Barry Eisler

Tuesday, June 11, 2013

Memo To Authoritarians: The "Oath" is to the Constitution, Not to Secrecy

It's been interesting to read pundits like David Brooks of the New York Times and Josh Marshall of Talking Points Memo prattling about how whistleblower Edward Snowden violated his "oath" of secrecy.  I was in the CIA, and I can tell you there was no secrecy "oath," just a contract.  The oath was to protect and defend the Constitution against all enemies, foreign and domestic.

I find the misnomer revealing.  I don't think Brooks, Marshall, and the many others like them are misusing the word "oath" in a deliberate attempt to mislead.  My guess instead is that their deference to government secrecy is so strong that they reflexively equate a contract to maintain secrecy -- a nondisclosure agreement, really -- with something as strong as, say, a sworn oath to preserve, protect and defend the Constitution.  You know, like one the president takes.


In fact, I'd go further.  That these pundits aren't even discussing the real oath CIA and other government employees take -- the one to protect and defend the Constitution against all enemies, foreign and domestic -- suggests they don't believe such oaths are important enough to bother mentioning.  Now, admittedly oaths to protect and defend the Constitution are all very pre-9/11, but shouldn't an intelligent and honest pundit at least offer a nod of the head toward the fact that someone like Edward Snowden might have felt faced with two competing obligations -- his secrecy contract, on the one hand, and his sworn oath to protect and defend the Constitution, on the other?

Of course, if deference to governmental secrecy prerogatives trumps all other values, then there's no trade-off even to mention.

And look, even if you think that "oath" and "contract" are interchangeable terms (in which case you'd have to explain why Brooks, Marshall et al consistently use the former regarding secrecy while eschewing the latter, and why the drafters of the Constitution did the same with regard to oaths of office), you still have to explain why various pundits are so intent on referring to only one of the "oaths" while ignoring the other.

Here's another way of looking at it.  Say you're the employee of an intelligence agency.  You've signed a contract to maintain secrecy and also sworn an oath to protect and defend the Constitution.  And you become aware of a secret program that you believe violates the Constitution you have sworn to protect and defend.  Reasonable people can argue about how you might best redress that violation, but reasonable people can't deny, whether explicitly or implicitly, that you are faced with a dilemma and that, if you have a conscience, you should and hopefully will grapple with how to resolve it.

Here's a terrific piece from Daniel Ellsberg, the previous generation's heroic whistleblower, on why in revealing the scale of the NSA's secret spying on millions of innocent Americans, Snowden has done America such a noble service.

Maybe you'll disagree.  That's fine; there are competing interests in all cases of whistle blowing, and reasonable people might balance those interests in different ways.  But arguing as though a contractual obligation to maintain secrecy trumps all other values, including actual sworn oaths to protect and defend the Constitution, just makes you look like an authoritarian.  As well as a fool.
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20 Comments:

Blogger politicwatcher said...

You might not have taken an 'oath of secrecy' but surely, there was a sense in which the ability to keep secrets was important - here in Aaustralia, and I am sure the same applies to the US, when you apply to join a government agency that does sensitive work, you cannot even tell your immediate family members about such an application. Also, when you gain a security clearance, it is understood that there are certain responsibilities that come with it - you might think that your government is doing illegal things, but that is a highly subjective view as the recent heated debate on privacy has shown. With Snowden's revelations, it is not yet even clear whether the government was doing anything illegal.

Politicwatcher: http://politicwatcher.blogspot.com.au/

Wednesday, June 12, 2013 2:18:00 AM  
Blogger MackTheKnife said...

It's my understanding that Snowdon worked for a contractor and not directly for No Such Agency. I doubt that he took the "defend-the-constitution" oath. I suspect the most restrictive thing he did was sign a NDA. However that makes little difference. What he did was respond to a crisis of conscience, or, less flatteringly, a desire for fame. Basically an act of civil disobedience.

As for Politicwatcher's lack of clarity on the illegality of the surveillance, in my layman's understanding of the law, it was a violation of, at the very least, the spirit if the law. While they didn't listen to the actual conversations (maybe) they certainly knew who was talking to whom. All sorts of conclusions can be drawn from that information including information that could, rightly or wrongly, be used as justification to increase surveillance. The government is not your friend.

Wednesday, June 12, 2013 5:31:00 AM  
Blogger Barry Eisler said...

Politicwatcher, you're doing exactly what I talked about in my post -- discussing the maintenance of secrecy as though it's the only obligation in play here and ignoring an oath to protect and defend the Constitution.

MtK, I'm not sure what Snowden's status was with CIA, NSA, and Booz. He's often described as a former CIA employee. If so, he did indeed swear an oath to protect and defend the Constitution. Of course, even in the absence of such an oath, I agree that protecting the Constitution is a value any citizen should take seriously.

Wednesday, June 12, 2013 6:53:00 AM  
Blogger LeisureGuy said...

Excellent post. Snowden has done the right thing, and quite thoughtfully and deliberately. The NSA damaged its case badly when Clapper flat-out lied to Congres, and further damaged it when Clapper did that peculiar statement to make a lie be not quite a lie. He should be fired and face legal penalties for lying to Congress.

Wednesday, June 12, 2013 10:29:00 AM  
Blogger LeisureGuy said...

UPDATE: You may be interested in what a retired CIA analyst thinks of this. (At the link: video and transcript of interview.)

Wednesday, June 12, 2013 11:34:00 AM  
Blogger A.Rosaria said...

It takes bravery to go against the government, knowing your life will never be the same, and that many will spit on you for doing the right thing.

Edward Snowden did something most of us wouldn't dare do.

Wednesday, June 12, 2013 11:51:00 AM  
Blogger Jay said...

Snowden was completely vindicated yesterday when Thomas Friedman said that he wasn't a hero.

Wednesday, June 12, 2013 2:00:00 PM  
Blogger politicwatcher said...

No one disagrees with following the US Constitution, but the question is, can you point to a situation where the government broke the law and guidelines of the constitution that would stand up in a court of law? Ask a lawyer to go to court and bring a case against the US government, but I doubt they would win, because there are lawyers for the government that look closely at these kind of programs and somehow ensure that they obey the law. The government, like any individual or other organisation, is innocent until proven guilty. What I am suggesting is that if the government is in fact innocent, the leaks are actually quite damaging for all of us.

Wednesday, June 12, 2013 3:10:00 PM  
Blogger MackTheKnife said...

Politicwatcher, the annals of the US Supreme Court are full of cases where the government was slapped down for not following the Constitution, Heller being among the most recent. Our country was founded on the principle that government, especially ours, is not to be trusted. The Separation of Powers was written into the Constitution for precisely that reason. Every administration since Johnson, whether Republican or Democrat, has been more interested in seeing what they can get away with than with abiding by the rules, that is, the Constitution. We, The People of the United States, it's common citizens, have as much of a duty to protect and defend the Constitution, if not more, than any government employee.

Wednesday, June 12, 2013 4:44:00 PM  
Blogger Spanish Inquisitor said...

I'm curious. Is it a necessity to have an actual job with a government agency in order to have an obligation to defend the Constitution, or is simple citizenship enough?

Wednesday, June 12, 2013 5:33:00 PM  
Blogger MackTheKnife said...

As simple citizens we should protect and defend the Constitution with every vote we cast.

Wednesday, June 12, 2013 5:52:00 PM  
Blogger Barry Eisler said...

Leisure Guy, agreed. It's depressing how few people even in Congress are outraged that Clapper lied during his testimony. If he perjured himself, he should be prosecuted and punished. This isn't terribly complicated.

Jay, agreed, Thomas Friedman's preferences are a pretty reliable measure of the the opposite being good.

PoliticWatcher, you mean whistle blowers can only speak out against actions that have been formally adjudicated? What do you think would be the result of such a standard, especially given how effective the Obama Administration has been in using procedural means to thwart all efforts to examine its actions in court? And whether or not the NSA's domestic spying was illegal, can you specify in what ways Snowden's leaks "are actually quite damaging for all of us?"

Spanish Inquisitor, that is a great point and agreed. You don't -- and shouldn't -- need to have sworn an oath; just being a citizen ought to be enough to make a person care about protecting the Constitution. I got a little caught up in the notion of oaths because of the way Brooks, Marshall et al are misusing the term, but I should have made my point about competing interests more broadly.

Wednesday, June 12, 2013 6:00:00 PM  
Blogger Sean said...

What's the point of having a clearance if access to information just hinges on signing a non-disclosure agreement?

I might not be reading Barry original post correctly. I understand a lot of folks in these fields get a TS for the SCI addition (highly specialized sigint equipment operators, drones, or whatever)...but it's like Snoweden just blew the whole clearance system apart with a grab bag and a shovel.

How could one guy have access to all that information?

Thursday, June 13, 2013 11:13:00 AM  
Blogger jens said...

Barry,

you wrote:

[...]reasonable people can't deny, whether explicitly or implicitly, that you are faced with a dilemma and that, if you have a conscience, you should and hopefully will grapple with how to resolve it.

--

You're making a category error here. So far as I can make out, the definition of a "spy" is a sociopath with no conscience. Surely the NSA/Booz Allen HR department is kicking itself for allowing someone with any vestige of a conscience get anywhere near a Top Secret security clearance.

Spies get to lie, cheat, steal, blackmail, maim, rape and murder without any legal consequence. They do so "for their country" but mostly because it gets their rocks off.

(There are obviously some exceptions, such as yourself, and of course, Snowden. But the exception proves the rule.)

And even for those honest men and women who find careers in a secret army -- when your boss tells you to go out and spy on and even kill anyone who catches your fancy, who is not going to respond with a big "Woo-hoo!" ?

Power corrupts. Power attracts sociopaths, and it turns honest men and women into sociopaths. And spies have way too much power.

/me

Sunday, June 16, 2013 10:59:00 AM  
Blogger Barry Eisler said...

Jens, respectfully, your definition of spies as sociopaths who do what they do "because it gets their rocks off" bears no relationship to reality, at least not as I experienced it during my three years with the CIA. You could say all the same things about soldiers, again with the same lack of any relationship to reality, at least as I've experienced it.

May I ask, how many spies have you known? The ones I've known have all had consciences, even if I think their politics and priorities were misguided.

"Power attracts sociopaths?" Who doesn't power attract? You're defining sociopath so broadly that the term is devoid of meaning.

I really don't think dismissing thousands, or even hundreds of thousands, of people as sociopaths sheds a lot of light on this topic, or on any other.

Sunday, June 16, 2013 1:51:00 PM  
Blogger David Knopfler said...

This comment has been removed by the author.

Saturday, June 22, 2013 8:38:00 AM  
Blogger Unknown said...

politicwatcher said: "No one disagrees with following the US Constitution, but the question is, can you point to a situation where the government broke the law and guidelines of the constitution that would stand up in a court of law?"

Well, I can't, but the Foreign Intelligence Surveillance Court can:

"A 2011 FISC court ruling had concluded that some of the NSA’s surveillance programs had violated sections of the Foreign Intelligence Surveillance Act, or FISA, a law aimed at protecting American citizens from surveillance programs targeted at foreigners."

http://www.ibtimes.com/fisc-will-not-object-release-2011-court-opinion-confirmed-nsas-illegal-surveillance-1305023#

Saturday, June 22, 2013 6:05:00 PM  
Blogger Charles Dermer said...

And for this very reason, the Supreme Court will be compelled to render the activities of the NSA constitutional. Otherwise, they will in effect be saying that thousands of federal employees have violated their oath and should be subject to legal redress.

Sunday, January 05, 2014 5:16:00 PM  
Blogger Jim Chandler said...

Just FYI, the oath to protect the Constitution from [foreign and] domestic enemies, is part of the oath of citizenship. Most natural-born Americans don't think about it since we never actually take that oath. But it is implied with the birth certificate.

But consider this - only the courts can decide constitutionality or criminal behavior. When we put that determination in the hands of citizens, soldiers, etc., that has serious implications. It isn't a simple problem.

Wednesday, January 08, 2014 9:05:00 PM  
Blogger Barry Eisler said...

I don't agree, Jim -- I think the problem is pretty simple. First, a citizen breaking the law does infinitely less damage than the government breaking the law. Second, secrecy metastasis and abuse of classification is a real and worsening problem that is strangling democracy in America. By contrast, individuals deciding for themselves what is and isn't constitutional -- that is, whistleblowing -- is (unfortunately) a vanishingly small problem. So in making your point, you're comparing a real, ongoing, decades-getting-worse threat-to-democracy problem with an almost entirely theoretical problem. I find such a comparison misleading and likely to lead to faulty conclusions.

Friday, January 10, 2014 1:22:00 PM  

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