The reorganization of Title 50 (and a note about Congress having exempted “intelligence activities” from statutes implementing treaties)

Perhaps I was the last to know, but I just discovered that the House Office of Law Revision has recently reorganized, into four new chapters, what had long been known as chapter 15 of title 50 of the United States Code.  [UPDATE:  Yes, I was behind the curve:  Bobby Chesney gave a head’s up on the changes last year.]  The new chapters include provisions of the National Security Act of 1947, the Central Intelligence Agency Act of 1949, the National Security Agency Act of 1959, and many other related statutes.  According to the Law Revision Counsel, national security law had become a “problem area” in terms of codification, because “[a]s a result of the extensive growth in this area of law, chapter 15 ha[d] become overly cluttered, and its structure ha[d] become opaque.  To reduce the overcrowding and to reflect more clearly the underlying structure of the individual statutes, the material in chapter 15 is being reorganized into four new chapters”:

* Chapter 44, National Security (50 U.S.C. 3001 et seq.), consists primarily of the National Security Act of 1947.
* Chapter 45, Miscellaneous Intelligence Community Authorities (50 U.S.C. 3301 et seq.), consists of related provisions from 16 different statutes.
* Chapter 46, Central Intelligence Agency (50 U.S.C. 3501 et seq.), consists primarily of the Central Intelligence Agency Act of 1949.
* Chapter 47, National Security Agency (50 U.S.C. 3601 et seq.), consists of the National Security Agency Act of 1959.

The covert action provision of the National Security Act, for example, long known as section 413b, is now section 3093 in chapter 44.  A comprehensive chart of the reorganization changes is here.

One great virtue of the reorganization is that the Code now includes, as distinct Code provisions, certain laws that previously could be found only in scattered, assorted omnibus statutes (e.g., in U.S. Public Laws and Statutes at Large), or in notes or recent supplements to the U.S. Code Annotated.  One very interesting and potentially important such provision–which I think will come as a surprise to many observers in this field–was enacted in December 2000 as part of the Intelligence Authorization Act for Fiscal Year 2001, and now appears as 50 U.S.C. § 3231.  Section 3231 amends the usual “last in time” rule of statutory construction to provide that otherwise-authorized “intelligence activities” are presumptively excluded from any (future) law implementing treaties and other international agreements:

(a)  In general

No Federal law enacted on or after December 27, 2000, that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.

(b) Authorized intelligence activities

An intelligence activity shall be treated as authorized for purposes of subsection (a) of this section if the intelligence activity is authorized by an appropriate official of the United States Government, acting within the scope of the official duties of that official and in compliance with Federal law and any applicable Presidential directive.

As far as I know, this provision has received almost no attention or analysis in the academic literature or public debate.  (Thanks to my student Shane Welch for reminding me of this law and bringing its recodification to my attention.)  It raises some very interesting and potentially important questions.  (For one thing, does it cover covert actions, such that they are not subject to certain treaty-implementing statutes?  “Intelligence activities” does not appear to be defined for purposes of this provision, unless I missed something.)  [UPDATE:  Not surprisingly, Steve Aftergood has, in fact, flagged the provision:  First, when it was enacted back in 2000, Steve suggested that it might have been precipitated by a treaty involving bribery and (what do you know?) by the potential for future treaties regulating surveillance.  More recently, as some in Germany and elsewhere have begun to make noises about the possibility of international agreements regulating surveillance activities, Steve had the foresight to note that “[a]t a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.”]

The Senate Report from 2000 provides this explanation for the provision, now codified as section 3231:

United States intelligence activities currently are subject to a comprehensive regime of U.S. statutes, regulations and presidential directives that provide authorizations, restrictions and oversight.  In addition, U.S. agencies involved in intelligence activities have extensive internal regulations and procedures governing appropriate levels of approval and authorization depending on the nature of such activities. These laws and regulations have developed from decades of interaction and agreement between the executive and legislative branches of the U.S. Government.  The intelligence oversight committees themselves were created to meet a perceived need that the Congress must keep a close watch on the potential abuses that can occur in the intelligence area.

It is important that the Intelligence Community be able to look to this clear and precise body of U.S. domestic law, regulation and procedures as the controlling sources of authority for its activities.  There has been a concern that future legislation implementing international agreements could be interpreted, absent the enactment of Section 305, as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy.  Of course, Congress may extend any such implementing statutes to cover intelligence activities if that is its intent, but it must do so expressly under the new provision.  Such an expression of congressional intent would result in a clear prohibition that would be added to the existing body of laws regulating intelligence activities.  The intelligence officers who work hard to conduct lawful and authorized activities to protect the national security of the United States will not be burdened by the uncertainty that laws never intended to apply to their activities could be so interpreted.

I welcome thoughts from Just Security readers on which, if any, treaty-implementing laws are covered by section 3231, and what the practical impact might be.

And if our readers run across any other interesting nuggets in the new recodification of title 50, please bring them to our attention.

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).