The Briefing

A Partial Defense of the Front-Page Rule

Wednesday, January 29, 2014

Principals reviewing intelligence collection should reinstitute use of the so-called "Front-Page Rule," said President Obama's Review Group on Intelligence and Communications Technologies in its Recommendation 18. "That informal precept, long employed by the leaders of US administrations, is that we should not engage in any secret, covert, or clandestine activity if we could not persuade the American people of the necessity and wisdom of such activities were they to learn of them as the result of a leak or other disclosure."

Whether a secret or covert intelligence action should be carried out if the American people would not approve is a "bizarre question" to many intelligence officials, according to veteran Washington Post national security reporter Walter Pincus.  "In some 40 years of covering intelligence, I have never heard of such a rule, nor have several former senior intelligence officials with whom I have talked," Pincus added.  Nor, according to Pincus, do these officials think the rule makes sense.

It might seem odd that the Review Group calls for a return to the Front-Page Rule, and that some intelligence officials question its validity.  Intelligence officials obviously worry about the impact of public disclosure of secret intelligence actions, and the possibility of leaks sometimes leads the executive branch not to pursue a planned intelligence action.  Moreover, intelligence officials take steps in advance of an intelligence action — including extensive lawyer approval and congressional consultation and reporting — to shield against recriminations once the action becomes public.  Memoirs of senior intelligence and national security officials over many decades make plain that they consider the consequences of future public disclosure at the time of engaging in secret intelligence action.

It does not necessarily follow, however, that officials should limit their secret actions to those that they think the public would approve of once disclosed.  One might think, as the intelligence officials who spoke to Pincus argued, that as long as the action is lawful under domestic law, the president or senior intelligence officials can pursue secret intelligence actions on behalf of US national security even if they believe the American people would not approve of such action if disclosed.  One might see executive discretion to act as part of the president's larger discretion, grounded in Article II, to carry out US foreign policy and preserve national security in accord with his best assessment of US interests, regardless of what citizens think between elections.

Despite this argument, whatever the status of the Front-Page Rule in the past, and whatever its status in other contexts, the intelligence community should employ a version of the rule going forward — at least in the specific context of communications intelligence that takes place in the homeland or that affects US persons abroad.  I reach this conclusion for several reasons.

First, the counterfactual assumption of the Front-Page Rule is increasingly a reality: Secret intelligence actions — especially the ones that would most likely engender outrage, surprise, debate, or legal controversy — are increasingly difficult to keep secret.  The reasons are familiar: The enormous growth in the size of the intelligence bureaucracy makes the larger number of secrets known to a larger number of people, thereby expanding the possibility of leaks.  Technological changes in the storage and distribution of secrets push in the same direction, as Edward Snowden and Chelsea Manning and massive cyber thefts have shown dramatically in the last decade.  Technology also empowers individuals outside government to coordinate in discerning "secret" intelligence actions, as the private discovery and monitoring of CIA rendition flights a decade ago shows. Generalizing only a bit, the same technological changes that make it easier for the government to surveil individuals also empower individuals to surveil secret government action.

Second, in a world where surveillance cannot regularly be kept secret, the US government must address new tradeoffs from its robust surveillance activities.  Pre-Snowden, the US government faced few constraints in its collection and analysis other than what the law imposed, what its technology could achieve, and what its large budget permitted.  Within these constraints, it could focus solely on the national security benefit side of communications surveillance, for there were few costs, and practically no political costs, to it.  In the post-Snowden world, NSA collection programs are very costly along many dimensions, and the US government faces many tradeoffs and conflicting interests.  Focusing only on domestic constituencies, it must balance the security benefits of NSA activities against vociferous privacy and legitimacy concerns at home and against significant potential economic fallout for US firms' global business.  These critics of NSA programs represent powerful political interests that threaten not just to end programs they do not approve of, but to impose various restrictions on NSA activities broadly.

Third, democratic theory argues for the Front-Page Rule.  Secret intelligence action is always hard to square with democratic rule, but the tensions are less poignant when the intelligence action takes place outside the homeland against non-Americans.  Secret intelligence actions in the homeland and against US persons abroad are especially hard to square when the American public has no inkling, based on public law, that the intelligence effort is being undertaken (and in fact might plausibly think that the collection is unlawful).  This is why incidental content collection against US citizens abroad under Section 702 is easier to justify from the perspective of democratic legitimacy than is purposeful metadata collection of US phone records under Section 215, since the former was a publicly foreseeable (and much-discussed) consequence of legal reforms in 2008, while the latter was not (and was much more surprising to the American public when revealed, even though one could argue that it was less intrusive from a privacy perspective).

Combining these points, the NSA and other intelligence agencies will increasingly face situations where acting ex ante in secret in ways not designed to be persuasive to the American public ex post will prove illegitimate and counterproductive to the agencies' interests.  To the extent this conclusion is persuasive,  several consequences might follow.

First, the agencies should be less secretive about their homeland and US person activities.  Secrecy used to be an absolute value for the NSA.  Now it is a relative one. "Before the unauthorized disclosures, we were always conservative about discussing specifics of our collection programs, based on the truism that the more adversaries know about what we're doing, the more they can avoid our surveillance," testified Director of National Intelligence James Clapper recently.  "But the disclosures, for better or worse, have lowered the threshold for discussing these matters in public."  The disclosures have lowered the threshold because they have forced the intelligence community to justify itself and address tradeoffs that it could ignore when its activities remained secret.  And it has forced the community to address these tradeoffs in a highly disadvantageous context.  Greater ex ante openness about what the intelligence community is doing in the US homeland and to US persons abroad will diminish the effectiveness of intelligence programs at a tactical level, but can bring vital longer-term strategic political legitimacy.  It is unclear (and context-dependent) precisely what mix of secrecy and openness is ideal, but it is clear that absolute secrecy is no longer the ideal spot.

Second, intelligence collection agencies should be more proportionate in their activities.  NSA has long operated under the assumption that more collection, when feasible, is always better.  The Front-Page Rule argues for collection that can be justified given the costs that the US government would face if the collection were disclosed, perhaps discounted by the likelihood of disclosure.  The goal should be for the United States to collect "all of the information it legitimately needs and as little more than that as possible, and that we collect not because we can, but because we must for our national security, that of our allies, and in support of the international community," in the words of the Review Group.  More proportionate collection ex ante is easier to defend ex post  

Third, the intelligence community must get better at public relations regarding its collection activities.  Following the Snowden revelations, and in part because White House support has been uneven at best, the intelligence community has done a terrible job of explaining what it has been doing.  It has continuously been on its heels, showing itself in its worst light in explaining itself.  In large part this is because intelligence officials live in a culture of secrecy and have no training or experience talking publicly about collection programs — how they work, what they accomplish, why they are legitimate, and the like.  And in part it results from the fact that explaining these activities to the public always threatens to reveal yet more intelligence information to our adversaries.  "This necessary secrecy, particularly of sources and methods, all too often prevents a deeper public understanding of intelligence," notes Henry Crumpton.

The overall goal of securing maximum possible legitimacy for secret government action, and something quite close to the Front-Page Rule, could be accomplished if the intelligence community, for each intelligence action related to the US homeland or US persons, had a concrete and comprehensive plan to respond to unauthorized public disclosure in a convincing way.  Such a requirement is precisely what Rep. Jan Schakowsky has proposed for covert actions in Section 307 of the pending 2014 Intelligence Authorization Act.  The requirement should be adopted more broadly, if not by statute then by presidential order.

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