DoDM 5240.01 Frequently Asked Questions

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Generalized Frequently Asked Questions

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A1. Since 1975, Executive Orders have been in effect to provide our intelligence professionals clear guidelines on how to perform their mission consistent with the legal rights and protections guaranteed to all U.S. persons by the Constitution. In 1975 President Ford issued Executive Order 11905 which remained in effect until President Carter issued Executive Order 12036 in 1978. That Executive Order was superseded by President Reagan in 1981when he issued Executive Order 12333, which is still in force today. Department of Defense (DoD) Manual 5240.01 implements Executive Order 12333 within the DoD. It sets forth procedures governing the activities of DoD intelligence components that affect U.S. persons; it states:
    "The purpose of these procedures is to enable DoD intelligence components to carry out effectively their authorized functions while ensuring their activities that affect U. S. persons are carried out in a manner that protects the constitutional rights and privacy of such persons."
A2. Intelligence Oversight is the process of ensuring that all DoD intelligence, counterintelligence, and intelligence related activities are conducted in accordance with applicable U.S. law, Presidential Executive Orders, and DoD directives and regulations. The DoD Intelligence Oversight program has two main objectives. First and foremost is prevention of violations. Through training and awareness programs, the DoD hopes to increase understanding of the activities that our intelligence organizations and personnel may, and may not, perform to accomplish their mission lawfully and in accordance with DoD policy. The program is designed to ensure that the DoD can conduct its intelligence and counterintelligence missions while protecting the statutory and constitutional rights of U.S. persons. Second, when prevention fails, the DoD needs to identify, investigate, and report violations, and implement corrective actions to ensure there are no recurrences. The DoD Intelligence Oversight program has been successful in accomplishing its objectives.
A3. If you become aware of activities that you believe to be in violation of Intelligence Oversight regulations you are required to report them to responsible authorities. You may report through your chain of command, or you may report to the appropriate: Inspector General; General Counsel, Judge Advocate General, or other legal authority; the DoD General Counsel; or the Assistant to the Secretary of Defense for Intelligence Oversight. No reprisal or adverse action may be taken against personnel for reporting possible violations of Intelligence Oversight regulations. Conversely, adverse action may be taken against personnel who were aware of violations but failed to report them.
A4. The term "U.S. persons" includes U.S. citizens, but is broader. It also includes permanent resident aliens, unincorporated associations substantially composed of U.S. citizens or permanent resident aliens, and corporations incorporated in the U.S. and not directed and controlled by a foreign government.
A5. Yes. Intelligence Oversight applies to all members of the DoD intelligence community, not just to collectors. DoD intelligence personnel engaged in any intelligence activity (e.g. collection, research, analysis, production, retention, or dissemination), as well as all non-intelligence personnel assigned to a DoD intelligence unit, must be familiar with the provisions of EO 12333, DoD Manual 5240.01, and the DoD component's implementing Intelligence Oversight regulation or instruction.
A6. Maybe. Before you may legally collect any publicly available information that identifies US persons, you must have a legitimate mission to do so. If you have the mission, then collection of information on U.S. persons that is publicly available is one of the thirteen categories of information that may be collected (see DoD Manual 5240.01, Procedure 2). Any information which is legally collected by a DoD intelligence component may be retained and disseminated.
A7. If you become aware of threat information that you cannot legally collect, you must immediately alert the appropriate official of the threatened entity and provide the information to the appropriate law enforcement authority.
A8. Consult your agency/service Intelligence Oversight implementing regulation, your Intelligence Oversight officer, or your commander/supervisor for instructions on how to seek a decision as to whether your organization may retain the information.
A9. Yes. Presidential Executive Order 12333 applies to the entire Executive Branch. All departments and agencies that conduct intelligence or counterintelligence activities must implement Intelligence Oversight programs.
A10. Yes. Contractors performing intelligence or counterintelligence work for DoD intelligence or counterintelligence organizations have the same Intelligence Oversight responsibilities as government civilian and military personnel. They should receive the same training provided to government civilian and military personnel.
A11. No. The government may not hire contractors to do things that are improper or illegal for the government to perform.
A12. Yes, it does. While much of the information posted on the Internet is publicly available, if you are an intelligence professional acting in an official capacity you still must have the official mission before you may collect, retain, or disseminate even publicly available information on U.S. Persons.
A13. Provision of expert support by intelligence professionals to law enforcement agencies is permitted (see DoD Manual 5240.01) providing your command structure and general counsel/staff judge advocate concur. Your interpreter should not bring back to your DoD facility any information obtained in the interview nor should this information be included in any DoD database.
A14. Yes, they do. Executive Order 12333 and pertinent implementing directives and regulations still apply. You are required to follow all Intelligence Oversight rules.