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No worries, national security law is pretty complicated and a bit of a web of concepts. The portion you quoted relates to the ability/necessity for elements of

No worries, national security law is pretty complicated and a bit of a web of concepts. The portion you quoted relates to the ability/necessity for elements of the Intelligence Community to create formal implementing guidance of the requirements within EO 12333 (e.g., which activities can be performed by the agency, under what circumstances, etc.) Basically there is a negotiation that takes place between the IC element and DoJ/the White House in order to add some fidelity to the language in EO 12333. It is a process that generally takes years, not minutes. In addition, the AG wouldn't be able to make an exception that is inconsistent with the requirements in EO 12333. Theoretically, the President could amend EO12333 to allow for additional activities, but there are even issues with that considering Congress' role in intelligence oversight, power of the purse via the Intel Authorization Act, etc...

phobosanomaly 6y ago
Ok, fair enough. I can tell that you probably know far more than me on this issue. I want to pose this question to you because I don't know enough about the subject to pose the question from the standpoint of justifying it. If all of the following parties wanted to make this happen: 1. White House 2. DOJ 3. IC element Say all of their incentives were aligned. And say that nobody was directly looking over their shoulder to blow the whistle and say 'hold on wait a minute,' then what would prevent this from happening? Considering the actions taken by federal law enforcement during the protests, I see this as being in the category of 'if it could potentially happen, it probably has.' Feel free to disagree. I'm here for the interesting discussion.
- bladegash 6y ago
  Oof, that is a complicated question to answer. In short, outside of EO 12333, there is the Constitution, other Executive Orders, federal statutes (e.g., Foreign Intelligence and Surveillance Act, Intelligence Authorization Act(s), etc.), case law, etc. which would have to be considered as part of that process. I highly recommend taking a look at the Intelligence Community Legal Reference Book published by ODNI [1]. If you're into that kind of stuff, it is a fascinating read. [1] https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf
  - phobosanomaly 6y ago
    Sorry, I didn't do a good job of spelling that out. I was trying to be more narrow and keep it with EO 12333. My argument was: A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group. B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent D. Could occur under a situation of disorganized oversight occurring during a time of national chaos Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers? Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.
    - bladegash 6y ago
      This is a bit outside of my domain of expertise from my previous life, but I’ll do my best to answer... There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play. There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons. As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1]. EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though. Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility. That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework. Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further. [1] https://www.law.cornell.edu/uscode/text/50/1822 https://www.law.cornell.edu/uscode/text/50/1822
- jlgaddis 6y ago
  > ... what would prevent this from happening? Not. A. God. Damn. Thing. "... the Constitution, other Executive Orders, federal statutes, case law, etc. ... which wuld have to be considered" (as mentioned in a sibling comment) wouldn't pose even the smallest obstacle if they all "wanted to make this happen". There were so many things that we all thought they simply COULD NOT DO -- until Snowden came along and showed us that they were, in fact, doing every single one of them for years -- not to mention all of the other things that we had never even considered!
  - phobosanomaly 6y ago
    I just want to say, I was curious who would write that particular comment. So I clicked on your comment history. Linux/BSD sysadmin. The CNN lite comment. An actual GPG key in your signature! You're a real-ass dude. I don't work in tech, but when I was a kid my first computer ran FreeBSD, because my uncle who was an Engineer handed me a box of parts, a FreeBSD disc-set, and some satellite tracking software he said I should "never connect to the internet because I copied it from work." Dude explained to me what Project Echelon was, had an unfolded Mac-10 receiver in his closet, and his proudest moment was when Noam Chomsky emailed him back. Your whole ethos reminds me of him, so please keep being you dude because the world needs it.

phobosanomaly 6y ago

Ok, fair enough. I can tell that you probably know far more than me on this issue. I want to pose this question to you because I don't know enough about the subject to pose the question from the standpoint of justifying it. If all of the following parties wanted to make this happen: 1. White House 2. DOJ 3. IC element Say all of their incentives were aligned. And say that nobody was directly looking over their shoulder to blow the whistle and say 'hold on wait a minute,' then what would prevent this from happening? Considering the actions taken by federal law enforcement during the protests, I see this as being in the category of 'if it could potentially happen, it probably has.' Feel free to disagree. I'm here for the interesting discussion.

bladegash 6y ago
Oof, that is a complicated question to answer. In short, outside of EO 12333, there is the Constitution, other Executive Orders, federal statutes (e.g., Foreign Intelligence and Surveillance Act, Intelligence Authorization Act(s), etc.), case law, etc. which would have to be considered as part of that process. I highly recommend taking a look at the Intelligence Community Legal Reference Book published by ODNI [1]. If you're into that kind of stuff, it is a fascinating read. [1] https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf
- phobosanomaly 6y ago
  Sorry, I didn't do a good job of spelling that out. I was trying to be more narrow and keep it with EO 12333. My argument was: A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group. B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent D. Could occur under a situation of disorganized oversight occurring during a time of national chaos Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers? Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.
  - bladegash 6y ago
    This is a bit outside of my domain of expertise from my previous life, but I’ll do my best to answer... There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play. There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons. As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1]. EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though. Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility. That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework. Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further. [1] https://www.law.cornell.edu/uscode/text/50/1822 https://www.law.cornell.edu/uscode/text/50/1822
jlgaddis 6y ago
> ... what would prevent this from happening? Not. A. God. Damn. Thing. "... the Constitution, other Executive Orders, federal statutes, case law, etc. ... which wuld have to be considered" (as mentioned in a sibling comment) wouldn't pose even the smallest obstacle if they all "wanted to make this happen". There were so many things that we all thought they simply COULD NOT DO -- until Snowden came along and showed us that they were, in fact, doing every single one of them for years -- not to mention all of the other things that we had never even considered!
- phobosanomaly 6y ago
  I just want to say, I was curious who would write that particular comment. So I clicked on your comment history. Linux/BSD sysadmin. The CNN lite comment. An actual GPG key in your signature! You're a real-ass dude. I don't work in tech, but when I was a kid my first computer ran FreeBSD, because my uncle who was an Engineer handed me a box of parts, a FreeBSD disc-set, and some satellite tracking software he said I should "never connect to the internet because I copied it from work." Dude explained to me what Project Echelon was, had an unfolded Mac-10 receiver in his closet, and his proudest moment was when Noam Chomsky emailed him back. Your whole ethos reminds me of him, so please keep being you dude because the world needs it.