A Partial Defense of the Front-Page Rule
Late last month Marty Lederman flagged the President’s Review Group on Intelligence and Communications Technologies’ endorsement of the 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
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Late last month Marty Lederman flagged the President’s Review Group on Intelligence and Communications Technologies’ endorsement of the 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.As part of the Hoover Institution’s The Briefing Series, I have an essay entitled A Partial Defense of the Front-Page Rule. The defense is partial because it is limited to “communications intelligence that takes place in the homeland or that affects US persons abroad.” (I do not rule out a broader defense; I just do not undertake it.) The analysis begins with the non-startling claim that “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.” It concludes:
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.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
