On Executive Order 12333

Mark Jaycox has written a long article on the US Executive Order 12333: “No Oversight, No Limits, No Worries: A Primer on Presidential Spying and Executive Order 12,333“:

Abstract: Executive Order 12,333 (“EO 12333”) is a 1980s Executive Order signed by President Ronald Reagan that, among other things, establishes an overarching policy framework for the Executive Branch’s spying powers. Although electronic surveillance programs authorized by EO 12333 generally target foreign intelligence from foreign targets, its permissive targeting standards allow for the substantial collection of Americans’ communications containing little to no foreign intelligence value. This fact alone necessitates closer inspection.

This working draft conducts such an inspection by collecting and coalescing the various declassifications, disclosures, legislative investigations, and news reports concerning EO 12333 electronic surveillance programs in order to provide a better understanding of how the Executive Branch implements the order and the surveillance programs it authorizes. The Article pays particular attention to EO 12333’s designation of the National Security Agency as primarily responsible for conducting signals intelligence, which includes the installation of malware, the analysis of internet traffic traversing the telecommunications backbone, the hacking of U.S.-based companies like Yahoo and Google, and the analysis of Americans’ communications, contact lists, text messages, geolocation data, and other information.

After exploring the electronic surveillance programs authorized by EO 12333, this Article proposes reforms to the existing policy framework, including narrowing the aperture of authorized surveillance, increasing privacy standards for the retention of data, and requiring greater transparency and accountability.

EDITED TO ADD (10/12): Good New York Times article from 1983 on EO 12333, pointing out that Congress had never limited its power. It still hasn’t.

And a related article on the FISA Court.

Posted on September 28, 2020 at 6:21 AM16 Comments


jones September 28, 2020 8:04 AM

There’s a great New York Times article on the NSA from 1983 that details how the agency was created by executive order and how Congress has never passed any law limiting its power or clarifying its scope:


There’s another report by the Brennan Center called “What Went Wrong With the FISA Court?” that details the creation of FISA after the Church Committee hearings, and how post-911, FISA has been amended to require the types of activities that FISA was created to prevent:


Both documents are important for understanding what EO 12333 means in practice today.

SpaceLifeForm September 28, 2020 4:17 PM

@ Clive, All

One thing to keep in mind regarding EO12333, is that we do not really know if the information sharing is really happening between NSA, FBI, CIA.

It may have been happening early 2017.

At this point in time, it is almost certainly not happening.

Clive Robinson September 29, 2020 2:27 AM

@ SpaceLifeForm,

One thing to keep in mind regarding EO12333, is that we do not really know if the information sharing is really happening between NSA, FBI, CIA.

There is good reason to think not, and it’s not just historic turf wars in the last century.

But if we go and look in Peter Wright’s “Spycatcher” we get a glimps of pre-Reagan EO12333 behaviour. Although his book was aimed at MI5 he had liason duties with other UK and US IC partners. In effect he compared and contrasted and the disfunctionality of both the UK and US agencies came out.

He portrayed the CIA as not having internal scientific or technical skills and reliant on what they could purchase from what was being manufactured for others. Further they were very distrustful of other agencies believing other agencies were full of philanderers, homosexuals, communists, and other compromisable persons. This attitude was in part due to the times but had a lot to do with the attitudes of Allen Welsh Dulles and his brother John Foster Dulles[1] who’s Presbyterian minister father Allen Macy Dulles instilled certain ideas in them. Although Allen was a known philanderer with over a hundred extramarital affairs under his belt according to his sister many whilst he was Director of the CIA.

In his book Wright observes the tedious nature of liaising with the US IC because of the inter departmental distrust and how rather than one presentation followed by questions he would end up presenting over and over and fielding identical or near identical questions multiple times.

So clearly the trust between US IC agencies was about as low as it could get, and not just for Empire building reasons. Such things become institutional quite quickly by “selection and promotion” then becomes effectively a self sustaining club and can take upto three generations of workers to clear out of an agency. In the CIA there is a tendency to “lifers” so the attitudes would exist for sixty to ninety years. So starting in the late 1950’s we can expect the attitudes to still be somewhat prevelant today and continue to do so for atleast another decade or two.

The fact that major structural changes were made after 9/11 shows that at the turn of the century the distrust was still very high. However such soloutions forced on an organisation from without have a bad habit of not just reinforcing such attitudes but actually make them more clandestine. Thus you get “lip service” and “low grade” cooperation. But in reality the more important and valuable information gets not just withheld but as it might be usefull politically to inflict damage on other agencies gets a whole series of “alternative histories” as to it’s origins and timelines. Unfortunately such alternatives get to be believed within the agencies as well and thus “pi55 in the well spring” from which all agency analysis draws…

But there is another issue and that is the one of “Knowledge is Power”. It’s one of the most misunderstood notions there is out there. Knowledge arises not from individuals but environments individuals are in thus it’s a lottery as to who gets the idea first. Academics understand this with the “Rush to publish or perish” advice. In effect “Knowledge begets Knowledge” thus by “Hiding and hording” knowledge you not just hurt yourself you hurt the environment you are in.

Thus the petty squables hurt the agencies and make another 9/11 rather more likely than detering one. However do not expect it to change because there is always a desire to be “First amongst equalls” that will drive the “Hide and hord” notions of the misunderstanding of “Knowledge is Power”.

[1] Allen was known to hold with a view of a “single bullet in time” would change world events and had espoused it many times prior to and during his being Director of the CIA. In part it explains a number of CIA fiascos whilst under his tenure. His view point was that assasination changed history thus the start of the First World War that the US got draged into. With Allen having being sacked by JFK over the Bay of Pigs Fiasco and his brother John serving on the Warren Commission it’s hardly surprising that the “lone gunman with a single bullet” idea dispite all the available evidence became the “magic bullet theory” of JFK’s death. Put simply Allen believed in assasinating heads of state to achive objectives. What he was apparently not cognizant of was that an assaination was mearly the match on the fuse, it was the actual long running political issues that was the explosive force (as was seen with Arab Spring the notable death of an almost unknown individual “Mohamed Bouazizi” becomes the straw that breaks the camels back.).

Clive Robinson September 29, 2020 2:34 AM

@ Moderator,

I’ve just experienced a “disappearing post” issue again with my above.

After submitting a comment the comment did not appear on the returned page.

Refreshing the page did not show the comment.

However it did show when refreshing an open window of the 100 last comments.

Comming back to the open window with this page in it and refreshing again, did show the comment.

I hope that helps in finding the problem.

David Rudling September 29, 2020 5:14 AM

I am a little behind the curve in commenting because it is indeed, as you said, a “long article” (at 88 pages) and I downloaded it and read it completely. It seems to be a comprehensive and detailed inspection of EO12333 (as amended by EO13284 and EO13355). The 405 footnotes/references are worthy of a book let alone an article and are in their own right a valuable resource for further research. This is an article I would not have encountered had you not posted a link so thank you as so often in the past.
Sadly the hope expressed in his conclusions is destined not to come to pass:-
“The amount of U.S. person information acquired and incidentally collected is significant and should catalyze reforms of EO 12333 surveillance programs.”
His article is however a significant contribution to shining a light on this particular piece of darkness.

WmG September 29, 2020 11:52 AM

@ Clive Robinson

A historical note.

As mind-boggling as it may seem, it was the same Dulles brother, Allen, who had been fired as CIA Director by JFK, who then went on to “serve on” the Warren Commission.

Clive Robinson September 29, 2020 1:21 PM

@ WmG,

As mind-boggling as it may seem…

Looks like my old grey matter is letting me down 🙁

Mind you it’s been a long while since I last thought about it (towards the end of the Bush administration IIRC).

Neither of the brothers struck me as particularly pleasant in their life/world view but then I am not judging them by the standards of six decades ago.

I guess the Million Dollar question is how many orher “political families” are waiting in the wings to do a,

“Family, Faith, Donors, Party, Country”

Priority system.

SpaceLifeForm September 30, 2020 12:22 AM

@ Clive, Moderator

In re stale pages

It may just be batcache default settings.


Page caching is one of the three levels of caching Pressable uses to ensure your site loads quickly and efficiently.

To achieve page caching, we use a drop-in plugin called Batcache, which is “symlinked” as advanced-cache.php in the wp-content folder on every Pressable site.

Batcache stores and serves rendered pages. In a nutshell, when your page receives two visits within a period of two minutes, a cached version of the page is stored on the second visit for five minutes. Future visitors will receive the cached version for five minutes, after which a fresh render of the site will be used.

WmG September 30, 2020 1:18 AM

@ Clive Robinson

No, not pleasant men.

The history of prominent families in the US going into politics may vary by region. But the rise of huge money makes holding office unpredictable and subject to the prerogatives of the wealthy. And national politics has become so brutal that people like the Lodge family no longer seem to be interested. The Kennedy charm seems to be wearing off. The Bush family has shown signs of continuing hope for time in the spotlight, but perhaps suffers a lack of political talent.

Yet, as I’m sure you know, Barbara Bush (nee Pierce) was a descendant of 14th President Pierce (1853-1857). So, it can take a while to find out.

On a lighter note, I think it was Churchill who said, “Dull, Duller, Dulles.”

But Churchill did quip that J. F. Dulles was “The only bull I know who carries his own china shop around with him.”

SpaceLifeForm September 30, 2020 3:45 AM

@ Clive

The current Batcache setting is for 5 minutes.

So, as a test, the next time you see this problem, wait 5 minutes, and then force a reload.

If that does not get an updated page, then there may be a different issue.

Like a cache timer that keeps getting reset when it should not.

Clive Robinson September 30, 2020 4:06 AM

@ WmG,

But Churchill did quip that J. F. Dulles was “The only bull I know who carries his own china shop around with him.”

The china shop being “the US State Dept” which from the looks of it is still suffering from the old bulls ghost… So the three generations rule of thumb looks like it’s still running….

It still amazes my as to US Gov Appointees, the old,

“More money than sense”

Rule still applies I guess…

Mind you my attraction to politics is in the nature of a freeway driver, who stops to look over the road kill for the best pickings, but it’s kind of spolied these days due to it being a target rich environment where ever I look.

Clive Robinson September 30, 2020 4:22 PM

@ Jon,

… because they knew just how shot through with rot their own was.

When I was a young lad not even close to my teens, I helped my Dad put up a new wooden fence.

He very carefully cut out of 1/2 inch thick wood “top caps” for the posts.

I asked him why and he showed me an old wooden post and pointed out the “failing from the top”. Of how the rain had started the “rot at the top” which had spread right down inside without being visable from outside.

I also remember his off-hand remark that it was how many things failed in life especially companies (he was a Chartered accountant who had moved into higher education teaching).

The thing is I didn’t get it back then, but having lived a little since I can see that my Dad was right. Though it’s not just companies but nearly all hierarchical organisations. The rot starts at the top and spreads through the heart before you even realise it’s happened, thus it crumbles from within and suddenly collapses just as history tells us about many Empires.

It’s realy quite a sad indictment on life and humanity at the end of the day.

But not an original observation. Just over two hundred years ago in 1818 the English romantic poet Percy Bysshe Shelley got into a little competition with fellow poet Horace Smith. Anyway Shelley came up with a sonnet published in January of that year from which many people know some or all the words below,

“My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!'”

Not realising what the sonnet is actually all about, which is hubris of a ruler, and destruction of his empire now just a broken statue in a desert wasteland.

WmG September 30, 2020 10:56 PM

@ Clive Robinson

“ The china shop being “the US State Dept” …”

Hmmm. Yes. Yes, indeed.

And now that the chickens come home to roost, the state of denial is like a heavy fog.

SpaceLifeForm October 1, 2020 3:47 PM

@ Clive

Interesting timing. Addressses both of our points, sorta.


The task force is home to specialists from more than 30 federal agencies, including the Central Intelligence Agency, National Security Agency, and Secret Service.

But some national security policy experts believe the expanded partnership could lead to internal conflict. They say intelligence and law enforcement agencies sometimes have different goals that could conflict with one another.

Clive Robinson October 2, 2020 9:56 AM

@ SpaceLifeForm,

But some national security policy experts believe the expanded partnership could lead to internal conflict. They say intelligence and law enforcement agencies sometimes have different goals that could conflict with one another.

It will lead to considerable conflict and not just because the goals are entirely different, but also their entire methodologies of operation.

But starting with the goals, the operational intent of Law enforcment is not as people think “crime prevention”. Their job is actually to “reactively respond to crime”. In essence by finding the perpetrators by open and approved methods and bringing both the products of their methods “Evidence” and the “individuals” to a prosecutor to present before “A Tribunal of Truth” where both evidence and witnesses will be challenged infront of a jury of the peers of the accused to decide truth or innocence (or case unproven). Effectively the whole process is open to public scrutiny and in some cases veey intensive investigation.

As many know the purposes of the intelligence servicies is very much like investigative journalism. That is to gather intelligence proces and evaluate it and produce reports as to activities that would be considered threats to National Security how ever that might be defined at the time. You will hear talk of “methods and sources” and how these need to be protected at all costs. Thus the process of gathering their evidence is very far from open. Likewise the analysis of the evidence and the reports produced. Importantly the reports are not ment to produce proof of guilt or innocence they are designed to investigate and show intent of individuals, entities and nations such that resources can if required be brought againts them to persuade them to cease the activities. The methods of persuasion are generaly not restrained by law, only ambiguous oversight at best.

The result is two entirely different cultures outlooks and ethics, that after a little thought people will realise have little or no common ground and can not realistically be reconciled.

In the UK there has been some realisation of this and a liaison agency created the purpose of which is to find some middle ground on a case by case process. However it’s become clear to some that the agency has in effect become “captured” and it’s not middle ground that gets pushed forward but at best “crumbs off of the table”… Which is one reason the UK police partnered with crime agencies in Europe over those criminals using “encrypted phones”. Evidence that crosses “National Borders” is rarely subject to any kind of scrutiny brcause those involved in it’s gathering are “out of jurisdiction” thus can not be compelled into court. Also as their legal systems are in many respects significantly different when it comes to gathering evidence they can do what is not allowed under other legal systems.

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