The issue of the choice by the US president of one or another type of normative legal acts for regulating relations in the sphere of exploration is predetermined both by objective reasons (the nature of the relations subject to regulation, the scope of the regulatory act, etc.) and (to a lesser extent) subjective views of one or another American leader on the problem of regulatory regulation of the organization and activities of intelligence services. Initially, during the formation of the modern intelligence system of the United States, when the regulation of the organization and activities of intelligence was primarily based on departmental rule-making, US presidents, starting with F. Roosevelt, regulated relations in the sphere of intelligence with the help of presidential directives and memorandums. As the US intelligence system evolved and the legal basis for the organization and operation of intelligence improved, in some of the most important cases, when the issues regulated in the presidential act were of significant importance to the entire US intelligence community, US presidents began issuing executive orders on intelligence matters. The gradual process of replacing subordinate legal acts of a lower level with acts of a higher level continued until approximately the second half of the 1980s.
In the modern system of by laws that regulate the organization and activities of intelligence (which is the product of a certain evolutionary development of this category of normative acts), the most important is the type of regulatory acts, such as executive orders of the president. Compared with all other by-laws, the executive orders of the president are: 1) acts that have the greatest legal force; 2) acts that have the greatest impact on the development of the legal basis for the organization and activities of intelligence; 3) acts most often used to settle those relations in the sphere of intelligence that are not regulated by law.
In connection with this quite logical decision will be in the analysis of by-laws that regulate the organization and activities of intelligence agencies, focus on the highest subordinate regulatory legal acts – executive orders issued by the President of the United States.
Executive orders of the US President
The practice of regulating various aspects of the organization of the US intelligence system and the activities of the US intelligence services with the help of the highest regulatory legal acts issued by the US president – executive orders of the president, has a rather short history. If we consider only those executive orders that were intended solely for the settlement of relations in the sphere of intelligence, then we can talk about three decades of the existence of such a practice. Taking into account those acts that only to some extent affected the interests of the intelligence agencies of the United States, its borders may be removed until the end of the 1940s and the beginning of the 1950s, when Presidents Truman and Eisenhower issued executive orders on ensuring the security of state employees, including, among other things, a number of norms related to the powers of intelligence and counterintelligence services of the United States.
In practice, the practice of regulating intelligence issues with the help of executive orders of the president came into full use in presidential rule-making only in the mid-1970s. Unlike the previous normative legal acts of the president on intelligence issues, which usually regulated only certain aspects related to the intelligence community and the activities of intelligence services, executive orders were positioned from the very beginning to regulate the widest range of relations in the sphere of intelligence.
Assessing the influence of the executive orders of the President on the development of the legal basis for the organization and operation of intelligence in modern historical conditions, it should be noted that the degree of his influence on the process of legal regulation of various groups of relations in the sphere of intelligence significantly exceeds any other by-laws. Being, on the one hand, the highest by-laws, on the other hand, acting as an increasingly popular tool for the legal influence of the president on the intelligence services system and the activities carried out by them, executive orders gradually weaken the influence on the legal basis of the organization and activities of intelligence of other regulatory legal acts, issued by the president (primarily presidential directives and memoranda).
The most significant impact on the development of the legal regulation of the organization and activities of intelligence was provided by executive orders issued in various years on intelligence matters: President Ford’s executive order No. 11905, Executive Order of President Carter No. 12036 and executive order of President Reagan No. 12333. Each of the listed executive orders came to replace the previous one, and each of them reflected certain patterns and tendencies both in the evolution of the intelligence community and in
The first executive order on intelligence matters was issued on 18 February 1976 by President Ford’s executive order No. 11905278. This normative document regulated issues such as: the composition of the US intelligence community, the range of functional powers of individual departments, and the powers of the director of central intelligence as head of the intelligence community. Unlike all the previous normative acts, the provisions of this executive order for the first time in the history of the legal regulation of the intelligence organization and intelligence activity were not related to any separate intelligence services, but to the entire intelligence community of the United States as a single organizational community.
It is noteworthy that already in the executive order of Ford were included provisions relating to the internal structural organization of the US intelligence community, and even listed the majority of the community members. At the same time, in the mid-1970s, even the very fact of the existence of some intelligence agencies was classified. For example, the United States preferred not to spread the existence of such intelligence services as the National Aerospace Intelligence Agency, and the existence of a number of photographic intelligence services of the Ministry of Defense was not made public. The delicate moment associated with the listing of the names of some intelligence agencies is rather gracefully avoided in the order, and instead of the name of a number of services there are such vague formulations as: “r econnaissance elements of military departments”, “intelligence elements of the State Department”, etc. At the same time, among members of the community are directly called the CIA, FBI, RUMO and NSA.
A separate section in executive order No. 11905 is devoted to regulatory standards that limit the scope of permissible activities of intelligence services. In fact, this normative act was the first real attempt to establish certain legal restrictions on the activities of intelligence services within the entire US intelligence system. In accordance with the order, for example, it is not permitted to conduct electronic surveillance against citizens of the United States, except when such supervision is authorized by the head of the relevant intelligence service. It prohibits the executive order and the perusal of correspondence, as well as the opening of postal items sent through the US postal channels (here, however, exceptions provided for by law as well as on the basis of subordinate regulatory legal acts are stipulated).