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.