University of Southern California

Secrecy, Standing, and Executive Order 12,333

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Note by Charlotte J. Wen
From Volume 89, Number 5 (July, 2016)

In summer of 2013, the National Security Agency (“NSA”) rocketed into headlines when Glenn Greenwald, a reporter at the Guardian, broke a stunning, Orwellian story: pursuant to top-secret court orders, Verizon and other major telephone service providers had granted the NSA blanket access to their American customers’ call records. These companies, Greenwald claimed, were providing the NSA with telephony metadata—general information about each of their customers’ calls, such as phone numbers, call lengths, and call times. In the face of the ensuing public outcry, the American government acknowledged the existence of the telephony metadata program. In doing so, however, it was careful to assert that the program, while secret, was nonetheless constitutional, and that the court orders had been issued pursuant to the Foreign Intelligence Surveillance Act (“FISA”).

Documents then surfaced alleging the existence of two additional surveillance programs—PRISM and Upstream —that, unlike the telephony metadata program, could be used to acquire the substantive content of American communications. In response, James Clapper, the Director of National Intelligence (“DNI”), released a statement decrying the leaks as inaccurate. Clapper insisted that the programs were constitutionally valid, arguing that FISA-authorized surveillance, including both PRISM and Upstream, was by law subject to judicial and congressional review. In the wake of these revelations, public debate about government surveillance became focused on FISA reform, with advocates pushing for more accountability and oversight. The U.S.A. Freedom Act, a set of amendments to FISA, was introduced in both the House and the Senate. No more than a handful of months after these attempted FISA reforms were introduced, a disillusioned ex-State Department official, John Tye, penned an editorial in the Washington Post urging the American public to shift its focus from FISA to Executive Order 12,333 (“EO 12,333”). Tye wrote that EO 12,333, a relic of the Reagan administration, was being used to authorize “voluminous, unnecessary, and unconstitutional” amounts of American communications. Tye stressed that merely reforming FISA could not by itself adequately address the public’s concerns about the overreaches of government surveillance. This was because EO 12,333, Tye explained, created a gaping “legal loophole,” one “that allow[ed] the NSA to collect a huge amount of domestic U.S. communications to Americans, from Americans, by Americans just so long as those communications are collected outside the borders of the United States.”

This “loophole,” discussed further below, consists of two components: (1) EO 12,333’s granting of broad authority to the intelligence community to prescribe the scope of foreign surveillance allowed under the Order, including the ability to define words in the Order itself; and (2) the intelligence community’s subsequent use of that authority both to increase its ability to collect American communications and to conceal that ability from the American public. Essentially, EO 12,333 allows the intelligence community to grant itself authority to conduct foreign surveillance as it sees fit, with little to no oversight.

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