Crimes against Secrecy, Crimes against the Constitution

I’m not all that interested in the debate about offering Edward Snowden some kind of amnesty, as I think he could never accept the terms being offered, it arises in part out of NSA’s PR effort, and distracts from the ongoing revelations.

But I am interested in this. Amy Davidson wrote a column refuting Fred Kaplan’s assertion that because Snowden “signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information,” comparisons with Jimmy Carter’s pardon for draft dodgers are inapt. She notes (as a number of people have already) that the only “oath” that Snowden made was to the Constitution.

To begin with, did Snowden sign “an oath…not to disclose classified information”? He says that he did not, and that does not appear to have been contradicted. Snowden told the Washington Posts Barton Gellman that the document he signed, as what Kaplan calls “a condition of his employment,” was Standard Form 312, a contract in which the signatory says he will “accept” the terms, rather than swearing to them. By signing it, Snowden agreed that he was aware that there were federal laws against disclosing classified information. But the penalties for violating agreement alone are civil: for example, the government can go after any book royalties he might get for publishing secrets.

Snowden did take an oath—the Oath of Office, or appointment affidavit, given to all federal employees:

I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Now, some would argue—and it would have to be an argument, not an elision—that he violated this oath in revealing what he did; Snowden told Gellman that the revelations were how he kept it—protecting the Constitution from the officials at the N.S.A., which was assaulting it. Either way this is just not an oath, on the face of it, about disclosing classified information. [my emphasis]

Former Obama DOD official Phil Carter then attempted to refute Davidson on Twitter. He did so by pointing to the “solemnity” of the forms Snowden did sign, and then noting such “promises are far more legally enforceable than an ‘oath’ of office.”

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I don’t dispute Carter’s point that nondisclosure agreements are easier to enforce legally than an oath to the Constitution. And, as noted above, in her original piece Davidson admitted that Snowden had acknowledged there were laws against leaking classified information. No one is arguing Snowden didn’t break any laws (though if our whistleblower laws covered contractors, there’d be a debate about whether that excuses Snowden’s leaks).

Nevertheless, Carter’s comment gets to the crux of the point (and betrays how thoroughly DC insiders have internalized it).

We have an ever-growing side of our government covered by a blanket of secrecy. Much of what that secrecy serves to cover up involves abuse or crime. Much of it involves practices that gut the core precepts of the Constitution (and separation of powers are as much at risk as the Bill of Rights).

Yet we not only have evolved a legal system (by reinforcing the clearance system, expanding the Espionage Act, and gutting most means to challenge Constitutional violations) that treats crimes against secrecy with much greater seriousness than crimes against the Constitution, but DC folks (even lawyers, like Carter) simply point to it as the way things are, not a fundamental threat to our country’s government.

That plight — where our legal system guards this country’s “secrets” more greedily than it guards the Constitution — is the entire point underlying calls for amnesty for Snowden. He has pointed to a system that not only poses a grave threat to the Bill of Rights, but just as surely, to separation of powers and our claim to be a democracy.

Moreover, those who (like Carter) point to our failed branches of government as better arbiters of the Constitution than Snowden ignore many of the details in the public record. Just as one example, David Kris has suggested that the entire reason Colleen Kollar-Kotelly wrote a badly flawed opinion authorizing the Internet dragnet was because George Bush had created a constitutional problem by ignoring Congress’ laws and the courts.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch. [my emphasis]

And while Kris argued Congress’ subsequent approval of the dragnets cures this original sin, the record in fact shows it did so only under flawed conditions of partial knowledge. Of course, these attempts to paper over a constitutional problem only succeed so long as they remain shrouded in secrecy.

That the first response of many is to resort to legalistic attempts to prioritize the underlying secrecy over the Constitution raises questions about what they believe they are protecting. The next torture scandal? Covert ops that might serve the interest of certain autocratic allies but actually make Americans less secure? The financial hemorrhage that is our military industrial complex? The sheer ignorance our bloated intelligence community has about subjects of great importance? Petty turf wars? Past failures of the national security system we’re encouraged to trust implicitly?

At some point, we need to attend to protecting our Constitution again. If Article I and III have gotten so scared of their own impotence (or so compromised) that they can no longer do so, then by all means lets make that clear by revealing more of the problems.

But we need to stop chanting that our Constitution is not a suicide pact and instead insist that our secrecy oaths non-disclosure agreements should not be suicide bombs.

13 replies
  1. dakine01 says:

    I posted the following yesterday at FDL’s “Dissenter” on this very same topic:

    I had Secret clearances when I was in the USAF and worked for the Defense Logistics Agency and as a government contractor after the USAF.

    I had been put in for a Top Secret clearance when I started at Booz, Allen where we provided acquisitions support to the so-called “Intelligence Community” but shortly thereafter had all my clearances pulled.

    The reason for pulling my clearances was because I “…equivocated my desire to protect classified information.” I.e., when I was asked if I would protect classified information I said “Yes, but…” instead of a flat “Yes.” I told them I would not necessarily protect the information if I became aware of an operation that was against the laws of the US. I used the Iran/Contra scandal as a specific example.

    I was fortunate that the DIS (Defense Investigative Service) did not require Papa Booz to fire me and I had a decent project manager who recognized that I could still be productive without the clearances. I also knew that when that specific contract ended, that I would no longer be in a position to provide further support under DoD contracts.

    Addendum: I took the oath to the Constitution far more seriously than I did the piece of paper I signed saying I would protect secrets as a condition of employment

  2. Don Bacon says:

    All government officers, civilian and military, take an oath to protect and defend the Constitution. Instead, in these cases they violated that oath, which is why Snowden did what he did. Many people are happy that he did.

    What about that?
    Snowden didn’t sign an oath to protect Constitution violators.
    What about the oath violations that precipitated the disclosures?
    Is there no justice?

  3. Jessica says:

    This is sort of OT, sort of not, but I’m currently reading James Bamford’s Shadow Factory and I’m amazed at how much of this stuff, and even earlier, is in it. Of course, information in a book is a lot easier to dismiss than Snowden’s documents, but still. Bamford’s book came out in 2008 (I think?) and much of it reads like recent disclosures. It’s definitely an interesting read with all the ongoing revelations.

  4. Starbuck says:

    A bit OT: I don’t understand Marcy’s comment:

    Now, some would argue—and it would have to be an argument, not an elision— –

    I Googled “Elision” and could not make any connection that indicated some sort of, legal or otherwise, difference prompting this phrase. Elision has to do with pronunciation and the elimination of one or more sounds in pronunciation.

  5. emptywheel says:

    @Starbuck: It’s Davidson’s term, not mine, but I think she’s suggesting that if people want to talk about Snowden violating an oath and his oath was to the Constitution, then they need to take on whether his leaks violated the Constitution directly.

    I think she’s using the more generalized meaning of “omission,” regarding arguments Snowden’s opponents have not made.

  6. Greg Bean (@GregLBean) says:

    If Edward Snowden, “listed Buddhism as his religion on a military recruitment form, noting that the choice of agnostic was ‘strangely absent'” as is indicted on WikiPedia how does that affect his oath of office which reads, “… So help me God.”

    Snowden might just as well have said, “So help me Homer Simpson”.

    Putting that bit of trivia aside, the reality is oaths are a demand for loyalty, regardless of how corrupt or illegal their behavior, those demanding loyalty are in fact demanding that one sacrifice integrity. Loyalty and integrity are too often opposites ends of a spectrum. As a result oaths are completely worthless when someone, like Snowden, puts more stock in integrity than in loyalty-to-corrupted-entities-or-individuals.

    Did he really only do what he did due to his oath or contract? I very much doubt it. He did it out of a recognition that his personal integrity would not let him stand by while others corrupted his world. No oath or contract lay at the heart of his action.

    How much death, destruction and deceit has occurred when and because integrity was sacrificed to loyalty. The world would be a much better place if more people put their personal integrity above some oath of loyalty.

  7. GKJames says:

    Striking, though hardly surprising, are the chatterati — ready as ever to legitimize the national security state, presumably for their own pecuniary ends — who invoke self-righteous hyper-legalism to flog Snowden. A refreshing change would be to have them apply the same appetite for legal minutiae to institutions, public and private, who in every instance are given the benefit of the doubt with respect to their good faith, notwithstanding the overwhelming evidence that no such good faith exists.

    And maybe that highlights a broader issue: cowardice is now the coin of the realm, with refuge sought in the collective. How else to explain that far too many Americans refuse to hail Snowden for the guts, as an individual, to challenge a State acting with dubious (or no, depending how see it) legal authority? They simply cannot see that he embodies the very definition of “American,” or at least what used to be the definition. Immune as ever to irony, they’re even more blind to the fact that they are the beneficiaries of his courage.

  8. Snoopdido says:

    I thought this was one of the most penetrating analyses Emptywheel has ever written (and that’s saying a lot).

    Distinguishing between what is deemed legal versus illegal by our overseers is not the same thing as that between what is right and what is wrong.

    All 3 branches of the US government deem it legal to seize all of the phone records of all Americans in direct contravention to the Constitution’s 4th Amendment prohibition against unreasonable searches and seizures.

    No one in the US government ever apparently asked whether it was right or wrong, and even worse, no one in the US government seems to consider that question of any importance.

  9. ess emm says:

    Outstanding post, ew! The series of rhetorical questions nail it.

    The naked greed of Empire and the violence needed to maintain it are inimical to democracy and the Constitution.

  10. earlofhuntingdon says:

    Bravo, indeed. The pithy disclaimer about the Constitution and suicide pacts is vacant, rhetorical distraction. By definition, it is meant to avoid discussion about the Constitution’s metes and bounds, and about its increasingly flawed enforcement by the executive and judicial branches of government that that Constitution creates.

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