Snowden didn't take an "oath of secrecy"

[Scuba]

[SamKnause]

1. Thank you Daniel Ellsberg

Thank you Edward Snowden.

Thank you to all the whistleblowers that fight to shed light on all the secrecy and lies.

[pnwmom]

48. Daniel Ellsberg doesn't know what he's talking about. Or he's lying.

Anyone who gets a security clearance, as Snowden did, takes a secrecy oath.

[MADem]

105. It is a non-disclosure agreement and if you violate it you are subject to criminal prosecution.

http://www.fas.org/sgp/isoo/new_sf312.pdf

Daniel Ellsberg's reality isn't even remotely operative (like asking a buggy driver how the racecar works)--the rules changed HUGELY not just after his "disclosures," but after the Walker spy scandal and other ones as well.

Snowden operated under a reality--and he KNEW this--that if you disclose classified information, you are in BIG trouble and you can be CRIMINALLY prosecuted for it.

He knew this. This wasn't a secret or surprise. He had to sign one of these things every time he changed job and got access in a new environment.

[pnwmom]

107. Thanks for the link. Anyone who reads that can see that Snowden

vowed to keep the classified information secret, no matter what Ellsburg says.

You're right -- whatever the procedures were prior to Ellsburg, no one signing today's documentation can have any doubt.

[MADem]

109. Ellsberg was outta the game well before the Walker spy scandal. Life changed for all of us after

that.

Not only were clearances monitored, but access was, too. Before that all you needed was clearance and "need to know" wasn't such a big deal. After that spy scandal, they tightened up and changed the procedures.

There is NO WAY that Snowden didn't know what the penalties are, either. He would have been forced to sit through training every time he changed jobs. He would have been reminded on a regular basis what his responsibilities were.

[GP6971]

127. Not in my company

We take an oath and sign documents that say we will not disclose, yet let alone discuss, classified information. Consequences are termination, no ifs or buts.

[MADem]

130. Did you read the document? It is a SF 312.

If you are employed by, or a contractor of, or an intel agent (military or civilian) of the Federal government, that is what you sign. It was the 189 in the old days, but this is what they put under everyone's noses these days.

Here's the training booklet--Snowden received training on this material :

http://www.archives.gov/isoo/training/standard-form-312.html

Disclosure can result in fines up to ten grand and imprisonment of ten years for each category of offense.

[Adrahil]

2. Not quite true...

When you get a security clearance, you DO sign a pledge to protect the information you are entrusted with from unauthorized disclosure.

I know this personally.

[Scuba]

3. Yeah, what would Ellsburg know compared to an anonymous blog poster?

Please provide a link to the pledge Snowden signed that you know of personally.

[joshcryer]

4. "Personal Attestations Upon the Granting of Security Access"

Carry on.

[grasswire]

14. isn't that for DoD employees/contractors with top secret clearance/

I don't find anything on the Internet about NSA/contractors and the "personal attestations ..."

[joshcryer]

19. It's for all who have Top Secret clearance.

Whether they be government contractors, civilians, whatever. But it looks like Snowden didn't have that level of clearance? I can't find it.

If not then he didn't speak an oath.

But he certainly signed an NDA.

[jmowreader]

47. If Snowden didn't have that level of clearance he couldn't have gotten past an NSA guardhouse

The BASIC signals intelligence security clearance is Top Secret/Sensitive Compartmented Information, and indoctrination into the Special Intelligence compartment. (There are a BUNCH of higher-level compartments for specific programs.) To get "read on" for SI, you have to sit through an hour-long training session and sign documents assuring you know you're not supposed to nor will you divulge what you know to persons without The Need To Know.

Persons like Glenn Greenwald.

[joshcryer]

122. If he had Top Secret clearance then he could've gone through whistleblower channels.

I don't think he had Top Secret clearance in retrospect, because it's clear he didn't go through any channels.

[jmowreader]

125. His job was to service computers that held Top Secret information

Anyone who could reasonably view TS information in the course of their normal duties needs TS clearance. If you read Bamford's "The Puzzle Palace," you'll learn pretty quickly that everyone who gets in the building - including janitors, cooks, barbers and other people you wouldn't normally expect to need to be cleared - is cleared.

I will also tell you: uncleared/cleared lower than TS personnel are a true pain in the ass in a secure facility. They have to be guarded at all times by cleared workers. We call them "ops guards," and every uncleared group who goes inside the fence - not just inside the building but the perimeter fence around it - has to be guarded. I was watching this one guy who really pissed me off...he was a roofer, and he got dropped off by his boss with his tools and his cool box. In it, of course, was his lunch and a half-rack of beer. Dude got up there, set up his equipment, cracked a cold one and commenced to soldering the step flashing around all the roof protrusions. I had to follow this asshole all over a very large roof watching him get paid to drink beer, and I couldn't have even one! (In his defense, the more beers he had the better his work was.)

[joshcryer]

128. It's not clear what his clearance was.

Do you have a link telling us as such?

I think he had lower level clearance, despite being an administrator, and he used his administrator privileges to give himself higher level access. This is what frustrates me the most about the whole thing, "the hack" isn't clarified. "How did he do it" is the most important question to me.

That said, I like your story, but I think that workers on infrastructure such as building work or whatever, probably have a fast track clearance. They aren't expected to know how to hack something. They just know how to lay brick or tar or do some electrical or mortar work. I think you and I both know they're not signing NDAs or making oaths.

I worked for the military for 8 years doing anything from yardwork to cleaning gutters to building range facilities. Never got an NDA or never got an oath requirement. We did the job and went home. Never had as much as a view of the guns they used at one shooting range we set up. My brother was with one (51st? Not sure on that) Eng. Battalion and he joked with me that we did most of the work on one of their range barracks (intended for officers). He joked about he and the others cracked a beer or two and laughed as another group of all-Mexican workers laid the roof...

[jmowreader]

129. I have an Army Signals Intelligence MOS

If the SIGINT powers-that-be think you MIGHT accidentally see a particular kind of information, they read you on for it.

At Fort Drum, I had a clearance for "overhead" coverage - raw satellite and aircraft collection. (These days it would also include unmanned aerial system collection.) I never actually SAW any overhead, but I was cleared for it.

[jeff47]

137. Your thinking is wrong.

I think he had lower level clearance, despite being an administrator, and he used his administrator privileges to give himself higher level access.

If the system holds TS information, any system administrators have to have a TS clearance. You can't have a Secret clearance and touch systems that hold TS data.

Also, the NSA requires TS clearances. And here's two links that mention Snowden having a TS clearance.
http://theweek.com/article/index/245967/edward-snowden-and-americas-security-clearance-vetting-problem#axzz34GAL5BsD
http://www.foxnews.com/us/2013/06/14/how-to-get-top-secret-clearance/

[joshcryer]

138. Then he definitely said an oath.

[jeff47]

136. Those channels are available for any level of classification

There are not special "Top Secret" channels. The same channels are available for Secret.

[joshcryer]

139. Right, but the material he accessed was TS.

So if he had Secret level access and saw top secret material he couldn't say anything because he would be accessing data he wasn't allowed to access.

But being TS he didn't have to worry.

[jeff47]

140. Actually, if he only had a secret he would be required to say something

because he had received information beyond his level of clearance. He'd be required to report it. Shutting up is a great way to lose your clearance and possibly get sent to a lovely facility in Kansas.

[karynnj]

80. Strawman alert - ""he didn't SPEAK an oath" - This is not directed at you, but the words

Does it matter if he signed a non disclosure document as opposed to swearing an oath?

It is entirely clear he signed an NDA - as you state - that is what people are speaking of. It is beyond strange to parse words to the affect that it does not count unless it is a sworn oath. Does it matter whether his hand was on a Bible - or even which version of the Bible was used too?

The fact is that he COMMITTED to not releasing documents. You could make a case that he came across documents that troubled him and that he was willing to destroy his own life to make them public. However, this can only apply to documents that he actually read or used.

He admits to taking the last job JUST to have access to more documents to steal and give to Greenwald. It is that last batch that angers me. These are the things that have most harmed the US internationally - and even hurt some of our allies. He took over a million files. This is an amount where he likely did not even scan the titles of the documents! Some here think it "good enough" that he made Greenwald and potentially other reporters the gatekeeper of which of these can be released and when. I don't get how anyone thinks that is acceptable.

[NavyDem]

23. As I posted in Post #5

Standard Form 312, which is signed by anyone that obtains a security clearance prior to being given access to classified material.

[JDPriestly]

28. Surely the oath to uphold the Constitution supersedes the oath to keep the President's

secrets.

[sabrina 1]

32. Of course it does. These attempts to distract are always amusing. The oath to defend and protect the

Constitution supercedes any document one may sign to keep a corporation's info secret. UNLESS THAT Corp is doing something that violates US LAW. To say otherwise is simply ignorant imo.

Anytime a person sees someone breaking the law, they are obligated to report it.

I have a feeling Snowden is not alone by any means. I believe there are many good people in the Government, we saw that during the Bush years with people like Drake and Binney and Comey, all those who quit their jobs at the DOJ rather than violate their oaths of office, and even Ashcroft who had at least one moment of decency when he called Comey for help to fight off Cheney and Gonzalez who were trying to get his signature on a document that would have violated the Constitution.

EVEN ASHCROFT! And here on DU we see people trying to excuse some of these crimes.

[NavyDem]

41. Interesting that you try to assume what I think on the matter.

I haven't taken a side one way or the other. I simply corrected a mis-statement with a fact. It is a FACT that government contractors do not take an oath of office. It is a FACT that the SF-312 is an agreement entered by those who obtain a security clearance before access is given to classified materials.

Were Drake, Binney or Comey contractors? I bet they weren't. They were actual Federal Employees, which means they likely would have taken an oath of office.

Point out one post where I've offered my opinion on Snowden. I'll be waiting. I will not answer a single question from you until you've answered mine. Take your time. If the posts exist, I'm sure you'll find them.

[JDPriestly]

45. Do you know how that works in the law when the person signing it does not?

work for the government but rather works for a private contractor?

Is it considered to be a contractual agreement?

If so, what consideration does the government give to the private contractor's employee?

Is it not really an agreement at all?

What is it?

Obviously, the law provides a penalty for violating the whatever it is. Is merely giving access to secret documents consideration for the promise not to divulge the information in the documents.

I'm wondering what the legal transaction is that permits the government to enforce an agreement with a private contractor.

Normally, the private contractor would have to take the employee to a civil court to enforce the private contract.

Normally, the government can enter into an employment contract with a government employee and then enforce the terms of the employment agreement. I suppose that would include a promise to keep secrets.

Can the government just require an employee of a private company to sign an agreement or promise in order to get the job with the private company?

Interesting. How does this work?

[NavyDem]

53. I'll try to answer the questions that I can, but some I do not know the full ins and outs.

The person that signs the SF-312 does so as a condition of their employment. If a clearance is needed to do the job, they either sign the SF-312 or they don't get (or keep) the job.

When the government puts jobs out to bid, they include the requirements of the job. The requirement for a clearance would be spelled out in that agreement. Thus the company that wins the bid would have to provide services by personnel that meet the governments requirements. I'm not sure, but I suppose if the companies employee committed a violation, the government could pursue a breach of contract action. That is my speculation though. I'm not a contracting guy myself, just a contractor.

[jeff47]

75. The agreement is between the contractor and the government

not between the contractor and the contracting firm.

Snowden's agreement was between Snowden and the government.

Can the government just require an employee of a private company to sign an agreement or promise in order to get the job with the private company?

The job comes first, then the access.

You can't get a clearance until you have a job that requires a clearance. So a company like BAH will hire someone without a clearance and then give them busywork until the clearance comes through. Then the employee can start doing their real job.

[JDPriestly]

114. Thanks. Interesting.

So the government arguably does not have an enforceable contract with the employee. The government offers no new consideration. I see now.

Thus the invocation of the Espionage Act which is a little awkward in the Snowden case since espionage suggests in the vernacular spying by the enemy or for money or for some nefarious purpose. Snowden could easily claim that he had no intent to do harm to the US. The law may not consider that to be relevant, but most ordinary Americans would.

Very interesting.

[jeff47]

118. The government offers lots in compensation

Access to trillions of dollars worth of information is quite a bit of compensation. Not to mention the clearance is required for continued employment, which is also compensation.

It doesn't have to be cash to be compensation.

Thus the invocation of the Espionage Act which is a little awkward in the Snowden case since espionage suggests in the vernacular spying by the enemy or for money or for some nefarious purpose.

Not at all.

Snowden is still alive thanks to money from Russia - they are feeding and housing him. Thus Snowden is receiving money from "the enemy", though any foreign country will do when it comes to the Espionage Act.

Where Snowden could have avoided the act was to not flee the country. If he had leaked to the NY Times or similar US entity, and not received any money, the act would not apply. The act requires compensation or working on behalf of another country.

Now, that hasn't really been tested in court. Manning was prosecuted under the UCMJ, where espionage does not have such a requirement. The Ellsburg case is the closest to getting a test in court, but there's so many other problems with that case that it didn't test this part of the act.

[JDPriestly]

119. You assume that Snowden is being compensated by the Russian government.

He denied that in his NBC interview.

do you have any evidence to back your claim?

[jeff47]

120. Again, compensation is not only cash.

Snowden is not homeless. He's received housing from Russia.
Snowden is not starving. He's received food from Russia.
Snowden is being sheltered from the US government by Russia

All of these are compensation.

[JDPriestly]

131. So, compensation for what?

Russia lets Snowden stay for a year. Snowden's passport was pulled by the US. What was Snowden supposed to do?

If you think he was wrong in the first place, you probably think he should have come back to the US.

But he had seen the experience of previous whistleblowers. It is understandable that he did not want to go that route.

If and when we get information about whose communications were placed under close surveillance, we will know whether his revelations were justified. I strongly suspect they were.

You will probably disagree. We will find out hopefully.

Have you read the testimony that was given before the Church Committee in the 1970s?

[jeff47]

133. For leaking classified information.

Russia lets Snowden stay for a year. Snowden's passport was pulled by the US. What was Snowden supposed to do?

Legally, he is supposed to return to the US. He is able to not do that thanks to the assistance of Russia.

But he had seen the experience of previous whistleblowers. It is understandable that he did not want to go that route.

That doesn't change that he is receiving assistance from Russia, which is a clear violation of the Espionage Act. Liking what Snowden has done does not change that.

If and when we get information about whose communications were placed under close surveillance, we will know whether his revelations were justified. I strongly suspect they were.

What's Greenwald and company waiting for?

Wouldn't they leak the most explosive information first?

[JDPriestly]

134. What's Greenwald and company waiting for?

They have to go through the documents. The NSA has estimated over a million of them.

Plus, if you had watched the NBC interview of Snowden, you would know that Snowden made the sources to which he gave the materials promise to limit what they published in certain ways so as to protect the public. One of the things he required was, if I recall correctly, and you can check this by watching the interview, that certain information be provided to the NSA or government before publication to eliminate the publication of information that might really endanger someone.

Wouldn't they leak the most explosive information first?

That's their decision. And why should they?

We grant asylum to people who face prison sentences for political activities. Why shouldn't Russia?

The list of dissidents we took in from the Soviet Union is very long.

People who view the NSA spying has hunky-dory may not understand what is going on. Bur if they put themselves into Snowden's position, try to understand what he was thinking and feeling as he saw what was going on in his workplace, maybe they will understand.

[jeff47]

135. Again, liking what he did doesn't change the law.

We grant asylum to people who face prison sentences for political activities. Why shouldn't Russia?

Russia is free to do so. And Snowden is free to accept their aid.

But that means he breaks US law. And liking what Snowden has done doesn't change the law. Just like someone liking W's many frauds does not change the law.

People who view the NSA spying has hunky-dory may not understand what is going on.

It's always amusing when people who can't understand basic concepts like "compensation" lecture others on what they "may not understand".

Bur if they put themselves into Snowden's position, try to understand what he was thinking and feeling as he saw what was going on in his workplace, maybe they will understand.

Alternatively, you could read what he's actually leaked so far and discover it doesn't actually back the story he's telling. He's leaked a bunch of programs that spy on non-US persons. He's leaked one program that "spies" on US persons, yet comfortably fits in a 1979 SCOTUS decision.

That doesn't add up to "The NSA is spying on everyone, everywhere!!!!!!".

Which now leads to justifications like this:

They have to go through the documents. The NSA has estimated over a million of them.

So Snowden took random documents without knowing what's in them? Then how does he know those documents show massive spying programs?

Oh, he knows what's in the documents? Then what's the delay? He knows which documents show these massive programs.

You can tell you're coming up with a terrible justification when you have to contradict yourself.

[JDPriestly]

145. He knows the programs because he used them.

Here is an article (NPR) that explains how much you can learn from monitoring internet traffic. It explains why the NSA is able to analyze so much material.

The NSA admits that it grabs both sides of traffic going from or to the US involving another country. Please watch more of Snowden's interviews and the press conferences and interviews of the other whistleblowers. I do not need to explain what they are saying. They explain it much better than I can. The program is overly invasive and needs to be cut back drastically.

http://www.npr.org/blogs/alltechconsidered/2014/06/10/320347267/project-eavesdrop-an-experiment-at-monitoring-my-home-office?sc=17&f=1001&utm_source=iosnewsapp&utm_medium=Email&utm_campaign=app

[jeff47]

146. Then he'd know exactly what documents to leak.

Please watch more of Snowden's interviews and the press conferences and interviews of the other whistleblowers. I do not need to explain what they are saying. They explain it much better than I can. The program is overly invasive and needs to be cut back drastically.

Here's the problem: They have yet to prove the program exists.

They have leaked some documents. Those documents don't show that such a program exists. If they are certain that such a program exists, they would know exactly what documents to leak to prove it. And they have failed to do so.

Further, this statement is utterly false:

He knows the programs because he used them.

Snowden was a Systems Administrator. He kept the computers running. He was not an analyst, therefore he would not have used such a program.

His job was to install the latest Windows patch, not monitor communications.

[NavyDem]

42. Yes it does.

I have taken no such oath since retiring from the Navy, but I would still report violations of the Constitution if I observed them or encountered them. That's a moral choice though. No oath involved.

[VanillaRhapsody]

82. BUT that is NOT the same as Top Secret Clearance....

[Adrahil]

112. Yes, but it's not a license to expose any secret you want.

But that's not the argument at hand, now is it?

[JDPriestly]

115. What do you consider to be the argument at hand?

I'm searching to express my thought so that it can be understood.

If the government can define an issue like the existence of the NSA surveillance which has a very political aspect to it for a number of reasons as secret, then what happens to the idea of the consent of the governed?

What if the governed do not consent to the NSA surveillance?

Isn't then the secret designation of the existence of the surveillance a serious problem in terms of self-government?

This problem occurs to me to be separate from the question whether the surveillance specifically violates constitutional amendments or provisions.

What do you think?

[Adrahil]

132. The issue I was specifically addressing was whether or not...

... Snowden took an oath of secrecy. If he held a security clearance greater than "Confidential," then he certainly did.

Now, in response to the claim that the oath to uphold the Constitution supersedes the oath to protect secrets, I agree that that argument can be made. However, it is a very tricky argument, and most particularly, I DO have a problem with Snowden's decision to expose intelligence operations that are perfectly legitimate, but with which he simply disagrees.

I think he crossed the line, and has expressed a willingness to continue to do so.

[Zavulon]

6. Adrihil is right.

And surprise, surprise, you don't get souvenir copies of non-disclosure agreements to post on the Internet.

[VanillaRhapsody]

10. People right here on this blog have taken the exact same pledge he had to to get his clearance....

[sabrina 1]

33. So what? People sign pledges with Corporations all the time, but when they witness that Corp

breaking the law, they are obligated to report it. The US Constitution is the law of the land, superceding any pledge taken when working for a corrupt corporation.

It's amazing how suddenly Bush's Private Security Contractor CEO, Clapper and his corrupt Corporation, Booz Allen, is being protected now by some Dems. I never thought I'd see that day in a million years.

Bush/Cheney's brainchild, to hand over our National Security to Private Security Contractors, MOST OF THEM Friends of Bush, and here we have people now trying to protect them.

All I can do is

[newfie11]

63. +infinity

[pnwmom]

49. Was Snowden lying then when he said he was a spy?

You don't get security clearance without signing a secrecy agreement. No one can provide you with a link to Snowden's document, but unless he's been lying about everything, he had one.

[ancianita]

73. He didn't say explicitly that he was a spy;he said explicitly that the NSA gave him "spy training."

I think it's not a trivial distinction to make here when we're talking about breaking NDA's.

[pnwmom]

84. It doesn't matter. He couldn't have worked in his capacity without security clearance.

And a security clearance universally requires a non-disclosure agreement -- a secrecy oath.

[ancianita]

90. How are they the same, though? I don't even see the legal liability levels as the same.

I don't want to go on and on about this, but other DU'ers on other threads have said that one has to be able to distinguish real espionage info theft from other kinds of information theft.

If you reveal the technical details on making an atomic bomb, that's not a matter of political opinion and revealing those secrets is not political speech, thus, it's not entitled to the greatest protection of the First Amendment. Then a person who knows those technical secrets is required to maintain the secrecy about them. The same is true of troop movements or new fighter plane technology, etc. The Espionage Act and secrecy laws are relevant to apply to secrets of a technical or strategic military nature.

Trade secrets? Ms. Merkel's phone numbers? Foreign leaders porn habits? Proprietary patent/extraction corporate info? Not at all, which is why Merkel and other leaders didn't indict the Obama administration and NSA in the international court.

If anything, Booz, Allen, Hamilton deserves to lose its NSA contract for failure to properly monitor an employee's theft of corporate, diplomatic or surveillance intel that is political in nature.

As you probably understand, the information that Snowden has provided us concerns issues of public policy, political opinions and facts of great political importance. Greenwald himself gives all credit all the time to Snowden, who revealed what he knew in order to obtain political action, to inform the public of what he perceived and what many, many Americans would perceive as a political policy that is wrong.

If the issue here is whether breaking a NDA is illegal, it seems to me to be a constitutional right that holds the greater public interest over those of the contractors or the branch of the federal government under which the NSA operates. If you make a NDA equal to a 'secrecy oath,' either is still trumped by one's duty to uphold the Constitution, whether that's expressed or implied.

Others here have said that because Snowden's revelations are political in nature, they constitute political speech and they are subject to the highest First Amendment protections. They hold that prohibiting the speech of Snowden, under any corporate contract or oath, is unconstitutional.

I agree with them. I thought the legality of what Snowden did was resolved here days ago.

[randome]

91. Oh, it will never be resolved at DU.

[hr][font color="blue"][center]The truth doesn’t always set you free.
Sometimes it builds a bigger cage around the one you’re already in.[/center][/font][hr]

[baldguy]

65. You need to sign a non-disclosure agreement to work at McDonald's.

Are you boggled enough to believe that Snowden didn't?

[treestar]

69. The 60s were a long time ago

Are there no such things as security clearances? Let's deny anything that doesn't support Eddie. Supporting the constitution means supporting our national security as provided for under law made by the constitution, not taking it on yourself to interpret the constitution. The constitution allows it to be interpreted by the courts.

[msanthrope]

78. Indeed. What would a Rand Corporation employee know about secrets? nt

[MADem]

110. He actually played a role in changing how secrets were kept.

Because of Ellsberg, they changed many rules and procedures. So actually, he wouldn't know much about it, because he was gone by the time they started changing stuff up.

[hobbit709]

9. Personally I always felt my oath to defend and protect the Constitution overrode secrecy

Especially if the secrecy involved subverting the Constitution.

[Igel]

12. It's really an open-ended kind of commitment.

If you are a Secret Service agent and there's a change in president, what happens if you decide that the person in the office is a threat to the Constitution and an enemy of the US.

Suddenly your oath requires that you assassinate him. Perhaps because your serotonin levels are off that day. Perhaps because you believed what the news sources you choose to believe and hold infallible told you.

So, just "nope." At some point you stop putting yourself above the law and trust in the system and not in your own infallibility. For most of us, that happens in childhood.

[Uncle Joe]

29. On the other hand if you're a Secret Service agent and you come in to information

that clearly demonstrates major violations of the Constitution to which you swore to uphold and defend, do you just go along, keeping silent and trusting in an increasingly corrupt system to work itself out?

Furthermore if your fears are warranted, at what point does it become too late to do anything about it?

Is the Constitution the supreme law of the land or a signed secrecy document in the land of the free?

Good conscience must play a role in one's decision making long after childhood up until you draw your last breath.

"Labor to keep alive in your heart that little spark of celestial fire called conscience." - Washington

"My dominion ends where that of conscience begins." - Napoleon

[pnwmom]

50. This isn't the point. The point is that Ellsburg's statement about

Snowden not having taken an oath of secrecy is false. Snowden had to take one to get the job he had.

The fact that he decided to put it aside is a separate matter.

[Uncle Joe]

54. If that's the case then posts #35 and #39 apply

Post #35

Then civilian contractors have received way too much power and that be would a condemnation of the of the NSA as well.

Post #39

How can the government prosecute an employee of a private company for allegedly violating a promise made to the employer?

How can the government require someone who is not a government employee to keep a contractual agreement if a third party employer is providing the compensation for the agreement?

What consideration did the government give Snowden in exchange for Snowden's signing an agreement related to Snowden's private employment?

A contract or agreement is only enforceable if there is an exchange of valuable (not in the common sense, but some exchange of some value) consideration.

What consideration did the government give Snowden if he was the employee of a private company?

[pnwmom]

58. I agree with post 35.

But post 39 is wrong. The secrecy oath Snowden signed was in order to get his Federal security clearance, which was required in order to take his private contractor job. That secrecy agreement was between Snowden and the Federal government, not Snowden and his private employer. (He very likely had a separate employment agreement with his employer.)

The "consideration" Snowden received for the secrecy oath was his access to secret materials owned by the Federal government, not by his employer. Without that access, he couldn't have done the job he was paid by his private employer to do.

[sabrina 1]

37. And if you are a Secret Service Agent or even just a Contractor working for one of Bush's old

friends, like Booz Allen eg, and you see that they are violating the Consitution, breaking the law iow, you are obligated as a citizen to expose the corruption.

Most people do not, eg, during the Bush years we learned, many people working for the DOJ quit quietly rather than break the law, (spy on the American people eg) nor did they have Snowden's courage to go public with the information. But they did refuse to participate in the law breaking. Comey mentioned them when he gave his retirement speech, subtly letting them know he appreciated the sacrifice they had made, quitting a job that would have benefited them for life, rather than break the law.

We have lots of silent heroes who actually CARE that our government is violating our Constitutional rights, most go away quietly, and one or two, like Drake and Snowden risk everything to expose the corruption.

[Luminous Animal]

31. Nope. He signed an employment agreement (the same on Ellsberg signed), as did you.

[Peregrine]

83. Correct

He had to sign the 10-10-or both form. It says that if you disclose classified information that you are subject to 10 years in prison, $10,000 fine, or both.

[NavyDem]

5. Standard Form 312

Every person that obtains a security clearance signs a SF-312 which outlines their agreement with the US Government not to divulge classified information. SF-312 even outlines protections available under various whistleblower protection acts.

Civilian Contractors do not take an oath of office. Government Officials and Military Personnel do.

[JDPriestly]

46. OK, so the SF-312 is an agreement to keep information secret.

What does the person who signs the SF-312 receive for consideration for keeping that agreement. To be enforceable, a contract must have consideration.

Or is the signing of the SF-312 not really an agreement or promise?

What is the legal status of the SF-312?

[NavyDem]

56. It's a legal document

that carries the weight of civil and criminal liability.

If you google SF-312, you can read a blank one for yourself. You might be able to get a better idea of what it entails than what I can put in writing. I'm usually not that good at trying to explain documents. LOL

[JDPriestly]

59. Thanks. I suspect that the complications I have mentioned

may be why there is so much talk about the Espionage Act, that ancient WWI relic.

[NavyDem]

60. You're probably right.

Personally, It's a big pain in the ass to get that level of trust in the first place. When the investigators do the job correctly, they really crawl up your ass to determine whether or not you should be granted a clearance. Sometimes they don't do due diligence.

Divulging wrong-doing by the NSA isn't so much the sticking point as it relates to "espionage" as the fact that there were other releases. Whether or not those releases harms the government or not, is not my place to guess.

[COLGATE4]

66. It is almost unheard of for any contract

to fail for lack of consideration. This is a concept more often seen in first year Law School than in real life. But, in any case, consideration can be a promise in return for a promise, e.g. I promise to keep information secret and you promise to let me have access to it. So there was consideration.

[snot]

7. K&R'd.

[grasswire]

8. the same as the POTUS oath

"protect and defend the Constitution."

[VanillaRhapsody]

11. No not the same....

he had to pledge to keep govt secrets...that is what "Top Secret Clearance" means....and he had to have that in order to be a Federal Contractor.

[grasswire]

16. from The Progressive, quoting Gellman at WaPo

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 Post’s 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. ...

- See more at: http://www.progressive.org/snowdens-crime-was-against-secrecy-not-the-constitution#sthash.e4qyRvxE.dpuf

On edit: Presidential oath ... "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

[OilemFirchen]

22. Hilarious.

4. I have been advised that any breach of this Agreement may result in the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, *952 and 1924, title 18, United States Code; *the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation.

And there's more!

http://www.gsa.gov/portal/forms/download/116218

[jeff47]

26. Nope. Snowden was not a federal employee.

At least, not at the job from which he leaked.

[pnwmom]

52. What does that have to do with anything? When private contractors

work on federal projects that require security clearances, those employees must sign secrecy oaths.

One of my relatives works for a private contractor and has a security clearance. He had to sign the oath. Everyone does or they don't get the job.

[jeff47]

67. It means grasswire's post is wrong.

Specifically:

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

Snowden did not take an oath of office - there was no "uphold the Consistution" oath.

One of my relatives works for a private contractor and has a security clearance. He had to sign the oath.

The "oath" required by people with security clearances is not the "uphold the Constitution" oath. In fact, you don't have to recite anything for a security clearance, you have to sign the stack of paperwork promising to keep secrets. Many sites will have their security people come up with an oath to make it "more real", but it's the paperwork that legally binds the contractor.

[pnwmom]

87. Yes, I made that clear elsewhere. People with security clearances sign secrecy oaths --

otherwise known as non-disclosure agreements.

[quakerboy]

141. Maybe its just me

But an agreement or an acknowledgement is vastly different than an Oath.

I can sign an agreement that I dont plan to do X. I can acknowledge that if I do X, I will be in violation of various laws forbidding me from doing so. Neither of those is an Oath.

And all of this misses any of the important parts of this issue. At the end of the Day.. Why do we have the government spying on its citizens, and why do we have private contractors who have not taken an oath of office getting access to this level of data?

[pnwmom]

142. It's just you. Signing one of these agreements means that you are agreeing

to keep the information confidential and you are acknowledging that you know about the criminal penalties you will be subject to if you fail to do so.

[quakerboy]

143. Which is still not an Oath

I agree with everything you said. But an agreement is not an oath. And this thread seems to all be about the technicality of whether Snowden took an Oath.

Also, I went and did some online research. It appears, according to dictionaries and legal dictionaries, its not just me. "Oath" and "agreement" are not interchangeable terms.

[pnwmom]

144. An oath is a solemn vow. A vow is a promise or pledge. Signing this agreement is a solemn promise

or pledge, thus it is a solemn vow, thus it is an oath.

[VanillaRhapsody]

81. If he worked as a Contractor on a govt job.....OH Yes he did.....he has to take that pledge to GET

Top Secret Clearance....even Fed Contractors MUST take that pledge....sorry but Ellsburg is wrong

[JDPriestly]

40. I know that Snowden worked for the government, the CIA at some point.

But who was his employer when he obtained and disclosed all the documents?

How can the government enforce an employment contract or the term of an employment contract between a private employer and a private employee in a criminal court?

Did Snowden obtain some of his documents while a government employee?

If so, did the government give Snowden some consideration for Snowden's entering into a contract and agreement with his employer?

I'm not sure of the timeline or law on this.

I've seen disputes about employment contracts and agreements, but I have never heard of the government suing or prosecuting the violation of an employment contract to which it was not a party. Not in an employment contract case. Has this been done?

[NavyDem]

43. His employer was Booz Allen Hamilton

The government is not enforcing the an employment contract. His employer was. As a condition of his employment with BAH, he had to have a security clearance to perform the work he was being hired for. The government requires the SF-312 of all cleared personnel prior to granting access to classified materials. In order for his employer to provide him to the government, the employer has to comply with government regulations.

I see it happen all the time where a contractor loses their security clearance, and their employer terminates their employ because they no longer meet the requirements necessary to perform the job they do.

[JDPriestly]

57. So qualifying to sign the form is a pre-condition of the employment.

Like requiring a teaching certificate as a pre-condition for the employment of a teacher. If you don't qualify for a teaching certificate or medical license, then you might lose your job.

But teaching and medical licenses are not agreements, they are earned acknowledgments of professional qualifications.

The government may enforce laws that require the protection of secrets, but does the government sue or prosecute for violation of the SF-312 agreement? Or simply for divulging, for violation of the Espionage Act? It does not need an agreement to prosecute under the Espionage Act.

http://www.merriam-webster.com/dictionary/espionage

[NavyDem]

61. Yes. It is a pre-condition for employment.

Given the hoops a person has to jump through for a clearance, I guess you could call it an earned acknowledgement. Standard Form 86 is the form that a person getting a clearance needs to fill out to get the ball rolling. If you want to look that up, you'll see that it is a very invasive list of questions that each prospective cleared person needs to answer, and then have verified.

[jeff47]

72. Not quite.

So qualifying to sign the form is a pre-condition of the employment.

Close, but not quite.

You can't get a security clearance until you need a security clearance. As a result, contractors like BAH will hire people who do not have clearances, and then give them some busywork until their clearance comes through.

If the clearance comes through, they stay employed. If the clearance does not come through, or is terminated or suspended at some point, they are fired by BAH since they can no longer do the job.

but does the government sue or prosecute for violation of the SF-312 agreement?

They prosecute under the Espionage act since the punishment is significantly stronger.

However, there's a flaw in the Espionage Act in that it requires leaking information to another country in order to violate the act. Imagine if Snowden had just handed the information to the NY Times instead of fleeing the country. He couldn't have been prosecuted under the Espionage Act....at least in theory. It's never really been tried. Ellsberg's case is the closest it got to being tested, but there's a whole bunch of other problems with that case. (Manning was prosecuted under the UCMJ, where the espionage rules have no foreign country requirement.)

As a result, it's possible the government could resort to the civil penalties under the SF-312, but that hasn't come up yet AFAIK.

[JDPriestly]

30. What makes it more binding than the marriage vows?

Face it. Sometimes people don't keep their pledges or the vows. And sometimes that is a good thing.

If a woman leaves her husband because her husband is beating their children, she is doing the right thing. Doing the right think is more important in that situation than keeping a marriage vow.

[sabrina 1]

38. So you think that people should just remain silent when they witness crimes in action?

How do you feel about Clapper, Bush's old friend and former CEO of the same Corp Snowden worked for, Booz Allen, still being part of this administration?

Remember when we were all outraged, ALL OF US, when Bush/Cheney privatized our National Security, getting contracts for thousands of private Security Corps, billions of dollars, going to all of their friends??

Now I see times have changed and people are actually supporting these Bush/Cheney Private Security Contractors, even after they are caught lying to Congress? What happened?

[pnwmom]

55. Why would you draw that conclusion? What the poster thinks (actually knows)

is that Ellsburg was not telling the truth when he claimed that Snowden didn't sign a secrecy oath.

Regardless of whether a person thinks Snowden was justified in ignoring the oath, the fact is that he took it. Everyone with a security clearance, whether with a public or private contractor, is required to.

[sabrina 1]

96. He didn't sign an 'oath'. He signed a standard corporate agreement which in no way obligates anyone

from reporting CRIMINAL activitiy within the Corporation.

Show me where that agreement includes 'even if you witness law breaking' in any such agreement. You can't, but it is ludicrous to think that an agreement with an employer would obligate any citizen to remain silent about law-breaking they witness.

Ellsberg is correct. I think he knows a bit more about these matters and isn't likely to try to try excuse Corporate Law Breaking under any circumstances.

Btw, a far more important question which people, especially Liberals who opposed the privatization of our National Security from the beginning, is this, 'Do these Private Security Corps take an oath to defend and protect the US Constitution' or are they exempt from doing so?

I will have to check into that because anyone given that important job, not to mention the BILLIONS of tax dollars they have taken, should very definitely be required to put the security of this country before PROFIT, don't you think?

[pnwmom]

99. Wrong. I'm not referring to any "corporate agreement" he signed with his employer.

I am referring to the vow he took to maintain secrecy when he signed paperwork from the Federal government that allowed him to get his security clearance. And he must have because all people with clearances are required to. And the penalties are listed on the document.

In other words, every person who works for a private employer on a government project involving classified materials must get a security clearance from the government. This person is likely to have to sign some employment agreement with his employer, but that's a separate matter. But he will also, if his job puts him into contact with US government classified material, have to get a security clearance -- not from his employer but from the government. And getting that clearance will require him to sign documents vowing to maintain the secrecy of those documents, without exceptions -- and the documents even set out the criminal penalties for not doing so.

[sabrina 1]

121. Crime does not fall under that agreement.

Major crimes have been committed against the American people and against this country. Starting with the lies told re Iraq and everything that followed in order to cover up those lies.

Snowden, like so many other whistle blowers since 2001, witnessed those crimes and exposed them. And this will continue until we have a government that has the courage to restore the rule of law in this country.

Clapper, did he take an oath when Bush appointed him?

And why is a Bush loyalist STILL in such a position of power in the administration WE worked hard to put into power in order to END the abuses perpetrated by the Bush administration?

Ellsberg is correct, Snowden observed crimes and was obligated to expose them. As is any citizen who witnesses crimes of this magnitude.

[pnwmom]

123. Nothing is excluded from that agreement, even things Snowden believes are crimes.

You can read the secrecy language here:

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5070991

There is no crime loophole from the promises Snowden made when he signed the document.

Maybe there should be, but there isn't.

That doesn't mean a court couldn't decide he made the right decision, at least in releasing the information about US internal surveillance. I would personally support him in that. But I think he crossed the line when he passed on information about international spying.

[sabrina 1]

124. The US Constitution trumps any such 'agreement, but so does human decency. I'm amazed you are

apparently advocating that a Bush supported Private Security Corp should be protected when they are committing crimes against the US Constitution. I hope I am misunderstanding, because that would be shocking beyond belief.

Btw, did you support Drake and Tice an Binney back during the Bush years when they revealed crimes such as Snowden observed? Airc, they were HEROES to the Left, not so much to Bush supporters, although some did see the danger to our democracy to be fair.

[pnwmom]

126. It isn't a crime against the Constitution to do international spying.

And you read me incorrectly if you think I was supporting US internal surveillance. Try reading again.

[phleshdef]

13. Since when do IT contractors take an oath to defend the constitution?

Did Daniel Ellsberg even really say this?

[AnnieBW]

15. It's called a Non-Disclosure Agreement

It's called a Non-Disclosure Agreement. Most Federal contractors, especially those working in the Classified world, sign them.

[Thinkingabout]

17. And be reviewed after employment, is this on the internet, nope.

[grasswire]

21. and any penalty is civil.

Enforcement of SF-312 is limited to civil actions to enjoin disclosure or seek monetary damages and administrative sanctions, "including reprimand, suspension, demotion or removal, in addition to the likely loss of the security clearance."

It has nothing to do with the espionage act.

[jeff47]

25. Yes, because most spies don't sign an SF-312.

As a result, an SF-312's enforcement mechanism is not terribly effective against espionage.

[JDPriestly]

34. Because why would the government enforce a private employer's employment

contract. Might prosecute theft, but this is an interesting legal problem. Is it appropriate for the government to enforce an employment-related nondisclosure agreement against a person who is not an employee of the government.

Theft can be punished, but . . . .

Daniel Ellsberg was a government employee.

[jeff47]

68. Ellsberg was a government employee. Snowden was not.

My point was a whole lot of the people who get charged with espionage were the ones receiving the secrets from those with a clearance. They were the middlemen transferring the information to their country.

As a result, they had no clearance, no SF-312, no employment contract.

[HereSince1628]

64. and maybe more...the paper I signed when leaving also had travel restrictions

for the following decade...but then that was in the way-back in the dark crisis times following Watergate.

As the peace dividend has been reaped, processed and digeseted by for-profit private contractors, we live in a much safer world, I'm sure that things have been able to loosen things up from the paranoia of those past-times.

Or, not.

[backscatter712]

18. The oath to protect and defend the Constitution...

...takes precedence over any oaths to keep secrets when the two oaths come into conflict.

And that's especially true if the secrets are about criminal behavior that undermines the Constitution and the basic rights and dignity of the people of the United States.

[jberryhill]

27. Okay, so...

If I have taken an oath to defend the Constitution, and I see a cop conducting an illegal search, then I am entitled to do anything I deem fit? For example, hop into the police car and drive it into a wall, so it can no longer be used as an instrument to facilitate this violation of the Fourth Amendment?

The statement works if the duty to "defend the Constitution" equates to "what Snowden has done". Because normally a superceding duty as an affirmative defense only works to the extent the actor only engaged in the violation to the extent necessary to discharge that duty.

For example, the classic "speeding violation on the way to the emergency room" does not extend to then proceeding to spin donuts on the hospital lawn or to run over pedestrians on the sidewalk.

[JDPriestly]

36. So then a jury would have to decide whether Snowden "only engaged in the

(alleged) violation to the extent necessary" to uphold the Constitution. Interesting.

[jberryhill]

77. Unlikely

The "God told me to do it" defense is generally disallowed pre-trial.

That applies across the board in circumstances where the defendant wants to turn the trial into a platform for a cause.

For example, when someone blocks access to an abortion clinic, they don't get to spend the trial expounding their belief that abortion is murder. Likewise, when someone enters a nuclear facility to protest, the court is not going to allow them to spend the trial convincing the jury that nuclear weapons are inhumane etc..

Would you suggest that an attorney can turn on her client upon finding out that her client broke the law? After all, an attorney takes an oath to uphold the law, and also to maintain the confidence of the client. So if an attorney violates client confidentiality and says "but my client did something illegal", is that a defense?

[JDPriestly]

98. The Constitution is the measure of legality in this situation.

Have you read the Church Committee Report?

http://www.intelligence.senate.gov/churchcommittee.html

I read portions of it.

The NSA's domestic spying activities violate the Constitution in a number of ways.

The violations of the Fourth Amendment under the FISA court general warrant orders are obvious.

If it were just a matter of pen registers, those who criticize Snowden might have an argument based on the Maryland decision in the late 1970s.

But, I think that case will eventually be distinguished on its facts. With today's computers and the massive number of pen registers collected, a pen register opens onto an ocean of information. The information from a large number of pen registers reveals so much about any one of us that it violates the Fourth Amendment. That program amounts to seizing the entire lives of many, many Americans.

Reading a bit of the Church Committee hearings transcripts, another more serious problem becomes apparent: someone somewhere must determine the criteria for selecting who will be put under surveillance or for picking keywords to use for searches.

The transcripts of the Church Committee hearings suggest that during the iteration of the NSA's domestic surveillance that the Committee studied, the NSA received "watchlist" recommendations from other agencies that provided names or key words, depending on what they were using, to determine who would be spied upon.

(I assume that the NSA's capacity to spy and to listen in and to collect and, most important, to analyze and publish results from the surveillance was far more limited than it is today.)

And it is in that part of the NSA's process that the gravest violations of the Constitution occur.

Because selecting targets and deciding on code words, in situations that are not linked to the investigation of specific criminal acts, involves political judgments that our government under our Constitution is not authorized to make.

It is those judgments that violate for example, the First Amendment rights of people to free speech, assembly, religion, petitioning the government, etc.

That the NSA prior to the Church Committee investigation had targeted Martin Luther King is well known. The justification for that was to query whether Dr. King was linked to or supported by foreign interests. At that time, I suppose, they were hoping to discover that Dr. King was a Communist or at least had links to Communists so that they could discredit him. Of course, what was the real reason for spying on Dr. King? He was a religious and political figure who wanted reform that the conservatives in the NSA and other agencies did not want.

Dr. King was practicing civil disobedience, as were the active people in, say the Occupy movement, but the "crimes" Dr. King committed were mostly misdemeanors of little significance.

It seems pretty clear today that the real purpose for the surveillance of Dr. King was political. Dr. King was a social, political reformer. Someone in the government was using the NSA in the hope that it could silence him and those who supported him. That is a violation of our Constitution.

The Snowden documents reveal that the NSA's recent activities are most probably no different from those of the era that the Church Committee discovered and condemned. The FISA courts have issued wiretap subpoenas broad enough to give the NSA license to look at or listen to the communications of virtually any person in America who might have some occasional reason to call or visit or e-mail out of the United States.

When we see who was being watched by the NSA in recent times, we will find out what the criteria were or are for placing people under surveillance.

Interestingly, I recall at the beginning of the Snowden "era" that the whistleblower Russell Tice said that many of the people under surveillance when he was at the NSA were attorneys, law firms. That is an intriguing detail. The attorney-client privilege is not protected in the Constitution, but is a long-standing tradition in common law. It is arguably protected by the guarantee in the Constitution of the right to counsel in a criminal trial. We shall see what the facts are on that one. It will reveal a lot about the motivations behind some of the surveillance in recent times.

Once the names of people under surveillance come out, I think that the extent of the violations of the Constitution that are necessarily and inherently present when our government places Americans under surveillance will become clear even to people who have too little understanding of how surveillance works to recognize the problems.

I have some theories about who some of the individuals might be, but you would have a different list of names. And that is the point. Who would you place under surveillance if you were making recommendations to the NSA? Who would I? We probably would not agree. In the absence of a crime, no one is qualified to make that decision.

To sum up:

In a surveillance state, which Snowden revealed ours to be, a subjective political and value judgment must be made in order to identify those to be watched or placed under surveillance. That is where the constitutional violations are most obvious.

There is no substitution for a warrant issued upon probable cause that complies to the letter with the Fourth Amendment. That Amendment protects all our other rights.

Wait till names are named. That the program violates the Constitution will probably become evident. The criteria are kept secret either because they are political or because they violate constitutional rights in other ways.

Snowden was defending the Constitution. That is a patriot's duty. Following a law that silences you is not. And how can we have a law that requires secrecy outside the military environment? It violates the First Amendment, especially if it is intended to silence political speech or criticism of our government.

[jberryhill]

100. Um....

"how can we have a law that requires secrecy outside the military environment?"

That's not a serious question, is it?

I'm not sure you understand the point of my observation. Taking a violation of the Fourth Amendment as a given, you are still left with the sequence of actions which Snowden undertook, which were certainly not, in sum, the full range of options available to him, including many legal ones.

But as far as "a law that requires secrecy outside of the military environment", I'm flabbergasted you believe that, say, theft of trade secrets should not be a crime. You think your doctor should be free to hand out your medical records? Really?

As far as a First Amendment violation goes, you can certainly sign a contract which lawfully requires you to speak or not speak on a given topic. Are you going to tell me that if I sell tickets to one of my singing performances, that I am entitled to keep the ticket sale revenue if I don't show up and sing?

In a surveillance state, which Snowden revealed ours to be, a subjective political and value judgment must be made in order to identify those to be watched or placed under surveillance. That is where the constitutional violations are most obvious.

That's all well and good. That has nothing to do with whether the affirmative defense of justification applies to everything that Snowden did.

And, once again, could you remind me of the penalty for "violating the Fourth Amendment"? What sort of maximum jail sentence does a government official get for that?

Because the ordinary penalty (absent physical damage incident to unlawful searches) is the exclusionary rule of evidence.

Okay, so, do people who believe abortion is murder have the First Amendment right to protest by blocking access to abortion clinics. Yes or no? And if your answer depends on whether you agree with them on the underlying issue, which I certainly do not, then the upshot is that:

Anyone who believes there is a Constitutional violation has the right to do anything they want, so long as I agree with them.

Is that it, in a nutshell?

And, I should add, there's nothing wrong with holding that as a position. But if your position is that application of the law should exonerate Snowden, then what is the problem with running that experiment?

[JDPriestly]

113. I am asking a number of questions.

The first is whether the government enforces the employment agreement between Booz Allen and its contractors under contract law or solely under laws like the Espionage Acts?

Trade secrets and medical secrets are supposed to be protected by specific laws. The government does not prosecute the violation of an employment contract as a crime. I think you will agree with me on that. I am asking, however, whether that can be done.

Theft of secrets can be prosecuted. I understand that. But the agreement not to disclose government secrets surely is not enforceable as a contract if the government provides no consideration for the signing of the agreement. Is it?

I think our government uses the secret stamp far too often. It is a way to prevent us from learning the embarrassing facts about what our government is doing in many situations. Clearly the Bush and Obama administrations have not wanted the public to know about the NSA surveillance and the collection of pen registers. As I said, when the names of people placed under surveillance becomes public, we will find out who the targets were and we may be able to figure out why they were targeted. If the Church Committee Report is any precedent, we will discover that politics played a role in deciding who was targeted.

***

Also, while we are discussing this, I would like to know what you think the Fourth Amendment means today in this time of so much surveillance technology? Is it just dead as long as the police do not physically invade our homes or businesses? We have nearly replaced letters, books, the things we used to keep in our homes, with electronic impulses. What does the Fourth Amendment mean today? Do we completely lose our privacy when we keep our records in an internet cloud? I know of a retirement fund that charges its customers if they want written records to be sent on a fairly regular basis. Is the information about savings in that fund fair game for government surveillance? Are we being forced to place ourselves and our private information in a zone that is open season for government surveillance?

What do you think about this?

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

http://www.law.cornell.edu/constitution/fourth_amendment

Here is an interesting article on the Fourth Amendment. Seems Madison borrowed from the Massachusetts Constitution when drafting the Fourth Amendment.

John Adams represented John Hancock in the case that arose from the British action against Hancock's ship the Liberty. In that case, John Adams argued that the warrant, a general warrant assistance, was insufficient for the search of the Liberty. The general warrant of assistance was one of the most important triggers for the American Revolution. What the NSA is doing today and what the FISA courts issue to enable the surveillance of American communications are very similar to the general warrants of assistance of that time.

INDIANA LAW JOURNAL

Several themes that found later resonance in John Adams’s views and in Fourth
Amendment jurisprudence can be seen in Thatcher’s arguments, including the
acknowledgement of probable cause as a standard to measure the propriety of an
intrusion, a concern with standardless discretion, and the temporary nature of
warrants. Still, it was Otis who inspired Adams, and many of the principles that
Otis advocated found a place in Adams’s writings and subsequent search and
seizure constitutional provisions. Specifically, significant aspects of Otis’s
arguments became elements of Article 14 and Fourth Amendment structure and
jurisprudence. They include the following: identifying the right to be “secure” as
the interest implicated by a search or seizure; listing the home as a protected place;
utilizing the common law search warrant as a model for when warrants can issue;
defining unjustified intrusions as “unreasonable”; and indicating that probable
cause based searches and seizures are proper. More broadly, Otis’s concerns about
the need for certain procedures, the scope of intrusions, and the arbitrary use of
authority, have had continued importance in search and seizure jurisprudence to
this day. Underlying all of those arguments and principles was a quest for objective
criteria to measure the legitimacy of a search or seizure.

. . . .

Many of the state governments at the time of the American Revolution adopted
legal protections against unreasonable searches and seizures. . . . Those protections,
embodied in the constitutions of the various states after declaring their
independence, typically addressed only abuses associated with general warrants. The Massachusetts Constitution, drafted by John Adams in 1779 and adopted by the Commonwealth in 1780, offered a much different model. The constitution Adams created was preceded by a “Declaration of Rights,” including a search and seizure provision that ultimately became Article 14, which provided:
Every subject has a right to be secure from all unreasonable searches
and seizures of his person, his house, his papers, and all his
possessions. All warrants, therefore, are contrary to this right, if the
cause or foundation of them be not previously supported by oath or
affirmation, and if the order in the warrant to a civil officer, to make
search in suspected places, or to arrest one or more suspected persons,
or to seize their property, be not accompanied with a special
designation of the person or objects of search, arrest, or seizure; and no
warrant ought to be issued but in cases, and with the formalities
prescribed by the laws

http://www.olemiss.edu/depts/ncjrl/pdf/CLANCY/Clancy.%20ADAMS%20and%20Framers.PDF%20version.pdf

I'd like your opinion on what the Fourth Amendment means today. Clearly, if Adams believed that the right to privacy extended to a ship that traveled from place to place, couldn't we have a right to privacy in our e-mails and electronic communications that we do not communicate in public places?

Further, with regard to the prosecution of trade secrets and medical information, they are prosecuted as theft. That I agree with.

What I was asking was what the significance is of a person's signing an agreement with the government to keep government secrets if that person is not an employee of the government. Is the prosecution of the violation of that contract done under contract law?

By the way, I think that the exclusionary rule is a wet noodle. I think the Fourth Amendment deserves to be taken more seriously than that.

***

Then, why do we have a law punishing the theft of government secret that the government is stealing what many of us voters consider to be our personal secrets?

My medical information is shared with me on a website that is supposed to be private. Does the government through the NSA have the right to violate the privacy with regard to my medical records that the government by statute promises to protect?

That makes no sense to me. A law prohibits anyone including the government from gaining access to my medical information without my consent, and on the other hand, the government gets the equivalent of a general warrant that it uses to excuse its scooping up of my internet data including my medical data.

The NSA data and pen register sweeps will inevitably break other laws that supposedly protect our secrets including my medical records and the trade secrets of companies.

I hope this is coherent. I am interested in your think on these topics if you have the time to answer.

[jberryhill]

116. That's enough for a semester course

I hope you aren't crushed if I don't address everything in that extremely thoughtful and well-written post.

My comment was directed to the general viability of "justification" as an affirmative defense to a criminal charge. The short answer is that it is a narrow defense, and can be ruled out as a matter of law before a case gets to a jury, depending on the circumstances. If it is ruled out, that can be appealed. My comment was not intended as an analysis applied to the specific question of Edward Snowden. That analysis would look something like "he did a lot more than a justification defense would allow". If he were to be tried in the US, whatever happens at the trial level is likely to be uninteresting anyway, since his best course would be to engineer a mistrial. I only meant to say that, yes, "justification" is a form of affirmative defense, but it is narrower than many would like to believe.

What I would suggest generally is that you think in terms of "remedies" along with "rights".

For example, you are walking down the sidewalk and I say, "Oh, there's that a-hole Priestly from DU. I hate that guy. I'm going to sneak up behind him and run him over with my car." About 100 feet behind you, I drive onto the sidewalk and am careening toward you, certain to kill you. But at 25 feet behind you, I change my mind, drift back onto the road, and drive past you. You never saw me driving on the sidewalk, you had no perception that I "could have" run you over. Nothing at all happened to you.

Now, had you seen me, you might have been alarmed to the point of being in fear of your mortal existence, and I could be found liable for putting you in fear of your life or serious bodily injury. Had I hit you, of course, I would be liable civilly and criminally for all kinds of things. But neither of those two things happened. We can certainly agree that I was doing something wrong. We can certainly agree I committed a crime, or at least had intent and behavior directed toward committing one before I changed my mind. But nothing happened to you.

What result?

"By the way, I think that the exclusionary rule is a wet noodle. I think the Fourth Amendment deserves to be taken more seriously than that."

I agree with you on the second sentence. But that doesn't change the situation, which is that the "Fourth Amendment" doesn't have a "penalty" section. It says "the government shall not do this". Okay, fine. But what is to happen if the government does that? Quite obviously, we generally don't have rules against things that people aren't going to do. We have rules against things which people actually DO. The Fourth Amendment was written with the idea of, "yep, the government is going to break this from time to time". Otherwise, there's no point in having a rule against something which doesn't actually ever happen.

But to say "the exclusionary rule is a wet noodle" indicates you don't spend much time in pre-trial proceedings at your local courthouse. Criminal charges are dismissed or reduced pleas entered on the basis of it - Every. Single. Day. Each time it is a victory for the Fourth Amendment. Don't piss on what we already have. Make it better.

Do we say, "Okay, the government broke the Fourth Amendment, so let's grab the guns and overthrow it?" Is that what it says? Does it say, "we execute the government official who broke the Fourth Amendment"? Lock them up for how many years? What, specifically, do you have in mind by "taken more seriously"? With a blank sheet, and available penalties including death, where do you want to peg "taken more seriously"?

Again I agree that it should be taken more seriously. But that doesn't provide anyone who has an opinion that the "government did something it is not supposed to do" with some sort of legal immunity to then, in turn, do whatever they see fit as an appropriate course of action.

Give me the list of things which becomes permissible to do in these circumstances. Among other things the Constitution provides is the right to seek redress for violations of rights. The Constitution provides an entire Article, Article III, as a mechanism for doing that.

How about assassination? Is that off the table?

Let's say I am standing on my own porch on the route of a parade, holding a sign protesting a foreign miltary adventure, as I was one fine day some years ago, and a police officer does not like my sign. The police officer came up to me and took my sign away. My First Amendment right was violated. What then? Can I kill him now? Can I take a baseball bat to him? Give me the list of crimes I am now free to commit because, hey, the government violated the First Amendment.

That's what I'm driving at here.

The principal mechanism we have for Fourth Amendment violations is the exclusionary rule. John Adams and friends were primarily concerned about being locked up on the basis of information obtained as a consequence of illegal searches. The "penalty" for violating the Fourth Amendment, in the form of the exclusionary rule, addressses the animating concern of the Fourth Amendment - that people were going to be locked up as a consequence of the government conducting unwarranted searches.

And so, the theory goes, the exclusionary rule does two things. First, it reduces the incentive for conducting them, since the evidence can't be used (more on that below). Second, it takes the teeth out of illegal searches by rendering them inconsequential (and, as noted above, if they come into your house and smash up your stuff, the incident destruction of your property is another claim apart from the Fourth Amendment claim (specifically a Fifth Amendment claim)).

But in some sense, we are back on the sidewalk with me wanting to run you over with my car. The relevant laws kick in if (a) I scare the shit out of you, or (b) injure you. Some harm had to come to you in order for my aiming my car at you without your knowledge to have any consequences. It's a "tree falls in the forest" proposition. The penalty we have for this species of government misbehavior - the exclusionary rule - only applies when the fruit of the illegal search is used to try to put you in jail.

Now, I keep a printing press in my basement which runs off counterfeit $100 bills. If the police come in and find it in my basement, I am going to thank my lucky stars if they had a defective warrant, because their violation of the Fourth Amendment is going to keep my ass out of jail.

HOWEVER, and I think this is the troubling part, let's say they break into my house when I'm not home, see the printing press in the basement and say, "Well, okay, we can't use this search, but let's keep an eye on the guy when he is out in public and be ready to bust him when he passes a counterfeit bill." Can they watch me when I am out in public going shopping? Sure. Can they assign an officer to my grocery store, who doesn't even know about the illegal search of my house, to "keep an eye out to see if anyone passes a fake $100 bill?" Yes, they can do that too. So using the "independent source" route, they construct a parallel "legal" investigation, prompted by the illegal one, in order to nail me when I pass a counterfeit bill. The illegal search of my basement doesn't come into play, and they say "we got an anonymous tip that someone was passing counterfeit bills at the XYZ grocery store, and we caught this guy. We then got a warrant and found a counterfeiting operation in his basement."

Is that fair or not? I don't know that you'd get a broad consensus either way. In the real world, that kind of thing happens every day, along with the use of "informants" who can do things the police can't do, but can tell the police about it. But we put up with it because there are enough voting people in our society who would look at it and say, "Okay, but at the end of the day, the guy was counterfeiting $100 bills."

Everybody - including here at DU - has their favorite injustice that resulted from a criminal defendant who "got off on some technicality". Because by the time you are contesting an unlawful search on appeal, it's pretty much established that the underlying offense was, in fact, committed. Those are the only cases that get to the Supreme Court, for reasons that should be apparent if you think about it. So, just looking at the inputs, if you are the Supreme Court, it is pretty much a constant parade of people who really did some awful insanely illegal stuff, but they got caught because there was a Constitutional violation of some kind. That doesn't change the fact that Ernesto Miranda actually committed armed robbery, kidnapping and rape.

Start a thread on DU about how some guy admitted raping a mentally handicapped woman, but didn't get his Miranda warning, so he should be let go, and see how many "defenders of the Constitution" will join the celebration over that triumph of our rights. It's a tough sell. But pointing the finger at "the government" as having eroded our rights, instead of at ourselves for having allowed it to happen by a chain of incremental compromises is, IMHO, misplacing the blame.

We, The People, do not intelligently use the system of government we already have. For example, you bring up the Church Commission. The Church Commission did good work. Among the results of it was the establishment of the FISA court, which is a cherished institution here, right? Well, no.

The problem is that the work of perfecting our system doesn't reach some "end point" where we wipe the sweat off of our brows and say, "Well, we got that one nailed down. Good work. Let's go party." It's an ongoing process, and our system only works by continued intelligent engagement with it. That yet another generation has discovered our system of government is a process, not a result, and thinks they are the first generation to do so, is sort of like the way each generation thinks it alone discovered sex. These problems are not new, nor does their existence spell apocalyptic doom for our principles.

One of the reforms resulting from the Church Commission, of course, was an increased compartmentalization of information sharing among government agencies doing foreign intelligence, and government agencies doing domestic law enforcement. Hence, while Snowden can say, in relation to 9/11, that the government had all of the information it needed to know something was up, that view of "what the government knows" as one big pot of stuff that "the government knows" is a little simplistic - precisely because of the principles we put together in the wake of.... the Church Commission. That's a broad brush characterization, but you aren't going to find someone to hold a coherent conversation about it with someone who doesn't think the events of 9/11 included a terrorist attack in the first place. And there's no shortage of that here.

Do we need a Church Commission II? Hell yeah we do. It's not that the reforms instituted in its wake were bad, it's that they've become outdated. There are a lot of open questions which, unfortunately, are not going to get answers in our current political environment. Whose fault, ultimately, is that?

But look at the history of how we deal with these things. In response to perceived foreign threats, your vaunted John Adams signed the Alien and Sedition Acts, and none other than Thomas Jefferson his very own self locked people up under it. And that was when the Constitution was fresh out of the box with the ink still wet. In response to an armed rebellion, Lincoln suspended the basic right of Habeus Corpus. FDR locked up Japanese Americans and nationalized the steel mills. We, as a country, regularly do the most insane shit in overreaction to threats.

In response to 9/11 did we go nuts with our intelligence apparatus? Abso-fucking-lutely. Will we survive? All historical indications are that we will address that problem and be ready for the next "big fucking stupid thing the government did". I just can't join the pitchfork and torch crew wanting to burn down the government over any of this, because we have dealt with these kinds of things time and time again without the pitchforks and the torches.

But, let's take one strand of the Snowden thing in light of the justification defense. Where in the Constitution does the US government commit some violation of anything by trying to listen to Angela Merkel's cell phone calls, and how does disclosing that information translate into "defending the Constitution"? The last time I checked, the US Constitution doesn't apply to Angela Merkel's cell phone conversations, and I really don't think the Chancellor of Germany was talking about your cholesterol test results.

Do we completely lose our privacy when we keep our records in an internet cloud?

Personally, I think using "cloud" storage for anything you care about, should be grounds for certifiable insanity. I don't do criminal law (and some of what I know about it is pretty rusty, in the event you find my hypo on the counterfeiting to be flawed in some way), but I do deal with sensitive information of commercial clients. If there is something important they want to talk about, I don't use email or even the telephone, I get on a plane, meet in a room that's not rented from someone else, and put pen to paper, and that's not even because I'm concerned about whether the government is listening, but because of all of the possible ways that data can be compromised by the many PRIVATE parties who can listen in.

And again, those guys who were concerned about government invasion of their privacy that wrote the Fourth Amendment? They had a good supply of these things:



Short answer: no, I have no expectation that communications conducted over the internet have the same legal protections as communications transmitted through, say, the US Postal Service. There are a lot of specific laws that deal with things that become US mail, and I've never seen any addressing my gmail account. The American Revolution was organized, in part, by written correspondence that passed through a lot of private hands before getting to its destination, and in some ways our communications are more like they were in colonial America in that regard. That's why the "Founding Fathers" and Mothers generally treated their own privacy as something for which they were responsible in the first instance once it left their doorstep.

Thomas Jefferson didn't go running around with his hair on fire bemoaning his lack of privacy. He got himself a cipher wheel. I urge anyone with his concerns to do the same thing.

[JDPriestly]

117. Excellent post!

Thanks.

[randome]

102. "Wait till names are named."

Still holding your breath for the fireworks show in August, hm?


[hr][font color="blue"][center]There is nothing you can't do if you put your mind to it.
Nothing.[/center][/font][hr]

[JDPriestly]

111. Sooner or later, names will be named. And then we find out what criteria are used for

identifying targets. Is it really just about terrorism? Or is there something else here?

Russell Tice said that Obama's phone numbers were on a list of numbers to be watched. Is that true? Who else is there?

That's when we find out what the programs are really about.

That's when you realize that inevitably by its very nature, government surveillance is a political tool.

[jeff47]

24. Nope.

Snowden was a civilian contractor. He was not in the military, or a government employee. As a result, he took no oath to the Constitution (for the job from which he leaked)

OTOH, he did take an "oath of secrecy" in that he signed the relevant paperwork swearing to keep classified stuff secret. Usually, they also make you raise your right hand and recite something.

[Uncle Joe]

35. If that's the case,

Last edited Mon Jun 9, 2014, 03:36 AM - Edit history (1)

then civilian contractors have received way too much power and that would be a condemnation of the of the NSA as well.

[JDPriestly]

39. I agree.

How can the government prosecute an employee of a private company for allegedly violating a promise made to the employer?

How can the government require someone who is not a government employee to keep a contractual agreement if a third party employer is providing the compensation for the agreement?

What consideration did the government give Snowden in exchange for Snowden's signing an agreement related to Snowden's private employment?

A contract or agreement is only enforceable if there is an exchange of valuable (not in the common sense, but some exchange of some value) consideration.

What consideration did the government give Snowden if he was the employee of a private company?

[jeff47]

70. It isn't a promise made to the employer.

Last edited Mon Jun 9, 2014, 10:25 AM - Edit history (1)

How can the government prosecute an employee of a private company for allegedly violating a promise made to the employer?

It isn't a promise made to the employer. The paperwork is between the contractor and the government. So it's a promise to the government.

The contracting company's security people are not involved when the paperwork is signed. It's between the contractor and a government employee working on behalf of the government.

What consideration did the government give Snowden if he was the employee of a private company?

The government got his work output and his promise to keep secrets. He got access to classified.

[pnwmom]

51. He signed a secrecy agreement to get access to the materials covered by his

security clearance. And he signed that agreement under oath.

[jeff47]

71. And did not recite anything about the Constitution.

That's the problem with the premise of the OP. It makes a claim about an oath to the Constitution that did not exist.

[pnwmom]

86. Yes, that's ANOTHER problem with the OP.

Despite what the OP says, he did have to take an oath to secrecy (his non-disclosure agreement for his security clearance);

but he did not have to take an oath to protect the Constitution from all enemies.

[jmowreader]

44. Ellsberg's been out of the loop for a few years, so I forgive him

Ronald Reagan signed an executive order directing all intelligence officers and contract personnel to sign an oath promising not to divulge classified information for seventy years from the date the oath was signed.

We had to sign this oath every year we worked there and again as we were heading out the door, so if you joined the Army in 1986 and retired in 2006, the first you could divulge anything was 2076.

And yes, Daniel, "keeping secrets" is the whole point of being cleared in the first place. If they didn't care whether you kept secrets, they could find better things to do with the $90,000 it costs to clear one person.

[Enthusiast]

62. K&R! This post should have hundreds of recommendations!

[jeff47]

74. Except for the whole "not being true" problem.

Government contractors do not swear an oath to defend the Constitution.

Any people with a security clearance, government or contractor, do sign a mountain of paperwork promising to keep classified things secret.

So the statement in the OP are false. There was no oath to the Constitution, and there was "an oath of secrecy".

[Bobbie Jo]

76. + a whole bunch.

Of course you're right, but we shouldn't let things like facts ruin a righteous Facebook graphic.

[Enthusiast]

88. "We shouldn't let things like facts ruin a righteous Facebook graphic."

Thank you.

[Bobbie Jo]

92. You're welcome

[NCTraveler]

79. Very interesting the manner in which quotation marks are used in the image.

Any link to anything reputable where Ellsberg actually said this? Doesn't seem like something he would say without much more elaboration. It can be read as both true and false.

[DesMoinesDem]

89. It's taken from an article he wrote.

By Daniel Ellsberg

These two pieces, the first by Marcy Wheeler, in part commenting on the second by Amy Davidson in the New Yorker (along with Snowden himself, in his interview with Bart Gellman) are the first I've seen making a point I've been making for years: contrary to the frequent assertions in the last week (including by Fred Kaplan) that Snowden is particularly reprehensible because he "broke his OATH of secrecy," neither Snowden nor anyone else broke such a secrecy "oath."

Such an oath doesn't exist (look up "oath" on the web). Rather he—and I—broke an agreement (known as Standard Form 312) which was a condition of employment. It provides for civil or administrative penalties (e.g., losing a clearance or a job) for disclosing classified information: serious enough to keep nearly everyone quiet about...anything classified, no matter how illegal or dangerous.

The reason this matters is that Snowden, as he said to Gellman and as I've repeatedly said, did take a real "oath," just one oath, the same oath that every official in the government and every Congressperson takes as an oath of office. He and they "swore" ("or affirmed&quot "to support and defend the Constitution of the U.S., against all enemies, foreign and domestic."

They did not swear to support and defend or obey the President, or to keep secrets. But to support and defend, among other elements of the Constitution, the First, Fourth, Fifth and Sixth Amendments in the Bill of Rights, and Article I, section 8, on war powers. That's the oath that, as Snowden correctly said to Gellman, he upheld (as I would say I eventually did) and that Clapper and Alexander broke (along with most members of Congress).

As Snowden and I discovered, that oath turns out to be often in conflict with the secrecy agreements that he and I signed, and which we later chose to violate in support of our oath.

https://pressfreedomfoundation.org/blog/2014/01/secrecy-oaths-and-edward-snowden

[NCTraveler]

94. Thank you very much for that.

"contrary to the frequent assertions in the last week (including by Fred Kaplan) that Snowden is particularly reprehensible because he "broke his OATH of secrecy," neither Snowden nor anyone else broke such a secrecy "oath.""

"As Snowden and I discovered, that oath turns out to be often in conflict with the secrecy agreements that he and I signed, and which we later chose to violate in support of our oath."

Normally he is much more succinct in his writing.

[Autumn]

85. How can that be? Everyone who is anyone says he did.

Recommended.

[MineralMan]

93. That may well be true. However, the

agreement he signed, if it is anything like the several I signed, lays out the restrictions on disclosure of classified information to unauthorized people or foreign governments. It also specifies that there are criminal penalties for such disclosures. The agreements I signed also included clauses regarding perjury and served as a written oath to be signed.

Both the USAF, in which I served, and the NSA, where I worked for a time while in the USAF, had lots of forms that had to be signed. All of them had information about the penalties for failing to honor the terms of the agreements. Anyone could refuse to sign those forms. The result of doing so was a loss of security clearance and ability to access or work with classified materials.

We also got training in what our responsibilities were if we found issues in classified information that indicated violations of the law. There was a clear policy laid out for reporting such issues, including multiple levels of reporting if we felt that the appropriate action was not taken after reporting to a lower level. At the highest level, any of us could report what we found to any member of Congress without fear of prosecution. It was expected that the chain of reporting be followed, but the Congressional level was there for anyone who felt it necessary.

Snowden chose to violate the terms of the agreements he signed. That was his decision. Whether it was the right decision or not is open to discussion. That he violated the terms, however, is not open for discussion, since he clearly did just that. He recognizes that he is in violation of those security agreements, which is why he is in Russia and not here in the United States. If he returns here, he will face possible prosecution under the laws that were disclosed in those agreements. So far, he has chosen not to return to the United States. That is his choice.

[NCTraveler]

95. Quote from the article in question.

"As Snowden and I discovered, that oath turns out to be often in conflict with the secrecy agreements that he and I signed, and which we later chose to violate in support of our oath."

Ellsberg seems to be slipping. Normally much more succinct in his writings.

[uponit7771]

97. This is false on it's face, he signed a NDA... regards

[MADem]

101. He signed a non-disclosure agreement.

http://www.fas.org/sgp/isoo/new_sf312.pdf

He definitely violated that--no two ways about it.

[MineralMan]

103. Looking over the document, it is very similar to one I signed

in the 1960s, but with updates due to changes in applicable laws. It looks like the standard form. There are others, too, that Snowden would have signed, but this is one of them.

[MADem]

104. He definitely violated the law and left himself open to criminal charges--and he can't claim he

didn't know, either.

[MineralMan]

106. Yes. There is no way he did not know about the potential

consequences. It's not just from that document. Everyone gets briefings on these things, and they get repeated from time to time. At least that's how it was when I was in that line of work. I couldn't even count the number of security briefings I sat through regarding proper handling of classified materials. In each of them, we were advised of legal actions that could be taken if the terms of our agreements were violated. It was made very, very clear.

Snowden knows, and that's why he's in Russia and not here. If he does return, he will face some sort of charges, since it is clear that he did release classified information to unauthorized people. There's no denying that.

The debate over whether he should or should not have done so is ongoing, but the facts remain. Everyone who has worked in the government security area understands all of this. There is no way anyone who deals with classified information could not know, and they have signatures to prove that people know.

The time to reject such things is at the beginning, before you ever see any classified information. You can do that, and you simply will never have access to it. If you agree to the terms, you can work in that environment. If you do not, you cannot. It is that simple.

Snowden did what he did, with full knowledge of the possible consequences. Should he return and face whatever consequences might occur, then he will have completed his civil disobedience responsibilities. If he does not, then he is simply someone who did not do what he promised to do and is hiding from those consequences.

It's up to him, of course. I wouldn't have put myself in his position. If I had encountered such evidence, I would have reported it through the established chain, ending with reporting it to a member of Congress or the Senate. I did not encounter such evidence during my time in the world of highly classified information, so no decision was needed on my part.

[MADem]

108. I signed that form--or a version of it--every time I changed duty assignments.

And yes, everyone has some version of OPSEC training on a regular basis.

There's no excuse for what he did; there's no playing the "Duuuhhhhh, I didn't know" card. He should have gone to his buddy Rand Paul, asked to speak to him in a secure area about a matter of utmost concern, and given that squirrel-headed freak the delightful cause of his life. Instead, he thought he was smarter than the average bear, and he ended up snuggling with the Russian one. He'd better start learning the lingo, because he's America's Kim Philby, like it or not.