The Imperative to Protect Institutions: An Amended Front-Page Rule

“Every age has its own kind of war,” Clausewitz prognosticated in the early 19^th century.[i]  And the corollary is that every age has its own kind of intelligence requirements and seductions. The terrorist and sub-state enemies we face today are hard to find, mutable, and globally spread, with constantly shifting agendas, locations, and alliances.  They exploit vulnerabilities and lawless areas wherever they can find them — on the Internet, in war zones, in the chaos that has emerged out of the Arab Spring.   The al Qaeda movement, among the most dangerous of these enemies, is deliberately targeting Americans for recruitment.   All of these characteristics, together with advances in monitoring technologies, would seem to make signals intelligence a uniquely and irresistibly useful tool.

Equally important, protecting American lives from terrorist attacks usually involves violence.  The enemy is playing jujitsu, using the unavoidable collateral damage that accompanies military action as a propaganda tool to recruit others to its side.  Even drone strikes — an increasingly discriminating weapon — are a propaganda boon for the enemy.  Thus, our “kinetic” responses to terrorism enhance the enemy’s ability to spin its false narrative — that the US aims to harm Muslims and destroy Islam.

The surveillance programs disclosed by Edward Snowden clearly horrify privacy enthusiasts.  But to some students of terrorism, they are, at worst, a lesser evil, in that they are less likely to be useful in the enemy’s psychological-warfare campaign than are other counter-terrorism tools.   They do not seem to target any particular ethno-religious group, but all groups everywhere, thereby reducing the propaganda benefits to the enemy.  The fact that these programs target Americans as well as others makes it even harder for al Qaeda to point to this particular quiver in the wars on terrorism as a way to “prove” that the West aims to destroy Islam (although it is no doubt true that al Qaeda will find a way to use Snowden’s revelations — not only to improve its counter-intelligence, but also in its propaganda war against us.) For all these reasons, among others, some students of terrorism favor intelligence and covert action as more effective responses to terrorism, at least over the long term, than overt war.  But that doesn’t mean that the operations disclosed by Snowden are legal or ethical.  (I will leave the legal evaluation to my colleagues.)

How do we evaluate the ethics of intelligence?   In the paragraphs below I propose a series of questions — developed by theologians, philosophers, or scholars of intelligence to assess earlier military or intelligence dilemmas — which might usefully apply to the current debate initiated by Snowden’s leaks.

The first questions relate to just war.  The surveillance programs disclosed by Snowden, at least so far, clearly pass the hurdle of jus in bello, which requires proportionality of means, the avoidance of unnecessary harm, and noncombatant immunity.  In this regard, signals intelligence would seem to be a relatively benign component of the war on terrorism.

The jus ad bellum requirements are somewhat more troublesome.  The requirements of right intention, proportionality of ends, and aim of peace seem relatively straightforward, and an easy hurdle to pass.  The Church Committee urged diplomacy before covert action, which would in effect be a means to meet the requirement of last resort.  But this requirement would seem to apply more directly to surveilling foreign leaders than to surveilling suspected terrorists. The president’s use of a tent when staying in foreign hotels to ensure his conversations were private belies some foreign governments’ claims (perhaps for domestic consumption) that US surveillance is uniquely intrusive.  To the extent US surveillance is uniquely intrusive, it is likely because the US is uniquely equipped, not because it's uniquely prone to espionage excess.

Right authority would seem to be the most controversial of these requirements in regard to the surveillance programs disclosed by Snowden.  In the United States, right authority would require approval of executive and legislative branches for major operations.  Iran-Contra would be an example that failed this test, and it is likely that parts of the NSA’s surveillance programs need tweaking to meet this requirement.  Certainly, it would seem that Senator Wyden, among others, disputes the NSA’s claim that this test was met.

William Colby argued that one should avoid intelligence operations one would be ashamed of if disclosed.  There are few absolutes in the ethics of covert action. But, he said, he asked himself questions such as these:  “How important is it that the action be conduct in secret?  What are the risks involved?  What will be the impact if, as, and when it is exposed?  When I signed off on an operation, I often said that if I had to not be ashamed if my signature on the document showed up on the front pages one day.  I did not choose that this occur, but others did.  So the test of exposure is a useful and practical one,” he said.”[ii]

This presumably would be the “front-page rule” that long-time Washington Post reporter Walter Pincus recently claimed he had never heard before expressed.  Such a rule would seem to preclude spying on allies or collecting metadata on Americans.  Even if it is not possible to meet such a stringent rule, as Pincus proclaims, intelligence officials ought, at a minimum, to be prepared in the event an intelligence operation is disclosed to justify it ex post by explaining why it was chosen over less intrusive options and by providing sanitized but persuasive evidence of its effectiveness.  The NSA failed to meet even this weaker version of Colby’s “front-page rule,” which for the purpose of this article I will call the “amended front-page rule.” For Alberto Coll and Richard Shultz, the rule is to approve major operations only if they promote important values and interests.[iii]  That is a relatively low bar, it seems to me, and would make possible almost any counterterrorism operation.  For Ernest May, the rule was to approve operations only if they are consistent with national policy and are bureaucratically feasible.[iv]    May’s rule is more relevant to the operations disclosed by Snowden, and meeting his rule would require some adjustments, as proposed below.  For the President’s Review Group on Intelligence and Communications Technologies, which issued its recommendations to the president in December 2013, it is essential to weigh costs and benefits — both of surveilling and of failing to surveil targets — and to weigh these costs and benefits in regard to national security as well as risks to privacy, civil liberties, international relations, and trade and commerce.

Small changes — of the kind suggested by Jack Goldsmith elsewhere in this digital volume — could presumably bring the programs into compliance with May’s requirements, and the president will undoubtedly implement some of the surveillance review panel’s recommendations. But there is one additional test that I believe the officials’ response to the Snowden crisis has clearly failed — and that is the test of preserving the institutions of government.  We expect our leaders to have dirty hands in Walzer’s sense, in that, “A political act of government…may be exactly the right thing to do in utilitarian terms and yet the man who does it is guilty of a moral wrong.  The innocent man who does it, afterwards, is no longer innocent.  If on the other hand he remains innocent, chooses…the ‘absolutist’ [approach], he not only fails to do the right thing (in utilitarian terms), he may also fail to measure up to the duties of his office…” But at the same time, when a trustee persuades himself that to protect the nation he is required to break such rules — not just rules that apply in private life, such as gentlemen don’t read one another’s mail, but rules that would apply to public life, such as the requirement of right authority, he must always consider the long-term impact on the institutions of government.   A critical component of the preservation of institutions, in this context, is the ability to defend intelligence operations if disclosed — in other words, to meet the standard of the “amended front-page rule” I propose above.

NSA employees joke that you can tell that a colleague is an extrovert if she looks down at your shoes rather than at her own.  Even among intelligence agencies, the NSA is famously ill equipped to defend itself in public — mostly because of secrecy requirements, but also because of culture.   The NSA needs to be much more clear, not only about the effectiveness of the programs but also about how such programs will be monitored, including by those whose main aim is to assess risks to privacy.

We can expect more Wiki-leaks and Edward Snowden-type crises, which involve espionage of a new sort.  It is far easier to steal enormous quantities of data than it was during the era of Aldrich Ames.  Clearance procedures, designed for an earlier era when spies tried to hide their crimes, are not likely to identify individuals prone to spilling secrets in the open.  The procedures seek to determine vulnerabilities to bribery, or hidden allegiances to other nations.  Clearance questionnaires need to be rewritten entirely.

The Snowden disclosures have resulted in a crisis of many dimensions.  They have impeded NSA efforts to protect American lives, at least so we are told.  They have caused diplomatic difficulties, and imposed economic costs on the American people.  But perhaps most importantly, they have reduced public confidence in the institutions of government, especially the National Security Agency.  This requires an urgent response on the part of the government, and yet no one has successfully defended the programs’ effectiveness or ethics. This may well have repercussions that last far longer than the enemies that threaten our security from without.