The National Geospatial Intelligence Agency at night (Credit: Trevor Paglen).
A JA’s Role at the National Geospatial Intelligence Agency
By Lieutenant Colonel Evah K. McGinley
Shortly before reporting to the National Geospatial-Intelligence Agency (NGA) as the only active duty military attorney assigned to the Office of Counsel, I sat down with the incumbent for some left-seat/right-seat. Those two days felt akin to drinking from a classified firehose. While each new assignment poses challenges, by the time a judge advocate hits the field grade ranks, they have at least seen or heard about most issues, even if from a distance. Not here. Despite having nearly two decades of judge advocate work behind me, I found myself in a position requiring virtually a different language. “I haven’t practiced this type of law before,” I found myself preemptively apologizing. “Don’t worry,” I was told, “No one has—not until they get here.”
Unless a judge advocate is pulled from another Intelligence Community (IC) element, or has operational experience supporting the same, this is an entirely new field. No law school course or internship opportunity covers the material; it is largely on-the-job training (OJT). However, it is OJT with significant merit. The IC partners (and their priorities) frequently overlap, collaborate, and coordinate, meaning practice in any IC element provides that invaluable “I’ve at least seen or heard of this before” level of experience.1 While that experience is missing for most judge advocates with a conventional background and traditional career track, it is crucial for the Judge Advocate General’s Corps (JAGC) to build an effective bench of national security law practitioners. For this reason and the many others described below, billets such as the one at the NGA will continue to yield returns as we support both Army and Joint operations.
The History of the NGA and the Judge Advocate’s Role
Although a relatively new arrival to the IC, the NGA is a young body with an old soul.2 The organization is composed of personnel, former agencies, and skill sets representing seasoned intelligence veterans.
The NGA originally grew out of a need for geospatial intelligence (GEOINT) recognized more than twenty years ago. During negotiations for the Dayton Peace Accords in 1995, a team led by the Defense Mapping Agency (DMA) proved itself essential to the negotiation effort and demonstrated the value of combining cartographic and analytic skill sets.3 With the goal of institutionalizing this type of collaboration, the U.S. Government pulled together personnel and resources from eight different organizations, forming the National Imagery and Mapping Agency (NIMA) in 1996.4 In 2003, NIMA became NGA, reflecting increased emphasis on GEOINT support to customers across the IC in the wake of the September 11, 2001 attacks.5 The move established NGA as a GEOINT-specific Combat Support Agency for the Department of Defense (DoD).6
In spite of its DoD identity, NGA’s intelligence pedigree means the agency maintains a relatively small uniformed population, making up less than five percent of the workforce. Assigned military personnel rely heavily upon civilian GEOINT subject matter experts, who provide sourcing and analysis on a range of fronts. The NGA Office of General Counsel (OGC) reflects the same balance: As of the writing of this article, the OGC holds one military billet, currently filled by the Army.7
The first Army judge advocate at the NGA arrived in 2014, as an early effort to expand the JAGC bench in intelligence-related practice areas.8 The position is now in its third assignment cycle, with the uniformed attorney continuing to support the Mission and International Law Division. The division is known as “OGCM” in the language of NGA acronyms, or more familiarly as just “the mission team.”9 The mission team supports clients across the agency, from the Analysis to the Source directorates, as well as the Directorate of Expeditionary Operations. However, the OGC as a whole supports the legal needs of the entire agency, offering opportunities in everything from administrative law to contracts and fiscal law to labor and employment law, and everything in between.
A Judge Advocate’s Legal Practice at the NGA
Legal practice at the NGA is diverse and complex. The OGC provides in-house support for every legal function from contracts to administrative law to international and operational law, and everything in between.10 To varying degrees, the mission team touches virtually all of those areas—and so does the assigned judge advocate. The resulting portfolio combines statutory interpretation, domestic and international operations, and common practice areas, all with an intricate IC twist.
Bifurcated Statutory Authorities
The NGA’s complex source of authorities makes legal practice here both unique and challenging. The primary source of the NGA’s authority as an IC member flows from the president’s constitutional authority, conveyed by Executive Order 12333, as amended.11 However, the NGA also holds broad authorities granted by Congress, under both Title 10 and Title 50.12
The NGA’s Title 10 authorities provide the agency’s charter and establish it as a Combat Support Agency.13 In this role, the NGA supports the national security objectives of the United States with imagery, imagery intelligence, and geospatial information.14 Supporting this mission, the NGA personnel embedded within commands and offices across the globe provide on-site senior-level GEOINT expertise. The NGA also regularly deploys personnel, with a resulting need for legal work in the development and delivery of pre-deployment guidance. With such a small percentage of the workforce in uniform, judge advocates bring a unique military perspective which helps deploying civilians support NGA clients abroad.
The NGA’s Title 50 authorities call upon a different legal skill set.15 Title 50 provides the NGA the authority and obligation to support GEOINT requirements of other Federal agencies.16 Although the statute only names the Department of State individually, it includes a broad “other” category covering a swath of potential NGA customers.17 This “other” category allows NGA to support not only the rest of the IC, but also virtually any other federal department and agency, from the Treasury Department to the Department of Agriculture—provided the requested support fits within a national intelligence priority.18 Those priorities are as broad as the customer base. On any given day, the NGA may be assisting a disaster relief effort somewhere in the Pacific, or lending help to efforts monitoring the spread of Ebola in Africa.
The NGA’s Title 10 and Title 50 authorities and functions may also overlap. A common scenario involves the National Guard. For example, if the National Guard is federalized in an exercise or disaster response, the NGA can support it directly through Title 10. If the National Guard remains in a state status, the NGA may indirectly support it, normally through a different lead federal agency triggering the NGA’s Title 50 authorities.
Overlaying this web of statutory authorities is the role of the NGA Director as the Functional Manager for GEOINT.19 Functional Managers work across the IC to ensure a unified, coordinated, and integrated approach, advising the Director of National Intelligence (DNI) on all matters within their assigned functional area. For the GEOINT Functional Manager, that includes standards regarding training, tradecraft, reporting, and technical mechanisms (or “architecture”). Even research and development initiatives may fall under the Functional Manager’s purview.20
Given the complexities of the executive, statutory, and regulatory authorities accorded the NGA, the directorates across the agency frequently call upon OGC to assist in not only understanding what missions can be supported, but also the appropriate source of the authority to do so. As part of the mission team, the assigned judge advocate plays a frontline role in this intricate interpretation.
Domestic and International Operations
The NGA stands unique among its IC brethren as the only full-fledged intelligence agency with the mission and the authority to support some distinctly non-intelligence-centric agencies, and to do so with a specifically intelligence-based tool set.21 Operating in both domestic and international arenas, with both Title 10 and Title 50 in play, the blend of domestic and international work requires similarly blended legal advice.
Global maritime and aeronautical navigation—both within the NGA’s mission set—require broad sharing of accurate mapping data in order to ensure the safety and efficiency of travel across the globe. Title 10 holds the NGA’s most significant authorities to enter into international agreements and arrangements allowing for that kind of sharing and exchange.22 The provision of imagery intelligence and sharing of geospatial information with other foreign partners, including regional organizations and security alliances, includes a role for legal guidance in negotiations and drafting.23 Statutory allowances for agreements to exchange mapping and charting information, not only with foreign partners but also with non-governmental organizations and even academic institutions, emphasize the NGA’s unique role, and provide further opportunities for the mission team to provide critical support to international agreements.
On the domestic front, Title 50 issues run the gamut from support to other IC partners to support to non-IC entities. As an example, NGA participates as a member of the Civil Applications Committee (CAC), where specifically non-national intelligence support is deemed a national intelligence priority.24 The mission team provides guidance on the NGA’s interpretation of how to lawfully use intelligence tools in this domestic setting. Environmental studies, migration patterns, and terrain mapping all have useful civil applications. Frequently, counsel advising other CAC members are not familiar with the nuanced legal issues facing the IC; they look at things from a civil perspective. Attorneys at the NGA, however, are able to translate IC equities and enable civil applications to function more effectively, making a positive impact outside of the traditional IC world.
Common Practice Areas with an Intelligence Community Twist
Legal practice within the NGA in many ways resembles work already familiar to judge advocates, although it is infused with the special considerations applicable to the IC. The mission team attorneys support the warfighter with advice to the agency’s directorates in a manner similar to a judge advocate supporting a Division or Corps, functioning like staff officers, advising leaders and integrating into the team. For larger policy-level issues, attorneys assume a role like legal advisors to a Combatant Command or the Office of The Judge Advocate General, assisting with the drafting and execution of policies driven by guidance and directives from the Office of the DNI, the DoD, and the legislature. As mentioned in the introduction, daily issues include all of the usual suspects, from administrative law, contract and fiscal law, and intellectual property and copyrights, to ethics and personnel law, in addition to operational and international law.
Exposure to actions involving these more familiar practice areas is common, and allows attorneys through the office, including the assigned judge advocate, to take advantage of experience not isolated to the NGA but applicable to a wider set of DoD and federal clients. The review of interagency agreements under the Economy Act, or the staff legal review of a Joint publication, is undertaken in a similar way regardless of the subject matter of those agreements or publications.25 Likewise international agreements may have a specific intelligence focus, such as Imagery Sharing Agreements (ISAs) or Basic Cooperation and Exchange Agreements (BECAs), but the nuts and bolts of the legal work to negotiate and draft them are seen across federal practice; the Case Act requirements and the DoD Directive remain the same, whether negotiating for the sharing of imagery or negotiating for access to an airfield.26
Nonetheless, the classification levels and special considerations relevant to intelligence work give these familiar practice areas an IC twist that enriches the experience, especially for a judge advocate. For example, the mission team evaluates requests for support under NGA policies, such as the domestic imagery policy which governs all imagery taken of domestic targets.27 Sometimes the imagery is needed for traditional functions, like military exercises, but sometimes it is needed for a civil, rather than intelligence-related purpose. Imagine the local department of public works attempting to use an S-2 product to fix a faulty road and one can envision the potential concerns: an intelligence-centric tool to address a civil problem.
Legal practice at the NGA also allows for those practice areas not commonly seen in other DoD billets. Intelligence oversight rules and regulations provide a prime example of a body of knowledge crucial to any IC practice, but outside of the average judge advocate’s legal experience.28 After all, within the NGA, that same domestic imagery used for a civil purpose might also be sought for a foreign or counter-intelligence purpose, and would therefore be subject to a different set of policy considerations. The task of advising which activities fall into a foreign or counter-intelligence purpose, which activities require a Proper Use Memorandum (PUM) for compliance, and whether the PUM in question is legally sufficient, are all IC-centric issues falling to the mission team.29 Only practice and on-the-job training can provide a true appreciation of these concerns and how they impact both the client and the attorney.
As the focus on national security law increases within the JAGC, providing judge advocates with this type of experience will enrich the depth and quality of the advice provided to our commanders and senior leaders across the enterprise. The NGA billet offers a unique and important experience with an inclusive, collaborative, and professional environment; rich with former judge advocates from every service; at a location within reach of Fort Belvoir and the Pentagon. Positions like this not only continue to build a bench of uniformed professionals conversant in the language and practices of the IC, but also the language and practices of the federal government writ large. TAL
LTC McGinley is currently assigned to the National Geospatial-Intelligence Agency Office of General Counsel as an Assistant General Counsel within the Mission and International Law Division. For additional information regarding practice within the NGA Office of General Counsel, contact the mission team: Mission and International Law Division at OGCM@nga.mil.
Notes
1. While assigned at NGA, uniformed attorneys regularly interact and collaborate with counsel from various other IC members, including those from the Defense Intelligence Agency (DIA), National Security Agency (NSA), and the Central Intelligence Agency (CIA), among others.
2. See National Imagery and Mapping Agency Act of 1996, Pub. L. No. 104-203, 110 Stat. 2431; see generally Anne Daugherty Miles, Joint Military Intelligence College, The Creation of the National Imagery and Mapping Agency: Congress’s Role as Overseer, Occasional Paper Number Nine (2002), https://apps.dtic.mil/dtic/tr/fulltext/u2/a476770.pdf.
3. National Geospatial-Intelligence Agency, the Advent of NGA 1 (2017); see id. DMA was its own “merger of Army, Navy, and Air Force mapping, charting, and geodesy organizations.” Id. at 22.
4. Id. at 1–3.
5. Id.
6. The Combat Support Agencies are identified in Title 10 of the U.S. Code and include, in addition to NGA: Defense Intelligence Agency, Defense Information Systems Agency (DISA), Defense Logistics Agency, and those agencies designated by the Secretary of Defense. See 10 U.S.C. § 193(f). The Secretary of Defense in turn designated additional agencies to include: Defense Contract Management Agency, Defense Health Agency, and Defense Threat Reduction Agency. See U.S. Dep’t of Def., Dir. 3000.06, Combat Support Agencies (CSAs) encl. 3 (27 June 2013). The Secretary of Defense also designated the National Security Agency and Central Security Service as a Combat Support Agency when providing combat support. Id.
7. Efforts are underway to expand the opportunity to other Services.
8. Other Army judge advocate opportunities in the IC include assignments at the Defense Intelligence Agency, the National Security Agency, U.S. Army Intelligence and Security Command, and the Office of the Director of National Intelligence.
9. Although the billet currently serves with the Mission Team, the opportunities for judge advocates at NGA extend well beyond international and operational law issues. Military attorneys with specialties in a range of subject areas, from litigation to contract and fiscal law to administrative law would all find rewarding work within the OGC.
10. Fort Belvoir provides military justice ad Special Assistant U.S. Attorney (SAUSA) support as part of the installation-level legal services. As such, the Senior Service Leaders at NGA for the Army, Air Force, and Navy do not have UCMJ jurisdiction over the personnel assigned to NGA; that authority is held and exercised by the local General Court-Martial Convening Authority (GCMCA). For the Army, this GCMCA is at Fort Belvoir.
11. See generally Exec. Order. No. 12,333, 46 Fed. Reg. 59,941 (Dec. 8, 1981), amended by Exec. Order. No. 13,470, 73 Fed. Reg. 45,325 (Aug. 4, 2008) [hereinafter E.O. 12333].
12. See 10 U.S.C. § 442 et seq. See also 50 U.S.C. § 3045 et seq.
13. 10 U.S.C. § 442. See also U.S. Dep’t of Def., Dir. 5105.60, National Geospatial-Intelligence Agency (29 July 2009).
14. 10 U.S.C. § 442.
15. The skill set required for an analyst varies depending upon the mission and product required, rather than upon the statutory authority behind the request. The difference in the legal approach required is based upon that difference in statutory authority.
16. 50 U.S.C. § 3045. “In addition to the Department of Defense missions set forth in section 442 of title 10, the National Geospatial-Intelligence Agency shall support the geospatial intelligence requirements of the Department of State and other departments and agencies of the United States outside of the Department of Defense.” See id. § 3045(a).
17. See id.
18. See id.
19. E. O. 12333, supra note 11, 1.3(b)(12)(A)(iii). See also Director of Nat’l Intelligence, Intelligence Community Dir. 113, para. D.1 (19 May 2009) [hereinafter ICD 113].
20. Id. para. D.5.b.
21. Normally this type of authority is reserved for agencies with a primary purpose other than intelligence, such as the FBI. The NGA is an entirely intelligence-centric organization.
22. See 10 U.S.C. § 443 and § 454.
23. See 10 U.S.C. § 443.
24. President Gerald R. Ford directed the establishment of what is now the CAC in 1975. Memorandum from The White House on President Ford’s Initial Review of the Report on the Commission on CIA Activities within the United States (Aug. 16, 1975) (on file with author). The CAC’s most recent Charter, signed by the Director of Central Intelligence, the Secretary of the Interior, the Director of the Office of Management and Budget, and the Assistant to the President for National Security Affairs, specifies that the intended “civil uses” would refer to “non-intelligence and non-military purposes.” Civil Applications Committee Charter footnote 1.
25. See Economy Act, 38 U.S.C. § 701.
26. See Case-Zablocki Act, 1 U.S.C. § 112b. See generally U.S. Dep’t of Def., Dir. 5530.3, International Agreements (11 June 1987).
27. See Nat’l Geospatial-Intelligence Agency, Instr. 8900.5, para. 4.b. (23 Jan. 2018).
28. See generally U.S. Dep’t of Def., 5240.01-M, Procedures Governing the Conduct of DoD Intelligence Activities (8 Aug. 2016).
29. See id.