Gathering Intelligence: Drifting Meaning and the Modern Surveillance Apparatus

10 Journal of National Security Law & Policy 77-123 (2019)

43 Pages Posted: 11 Mar 2019 Last revised: 18 Jul 2019

See all articles by Diana Lee

Diana Lee

Yale University, Law School, Students

Paulina Perlin

Independent

Joseph Schottenfeld

Yale University, Law School, Students

Date Written: February 11, 2019

Abstract

Since its implementation in 1981, Executive Order 12,333 has served as a general charter governing the structure and operations of the Intelligence Community. While legislation has imposed a degree of added judicial and congressional oversight, the executive branch continues to retain sole discretion over large swathes of foreign intelligence activity today.

Over the past several decades, and in accordance with E.O. 12,333’s mandate, members of the Intelligence Community have each created internal agency manuals to guide their foreign intelligence operations. These manuals identify and define a range of technical terms critical to determining the scope of agencies’ intelligence-gathering authority, including what information is gathered, how long that information is retained, and the uses to which it may be put. But over time, the dispersion of authority to make decisions within and across intelligence agencies has enabled drift in the meaning of these terms. Together, the manuals have created a thicket of often conflicting and unclear definitions that are difficult for Congress, the courts, and even committees within the executive branch to understand.

This Article provides the first sustained analysis of these definitional inconsistencies, their consequences, and efforts to address the problem from within and outside the executive branch. In particular, it focuses on three terms that determine when the intelligence cycle “officially” begins: “collection,” “acquisition,” and “targeting.” By analyzing these three terms, this Article demonstrates the lack of clarity that executive discretion and dispersal create. This lack of clarity, in turn, makes it difficult for meaningful oversight, such as congressional hearings, to occur. The Article concludes by offering recommendations to clarify the parameters of the government’s intelligence-gathering authority. As technological advancements continue to expand the Intelligence Community’s capacity to gather information, it is imperative that the government adopt measures to facilitate effective oversight over the executive’s foreign intelligence operations.

Keywords: surveillance, intelligence, executive power, executive, FISA, 12333, Congress, NSA, administrative law, agencies, executive branch, national security, transparency, collection, targeting, acquisition, data, executive order

Suggested Citation

Lee, Diana and Perlin, Paulina and Schottenfeld, Joseph, Gathering Intelligence: Drifting Meaning and the Modern Surveillance Apparatus (February 11, 2019). 10 Journal of National Security Law & Policy 77-123 (2019), Available at SSRN: https://ssrn.com/abstract=3332546

Diana Lee

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Joseph Schottenfeld

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
70
Abstract Views
525
rank
358,650
PlumX Metrics