The “Front-Page Rule”

In my earlier post on the Report of the President’s Review Group on Intelligence and Communications Technologies (PRGICT), I highlighted a recurrent theme of the Report–the PRGICT’s view that when policymakers are assessing the costs and benefits of proposed surveillance practices, they should assume not that such practices will remain secret, but instead that, for better or for worse, they may one day be publicized for all the world to see.  The Report repeatedly urges that decisions should be informed by asking whether the benefits would be worth the costs if the program were to be exposed.

I intended, but forgot, to add that the Report expressly refers to this rule of thumb (on page 170) as “the so-called ‘Front-Page Rule'”:

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.  The corollary of that rule is that if a foreign government’s likely negative reaction to a revealed collection effort would outweigh the value of the information likely to be obtained, then do not do it.

That passage apparently has touched a nerve among some in the intelligence community, who not only have never heard of such a rule of thumb, but consider it downright “bizarre.”  Or so they have said to Walter Pincus of the Post, who reports on his conversations with “several former senior intelligence officials.”  Pincus summarizes their views as follows:

[T]he public’s opinion shouldn’t matter, because espionage, clandestine intercepts of intelligence and covert acts carried out by the United States and other governments are often, by their nature, dirty and mostly illegal operations where they are carried out.

The prime reason for secrecy is that you don’t want the targets to know what you are doing.  But often in democracies, another reason [for secrecy] is that you don’t want your citizens to know what their government is doing on their behalf to keep them secure, as long as it’s within their country’s law.

Walter Pincus is one of the very best and most reliable journalists covering the intelligence community, and if he reports that “several” former officials have conveyed such views to him, I think it’s fair to assume that is indeed the case.  Indeed, it would not surprise me in the slightest to learn that some, or even many, former officials are of that view.  (My dear colleague Norman Birnbaum offers a modest proposal to them in his letter to the Post yesterday.)

I am also confident, however, that there are many other current officials in the intelligence community whose views are much more consonant with the “Front-Page Rule” articulated by the PRGICT.  It is worth noting, in this regard, that the members of the PRGICT include a recent Acting Director of the CIA (Michael Morell) and a former chief counterterrorism adviser to the President (Richard Clarke).

My point in this post is not to defend one view or the other, but simply to stress that the Pincus column does, I think, reflect a fundamental and important point of disagreement, of divergent worldviews, among many in (or formerly in) the IC–resolution of which can have a profound impact both on policy decisions and on transparency norms.

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).