“The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required,” 12333 reads.Ronald Reagan signed Executive Order 12333 (affectionately known by the intel community as "twelve-triple-three") on Dec. 4, 1981, and to this day, the order's sweeping mandate governs much of what the NSA (and the country's seventeen other spy agencies) does today.
WASHINGTON — The National Security Agency’s collection of information on Americans’ cellphone and Internet usage reaches far beyond the two programs that have received public attention in recent months, to a presidential order that is older than the Internet itself.Apparently, the NSA's dirty deeds have spanned nine presidential terms and five presidents.
More from McClatchy:
What changes have been made to it have come through guidelines set by the attorney general or other documents.As written, the provisions of the order enables the surveillance conglomerate to function outside the confines of a warrant or court order -- federal or state -- if the U.S. attorney general approves. It also empowers the agencies to operate outside of congressional oversight, as long as it's said to be in pursuit of foreign intelligence. And that includes collecting the information of American citizens.
The result is a web of intelligence law so complicated that it stymies even those tasked with interpreting it. As one former executive official said, “It’s complicated stuff.”
Confusing though it may be, the order remains the primary authority under which the country’s intelligence agencies conduct the majority of their operations.
Monitoring the actual content of Americans’ communications still requires a warrant under 12333, but metadata – the hidden information about a communication that tells where a person is, who he’s communicating with, even the number of credit cards used in a transaction – can be swept up without congressional or court approval.There's no doubt that this particular EO's impact has been dramatic -- and much of it still unknown -- at least to us little people... and, of course, Congress. Documents disclosed by Edward Snowden indicate that less than half of all the (metadata) and other personal information has been collected through provisions of the USA Patriot and FISA acts, the two laws that have received the most attention for permitting NSA programs.
Originally, Executive Order 12333 was intended to bolster a reeling intelligence community and further define its authority to conduct foreign intelligence gathering after the Church Committee. The global telecommunications network didn’t exist, and at the time, collecting foreign communications posed little risk for Americans’ data to be swept up in the dragnet.
Ultimately, even though a lot has changed in global communications since the order was signed... the order has not.
Let's not forget that the antecedent of all spying programs in this country, the National Security Act of 1947 requires that Congress be kept “fully and currently informed” about “significant” intelligence activities. But activities authorized by Reagan's EO receive little or no congressional oversight at all. In fact, since its signing, the executive branch has always determined what constitutes both “fully and currently informed” and whom in Congress is informed, if anyone.
Essentially, that means even when rules are broken, (whatever those rules may be) both by mistake and on purpose, no requirement exists to report violations outside of the executive branch. Internal memos leaked by Snowden indicate that the NSA saw upwards of 2000 compliance violations within its 12333 programs in the span of one year -- from March 2011 to March 2012. In comparison, the agency reported that it tracked less than a third of that number of violations in the same period using the FISA and Patriot Acts. None of the 12333 violations were reported to congressional intelligence committees.
Even when asked specifically about particular violations during a recent House Judiciary Committee hearing into metadata collections, DNI Clapper refused to elaborate. Saying only...
“The subject matter of the hearing was Section 215 and 702,” said Clapper, referring to sections of the Patriot Act and the Foreign Intelligence Surveillance Act, respectively. “And these violations . . . (occurred) under the auspices of Executive Order 12333.”A bill approved by the Senate Intelligence Committee recently would require increased congressional oversight of 12333 but it remains unclear if the bill would pass in the full Senate body, or for that matter, even come up for a vote. The bill also calls for more disclosure of both the guidelines governing access to the information gathering processes, and violations of those guidelines.
This is going to be a hard slog for Congress. Meaningful reform doesn't come easy in Washington even with the best intentions of both congressional members and the intelligence community itself.
We the People have to keep the pressure on all of them.