This chapter considers the intelligence instrument, the means and methods of gathering, analyzing, and using information relevant to national security as well as covert action. The chapter starts by placing intelligence in historical, bureaucratic, and legal context. The chapter next considers the five intelligence functions: collection, analysis and dissemination, counterintelligence, covert action, and liaison. With each topic, the chapter identifies fundamental principles as well as current and coming legal policy issues. One of these issues is the practice of rendition. The text illustrates how, in a hypothetical context, the law might apply and how legal policy and process might pertain.

The chapter closes with three observations about the intelligence function. First, intelligence is the fuel of counter-terrorism. Second, the institution of the presidency is the engine of counter-terrorism. Third, national security lawyers are navigators that help guide the intelligence vessel away or through legal shoals. They also facilitate policy through the identification and appraisal of rigorous and timely process before, during, and after exercise of the function.

BUREAUCRATIC AND LEGAL FRAMEWORK

American intelligence gathering and counterintelligence pre-date the Republic. Nathan Hale's service and sacrifice as a revolutionary war spy is celebrated in statue at the Central Intelligence Agency, outside the Department of Justice, and at Yale University, from which he graduated in the class of 1773. Major Andre's trial as a British spy during the same war is depicted in lithograph in the offices of judge advocates throughout the U.S. Armed Forces with the regularity of a photograph of the commander in chief.