Executive Orders and Presidential Directives

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Executive Orders and Presidential Directives

Executive orders and presidential directives, as their name suggests, come from the president of the United States. Executive orders are unclassified, and in practice carry the force of law, though they remain controversial inasmuch as they amount to government by virtual edict. Presidential directives are classified, and thus the public is not even aware of their content. Both types of rules, along with directives from various security agencies, provide the guidelines by which the United States intelligence community operates.

Executive orders. President Theodore Roosevelt initiated the practice of issuing executive orders at the beginning of the twentieth century, and their numbers grew with each successive administration, until by the early twenty-first century they numbered more than 50,000. The actual numbers designating the orders are relatively low: for example, that of the order by which President George W. Bush froze terrorist organization assets in the aftermath of the September 11, 2001, attacks is only 13224. But these low numbers conceal the fact that many executive orders have been amended by number or letter extensions thus: xxxx-A, xxxx-B, and so on.

Among the executive orders of significance to the intelligence community are those dealing with classification and declassification of national security information. These go back at least to the time of President Richard M. Nixon, whose Executive Order 11652 (1972) stipulated that virtually all records would be declassified after 30 years. President Carter, in Executive Order 12065 (1978), called for a review of records after just 20 years with an eye toward declassification. In 1982, President Ronald Reagan bucked the trend, tightening the standards with Executive Order 12356, which favored continued classification and even provided conditions for the reclassification of previously declassified documents. With Executive Order 12958, discussed elsewhere in the context of classified information, President Clinton returned to the earlier trend toward declassification.

Most administrations from the 1960s onward have also issued executive orders concerning the intelligence community, its operations, and/or specific aspects of security and intelligence. President Reagan, for instance, signed Executive Order 12333, "United States Intelligence Activities," in April 1981. President Clinton's Executive Order 12968, in 1995, provided conditions whereby security clearances would be granted.

The Supreme Court has ruled that executive orders have the force of law only if they are consistent with the provisions of the Constitution and/or receive congressional authorization. In practice, however, these orders have served as a means whereby presidents make law without recourse to the system prescribed in the Constitution.

Presidential directives and other guidelines. At least executive orders are unclassified; by contrast, presidential directives are not open to public knowledge. They exist, however, and have helped to guide security and intelligence policy since the administration of President John F. Kennedy.

Most administrations have their own names for presidential directives; thus under President George Bush (president, 1989–1993), they were known as national security directives (NSDs). President Clinton called them presidential decision directives, while President George W. Bush designated them national security presidential directives. An example of a known presidential directive is NSD 63, issued by George H. W. Bush in October 1991 to guide background checks for the issuance of Sensitive Compartmented Information (SCI) security clearances.

In addition to executive orders and presidential directives, other regulations guiding intelligence and security operations in the United States include National Security Council (NSC) intelligence directives (NSCIDs), Director of Central Intelligence (DCI) directives (DCIDs), and Department of Defense (DoD) directives. Whereas the guidelines from the president tend to be general, those from the NSC, DCI, and DoD are much more specific.

█ FURTHER READING:

BOOKS:

Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton, NJ: Princeton University Press, 2001.

National Security: The Use of Presidential Directives to Make and Implement United States Policy: Report to the Chairman, Committee on Government Operations, House of Representatives. Washington, D.C.: Government Printing Office, 1988.

Richelson, Jeffrey T. The United States Intelligence Community, third edition. Boulder, CO: Westview Press, 1995.