ADVICE+DISSENT: Intelligence File Set in Stone
As the Bush era winds down, spy masters leave their mark.
As the curtain falls on the George W. Bush administration, the president and the top leaders of the intelligence community have turned their attention to legacy. In July, Bush amended Executive Order 12333, which has served as the guidebook for intelligence agencies' operations for almost three decades. Issued by President Reagan in his first year in office,
EO 12333 (called "12 triple 3"), sets forth the community's management and organizational structure. It spells out each agency's responsibilities, the kinds of intelligence they can collect and which activities are forbidden. EO 12333 is most well-known for banning the assassination of foreign leaders and for setting the parameters of electronic surveillance. While the bulk of the order is more mundane, it's perhaps the most important document governing the day-to-day conduct of U.S. intelligence.
It's no wonder, then, that senior Bush intelligence officials would want to revise it while they have the chance. Intelligence reform legislation, recent amendments to long-standing surveillance law and a still untold number of secret presidential directives have reshaped the intelligence community from a disjointed conglomeration of foreign-focused spies into a more cohesive consortium that doesn't circumscribe the United States from its sphere of operations. The recent changes to EO 12333 were meant to reflect this new reality, but more important, to cement it and to make it more difficult for a future president to turn back the clock.
The new 12333 will serve as the blueprint from which individual agencies draw their specific policies and procedures. It's not a law, but it spells out in considerable detail how the community is supposed to execute the law. Handed down directly from the commander in chief to a set of agencies that serve at his ultimate direction, the order gives the president an extraordinary opportunity to say what he thinks the law really means.
The most important changes affect the director of National Intelligence, who, 12333 makes clear, is now the unquestioned head of the community. It tells agencies to take a broad and "reasonable" reading of the law when executing their authorities, a check against more cautious readings in the future. And those authorities now are significantly expanded, especially for the DNI, who has the power to direct foreign and domestic intelligence activities. This evolution already has occurred in practice, but again, 12333 is meant as a backstop against future reversions to the "old ways" of doing business, which Bush and the orders' authors believe left the community ill-equipped to address terrorism and other transnational threats.
And who are those authors? Fittingly, a crew of senior officials and mutual friends, who left no doubt that they would shake things up when they took their jobs a few years ago. Mike McConnell, the DNI, led the effort, along with CIA Director Michael Hayden, Defense Secretary Robert Gates, and his undersecretary for intelligence, James Clapper. "These four advisers really played a key role developing these revisions to the executive order," said one senior administration official after it was signed.
To call these men advisers would understate their importance. Seasoned professionals and skilled bureaucratic operatives, they seized the opportunity to enshrine principles that could otherwise fade with a departing president. History and their successors will judge how effective or reasonable these changes actually are. But there can be no doubt that, as they prepare to head out the door, this gang of four is forcefully leaving its mark.
Shane Harris, a staff correspondent for National Journal, wrote about intelligence and technology at Government Executive for five years.