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08/13/2018

Presidential Directives

Unlike executive orders of the President, for which the tendency is gradually to increase their role in legal regulation of the issues of the organization and activities of intelligence services, the presidential directives gradually lose their once dominant role in the sphere of legal regulation of the organization and activities of intelligence. This fact does not mean that the presidential rulemaking influences to a lesser extent today the legal basis for the organization and activities of intelligence, but only reflects the tendency to a gradual increase in the level of normative legal acts regulating various relations that arise in the sphere of intelligence.

The first presidential directives relating to intelligence activities were published in the late 30s and early 40s by President Roosevelt. It is noteworthy that it was Franklin D. Roosevelt, who played an important role in the implementation of his plans for the reorganization of America to federal law enforcement agencies and special services, first introduced into the practice of legal regulation of the organization and activities of intelligence services presidential directives – subordinate regulatory legal acts of a rather high level issued by the highest an official of the state.

It should be noted that the first presidential directives, in their legal form, sometimes did not fully satisfy the criteria that are usually imposed on a normative legal document. For example, the directive on conferring authority on the FBI in the field of counterintelligence in general in its form was just an oral prescription of the president to the FBI director John Hoover. Nevertheless, it was this oral directive that became the legal basis for the FBI’s activities in the counter-intelligence sphere. Among the historically most famous Roosevelt directives on intelligence issues, mention should be made of the directive of 1939 on the division of intelligence powers between the military, naval ministries and the FBI, as well as the directive on the establishment of the Information Coordinator post in June 1941.

Nevertheless, until the end of World War II (to be more precise, before the 1947 reconnaissance reform), presidential directives can hardly be regarded as the main instrument for the regulatory regulation of intelligence activities. The use of such normative legal acts as the president’s directives until 1947 was more of an exceptional practice than a day-to-day way of implementing the normative powers of the head of state with regard to intelligence. Mostly until 1947, the president worked on intelligence through regulatory legal acts issued by subordinate officials – heads of ministries, which included intelligence services.

After the establishment of the National Security Council (National Security Council), which became the main advisory body for security under the president, the presidential directives assume the role of a key means of the regulatory legal impact of the president on the US intelligence system. It is worth mentioning in this connection that the overwhelming majority of the presidential directives on intelligence issues published since 1947 (or on issues related to reconnaissance, to some extent) are documents prepared by the NSS.

Such a monopoly of the National Security Council on the development of presidential directives on issues affecting the interests of US national security existed until the early 1990s. Only in the last decade other advisory bodies have actively joined the process of developing Presidential directives on national security issues (including those affecting intelligence issues). For example, more than a dozen of President Clinton’s directives concerning intelligence issues were prepared by the National Council for Science and Technology, and several directives were prepared by the National Economic Council.

The role of presidential directives as the main means during the second half of the 20th century of the regulatory impact of the head of state on exploration (and as an immediate instrument of intelligence management) can most clearly be illustrated by quantitative criteria that reflect both the general correlation of the directives issued by different presidents and the regularity with which The last five decades of American history, American presidents have resorted to this normative act.

Beginning with Truman’s presidential administration, US presidents issued directives on national security (and intelligence issues) on a virtually weekly basis. In the early 1970s (under President Carter), there was a slight reduction in the number of directives issued by the president (for four years in the White House, Carter issued only 63 directives), which many saw as a new tendency to reduce the rule-making impact of presidential directives on exploration. However, with the arrival of President Reagan’s administration in the White House, presidential directives regain the role of the most important (and most used) means of the regulatory impact of the head of state on exploration. In the period of Ronald Reagan’s presidency, the president’s directives are published almost as often as before the early 1970s (all in all, Reagan issued over 300 directives in eight years of his presidency, which in one way or another affected intelligence issues).

Nevertheless, the trend was historically predetermined, the first signs of which were manifested during the presidency of J. Carter: all subsequent presidents, beginning with George Bush (the elder), increasingly resorted to such a tool of regulatory regulation of intelligence activities as presidential directives. For example, for the two terms of Clinton’s presidency, he issued only about seventy directives on intelligence and national security issues (an average of 8-9 directives per year), which is almost five times less than under Reagan and almost seven than at Eisenhower, Nixon, Forde, Johnson and Kennedy.

Unlike executive orders of the president, which are easy to systematize, for example, using the range of relations regulated by them as a basic criterion for systematization, the systematization of presidential directives on intelligence matters is much more difficult. The only circle of relations, which was practically never regulated by the president’s directives, is relations connected with the organization of the US intelligence system. In terms of the regulation of intelligence activities, the president’s directives could regulate absolutely any range of problems, ranging from secret intelligence operations to the question of the participation of intelligence in the implementation of US national interests in the Antarctic.

Usually, each newly elected president independently decides in what form, how and on what principles he will issue national security directives. As a rule, the basic views of the new administration on the above-mentioned issues are formulated in the first (or one of the first) directives of this class issued by the president. In most cases, to regulate US national security issues, the new president establishes a special series of directives on national security issues. Since Nixon’s presidential administration, the establishment of not just one but two parallel series of national security directives has become traditional.

One series of directives includes normative legal acts that (despite significant differences in names, reflecting mainly the subjectivism of the views of various presidential administrations) can be defined as “directives-decisions”. Such directives are usually imperative and constitute normative consolidation of presidential decisions and prescriptions on a range of issues related to US national security.

Usually, directives of this kind are used to regulate the range of relations in the sphere of intelligence and national security, which is either not regulated by the presidential acts (or federal laws), or there is a need for a substantial revision of the structure and content of the rules governing this set of relations.

Another series is the so-called “guidelines-reviews”. These acts usually include reviews and analyzes of certain problems in the field of national security and are aimed at clarifying and adjusting the regulatory prescriptions contained in the directives issued by previous presidents. As a rule, the directives of this series reflect a change in the views of the new presidential administration on some sphere of relations in the sphere of national security, which has already been normatively regulated by acts of previous presidents or federal laws. The directive-reviews can also be the instructions and recommendations of the president to the heads of relevant federal bodies to make independent audits and analyzes (within the framework of departmental rulemaking) on the basis of presidential prescriptions. Historically, the overwhelming majority of “directive-reviews” were devoted to the revision of the policy (from the point of view of national security issues) of the United States in relation to certain regions or individual states.

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