community tasking of systems whose primary mission is support to operating forces; train personnel for intelligence duties; provide an intelligence reserve; or are devoted to research and development of intelligence or related capabilities.

Joint Chiefs of Staff, Joint Pub. 1-02, Department of Defense Dictionary of Military and Associated Terms 115–116(8 Nov. 2010) (as amended through 15 Feb. 2016).

35. Tradecraft is the “[s]pecialized methods and equipment used in the organization and activity of intelligence organizations, especially techniques and methods for handling communications with agents.” Joint Chiefs of Staff, Department of Defense Dictionary of Military and Associated Terms 219 (Nov. 2021) [hereinafter DoD Dictionary].

36. See generally Andru E. Wall, Demystifying the Title 10—Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action, 3 Harv. Nat’l Sec. J. 85, 139–40 (2011).

37. Tactical intelligence is “[i]ntelligence required for the planning and conduct of tactical operations.” DoD Dictionary, supra note 35, at 210.

38. Operational preparation of the environment (OPE) is “[t]he conduct of activities in likely or potential operational areas to set conditions for mission execution.” DoD Dictionary, supra note 35, at 161. It may include activities in support of future operations such as establishing weapons caches and assessing local infrastructure, among others.

39. Joshua Kuyers, “Operational Preparation of the Environment”: “Intelligence Activity” or “Covert Action” by Any Other Name?, 4 Nat’l Sec. L. Brief 21, 37-39 (2013).

40. See generally Wall, supra note 36, at 125.

41. For example, the law of armed conflict (LOAC) often requires analyzing both international law, comprised of international agreements and customary international law governing the use of force, as well as analyzing whether the use of force is authorized under domestic law and authority. See Nat’l Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Law of Armed Conflict Deskbook, at 29 (2016).

42. See Op Law Handbook, supra note 15, at 210–12.

43. Positive authority, or positive grant of authority, refers to the specific grant of authority to conduct a particular action. In the context of this article, it refers to the specific grant of authority to conduct intelligence activities. See generally Richard M. Whitaker, Intelligence Law, in U.S. Military Operations: Law, Policy, and Practice 510, 519-21 (Geoffrey S. Corn et al. eds., 2016). 

44. See A. J. Radsan, The Unresolved Equation of Espionage and International Law, 28 Mich. J. Int’l L. 595, 597 (2007). “While states may regulate intelligence gathering domestically, no significant treaties or conventions address the process, nor is it subject to any internationally recognized set of principles or standards.” Id.

45. See id.

46. See id. at 596.

47. See Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and International Law, 28 Mich. J. Int’l L. 625, 628 (2007). Although intelligence is not prohibited under international law, most states have domestic law that criminalizes acts of espionage. See also 1 L. Oppenheim, International Law: A Treatise 862 (H. Lauterpacht ed., 8th ed. 1955).

48. Appendix A includes a list of reference documents for analyzing specific intelligence issues. See infra Appendix A.

49. See U.S. Const. art. II § 2; see also Kuyers, supra note 39, at 27; Whitaker, supra note 43, at 521–22.

50. See 10 U.S.C. § 113 (2021). The Secretary of Defense (SECDEF) also has those authorities delegated by the President as the Commander in Chief. See Kuyers, supra note 39, at 27.

51. See 50 U.S.C. § 3038 (2021); see also 50 U.S.C. § 3003(6) (2021) (defining National Intelligence Program).

52. See Wall, supra note 36, at 133-34.

53. See 10 U.S.C. § 137 (2021); see also U.S. Dep’t of Def., Dir. 5143.01, Under Secretary of Defense for Intelligence and Security (USD(I&S)) (24 Oct. 2014) (C2, 6 Apr. 2020).

54. See National Security Act of 1947, Pub. L. No. 235, 61 Stat. 496 (1947) (codified as amended as 50 U.S.C. § 3002 (2017)).

55. See Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1885c (2020). The Foreign Intelligence Surveillance Act was implemented to protect the rights of U.S. citizens, mainly regarding electronic surveillance within the United States. See generally Donohue, supra note 3, at 2-15. The Foreign Intelligence Surveillance Court is charged with reviewing a government agency’s request prior to conducting surveillance of citizens for foreign intelligence purposes. See Donohue, supra note 3, at 11. These proceedings are conducted, usually ex parte, in front of one of the eleven Federal court judges designated to sit on the Foreign Intelligence Surveillance Court. See About the Court, U.S Foreign Intel. surveillance Ct., https://www.fisc.uscourts.gov/about-foreign-intelligence-surveillance-court (last visited Mar. 22, 2023).

56. See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1011(a), 118 Stat. 3638 (codified in scattered sections of 50 U.S.C.).

57. See EO 12333, supra note 5.

58. See EO 12333, supra note 5; see generally Kapitan, supra note 6, at 7; Tramazzo, supra note 28.

59. See U.S. Dep’t of Def., Dir. 5240.01, DoD Intelligence Activities (8 Aug. 2016) (C3, 9 Nov. 2020) [hereinafter DoDD 5240.01].

60. See DoDM 5240.01, supra note 30.

61. The framework in this article is one approach to analyzing intelligence law issues. Other practitioners may propose different steps in the process or refer to them by different terms. Regardless, the judge advocate, or whomever is reviewing the intelligence law issue, must think through all relevant elements in addressing an intelligence issue. See generally Kapitan, supra note 6, at 8 (focusing on mission and authority as the relevant considerations for analyzing intelligence law issues).

62. See generally Whitaker, supra note 43, at 530.

63. Judge advocates may encounter these terms in discussing intelligence issues with intelligence personnel or other intelligence practitioners, which simply may be different ways of saying the same thing.

64. See Whitaker, supra note 43, at 530; see also supra notes 34-40 and accompanying text.

65. See generally Kuyers, supra note 39, at 34, 36–38.

66. See U.S. Dep’t of Navy, Off. Of The Judge Advoc. Gen., Intelligence Law Reference Guide 52 (May 2018).

67. See Whitaker, supra note 43, at 519.

68. See Whitaker, supra note 43, at 519.

69. See Admin. Law Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, General Administrative Law Deskbook, at A-3 (2018-2019).

70. See Whitaker, supra note 43, at 519.

71. See Whitaker, supra note 43, at 519

72. See U.S. Const. art. I § 9, cl.7.

73. See Whitaker, supra note 43, at 520.

74. See Whitaker, supra note 43, at 520–21.

75. See supra Section “Domestic Law and Authority.”

76. The authority of the SECDEF as it pertains to intelligence and counter-intelligence matters may be exercised by the USD(I&S); therefore, directives signed by the USD(I&S) are also a proper delegation of authority. See supra note 53 and accompanying text.

77. See supra Section “Domestic Law and Authority.”

78. An execute order (EXORD) is “[a]n order issued by the Chairman of the Joint Chiefs of Staff, at the direction of the Secretary of Defense, to implement a decision by the President to initiate military operations.” DoD Dictionary, supra note 35, at 77.

79. An operation order (OPORD) is “[a] directive issued by a commander to subordinate commanders for the purpose of effecting the coordinated execution of an operation.” DoD Dictionary, supra note 35, at 161.

80. The S2 (for a battalion or brigade-sized element) or G2 (for division or higher-sized elements commanded by a general officer) will be the primary intelligence advisor to the commander. See U.S. Dep’t of Army, Field Manual 2-0, Intelligence paras. 2-1 to 2-7 (6 July 2018). S2 and G2 also refers to the intelligence sections that work for those advisors. See id.

81. If the S2 or G2 cannot provide the delegated intelligence authorities, the S3 or G3 operations section should be able to provide the relevant documentation. See generally id. para. 2-5.

82. See generally Whitaker, supra note 43, at 524.

83. See Whitaker, supra note 43, at 526.

84. See Whitaker, supra note 43, at 526.

85. See supra note 79.

86. It is crucial to analyze the specific delegated authorities. A delegation of authority to conduct intelligence activities will not always be a complete delegation of authority to conduct all types of intelligence activities. For example, a delegation might only include the authority to conduct HUMINT, but not the authority to conduct SIGINT.

87. The required coordination and deconfliction will differ depending on the proposed activity. For example, HUMINT requires following the coordination and deconfliction as described in Intelligence Community Directive (ICD) 304. See U.S. Off. of Dir. of Nat’l Intel., Intelligence Community, Dir. 304, Human Intelligence (9 July 2009) [hereinafter ICD 304]. When dealing with USPs, the coordination and approval (deconfliction) for special collection techniques (Procedures 5-10) are found in DoDM 5240.01. See DoDM 5240.01, supra note 30, paras. 3-5 to 3-10.

88. See supra note 17.

89. EO 12333 established the NSA director as the functional manager for SIGINT, the CIA director as the functional manager for HUMINT, and the NGA director as the functional manager for GEOINT. See EO 12333, supra note 5, § 1.3(b)(12). These functional managers’ guiding documents are controlling across the entire IC.

90. See generally U.S. Dep’t of Army, Field Manual 2-22.3, Human Intelligence Collector Operations Part Two (6 Sept. 2006).

91. See EO 12333, supra note 5, § 1.3(b)(12).

92. This may be the chief of mission or the chief of station at the embassy. The proposed activity’s location (an area of active hostilities, such as a combat zone, or elsewhere) often determines which individual to contact.

93. See generally ICD 304, supra note 87.

94. See infra Appendix A.

95. See generally S. Rep. No. 94-755, bk. II (1976) (discussing the importance of protecting the privacy of individuals and groups).

96. See Kapitan, supra note 6 (discussing application of the rules of E.O. 12333 and DoDM 5240.01 to USPs).

97. EO 12333, supra note 5, para. 3.5(k).

98. See DoDM 5240.01, supra note 30, at 54 (defining USP). For a person or organization located outside of the United States, the opposite is true, and there is a presumption that they are not a USP unless proven otherwise. See DoDM 5240.01, supra note 30, at 54.

99. See EO 12333, supra note 5. See also DoDM 5240.01, supra note 30; U.S. Dep’t of Def., Dir. 5240.1-R, Activities of DoD Intelligence Components that Affect United States Persons (8 Aug. 2016) (C2, 26 Apr. 2017) DoDD 5240.1-R is still in effect as to procedures 11, 12, and 13, but the new DoDM 5240.01 and DoD Directive 5148.13, supra note 30, replaced all other procedures.

100. See EO 12333, supra note 5, para. 2.3; see also DoDM 5240.01, supra note 30.

101. See DoDM 5240.01, supra note 30, at 1 (stating that DoDM 5240.01’s purpose is to “Authorize[] the Defense Intelligence Components to collect, retain, and disseminate information concerning U.S. persons in compliance with applicable laws, Executive orders, policies, and regulations”).

102. See DoDM 5240.01, supra note 30.

103. See DoDM 5240.01, supra note 30, para. 3.2.f.(3).

104. See DoDM 5240.01, supra note 30. Judge advocates can use DoDM 5240.01 in conjunction with the legal framework in this article to address intelligence law issues involving information related to USPs.