(UNTITLED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B01034R000100080017-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 15
• Document Creation Date: December 20, 2016
• Document Release Date: May 11, 2007
• Sequence Number: 17
• Publication Date: May 23, 1979
• Content Type: MF

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~ MEMORANDUM FOR:
zpari me:tt if 3Just cc
311anflill-Won, D! L 20530
Richard J. Davis
Assistant Secretary of Treasury
Department of the Treasury
Arnold E. Donahue
Chief, Intelligence Branch
Office of Management and Budget
John Hotis
Inspector
Federal Bureau of Investigation
Robert T. Richardson
Associate Chief Counsel
Drug Enforcement Administ-ration
General Counsel
National Security Agency
STAT
Assistant General Counsel
Central Intelligence Agency
Samuel M. Hoskinson
National Security Council Staff
The White House
Lee Martin
Office of Current Assessments
Department of Energy
Brent Rushforth.
Assistant General Counsel
Department of Defense
Jeffrey H. Smith STAT
Deputy Assistant Legal Adviser
Department of State
special assistant to e eputy to the
DCI for the Intelligence Community
Intelligence Community Staff
STAT
Re: E.O. 12036 Procedures
After reviewing the proposed procedures submitted by the
various intelligence agencies, we have concluded that it is not
feasible to e elo one uniform set of procedures for all azencies.
However, we believe it is desirable and feasible to ident y a
limited number of major issues of common concern to all agencies
which should be treated uniformly. Accordingly we have developed
a draft of "umbrella procedures to be adopted by the Attorney
General as general procedures applicable to all intelligence
agencies covered by E.O. 12036. A copy of this draft is enclosed.
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This paper should be considered a working draft. We
have attempted to identify all the major issues which should
be covered in such procedures, but we may well have over-
looked some points that should be included.
Please review this draft and submit any comments in
writing by the close of business June 2,.1978. We will plan
on having a meeting to discuss those comments during the week
of June 5. For the convenience of all, please send copies Of
your comments to each individual named above.
hn M. Harmon
Assistant Attorney General
Office of Legal Counsel
Enclosure
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ATTORNEY GENERAL PROCEDURES UNDER
EXECUTIVE ORDER 12036
I. SCOPE: These procedures apply to all activities described
in sections 2-202 through 2-205 of Executive Order 12036 which
must be specifically approved by the Attorney General under
section 2-201(b). In addition these procedures define certain
terms for purposes of interpreting, all procedures established
under Executive Order 12036 by the head of an agency within
the Intelligence CQIUu-it'. These procedures are in addition
to any procedures established by the heads of those agencies
and approved by the Attorney General.
II. DEFINITIONS.: For-purposes of these procedures and all
procedures established- by the heads of agencies within the
Intelligence Community- and approved by the Attorney General
under Executive Order 12036 the following terms shall have
the following meanings and applications:
1. "Agent of a foreign power" means a person who is
acting for, or pursuant to the direction of, a foreign power.
The mere fact that a person's activities may benefit a foreign
power or further the aims of a foreign power is not enough to
make that person an agent of that, foreign power absent evidence
0-
Z6 It .- 09 .'."da ou se,-6
that the person is taking directionsnfrn the.foreign power.
2. "Authorized the type of activity involved" -- For
purposes of applying section 2-201(b), a "type of activity"
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will be considered "authorized" 'by the President when there
exists a written authorization signed by the President which,
by its express terms, necessary implications or clear inter-
pretation when read in conjunction with contemporaneous ma-
terials submitted to the President, authorizes the Attorney
General to approve use of that technique for intelligence
purposes. Minor technical modifications of basic techniques do
not.require separate authorization, but techniques which differ
significantly in terms of the types of information acquired or
privacy interests affected do require separate authorization,
3. =Collection" of information means the deliberate and
intentional acquisition of information bry an agency but does.
not include that which is acquired incid xt liy when obtaining
information about another subject or that which is volunteered
to an agency, by another' If a particul hnique will in-
herently involve obtaining informationahou.t a particular,
known person other than the subject-of---the suleillance, that
acquisition is within the term "collecti< :i' and is not "in-
cidental."
4. "'Consent" - Activities undertaken on the basis of
"consent" shall be undertaken only if (1) the subject of.
the activity has specifically consented, in writing, to the
particular activity; (2) (in the case of government employees
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or visitors to government facilities) there is a visible,
posted notice which clearly states that the place or object where
the notice is posted is subject to a particular activity; or
(3) the subject of a lawful investigation has orally authorized
an agency employee to undertake the activity regardless of that
subject's knowledge of the employee's agency affiliation. -
5. "Disseminate" means to transmit information to another
agency, or the non-in; elligence elements within an agency.
6. "Activities- for which a warrant would be required
if undertaken for Imo- enforcement purposes" - This concept is
to be interpreted in. the context of a specific situation and
in light of law enforcement statutory and case lac-.. If.in a
given situation a particular intelligence activity would, if
undertaken by a law enforcement agency for law enforcement
purposes, require a judicial warrant in order to be lawful,
then it is an "activity" encompassed by this phrase. The phrase
will take its meaning from cases determining the validity,
under the Fourth Amendment and related laws, of searches and
seizures in a criminal, prosecutorial context as well as
relevant decisions in civil litigation.
No activity involving a physical search or non-consentual
surveillance shall be undertaken w:hout a warrant or the
approval of the Attorney General under section 2-201(b) of the
Executive Order unless the General Counsel of the agency
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concerned has been consulted and has rendered an opinion, in
writing, that no warrant would be required in a law enforcement
context. In extraordinary cases where time is of the essence,
the opinion of the General Counsel may be rendered orally,
with written confirmation within 72 hours. Intelligence
activities shall, to the-maximum extent possible, be governed
by uniform rules of national application, not simply the
"law of the jurisdiction" in which.the activity occurs, without
significant variations among intelligence agencies unrelated to
.the missions of the respective agencies.. In order to attain
this goal, General Counsel shall, where there are conflicting
-decision6 regarding a particular activity, follow those au-
thorities which would, if applied to the case at hand, require
a warrant. If the General Counsel believes the relevant au-
thority under this provision is in error, the matter shall
be referred to the Attorney General inr=a final decision.
Each General. Counsel shall keep the Attorney General and other
General Counsel informed concerning significant opinions
rendered by them under this definition so that, to the maxi-
mum extent possible, intelligence agencies will follow the
same general rules of law. In the event of disagreement, the
opinion of the Attorney General shall control.-
Where an activity is undertaken without the Attorney
Generalts approval because of "exigent circumstances" as
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defined by relevant caselaw, the agency shall seek the
Attorney General's approval as soon as possible after the
activity is initiated. if the Attorney General does not
;Fe
approve the activity, the information obtained shall be
Q destroyed and not disseminated to any person.
When an intelligence agency engages in activities on
its own property for purposes of personnel, physical or
communications security, this definition does not require
analysis under an asstirinption that a law enforcement agency
ail)
was conducting the` same activity for lac- enforcement pur-
poses. In such cases the General Counsel shall decide
whether a non-intelligence agency of the United States
Government could engage in the same activity without a warrant
7. "Electronic communications equipment" means any
equipment capableof undetected interception of electronic or
oral communications, except when such equipment is used solely
to intercept communications of stations operating in the broad-
cast, amateur or citizens radio services.
8. "Foreign power" means any foreign government, political
party in a foreign country, foreign military force, foreign-
based terrorist group, or any organization composed, in major
part, of any such entity or entities.
9. Information is "publicly available" when it has been
C published or broadcast for general public consumption, is
loltoo;x
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available to any member cif the public in general reference
works, is available upon request to any member of the
general public, or can be seen by the casual observer.
10. Information concerns "the activities of a United
States person" when it--
(a) involves information about the person. other than
name, title, address, date and place of birth,
or physical description; or
(b) involves information about.an organization or
corporation other than its name, address, char-
acterization {e.&. industrial firm, eleemosynary
institution, fraternal organ -ton) or the
identity of its officers.
11. "In United States postal charnels" - This term shall
be interpreted in light of chapter 83 of- Title 18 of the U.S.
Code and relevant case law. If mail ir, protected by that
chapter, il: shall be considered "in --l channels." As a
general rule, mail shall be considered in postal channels"
until the moment it is delivered to the addressee named
,on the envelope, not just to the address.
12. "Law enforcement" - One purpose of E.Q. 12036 is
comprehensive regulation of intelligence activities under a
rule of law. Accordingly a given activity will not be
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considered "law enforcement" if the agency engaged in the activity
has an "intelligence" purpose for that activity, regardless
of whether the intelligence purpose is characterized as
"primary," "secondary," "incidental," "peripheralor in
any other way. An activity can properly be characterized as
"law enforcement" if, from the perspective of the agency en-
gaging in the activity-, the activity is undertaken solely
for purposes of identifying, preventing or taking appropriate
remedial action against violations of applicable civil or
criminal' laws. Ana-ctivity does not cease to be-"law enforce-
ment" if information derived from that activity might
be useful to another agency for an "intelligence" purpose, unless
that other agency-has requested the initiation of the activity.
For purposes of this provision, an activity will be
deemed to have an ""intelligence" purpose if the information
involved is to be used as part of a general body of foreign
intelligence or counterintelligence information rather than
solely in connection with enforcement activities in a specific
13. "Lawful counterintelligence,-!Personnel, physical
or communications security investigation" - St fah investiga,-
?tions are intended to allow an intelligence agency to carry
but appropriate functions related to the agency's duties as
set forth in Section 1 of the Executive Order. Such in-
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vestigations must be limited. to proper targets and shall not
be used to conduct "leak" investigations undertaken by targeting
aparticular individual who has information in order to
determine that individual's source of information, without a
reasonable belief that the individual who has the information
is personally engaged in activities which may involve a.
violation of law or governmental regulations binding on
that particular person.
14. "Least intrusive means possible". An intelligence
activity shell be considered to use the least intrusive
means possible whenever the intrusions into a person's
privaqy or property are the minimum necessary to obtain the
intelligence sou6ht. No method involving a greater in-
trusion. shall be requested or approved unless it can be
demonstrated that a less intrusive means-will not be feasible in
the specific situation. As a genera?_ _.e electronic sur-
veillance-surreptitious and continuo monitoring and un-
consented physical searches shall be warded as more in-
trusive techniques-:- than physical -s l1an-ce or other
means of obtaining nonpublicly available information.
.Nicrophonic surveillance shall be considered more intrusive
than telephonic surveillance and surveillances of private
residential property shall be regarded as more intrusive than
similar surveillances of business property. Investigations
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shall be conducted to minimize the intrusions resulting from use
of each technique.
15. "Physical searches" - This term includes all intrusions
into personal or real property undertaken to obtain tangible
items or information, regardless of whether the intrusion'
would require a warrant in a law- enforcement context. All -
physical searches will be regulated by the procedures re-
quired -by section 2-204, but only searches for which a
warrant would be required if undertaken for a law enforce-
ment purpose will require Attorney General approval under
section 2-201(b).-
16. "Physical surveillance" - This term refers to visual
observation of persons or places, with or without the use of
any aid to human vision. If electronic or mechanical aids
are used on a "continuous" basis, the technique shall be
considered "surreptitious and continuous monitoring" and
regulated under the appropriate procedures. If such aids are
used- intermittently to assist a human agent, binoculars,
they shall be regulated under the physical surveillance
procedures.
17. "Use any electronic or mechanical device surrepti-
tiously and continuously to monitor." - Monitoring is
surreptious. vh n it is conducted in such a fashion
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that persons subject to the monitoring are not, in the
exercise of reasonable attention to their surroundings, aware
of the monitoring. Monitoring is "continuous" if it is
conducted over a substantial period of time without substantial
interruption. The determination whether a particular activity
constitutes "surreptitious and continuous monitoring" in-
volves a separate determination from the determination
whether that activity would, if undertaken in a law en-
forcement context, require a warrant. A particular activity.
may be surreptitious and continuous monitoring but not.
require a warrant or Attorney General approval.
III. REQUESTS FOR ATTORNEY GENERAL APPROVAL OF. TEC1 MIQUES
UNDER SECTION 2-201(b) : The procedures in, this section
apply to all intelligence agency-requests for Attorney
General approval of a particular intelligence activity under
section 2-201(b) of Executive Order 1216 These procedures
are in addition to the procedures established by the heads
of intelligence agencies and approved by the Attorney General.
1. All requests for approval of-the Attorney General
shall be signed by the head of the agency concerned or by a
senior official of that agency specifically designated in
writing by the head of the agency. All such requests shall
in addition be approved as to legality by the General Counsel
of the intelligence agency before submission to the Attorney
General.
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2. Each request for approval shall contain the follow-
ing information:
a. An identification or description of the target;
b. A statement of facts supporting the finding by
the head of the agency or his delegate that
there is probable cause to believe that the
target, if a U.S. person or a person located
within the United States, is an agent of a
foreign` power,-
c. A description of the significant intelligence
expected to be obtained from the technique:
d. A statement of facts supporting the finding
by the .head of the agency or his delegate that
such significant intelligence is likely to be
obtained through the technique and cannot be
obtained by less intrusive means;
e. A description of the technical means by which
the technique will be-effected, including a de-
tailed description of means employed to minimize
the acquisition of non-intelligence information;
if. If any physical trespass'or seizure is involved,
a finding and explanation that the means employed
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will involve the least amount of intrusion
necessary to obtain the information;
A fixed period of time for which the technique
will be employed (maximum permissible periods
shall not routinely be used and can be authorized
only where there is a legitimate continuing need
for surveillance beyond the maximum period);
h... A statement and supporting facts concerning the
possibilities of any criminal prosecution-relating
to or resulting from the investigation in which the
technique is to be employedz
1 .
i. A description of the exp-ec .d~ . dlss-emanation of
the product of the surveillae;
Any additional information wired to meet the
standards of any applicah .et:orization by the
President.
k. The name and telephone ntm*a-r a person to con-
tact for further informatn, if needed.
3. Requests for approval shall, except in exigent cir-
cumstances, be presented to the Attorney General at least 10
days in advance of the date the agency desires to implement
the technique. No request shall be considered approved until
the requesting agency has received a written authorization
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signed by the Attorney General, or the Acting Attorney
General, except that whew time does not permit' obtaining a
written authorization the agency may proceed on the basis of
oral advice that the Attorney General has personally approved
the request and will provide written confirmation within 24
hours.
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