secret// noforn...rights of a.ll united states persons, including freedoms, civil liberties, and...

C0 6229027 Approved for Release: 2015/04/29 C06229027

"'ECRi2I//NOF'ORN

CIA and EO 12333: Overview for the ICIG Boston Review Forum

June 2013

Outline of Talking Points

• Framework of Legal/Policy Authorities

• EO 12333 Purpose, Historical Background, and Structure

• USP And Foreign/National Intelligence Definitions

• CIA's Duties and Responsibilities

• Collection, Retention, and Dissemination of USP Information

• HR 7-l On Collection: Purpose, Location, Target, and Technique

• HR 7-1 Collection

• HR 7-1 Retention Criteria

• HR 7-1 Dissemination

• Additionall2333/HR 7-J Topics

(b)(1) (b)(3) NatSecAct

Detailed Talking Points

NATIONAL SECURITY ACT OF 1947

• LEGAL FRAMEWORK. CIA is governed by a framework of authorities, from the U.S. Constitution, to statutes including the National Security Act of 1947, as amended, (50 USC

401 , et seq.) and the CIA Act of 1949, as amended (50 USC 403a-x) to executive orders including EO 12333, "U.S. Intelligence Activities" (FR vol. 40, No 235 of December 8, 1981)

o Constitution

• First Amendment- freedom of speech, right to peaceably assemble

• Fourth Amendment- unreasonable searches, warrants upon probably cause

• Fifth Amendment- due process for life, liberty, or property o NSA47 - the "who' s who" and Congressional intent .

• Director of Central Intelligence Agency responsibilities (50 USC 403-4a(d)) :

• (1) "Collect intelligence through human sources and by other appropriate means, except that the DCIA shaU have no police, subpoena, or law enforcement powers or internal security functions"

• (2) "Correlate and evaluate intelligence related to the national security

and provide appropriate dissemination of such intelligence"

l

rb)(3) NatSecAct

~--------------------------~

SECPirp //NOFOJtN

Approved for Release: 2015/04/29 C06229027

C06229027 Approved for Release: 2015/04/29 C06229027

SECRET/ / NOFORN

• (3) "Provide overall director for and coordination of national

intelligence outside the United States through human sources" by the

IC and in coordination with those "elements of the United States

Government which are authorized to undertake such coll ection, ensure

that the most effective use is made ofresources and the appropriate

account is taken of the risks to the United States and those involve

such collection" and

• ( 4) "Perform such other functions and duties related to intelligence

affecting the national security as the President or the DNI may direct"

• Assistance to US law enforcement agencies (50 USC 403-5a)

• "[E]lements of the IC may, upon the request of US law enforcement

agency, collect information outside the United States about indi_viduals

who are not US persons. Such e lements may collect such information

notwithstanding that the law enforcement agency intends to use the

information collected for purposes of a law enforcement investigation

or counterintelligence investigation ."

o CLA Act- the "caretaker" act for running an agency

EXECUTIVE ORDER 12333

• PURPOSE. EO 12333 is the "playbook" for the IC, telling each of the 17 IC elements,

including CIA, what its specific national security missions are and bow those missions may

be accompli shed. In so doing, EO 12333 is the p1imary vehicle for protection of the "legal

rights of a.ll United States persons, including freedoms, civil liberties, and privacy rights

guaranteed by Federal Law." (Section 1.1 (b))

o 'Timely, accurate, and insightful information about the activities, capabi lities, plans,

and intentions, of foreign powers, organizations, and persons, and their agents, is

essential to the national security. of the United States." (Preamble)

• IITSTORY. The principles of EO 12333 have ex isted since the Church and Pike

"Commissions to Study Governmental Operations with Respect to Intelligence Activities" in

the mid-1970's exposed abuses of Constitutional rights in the name of national security

conducted by the FBI and CIA. The most recent revisions to EO 12333 came in 2008 (EO

13470), to incorporate the role of the Director of National Intelligence.

o Church Final Report: "Domestic intelligence activity has threatened and undermined

the Constitutional rights of Americans to free speech, association and privacy. It has

done so primarily because the Constitutional system for checking abuse of power has

not been applied."

o Church and Pike evolved into Senate Select Committee on Intelligence (SSCI) and

House Permanent Select Conunittee on Intelligence (HPSCl), respectively

o EO 12333 signed out by President Regan in 1981.

2

SECRET//NOFORN



SECRET//NOFORN

o 2008 revision focused on Part 1 and did not address Part 2 in an effort to remain "privacy neutral" by not changing the standards for collection, retention, and

dissemination of US person information.

o 2008 White House Press Release: "Executive Order 12333 is a cornerstone document

for the Intelligence Community. The Executive Order sets strategic goals and defmes roles and responsibilities within the Intelligence Community, while also affirming the

Nation's commitment to protect American 's civil liberties and privacy rights in the

conduct of intelligence activities."

• STRUCTURE. EO 12333 has three parts. o The first charters the duties and responsibilities of the DNI and the 1 71C elements.

o The second regulates the conduct of intelligence activities, including the collection, retention, and dissemination of infonnation concerning a United States person.

o The third contains general provisions, including definition of terms.

• DEFINITIONS. Starting with Part Three, two important definitional concepts are (Section 3.5):

o Delta between "national intelligence" and "foreign intelligence," paiticularly as to domestic intelligence - goes to what information may be collected

• National intelligence means "all intelligence, regardless of the source from

which derived and including information gathered within or outside the

United States, that pertains ... to more than one United States Government

agency; and that .involves threats to the United States, its people, property, or

interests; the development, proliferation, or use of weapons of mass

destruction; or any other matter bearing on United States national or homeland

security." • Foreign intelligence means "information relating to the capabilities,

intentions, or activities of foreign governments or elements thereof, foreign

organizations, foreign persons, or international terrorists."

• Counterintelligence means "information gathered and activities conducted to

identify, deceive, exploit, disrupt, or protect against espionage, other

intelligence activities, sabotage, or assassinations conducted for or on behalf

of foreign powers, organizations, or persons, or their agents, or international

terrorist organizations or activities." o Scope of "United States person." Governs about who information may be collected.

US persons are:

• A United States citizen

• By birth or naturalization, including dual citizens • An alien known by the intelligence element concerned to be a permanent

resident alien;

• A "green card" holder but not a student visa holder

3

SECRET//NOFORN


C062290 27

•


SECRET//NOFORN

An unincorporated association substantially composed of United States citizens or permanent resident aliens; or

• USP is the association, itself, separate from members

A corporation incorporated in the United States, except for a corporation diiected and controlled by a foreign government.

• Even a US-incorporated subsidiary of a foreign corporation

• CIA RESPONSIBILITIES. Tu1ning to Part One, in addition to general duties and responsibilities, two animating authorities of CIA are to (Section 1.7(a)):

• Collect (including through clandestine means), analyze, produce, and

disseminate foreign intelligence and counterintelligence.

• Conduct counterintel ligence activities without assuming or performing any internal security functions within the United States.

• Conduct administrative and technical support activities within and outside the

United States as necessary for cover and proprietary arrangements.

• •

•

•

Conduct coven action activities approved by the President. Conduct foreign intelligence liaison re lationships with intelligence or security

services of foreign governments or international organi zations.

Coordinate the implementation of intelligence and counterintelligence

relationships between elements of the Intelligence Community and the

intelligence or security servi ces of foreign governments and international

organizations. Perform such other functi ons and duties related to intelligence as the DNI may

·direct. o Other IC elements have similar and different authorities; but all enhanced (meaning

clandestine) collection authority is ti ed to foreign intelligence (12333, Section 1.7).

• DIA, NSA, Armed Forces, FBI, and Coast Guard may collect clandestinely

• State, Treasury, DEA, DHS, Energy, and ODNl may collect "information,

intelligence, and counterintelligence" but only '·overly or through publicly

available sources" (Section 1.7(i) and (j))

• COLLECTION, RETENTION, AND DISSEMINATION. Part 2 governs the collection, retention, and dissemination of information concerning U.S. persons by outlining both the

types of information that may be collected, retained, and disseminated and the techniques by

which that in formation may be collected. The latter generally affect the conduct of activities

within the United States, to the exclusion of CIA and in favor of FBI. o The following types of information that may be collected, retai ned, and disseminated

(Section 2.3):

• •

Publicly available or collected with the consent of the person concerned .

Constituting foreign intelligence or counterintelligence, includi ng such information concerning ·COrporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise

4

SECR:ET.//NOFORN


C06229027

•

•

•

•

•

.. •


SECRET//NOFORN

attainable shall be undenaken by the FBI or, when significant foreign

intelligence is sought, by other authorized elements of the IC, provided that no

foreign intelligence collection by such elements may be undertaken for the

purpose of acquiring information concerning the domestic activities of US

persons.

Obtained in the course of a lawful foreign intelligence, counterintelligence,

international drug or international terrorism investigation.

Needed to protect the safety of any persons or organizations, including those

who are targets, victims, or hostages of international terrorist organizations.

Needed to protect foreign intelligence of counterintelligence sources,

methods, and activities from unauthorized disclosure, including such

infom1ation concerned present or former employees, present or former

intelligence element contractors or their present or former employees, or

applicants for such employment or contracting.

Concerning persons who are reasonably believed to be potential sources or

contacts for the purpose of determining their suitability or credibility.

Arising out of a lawful personnel, physical, or communications security

investigation.

Acquired by overhead reconnaissance not directed as specific United States

persons.

Incidentally obtained and that may indicate involvement in activities that may

violate Federal, state, local, or foreign Laws.

• Necessary for administrative purposes.

o Examples of collecti:on techniques (Section 2.4):

•

•

•

Electronic surveillance. CIA is prohibited to engage in electronic surveillance

within the US except for the purpose of training, testing, or conducting

countermeasures to hostile electronic surveillance

Unconsented physical searches. Prohibited within the US by other than FBI,

except that CIA may search personal property of non-US person lawfully in

its possession may be authorized

Physical surveillance .

• Prohibited within the US by other than FBI, except that CIA may

conduct physical surveiltance of present o r former employees, present

or former intelligence element contractors or their present or former

employees, or applicants for any such employment and contracting.

• Prohibited of a US person abroad to obtain FI, except to obtain

significant information that cannot reasonably be acquired by other

means

• AG APPROVAL. Additionally, the AG is "delegate the power to approve the use for

intelligence purposes, w ithin the United States or against a United States person abroad, of

5

SECRET//1\!0FORN



SECRET//NOFORN

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 AG 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." This authority must be exercised in

accordance with FISA. (Section 2.5)

• RETENTION AND DISSEMINATION. Due to privacy protections for U.S. persons,

generally an IC element may retain less than it collects and disseminate less than it retains.

But dissemination- information sharing- within the IC is less restricted:

o "[E]!ements of the Intelligence Community may disseminate information to each

appropriate element within the Intelligence Community for the purposes of allowing

the recipient element to determine whether the information is relevant to its

responsibilitie~-; and can be retained by it" (Section 2.3, unnumbered)

o Dissemination outside the IC is largely element specific.

• AG GUIDELINES REQUIREMENT. Additionally, Part 2 requires that each IC element

specifically enact the general rules of EO 12333 through element specific guidelines that are

established by the head of the element and approved by the AG after consultation with the

DN1. Examples:

o For CIA, HR 7-1, "Law and Policy Governing the Conduct of Intelligence Activities"

of December, 1987.

CIA'S HR 7-1

• PRINCIPLES. In consideration of the legality or scoping of an intelligence activ ity, CIA is

guided by consideration of four basic principles:

o Purpose of the collection;

o Location of the collection;

o Target of the collection; and

o Technique of the collediori.

• PURPOSE- all CIA activities must be related ro CIA's responsibil ities, based on but not

identical to responsibilities in 12333. These include:

o Collection and dissemination o f foreign intelligence and counterintelligence,

including information not otherwise obtainable.

o Conducting counterintelligence activities;

o Protecting the security of its installations, activities, information, property, and

employees by appropriate measures;

o Conducting special activities in support of national foreign policy objectives abroad

approved by the President and consistent with applicable laws

• LOCATION: o If outside the US, activities are guided by HR 7-1 , Annex A

• Signed in June 1982

o If inside the US, activities are guided by HR 7-1, Annex B

6

SECRET //NOFORN



SECRET//NOFORN

• Signed in July 2005

• TARGET:

•

o US person - same defmition as 12333, .Section 3.5; See Annexes NB, Sections V.A

o Non-US person

o Apply CIA's presumptions (per Annex C):

• "A person or organi zation outside the US shall be presumed not to be a US

person unless specific information the contrary is obtained"

• "An alien in the US may be presumed not to be a USP unless specific

indications to the contrary are obtained" (b)( 1) (b)(3) NatSecAct

TECHNIQUE -1

[___JL____ __

(b)( 1) (b)(3) NatSecAct

o CIA may use a "certain collection technique . . . only if a less intrusive technique

cannot acquire intelligence of the nature, reliability, and timeliness required."

• I I (Annexes AlB, Sections V .B), requiring no special approvals, (b)( 1) includes, whether in the US or abroad, information that is: (b)(3) NatSecAct

o Publicly available; (b)(1) o Consensual; (b)(3) NatSecAct

o Incidentally acquired; or o Solely identifying lr--------------~1

7 (b)( 1)

SECRET// NOFORN (b)(3) NatSecAct



(D) ( l ) SECRET //NOFORN (b )(3) NatSecAct

8

SECRET//NOFORN


C0 62290 27 Approved for Release: 2015/04/29 C06229027

(b)( 1) SECRET// NOFORN (b)(3) NatSecAct

9

SECRET//NOFORN


C06229027


•


•


•


SECRET//NOFORN

• Provide specialized equipment and technical knowledge to assist

another department or agency in the conduct by that department or

agency of lawful and authorized electronic surveillance in the United

States.

CIA may use a monitoring device

ithin the United States under circumstances in which a warrant

would not be required for law enforcement purposes if the CIA General

Counsel concurs. If the General Counsel determines that a warrant would be

required, such monitoring may be undertaken pursuant to the Foreign

Intelligence Surveillance Act of 1978, as amended.

CIA may not conduct within the United States unconsented physical searches

of real or personal property (including property entrusted to CIA employees or

assets) ! I j j£I1 add1tion, it IS penrussible to:

• Conduct a consented physical search within the United States; no

special approval required;

• Request that FBI undertake a physical search within the United States

with the approval of the Attorney General, provided the D/CIA makes

the request:

o certifying that such assistance is relevant to the mission of

CIA,

o describing the support required, and

o explaining why FBl is being requested to furnish such

. assistance;

• Assist another department or agency in the conduct by that departmen t

or agency of a physical search within the United States under

circumstances approved by the D/CIA with the concurrence of the

General Counsel in consultation with the Department of Justice .

(b)( 1 ) 10 (b )(3) NatSecAct

SECRET/ /NOFORN



(b)( 1 )

SECRET//NOFORN (b)( 1) (b)(3) NatSecAct

• RETENTION (Annexes NB, Sections VI.A.l). CIA may retain information about a U.S.

person where not derived from special collection techniques if the information falls within

one of these criteria:

o The information is publicly available, consensual, or identifying information.

o The information is foreign intelligence or counterintelligence; information concerning

international terrorist activities; information concerning international narcotics activities; information needed to protect the safety of persons or organizations; information needed. to protect foreign intelligence or counterintelligence sources and

methods from unauthorized disclosure; information concerning personnel, physical,

or communications security; information acquired by overhead reconnaissance;

(b)(3) NatSecAct information that may indicate involvement in activities that may violate federal, state,

local, or foreign laws; or information necessary for administrative purposes.

(b)( 1 )

0 ~~~~--------------------------~--~~

o The information is retained in such a manner that it cannot be retrieved by reference to the person's name or other identifying data.

o The information is processed to delete the identity of the U.S. person and all

personally identifiable information. o The information is:

• Necessary for the purposes of oversight, accountability, or redress,

• •

Relevant to an administrative, civil, or criminal proceeding or investigation, Required by Jaw to be retained, or

(b)(3) NatSecAct • Necessary to be retained for the purpose of determining that the requirements of these procedures are satisfied.

0

o Retention is necessary to a lawful activity of the United States, and the General

Counsel, in consultation with the Department of Justice, determines that such retention is lawful.

o Retention is necessary for a reasonable period to determine whether the information falls within one of the categories above.

• DISSEMINATION (Annexes NB, Section VI.A.2). Information about a US person may be

disseminated within the CIA to employees who need to know the information in the course of their official duties and to each appropriate element of the IC for purposes of allowing the

element to determine whether the information is relevant to its responsibilities and can be retained by it. Additionally, information about a US person that may be lawfully retained may be disseminated to:

o The President, Vice President, National Security Council, or Chiefs of Mission.

ll

SECRET//NOFORN


C06229027 ~ 0 )\ I ) Approved for Release: 2015/04/29 C06229027

(b)(3) NatSecAct SECRET//NOFORN

o Executive agencies and military departments which need the information to perform

their lawful functions.

o Appropriate law enforcement agencies having jurisdiction or responsibility for the

investigation or prosecution of activities to which the information relates.

0

0

0

0

0

o Other recipients, if the subject of the information prov ides prior consent in writing.

o Other reci pients, if such dissemination is necessary to a lawful activity of the United

States, and the CIA General Counsel, in consultation with the Department of Justice,

determines that such dissemination is lawful.

• IDENTITY INFORMATION. The identity of a US person may be retained and

disseminated along with the information concerning the US person if the information

qualifies for retention and dissemination and if the identity is necessary or if is reasonably

believed that is may become necessary to understand or assess the information (Annexes

N B, Sections Vl.B).

• FBI-CIA MOU. As required domestically, CIA coordinates its activities with the FBl,

pursuant to a 2005 MOU with the FBI.

o Purpose - "to ensure the full and seamless coordination and cooperation between CIA and FBI in both the overseas and domestic arenas"

o Stresses coordination and deconfliction

• MISCELLAI\"'EOUS. Additional topics addressing collection of information include:

assistance to law enforcement; contracting; undisclosed participation, an~ I I ~~

(b)(1 ) (b)(3) NatSecAct

12

SECRET//NOFORN



SECRET//NOFORN

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

• The Foreign Intelligence Surveillance Act (FISA; 50 USC 1801 et. seq.) regulates the use of

electronic surveillance and physical searches for foreign intelljgence purposes, as well as collection targeted against US persons overseas.

•

..

o The Foreign Intelligence Surveillance Court (FISC) must authorize electronic

surveillance or physical search activitjes within the U.S. (50 USC 1802)

o . The FISC also must authorize collection overseas against a targeted U.S. person who

has a reasonable expectation of privacy, and if a warrant would be required if the collection was conducted inside the U.S .

(b)( 1) 1 3 (b)(3) NatSecAct

SECRET/ / NOFORN


secret// noforn...rights of a.ll united states persons, including freedoms, civil liberties, and...

Documents