Apropos free speech law and suggestions of assassination

[Bob Sheridan]

E.O. 12,333 is here: 

http://tinyurl.com/cqydm
*
*Section 2 is copied in full below.  Note 2.8 prohibiting activity in 
violation of the Constitution or statutes of the United States, and 2.11:*
*
/Prohibition on Assassination. /No person employed by or acting on 
behalf of the United States Government shall engage in, or conspire to 
engage in, assassination.
*
***

*Sec. 2:*
*

/Conduct of Intelligence Activities/

2.1 /Need. /Accurate and timely information about the capabilities, 
intentions and activities of foreign powers, organizations, or persons 
and their agents is essential to informed decisionmaking in the areas of 
national defense and foreign relations. Collection of such information 
is a priority objective and will be pursued in a vigorous, innovative 
and responsible manner that is consistent with the Constitution and 
applicable law and respectful of the principles upon which the United 
States was founded.

2.2 /Purpose. /This Order is intended to enhance human and technical 
collection techniques, especially those undertaken abroad, and the 
acquisition of significant foreign intelligence, as well as the 
detection and countering of international terrorist activities and 
espionage conducted by foreign powers. Set forth below are certain 
general principles that, in addition to and consistent with applicable 
laws, are intended to achieve the proper balance between the acquisition 
of essential information and protection of individual interests. Nothing 
in this Order shall be construed to apply to or interfere with any 
authorized civil or criminal law enforcement responsibility of any 
department or agency.

2.3 /Collection of Information. /Agencies within the Intelligence 
Community are authorized to collect, retain or disseminate information 
concerning United States persons only in accordance with procedures 
established by the head of the agency concerned and approved by the 
Attorney General, consistent with the authorities provided by Part 1 of 
this Order. Those procedures shall permit collection, retention and 
dissemination of the following types of information:

(a) Information that is publicly available or collected with the consent 
of the person concerned;

(b) Information constituting foreign intelligence or 
counterintelligence, including such information concerning corporations 
or other commercial organizations. Collection within the United States 
of foreign intelligence not otherwise obtainable shall be undertaken by 
the FBI or, when significant foreign intelligence is sought, by other 
authorized agencies of the Intelligence Community, provided that no 
foreign intelligence collection by such agencies may be undertaken for 
the purpose of acquiring information concerning the domestic activities 
of United States persons;

(c) Information obtained in the course of a lawful foreign intelligence, 
counterintelligence, international narcotics or international terrorism 
investigation;

(d) Information needed to protect the safety of any persons or 
organizations, including those who are targets, victims or hostages of 
international terrorist organizations;

(e) Information needed to protect foreign intelligence or 
counterintelligence sources or methods from unauthorized disclosure. 
Collection within the United States shall be undertaken by the FBI 
except that other agencies of the Intelligence Community may also 
collect such information concerning present or former employees, present 
or former intelligence agency contractors or their present or former 
employees, or applicants for any such employment or contracting;

(f) Information concerning persons who are reasonably believed to be 
potential sources or contacts for the purpose of determining their 
suitability or credibility;

(g) Information arising out of a lawful personnel, physical or 
communications security investigation;

(h) Information acquired by overhead reconnaissance not directed at 
specific United States persons;

(i) Incidentally obtained information that may indicate involvement in 
activities that may violate federal, state, local or foreign laws; and

(j) Information necessary for administrative purposes.

In addition, agencies within the Intelligence Community may disseminate 
information, other than information derived from signals intelligence, 
to each appropriate agency within the Intelligence Community for 
purposes of allowing the recipient agency to determine whether the 
information is relevant to its responsibilities and can be retained by it.

2.4 /Collection Techniques. /Agencies within the Intelligence Community 
shall use the least intrusive collection techniques feasible within the 
United States or directed against United States persons abroad. Agencies 
are not authorized to use such techniques as electronic surveillance, 
unconsented physical search, mail surveillance, physical surveillance, 
or monitoring devices unless they are in accordance with procedures 
established by the head of the agency concerned and approved by the 
Attorney General. Such procedures shall protect constitutional and other 
legal rights and limit use of such information to lawful governmental 
purposes. These procedures shall not authorize:

(a) The CIA to engage in electronic surveillance within the United 
States except for the purpose of training, testing, or conducting 
countermeasures to hostile electronic surveillance;

(b) Unconsented physical searches in the United States by agencies other 
than the FBI, except for:
 

(1) Searches by counterintelligence elements of the military services 
directed against military personnel within the United States or abroad 
for intelligence purposes, when authorized by a military commander 
empowered to approve physical searches for law enforcement purposes, 
based upon a finding of probable cause to believe that such persons are 
acting as agents of foreign powers; and

(2) Searches by CIA of personal property of non-United States persons 
lawfully in its possession.

(c) Physical surveillance of a United States person in the United States 
by agencies other than the FBI, except for:

(1) Physical surveillance of present or former employees, present or 
former intelligence agency contractors or their present of former 
employees, or applicants for any such employment or contracting; and

    (2) Physical surveillance of a military person employed by a
    nonintelligence element of a military service.

    (d) Physical surveillance of a United States person abroad to
    collect foreign intelligence, except to obtain significant
    information that cannot reasonably be acquired by other means.

    2.5 /Attorney General Approval. /The Attorney General hereby is
    delegated the power to approve the use for intelligence purposes,
    within the United States or against a United States person abroad,
    of any technique for which a warrant would be required if undertaken
    for law enforcement purposes, provided that such techniques shall
    not be undertaken unless the Attorney General has determined in each
    case that there is probable cause to believe that the technique is
    directed against a foreign power or an agent of a foreign power.
    Electronic surveillance, as defined in the Foreign Intelligence
    Surveillance Act of 1978, shall be conducted in accordance with that
    Act, as well as this Order.

    2.6 /Assistance to Law Enforcement Authorities. /Agencies within the
    Intelligence Community are authorized to:

    (a) Cooperate with appropriate law enforcement agencies for the
    purpose of protecting the employees, information, property and
    facilities of any agency within the Intelligence Community;

    (b) Unless otherwise precluded by law or this Order, participate in
    law enforcement activities to investigate or prevent clandestine
    intelligence activities by foreign powers, or international
    terrorist or narcotics activities;

    (c) Provide specialized equipment, technical knowledge, or
    assistance of expert personnel for use by any department or agency,
    or, when lives are endangered, to support local law enforcement
    agencies. Provision of assistance by expert personnel shall be
    approved in each case by the General Counsel of the providing
    agency; and

    (d) Render any other assistance and cooperation to law enforcement
    authorities not precluded by applicable law.

    2.7 /Contracting. /Agencies within the Intelligence Community are
    authorized to enter into contracts or arrangements for the provision
    of goods or services with private companies or institutions in the
    United States and need not reveal the sponsorship of such contracts
    or arrangements for authorized intelligence purposes. Contracts or
    arrangements with academic institutions may be undertaken only with
    the consent of appropriate officials of the institution.

    2.8 /Consistency With Other Laws. /Nothing in this Order shall be
    construed to authorize any activity in violation of the Constitution
    or statutes of the United States.

    2.9 /Undisclosed Participation in Organizations Within the United
    States. /No one acting on behalf of agencies within the Intelligence
    Community may join or otherwise participate in any organization in
    the United States on behalf of any agency within the Intelligence
    Community without disclosing his intelligence affiliation to
    appropriate officials of the organization, except in accordance with
    procedures established by the head of the agency concerned and
    approved by the Attorney General. Such participation shall be
    authorized only if it is essential to achieving lawful purposes as
    determined by the agency head or designee. No such participation may
    be undertaken for the purpose of influencing the activity of the
    organization or its members except in cases where:

    (a) The participation is undertaken on behalf of the FBI in the
    course of a lawful investigation; or

    (b) The organization concerned is composed primarily of individuals
    who are not United States persons and is reasonably believed to be
    acting on behalf of a foreign power.

    2.10 /Human Experimentation. /No agency within the Intelligence
    Community shall sponsor, contract for or conduct research on human
    subjects except in accordance with guidelines issued by the
    Department of Health and Human Services. The subject's informed
    consent shall be documented as required by those guidelines.

    2.11 /Prohibition on Assassination. /No person employed by or acting
    on behalf of the United States Government shall engage in, or
    conspire to engage in, assassination.

    2.12 /Indirect Participation. /No agency of the Intelligence
    Community shall participate in or request any person to undertake
    activities forbidden by this Order.

****
*
Volokh, Eugene wrote:

>	I'm pleased that Bob no longer thinks that national security
>would require or justify a restriction on Pat Robertson's speech.
>
>	To the extent that the issue is relevant to the Brandenburg
>analysis, though, I should mention that to the best of my knowledge a
>Presidentially approved assassination of a foreign leader is not a crime
>-- unless I'm mistaken, there's no statute prohibiting such
>assassinations, only a Presidential Executive Order (12,333), from which
>the President can of course carve out an exception.  (I would imagine
>that a rogue assassination would indeed be a crime.)  Prof. Martin
>argued that the assassination may violate America's treaty obligations;
>I don't know the subject well enough to express an opinion, but I
>suspect that it's not a crime under U.S. law for the President to order
>a violation of the treaty (or for others to implement that order).
>
>	Eugene
>  
>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: bobsheridan.vcf
Type: text/x-vcard
Size: 73 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050826/1df85980/bobsheridan.vcf