Category Archives: Intelligence

Gathering Intelligence

Gathering Intelligence: Drifting Meaning and the Modern Surveillance Apparatus

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.

In this article, Diana Lee, Paulina Perlin, and Joe Schottenfeld provide 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.

Prominence Effect

Countering the Prominence Effect: How US National Security Lawyers Can Fulfill Non-Prominent Humanitarian Objectives

Decision researchers describe a “prominence effect” that leads decision makers to choose an option with more defensible attributes when quantitative assessment of those options is difficult. Prominence is hypothesized as a factor in US policy decisions not to use military force to prevent or stop humanitarian crises. Prominence is also regarded as a behavioral failure affecting both the general public and public officials that can be mitigated to improve welfare outcomes in transnational security decisions. This article—by David G. Delaney and Paul Slovic—considers those hypotheses as they relate to attorneys advising the US president and other senior public officials addressing transnational security issues. It proposes a combination of institutional, organizational, and individual steps to mitigate prominence and related behavioral failures.

Outsourcing Intelligence

Outsourcing Intelligence Analysis: Legal and Policy Risks

Outsourcing intelligence, while not a recent phenomenon, has become more commonplace in the face of increased operations and fiscal pressure since the terror attacks of Sept. 11, 2001. While outsourcing has many benefits, it also brings certain general difficulties. As outsourcing decisions continue, it is critical that lawmakers understand the policy and legal implications of such choices.

Outsourcing Intelligence Analysis: Legal and Policy Risk