Jack Goldsmith has a new post today at the Hoover Institution’s blog The Briefing (and teased by Goldsmith in a post for Lawfare) on the interesting question, raised by the President’s Review Group on Intelligence and Communications Technologies, of whether intelligence policy should adhere to the “Front Page Rule.” The Review Group described this principle “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.” Unsurprisingly, some in the intelligence community have reacted negatively to this suggestion. For his part, Goldsmith advances what he describes as a “partial defense” of the Front Page Rule:
[W]hatever 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 . . . 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. . . .
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. . . .
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). . . .
Goldsmith goes on to highlight some changes in approach to US policy that he believes this outlook suggests. You can read his full post here.
What do you think?
Richard B. Eisenberg
Office of the General Counsel
U.S. Air Force