26 August 2003. Add:
Department of Defense Directive Number 5240.1, DoD Intelligence Activities, April 25, 1988.
Department of Defense Directive Number 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense, January 7, 1980
26 August 2003. It is not clear how this directive has been affected, or superceded, by the PATRIOT Act.
Excerpted from: Department of Defense, DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons, December 1982:
http://cryptome.org/DoD5240-1-R-1282.pdf (DoD original, 57 pages, 315 KB)
This part of Procedure 5 implements the Foreign Intelligence Surveillance Act of 1978 (reference (b)), and applies to electronic surveillance, as defined in that Act, conducted by DoD intelligence components within the United States to collect foreign intelligence information, as defined in that Act.
B. GENERAL RULES
1. Electronic surveillance pursuant to the Foreign Intelligence Surveillance Act. A DoD intelligence component may conduct electronic surveillance within the United States for foreign intelligence and counterintelligence purposes only pursuant to an order issued by a judge of the court appointed pursuant to the Foreign Intelligence Surveillance Act of 1978 (reference (b)), or pursuant to a certification of the Attorney General issued under the authority of section 102(a) of the Act.
2. Authority to request electronic surveillance. Authority to approve the submission of applications or requests for electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (reference (b)) shall be limited to the Secretary of Defense, the Deputy Secretary of Defense, the Secretary or Under Secretary of a Military Department, and the Director of the National Security Agency. Applications for court orders will be made through the Attorney General after prior clearance by the General Counsel, DoD. Requests for Attorney General certification shall be made only after prior clearance by the General Counsel, DoD.
3. Electronic surveillance in emergency situations.
a. A DoD intelligence component may conduct electronic surveillance within the United States in emergency situations under an approval from the Attorney General in accordance with section 105(e) of reference (b).
b. The head of ariy DoD intelligence component may request that the DoD General Counsel seek such authority directly from the Attorney General in an emergency, if it is not feasible to submit such request through an official designated in subsection B.2. , above, provided the appropriate offical concerned shall be advised of such requests as soon as possible thereafter.
This part of Procedure 5 applies to electronic surveillance, as defined in Appendix A, for foreign intelligence and counterintelligence purposes directed against United States persons who are outside the United States, and who, mder the circumstances, have a reasonable expectation of privacy. It is intended to be applied in conjunction with the regulation of electronic surveillance within the United States under Part 1 and the regulation of signals intelligence activities under Part 3, so that the intentional interception for foreign intelligence and counterintelligence purposes of all wire or radio communications of persons within the United States and against United States persons abroad where such persons enjoy a reasonable expectation of privacy is covered by one of the three parts. In addition, this part governs the use of electronic, mechanical, or other surveillance devices for foreign intelligence and counterintelligence purposes against a United States person abroad in circumstances where such person has a reasonable expectation of privacy. This part does not apply to the electronic surveillance of communications of other than United States persons abroad or the interception of the communications of United States persons abroad that do not constitute electronic surveillance.
B. EXPLANATION OF UNDEFINED TERMS
1. Electronic surveillance is directed against a United States person when the surveillance is intentionally targeted against or designed to intercept the communications of that person. Electronic surveillance directed against persons who are not United States persons that results in the incidental acquisition of the commmications of a United States person does not thereby become electronic surveillance directed against a United States person.
2. Electronic surveillance is outside the United States if the person against whom the electronic surveillance is directed is physically outside the United States, regardless of the location at which surveillance is conducted. For example, the interception of communications that originate and terminate outside the United States can be conducted from within the United States and still fall under this part rather than Part 1.
C . PROCEDURES
Except as provided in section D., below, DoD intelligence components may conduct electronic surveillance against a United States person who is outside the United States for foreign intelligence and counterintelligence purposes only if the surveillance is approved by the Attorney General. Requests for approval will be forwarded to the Attorney General by an official designated in section E1., below. Each request shall include:
1. An identification or description of the target.
2. A statement of the facts supporting a finding that:
a. There is probable cause to believe the target of the electronic surveillance is one of the following:(1) A person who, for or on behalf of a foreign power is engaged in clandestine intelligence activities (including covert activities intended to affect the political or governmental process) , sabotage, or international terrorist activities, or activities in preparation for international terrorist activities; or who conspires with, or knowingly aids and abets a person engaging in such activities;
(2) A person who is an officer or employee of a foreign power;
(3) A person unlawfully acting for, or pursuant to the direction of, a foreign power. The mere fact that a persons activities may benefit or further the aims of a foreign power is not enough to bring that person under this subsection , absent evidence that the person is taking direction from, or acting in knowing concert with, the foreign power;
(4) A corporation or other entity that is owned or controlled directly or indirectly by a foreign power; or
(5) A person in contact with , or acting in collaboration with, an intelligence or security service of a foreign power for the purpose of providing access to inforniation or material classified by the United States to which such person has access.
b. The electronic surveillance is necessary to obtain significant foreign intelligence or counterintelligence.
c. The significant foreign intelligence or counterintelligence expected to be obtained from the electronic surveillance could not reasonably be obtained by other less intrusive collection techniques.
3. A description of the significant foreign intelligence or counterintelligence expected to be obtained from the electronic surveillance.
4. A description of the means by which the electronic surveillance will be effected.
5. If physical trespass is required to effect the surveillance, a statement of facts supporting a finding that the means involve the least amount of intrusion that will accomplish the objective.
6. A statement of period of time, not to exceed 90 days, for which the electronic surveillance is required.
7. A description of the expected dissemination of the product of the surveillance, including a description of the procedures that will govern the retention and dissemination of communications of or concerning United States persons other than those targetted , acquired incidental to such surveillance.
D. ELECTRONIC SURVEILLANCE IN EMERGENCY SITUATIONS
Notwithstanding section C. , above, a DoD intelligence component may conduct surveillance directed at a United States person who is outside the United States in emergency situations under the following limitations:
1. Officials designated in section E., below, may authorize electronic surveillance directed at a United States person outside the United States in emergency situations, when securing the prior approval of the Attorney General is not practical because:
a. The time required would cause failure or delay in obtaining significant foreign intelligence or counterintelligence and such failure or delay would result in substantial harm to the national security;
b. A persons life or physical safety is reasonably believed to be in immediate danger; or
c. The physical security of a defense installation or government property is reasonably believed to be in immediate danger.
2. Except for actions taken under paragraph D.1.b., above, any official authorizing such emergency surveillance shall find that one of the criteria contained in paragraph C.2.a., above, is met. Such officials shall notify the DoD General Counsel promptly of any such surveillance, the reason for authorizing such surveillance on an emergency basis, and the expected results.
3. The Attorney General shall be notified by the General Counsel, DoD, as soon as possible of the surveillance, the circumstances surrounding its authorization, and the results thereof, and such other information as may be required to authorize continuation of such surveillance.
4. Electronic surveillance authorized pursuant to this section may not continue longer than the time required for a decision by the Attorney General and in no event longer than 72 hours.
E. OFFICIALS AUTHORIZED TO REQUEST AND APPROVE ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES
1. The following officials may request approval of electronic surveillance outside the United States under section C., above, and approve emergency surveillance under section D., above:
a. The Secretary and Deputy Secretary of Defense.
b. The Secretaries and Under Secretaries of the Military Departments.
c. The Director and Deputy Director of the National Security Agency/Chief, Central Security Service.
2. Authorization for emergency electronic surveillance under section D. may also be granted by:
a. Any general or flag officer at the overseas location in question, having responsibility for either the subject of the surveillance, or responsibility for the protection of the persons, installations, or property that is endangered; or
b. The Deputy Director for Operations, National Security Agency.
A. APPLICABILITY AND SCOPE
1. This procedure governs the conduct by the United States Signals Intelligence System of signals intelligence activities that involve the collection, retention, and dissemination of foreign communications and military tactical communications. Such activities may incidentally involve the collection of information concerning United States persons without their consent, or may involve communications originated or intended for receipt in the United States, without the consent of a party thereto.
2. This part of Procedure 5 shall be supplemented by a classified Annex promulgated by the Director, National Security Agency/Chief, Central Security Service, which shall also be approved by the Attorney General. That regulation shall provide that signals intelligence activities which constitute electronic surveillance, as defined in Parts 1 and 2 of this procedure, will be authorized in accordance with those parts. Any information collected incidentally about United States persons shall be subjected to minimization procedures approved by the Attorney General.
B. EXPLANATIONOF UNDEFINED TERMS
1. Communications concerning a United States person are those in which the United States person is identified in the communication. A United States person is identifi~d when the persons name, unique title, address or other personal identifier is revealed in the communication in the context of activities conducted by that person or activities conducted by others and related to that person. A reference to a product by brand name or manufacturers name or the use of a name in a descriptive sense, as, for example, Monroe Doctrine, is not an identification of a United States person.
2. Interception means the acquisition by the United States Signals Intelligence system through electronic means of a nonpublic communication to which it is not an intended party, and the processing of the contents of that communication into an intelligible form but not including the display of signals on visual display devices intended to permit the examination of the technical characteristics of the signals without reference to the information content carried by the signals.
3. Military tactical communications means United States and allied military exercise communications within the United States and abroad necessary for the production of simulated foreign intelligence and counterintelligence or to permit an analysis of communications security.
4. United States person. For purposes of signals intelligence activities only, the following guidelines will apply in determining whether a person is a United States person:
a. A person known to be currently in the United Stateswill be treated as a United States person unless the nature of the persons communications or other available information concerning the person gives rise to a reasonable belief that such person is not a United States citizen or permanent resident alien.
b. A person known to be currently outside the United States, or whose location is not known, will not be treated as a United States person unless the nature of the persons communications or other available information concerning the person give rise to a reasonable belief that such person is a United States citizen or permanent resident alien.
c. A person known to be an alien admitted for permanent residence may be assumed to have lost status as a United States person if the person leaves the United States and it is known that the person is not in compliance with the administrative formalities provided by law that enable such persons to reenter the United States without regard to the provisions of law that would otherwise restrict an aliens entry into the United States. The failure to follow the statutory procedures provides a reasonable basis to conclude that such alien has abandoned any intention of maintaining status as a permanent resident alien.
d. An unincorporated association whose headquarters are located outside the United States may be presumed not to be a United States person unless the collecting agency has information indicating that a substantial number of members are citizens of the United States or aliens lawfully admitted for permanent residence.
5. United States Signals Intelligence System means the unified organization for signals intelligence activities under the direction of the Director, National Security Agency/Chief, Central Security Service, comprised of the National Security Agency, the Central Security Service, the components of the military services authorized to conduct signals intelligence and such other entities (other than the Federal Bureau of Investigation) as are authorized by the National Security Council or the Secretary of Defense to conduct signals intelligence. FBI activities are governed by procedures promulgated by the Attorney General.
1. Foreign communications. The United States Signals Intelligence System may collect, process, retain, and disseminate foreign communications that are also communications of or concerning United States persons, but only in accordance with the classified annex to this procedure.
2. Military tactical communications. The United States Signals Intelligence System may collect, process, retain, and disseminate military tactical communications that are also communications of or concerning United States persons but only in accordance with the classified annex to this procedure.
a. Collection. Collection efforts will be conducted in the same manner as in the case of signals intelligence for foreign intelligence purposes and q ust be designed in such a reamer as to avoid to the extent feasible the intercept of communications not related to military exercises.
b. Retention and processing. Military tactical communications may be retained and processed without deletion of references to United States persons who are participants in, or are otherwise mentioned in exercise-related-communications, provided that the communications of United States persons not participating in the exercise that are inadvertently intercepted during the exercise shall be destroyed as soon as feasible.
c. Dissemination. Dissemination of military tactical communications and exercise reports or information files derived from such communications shall be limited to those authorities and persons participating in or conducting reviews and critiques of such exercise.
A. APPLICABILITY AND SCOPE
This part of Procedure 5 applies to the use of electronic equipment to determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance. It implements section 105(f)(2) of the Foreign Intelligence Surveillance Act (reference (b)).
B. EXPLANATION OF UNDEFINED TERMS
The term technical surveillance countermeasures refers to activities authorized pursuant to DoD Directive 5200.29 (reference (c)), and, as used in this procedure, refers to the use of electronic surveillance equipment, or electronic or mechanical devices, solely for determining the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, or for determining the susceptibility of electronic equipment to unlawful electronic surveillance.
A DoD intelligence component may use technical surveillance countermeasures that involve the incidental acquisition of the nonpublic communications of United States persons without their consent, provided:
1. The use of such countermeasures has been authorized or consented to by the official in charge of the facility, organization, or installation where the countermeasures are to be undertaken;
2. The use of such countermeasures is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
3. Access to the content of communications acquired during the use of countermeasures is limited to persons involved directly in conducting such measures, and any content acquired is destroyed as soon as practical or upon completion of the particular use. However , if the content is acquired within the United States, only information which is necessary to protect against unauthorized electronic surveillance, or to enforce Chapter 119 of title 18, United States Code (reference (d)) and Section 605 of the Communication Act of 1934 (reference (e)), may be retained and disseminated only for these purposes. If acquired outside the United States, information which indicates a violation of federal law, including the Uniform Code of Military Justice (reference (f)), or a clear and imminent threat to life or property, may also be disseminated to appropriate law enforcement authorities. A record of the types of communications and information subject to acquisition by the illegal electronic surveillance equipment may be retained.
This part of Procedure 5 applies to developing, testing, or calibrating electronic equipment that can intercept or process communications signals. It also includes research electronic communications as a signal source.
1. Signals authorized for use.
a. The following may be used without restriction:(1) Laboratory-generated signals.
(2) Communications signals with the consent of the communicator.
(3) Communications in the commercial or public service broadcast bands.
(4) Communicationstransmitted between terminals located outside of the United States not used by any known United States person.
(5) Noncommunications signals (including telemetry, and radar).
b. Communications subject to lawful electronic surveillance under the provisions of Parts 1, 2, or 3 of this procedure may be used subject to the minimization procedures applicable to such surveillance.
c. Any of the following may be used subject to the restrictions of subsection B.2., below.(1) Communications over official government communications circuits with consent from an appropriate official of the controlling agency.
(2) Communications in the citizens and amateur-radio bands.
d. Other signals may be used only when it is determined that it is not practical to use the signals described above and it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance. The restrictions of subsection B.2., below, will apply in such cases. The Attorney General must approve use of signals pursuant to this subsection for the purpose of development, testing, or calibration when the period of use exceeds 90 days. When Attorney General approval is required, the DoD intelligence component shall submit a test proposal to the General Counsel, DoD, or the NSA General Counsel for transmission to the Attorney General for.approval. The test proposals shall state the requirement for a period beyond 90 days, the nature of the activity, the organization that will conduct the activity, and the proposed disposition of any signals or communications acquired during the activity.
For signals described in paragraph B.1.c. and d., above, the following restrictions apply:
a. The surveillance shall be limited in scope and duration to that necessary for the purposes referred to in section A., above.
b. No particular United States person shall be targeted intentionally without consent.
c. The content of any communication shall:(1) Be retained only when actually needed for the purposes referred to in section A. above,
(2) Be disseminated only to persons conducting the activity, and
(3) Be destroyed immediately upon completion of the activity.
d. The technical parameters of a communication (such as frequency, modulation, bearing, signal strength, and time of activity) may be retained and used for the purposes outlined in section A., above, or for collection avoidance purposes. Such parameters q ay be disseminated to other DoD intelligence components and other entities authorized to conduct electronic surveillance or related development, testing, and calibration of electronic equipment provided such dissemination and use are limited to the purposes outlined in section A. or collection avoidance purposes. No content of any communication may be retained or used other than as provided in paragraph B.2.c., above.
This part of Procedure 5 applies to the training of personnel by DoD intelligence components in the operation and use of electronic communications and surveillance equipment. It does not apply to the interception of communications with the consent of one of the parties to the communication or to the training of intelligence personnel by nonintelligence components.
1. Training guidance. The training of personnel by DoD intelligence components in the operation and use of electronic communications and surveillance equipment shall include guidance concerning the requirements and restrictions of the Foreign Intelligence Surveillance Act of 1978 (reference (b)), and E.O. 12333 (reference (a)), with respect to the unauthorized acquisition and use of the content of communications of United States persons.
2. Training limitations
a. Except as permitted by paragraph B.2.b. and c., below, the use of electronic communications and surveillance equipment for training purposes is permitted, subject to the following limitations:(1) To the maximum extent practical, use of such equipment for training purposes shall be directed against communications which are subject to lawful electronic surveillance for foreign intelligence and counterintelligence purposes under Parts 1, 2, and 3 of this procedure.
(2) The contents of private communications of nonconsenting United States persons may not be acquired aurally unless the person is an authorized target of electronic surveillance.
(3) The electronic surveillance will be limited in extent and duration to that necessary to train personnel in the use of the equipment.
b. Public broadcasts, distress signals, or official U.S. Government communications may be monitored, provided that when government agency communications are monitored, the consent of an appropriate official is obtained.
c. Minimal acquisition of information is permitted as required for calibration purposes.
3. Retention and dissemination. Information collected during training that involves communications described in subparagraph B.2.a. (1), above, shall be retained and disseminated in accordance with minimization procedures applicable to that electronic surveillance. Information collected during training that does not involve communications described in subparagraph B.2.a. (1), above, or that is acquired inadvertently, shall be destroyed as soon as practical or upon completion of the training and may not be disseminated for any purpose. This limitation daes not apply to distress signals.
A. and B. APPLICABILITY AND SCOPE
This part of Procedure 5 applies to the conduct of vulnerability and hearability surveys by DoD intelligence components.
EXPLANATION OF UNDEFINED TERMS
1. The term vulnerability survey refers to the acquisition of radio frequency propagation and its subsequent analysis to determine empirically the vulnerability of the transmission media to irxterception by foreign intelligence services.
2. The term hearability survey refers to monitoring radio communications to determine whether a particular radio signal can be received at one or more locations and, if reception is possible, to determine the quality of reception over time.
1. Conduct of vulnerability surveys. Nonconsensual surveys may be conducted to determine the potential vulnerability to intelligence services of a foreign power of transmission facilities of communications common carriers, other private commercial entities, and entities of the federal government, subject of the following limitations:
a. No vulnerability survey may be conducted without the prior written approval of the Director, National Security Agency, or his designee.
b. No transmission may be acquired aurally.
c. No content of any transmission may be acquired by any means.
d. No transmissions may be recorded.
e. No report or log may identify any United States person or entity except to the extent of identifying transmission facilities that are vulnerable to surveillance by foreign powers. If the identities of the users of such facilities are not identical with the identities of the owners of the facilities, the identity of such users may be obtained but not from the content of the transmissions themselves, and may be included in such report or log. Reports may be disseminated. Logs q ay be disseminated only if required to verify results contained in reports.
2. Conduct of bearability surveys. The Director, National Security Agency, may conduct, or may authorize the conduct by other agencies, of hearability surveys of telecommunications that are transmitted in the United States.
a. Collection. When practicable, consent. will be secured from the owner or user of the facility against which the bearability survey is to be conducted prior to the commencement of the survey.
b. Processing and Storage. Information collected during a vulnerability survey must be processed and stored as follows:(1) The content of communications may not be recorded or included in any report.
(2) No microwave transmission may be demultiplexed or demodulated for any purpose.
(3) No report or log may identify any person or entity except to the extent of identifying the transmission facility that can be intercepted from the intercept site. If the identities of the users of such facilities are not identical with the identities of the owners of the facilities, and their identities are relevant to the purpose for which the bearability survey has been conducted, the identity of such users may be obtained provided such identities may not be obtained from the contents of the transmissions themselves.
c. Dissemination. Reports may be disseminated only within the U.S. Government. Logs may not be disseminated unless required to verify results contained in reports.
Department of Defense
DIRECTIVE NUMBER 5240.1
April 25, 1988
SUBJECT: DoD Intelligence Activities
(a) DoD Directive 5240.1, "Activities of DoD Intelligence Components that Affect U.S. Persons," December 3, 1982 (hereby canceled)
(b) Executive Order 12333, "United States Intelligence Activities," December 4, 1981
(c) Executive Order 12334, "President's Intelligence Oversight Board," December 4, 1981
(d) Public Law No. 95-511, "Foreign Intelligence Surveillance Act of 1978," October 25, 1978
(e) through (i), see enclosure E1.
1. REISSUANCE AND PURPOSE
1.1. Reissues reference (a); implements references (b) through (d); updates policies; and shall be the only authority used as guidance by DoD intelligence components to collect, retain, or disseminate information concerning U.S. persons.
1.2. Continues in effect procedures previously approved by the U.S. Attorney General for use by DoD intelligence components under Presidential Directive NSC-9 (reference (e)).
1.3. Authorizes the publication of DoD 5240.1-R (reference (f)), consistent with DoD 5025.1-M (reference (g)) and this Directive.
2. APPLICABILITY AND SCOPE
2.1. Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as "DoD Components").
2.2. Applies to all intelligence activities of DoD Components.
2.3. Does not apply to authorized law enforcement activities carried out by DoD intelligence components having a law enforcement mission.
3.1. Intelligence activities. The collection, production, and dissemination of foreign intelligence and counterintelligence by DoD intelligence components authorized under reference (b).
3.2. Foreign intelligence. Information relating to the capabilities, intentions, and activities of foreign powers, organizations, or persons, but not including counterintelligence except for information on international terrorist activities.
3.3. Counterintelligence. Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or international terrorist activities, but not including personnel, physical, document, or communications security programs.
3.4. DoD intelligence components. All DoD Components conducting intelligence activities, including the following:
3.4.1. The National Security Agency Central Security Service (NSACSS).
3.4.2. The Defense Intelligence Agency (DIA).
3.4.3. The offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs.
3.4.4. The Office of the Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army.
3.4.5. The Office of Naval Intelligence (ONI).
3.4.6. The Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force.
3.4.7. Intelligence Division, U.S. Marine Corps.
3.4.8. The Army Intelligence and Security Command (USAINSCOM).
3.4.9. The Naval Intelligence Command (NIC).
3.4.10. The Naval Security Group Command (NSGC).
3.4.11. The Air Force Intelligence Agency (AFIA).
3.4.12. The Electronic Security Command (ESC), U.S. Air Force.
3.4.13. The counterintelligence elements of the Naval Security and Investigative Command (NSIC).
3.4.14. The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI).
3.4.15. The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE).
3.4.16. Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, when used for foreign intelligence or counterintelligence purposes. The heads of such organizations, staffs, and offices, or elements thereof, shall, however, not be considered as heads of DoD intelligence components for purposes of this Directive.
3.5. Special activities. Activities conducted in support of national foreign policy objectives abroad, which are planned and executed so that the role of the U.S. Government is not apparent or acknowledged publicly, and functions in support of such activities, but which are not intended to influence U.S. political processes, public opinion, policies, or media, and do not include diplomatic activities or the collection and production of intelligence or related support functions.
3.6. United States person. A citizen of the United States; an alien known by the intelligence agency concerned to be a permanent resident alien; an unincorporated association organized in the United States or substantially composed of U.S. citizens or permanent resident aliens; or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments.
4.1. All DoD intelligence activities shall be carried out in strict conformity with the U.S. Constitution, applicable law, E.O. 12333 (reference (b)), the policies and procedures authorized herein, and by other relevant DoD Directives, with special emphasis given to the protection of the constitutional rights and privacy of U.S. persons.
4.2. Reference (b) requires that the Department of Defense promulgate procedures to govern the collection, retention, and dissemination of information about U.S persons, and to govern the use of certain information-gathering techniques. These procedures, approved by the Attorney General of the United States, are contained in DoD 5240.1-R (reference (f)). No DoD intelligence component shall request any person or entity to undertake unauthorized activities.
4.2.1. Authority to employ the collection techniques prescribed by DoD 5240.1-R (reference (f)) shall be limited to that necessary to perform functions assigned to the DoD intelligence component concerned. Use of such techniques to collect information about U.S. persons shall be limited to the least intrusive means feasible.
4.2.2. DoD intelligence component employees shall report all intelligence activities that may violate a law, an Executive order, a Presidential Directive, or applicable DoD policy to the Inspector General or General Counsel responsible for the DoD intelligence component concerned, or to the Assistant to the Secretary of Defense (Intelligence Oversight) (ATSD(IO)).
4.3. DoD Components shall not conduct, or provide support for the conduct of, special activities except in times of war declared by the Congress or during a period covered by a report from the President to the Congress under the War Powers Resolution (50 U.S.C. 1541-1548, reference (h)), unless such actions have been approved by the President and directed by the Secretary of Defense.
4.4. Under no circumstances shall any DoD employee engage in, or conspire to engage in, assassination.
5.1. The Assistant Secretary of Defense (Command, Control, Communications, and Intelligence) (ASD(C3I)) shall provide overall policy guidance for the conduct of DoD intelligence activities.
5.2. The Deputy Under Secretary of Defense (Policy) (DUSD(P)) shall provide overall policy guidance for the conduct of DoD counterintelligence activities.
5.3. The General Counsel, Department of Defense (GC, DoD), shall:
5.3.1. Serve as the central focal point for contact with, and reporting to, the Attorney General regarding the legal matters arising under this Directive.
5.3.2. Interpret this Directive and DoD 5240.1-R (reference (f)), as may be required.
5.4. The Assistant to the Secretary of Defense (Intelligence Oversight) (ATSD(IO)) shall serve as the central focal point for all contacts with the President's Intelligence Oversight Board (E.O. 12334, reference (c)) and shall perform the responsibilities assigned in DoD Directive 5148.11 (reference (i)).
5.5. The Heads of DoD Components shall ensure that their intelligence components implement this Directive and reference (f), as appropriate.
6. EFFECTIVE DATE AND IMPLEMENTATION
This Directive is effective immediately. Forward one copy of implementing documents to the Assistant Secretary of Defense (Command, Control, Communications, and Intelligence) and the General Counsel, Department of Defense, within 90 days.
William H. Taft IV
Deputy Secretary of Defense
Enclosures - 1
E1. ENCLOSURE 1
(e) Presidential Directive NSC-9, March 30, 1977
(f) DoD 5240.1-R, "Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons," December 11, 1982, authorized by this Directive
(g) DoD 5025.1-M, "Directives System Procedures," April 1981, authorized by DoD Directive 5025.1, October 16, 1980
(h) Title 50, United States Code, Sections 1541-1548, "The War Powers Resolution" (87 Stat. 555), P.L. 93-148
(i) DoD Directive 5148.11, "Assistant to the Secretary of Defense (Intelligence Oversight)," December 1, 1982
Department of Defense
DIRECTIVE NUMBER 5200.27
January 7, 1980
SUBJECT: Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense
(a) DoD Directive 5200.27, subject as above, December 8, 1975 (hereby canceled)
(b) DoD Directive 5240.1, "Activities of DoD Intelligence Components that Affect U.S. Persons," November 30, 1979
1. REISSUANCE AND PURPOSE
This Directive reissues reference (a) to establish for the Defense Investigative Program general policy, limitations, procedures, and operational guidance pertaining to the collecting, processing, storing, and disseminating of information concerning persons and organizations not affiliated with the Department of Defense.
2. APPLICABILITY AND SCOPE
2.1. Except as provided by subsection 2.3., below, this Directive is applicable to the Office of the Secretary of Defense, Military Departments, Office of the Joint Chiefs of Staff, Unified and Specified Commands, and the Defense Agencies (hereafter referred to as "DoD Components").
2.2. The provisions of this Directive encompass the acquisition of information concerning the activities of:
2.2.1. Persons and organizations, not affiliated with the Department of Defense, within the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and U.S. territories and possessions; and
2.2.2. Non-DoD-affiliated U.S. citizens anywhere in the world.
2.3. This Directive is not applicable to DoD intelligence components as defined by DoD Directive 5240.1 (reference (b)).
2.4. Authority to act for the Secretary of Defense in matters in this Directive which require specific approval are delineated in enclosure E1.
3.1. Department of Defense policy prohibits collecting, reporting, processing, or storing information on individuals or organizations not affiliated with the Department of Defense, except in those limited circumstances where such information is essential to the accomplishment of the Department of Defense missions outlined below.
3.2. Information-gathering activities shall be subject to overall civilian control, a high level of general supervision and frequent inspections at the field level.
3.3. Where collection activities are authorized to meet an essential requirement for information, maximum reliance shall be placed upon domestic civilian investigative agencies, Federal, State and local.
3.4. In applying the criteria for the acquisition and retention of information established pursuant to this Directive, due consideration shall be given to the need to protect DoD functions and property in the different circumstances existing in geographic areas outside the United States. Relevant factors include:
3.4.1. The level of disruptive activity against U.S. forces;
3.4.2. The competence of host country investigative agencies;
3.4.3. The degree to which U.S. military and host country agencies exchange investigative information;
3.4.4. The absence of other U.S. investigative capabilities; and
3.4.5. The unique and vulnerable position of U.S. forces abroad.
4. AUTHORIZED ACTIVITIES
DoD Components are authorized to gather information essential to the accomplishment of the following defense missions:
4.1. Protection of DoD Functions and Property. Information may be acquired about activities threatening defense military and civilian personnel and defense activities and installations, including vessels, aircraft, communications equipment, and supplies. Only the following types of activities justify acquisition of information under the authority of this subsection:
4.1.1. Subversion of loyalty, discipline, or morale of DoD military or civilian personnel by actively encouraging violation of law, disobedience of lawful order or regulation, or disruption of military activities.
4.1.2. Theft of arms, ammunition, or equipment, or destruction or sabotage of facilities, equipment, or records belonging to DoD units or installations.
4.1.3. Acts jeopardizing the security of DoD elements or operations or compromising classified defense information by unauthorized disclosure or by espionage.
4.1.4. Unauthorized demonstrations on active or reserve DoD installations.
4.1.5. Direct threats to DoD military or civilian personnel in connection with their official duties or to other persons who have been authorized protection by DoD resources.
4.1.6. Activities endangering facilities which have classified defense contracts or which have been officially designated as key defense facilities.
4.1.7. Crimes for which DoD has responsibility for investigating or prosecuting.
4.2. Personnel Security. Investigations may be conducted in relation to the following categories of persons:
4.2.1. Members of the Armed Forces, including retired personnel, members of the Reserve Components, and applicants for commission or enlistment.
4.2.2. DoD civilian personnel and applicants for such status.
4.2.3. Persons having need for access to official information requiring protection in the interest of national defense under the Department of Defense Industrial Security Program or being considered for participation in other authorized Department of Defense programs.
4.3. Operations Related to Civil Disturbance. The Attorney General is the chief civilian officer in charge of coordinating all Federal Government activities relating to civil disturbances. Upon specific prior authorization of the Secretary of Defense or his designee, information may be acquired which is essential to meet operational requirements flowing from the mission assigned to the Department of Defense to assist civil authorities in dealing with civil disturbances. Such authorization will only be granted when there is a distinct threat of a civil disturbance exceeding the law enforcement capabilities of State and local authorities.
5. PROHIBITED ACTIVITIES
5.1. The acquisition of information on individuals or organizations not affiliated with the Department of Defense will be restricted to that which is essential to the accomplishment of assigned Department of Defense missions under this Directive.
5.2. No information shall be acquired about a person or organization solely because of lawful advocacy of measures in opposition to Government policy.
5.3. There shall be no physical or electronic surveillance of Federal, State, or local officials or of candidates for such offices.
5.4. There shall be no electronic surveillance of any individual or organization except as authorized by law.
5.5. There shall be no covert or otherwise deceptive surveillance or penetration of civilian organizations unless specifically authorized by the Secretary of Defense, or his designee.
5.6. No DoD personnel will be assigned to attend public or private meetings, demonstrations, or other similar activities for the purpose of acquiring information, the collection of which is authorized by this Directive without specific prior approval by the Secretary of Defense, or his designee. An exception to this policy may be made by the local commander concerned, or higher authority, when, in his judgment, the threat is direct and immediate and time precludes obtaining prior approval. In each such case a report will be made immediately to the Secretary of Defense, or his designee.
5.7. No computerized data banks shall be maintained relating to individuals or organizations not affiliated with the Department of Defense, unless authorized by the Secretary of Defense, or his designee.
6. OPERATIONAL GUIDANCE
6.1. Nothing in this Directive shall be construed to prohibit the prompt reporting to law enforcement agencies of any information indicating the existence of a threat to life or property, or the violation of law, nor to prohibit keeping a record of such a report.
6.2. Nothing in this Directive shall be construed to restrict the direct acquisition by overt means of the following information:
6.2.1. Listings of Federal, State, and local officials who have official responsibilities related to the control of civil disturbances. Such listings may be maintained currently.
6.2.2. Physical data on vital public or private installations, facilities, highways, and utilities, as appropriate, to carry out a mission assigned by this Directive.
6.3. Access to information obtained under the provisions of this Directive shall be restricted to Governmental Agencies which require such information in the execution of their duties.
6.4. Information within the purview of this Directive, regardless of when acquired, shall be destroyed within 90 days unless its retention is required by law or unless its retention is specifically authorized under criteria established by the Secretary of Defense, or his designee.
6.5. This Directive does not abrogate any provision of the Agreement Governing the Conduct of Defense Department Counterintelligence Activities in Conjunction with the Federal Bureau of Investigation, April 5, 1979, nor preclude the collection of information required by Federal statute or Executive Order.
7. EFFECTIVE DATE AND IMPLEMENTATION
This Directive is effective immediately. Forward two copies of implementing regulations to the Deputy Under Secretary of Defense (Policy Review) within 120 days.
W. Graham Claytor, Jr.
Deputy Secretary of Defense
Enclosures - 1
1. Delegation of Authority
E1. ENCLOSURE 1
DELEGATION OF AUTHORITY
E1.1.1. The Secretary of the Army is designated to authorize those activities delineated in subsection 4.3., basic Directive. This authority may not be further delegated to other than the Under Secretary of the Army.
E1.1.2. The Deputy Under Secretary of Defense (Policy Review) (DUSD(PR)) is designated to authorize those activities delineated in subsection 5.5., basic Directive, within the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, and U.S. territories and possessions. This authority may not be delegated. The investigating DoD Component, prior to requesting approval for authorizations under this provision, shall coordinate prospective activities with the Federal Bureau of Investigation.
E1.1.3. The DUSD(PR) and the Secretaries of the Military Departments are designated to authorize those activities (delineated in subsection 5.5., basic Directive) abroad1 when membership of the civilian organization is reasonably expected to include a significant number of non-DoD-affiliated U.S. citizens. This authority may not be further delegated to other than the Under Secretaries of the Military Departments. When the Military Department Secretary or Under Secretary exercises this delegation of authority, the DUSD(PR) shall be advised promptly.
1 "abroad" means "outside the United States, its territories and possesions."
E1.1.4. The Secretaries of the Military Departments are designated to authorize in their Departments those activities delineated in subsection 5.6., basic Directive, within the 50 states, the District of Columbia, the Common wealth of Puerto Rico, and U.S. territories and possessions. This authority may not be further delegated to other than the Under Secretaries of the Military Departments.
E1.1.5. The Secretaries of the Military Departments are designated to authorize in their Departments those activities (delineated in subsection 5.6., basic Directive) abroad1 when a significant number of non-DoD-affiliated U.S. citizens are expected to be present. This authority may be further delegated, in writing, as circumstances warrant, to an authorized designee. The DUSD(PR) will be notified immediately of such further delegations of authority. When the Secretary or Under Secretary of a Military Department or his designee exercises this delegated authority, the DUSD(PR) shall be advised promptly.
E1.1.6. The DUSD(PR) is designated to authorize those activities delineated in subsections 5.7. and 6.4., basic Directive. These authorities may not be further delegated.