Did Edward Snowden Break His Oath? | The New Yorker

Should we just stop talking about any form of amnesty for Edward Snowden, because he swore an oath and broke it? In a piece for Slate titled Why Snowden Wont (And Shouldnt) Get Clemency, Fred Kaplan mentions my suggestion, in a piece for the site, that Jimmy Carters pardoning of Vietnam draft dodgers offers a useful parallel when thinking of the legal situation of Edward Snowden. Kaplan writes:

This suggestion is mind-boggling on several levels. Among other things, Snowden signed an oath, as a condition of his employment as an NSA contractor, not to disclose classified information, and knew the penalties for violating the oath. The young men who evaded the draft, either by fleeing to Canada or serving jail terms, did so in order to avoid taking an oath to fight a war that they opposeda war that was over, and widely reviled, by the time that Carter pardoned them.

There are no such extenuating circumstances favoring forgiveness of Snowden.

This is an odd and flawed argumentlogically and legally, but also historically and factually. The errors illustrate how we tend to misremember the past, and misjudge its passions when comparing them to our own.

There is also the question of why an oath matters, in a different way than a serious federal law like the Selective Service Actbut first the facts.

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

Snowden had taken an oaththe Oath of Office, or appointment affidavit, given to all federal employees [Note: to clarify, this would have been when he was an employee earlier, for the C.I.A.]:

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 itprotecting 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.

What about the draft dodgers? Kaplan considers it an extenuating factor that they acted before taking an oath to join the military. Legally speaking, this is circular: the criminal act in draft-dodging was refusing to join the military. How could it be extenuated by the fact that it took place? In any event, except when talking about, say, mail fraud, the notion that the comparative severity of crimes can be measured by the number of papers signed beforehand is a strange one (murderers dont usually sign non-murder agreements). Still, as it happens, a lot of dodgers did put their names on a lot of documents along the way. Some tried every trick in the book to get a deferment, including submitting false statements. Even before being examined by a draft board, they would have had to fill out Form 100, a questionnaire to help determine their draft classification. This is no civil contract; the signature line mentions criminal penalties, and there are bonus warnings for anyone seeking conscientious objector status. In that sense, it is more stringent than Form 312. (If by oath Kaplan just means a harshly worded document, they both count.) Young men tried to evade the draft by, among other things, lying on this form. Some were prosecuted for doing so, and then some were pardoned for the act.

Carters pardon was broad: you didnt have to show that youd opposed the war. Not everybody who tried to get out of the draft was motivated by principle, though draft resistance was integral to the movement to end the war. (And I do think, lest this be misconstrued, was a just cause deserving a pardon.)

Theres still the question of oaths. Did all of the young men we, as a country, forgave manage to avoid taking an oath, as Kaplan writes? Soldiers do take an oath, to support and defend the Constitution and obey their officers. (Snowden would have taken this during his brief time in the military.) What about deserters, who broke it?

Carters pardon did not include deserters. But deserters had a chance under an even earlier clemency offer, which President Ford extended for a several months starting in September, 1974when the war was not entirely over, and some Americans and more Vietnamese were still dying. It had conditions, as any deal with Snowden certainly would; those who hadnt served time in prison had to work in public-service jobs, for example in a hospital, for two years. (Sports-historical footnote: the chairman of the clemency board was Charles Goodell, whose son Roger is now commissioner of the N.F.L.) Still, there was mercy.

In other words, the historical reality appears to be pretty much the opposite of what Kaplan writes: Snowden, as far as one can tell, didnt take an oath not to disclose classified information, and some Vietnam-era deserters who received clemency did take and violate their own oath.

Introducing the plan, Ford spoke of his hope that it would be a step toward a calmer and cooler appreciation of our individual rights and responsibilities. That is as a pretty clear statement of what we can also hope to get from the Snowden case.

Fords clemency offer came a month after hed pardoned Nixona man of many oaths. A Times story from 1974 quoted Ford as saying, at a press conference, Well, the only connection between those two cases is the effort that I made in the one to heal the wounds involving charges against Mr. Nixon and my honest and conscientious effort to heal the wounds for those who had deserted military service or dodged the draft.

Those wounds were still unhealed during the Carter Presidency, and, decades later, some never have closed up. Kaplan writes that the war was, by 1977, widely reviled, but so, in many quarters, were draft evaders. Whether Bill Clinton and George Bush had legally avoided being sent overseas was still a contentious issue in both mens Presidencies. What if, at the time, we were still jailing and hunting down fugitive draft evaders? We are missing something about the history and use of pardons and amnesties, here and abroad, if we act as though they only come into play after all the fight has gone out of an issue.

Bushs father pardoned half a dozen officials (and oath-of-office takers) for crimes related to the Iran-Contra scandal, among them Caspar Weinberger, the former Secretary of Defense, for the promise-based crime of perjury. Not all amnesties and pardons are good for the countrytacit ones, like those for torture in the war on terror, can preclude necessary debate. But its a fantasy to say that no one in America has ever been allowed to avoid going to jail for a serious crime when it is seen as best for the country (and sometimes when it is not). As Ive written before, the government could further its own practical interests by means of an amnesty, pardon, or plea bargain, toothere are ways Snowden could help. Similarly, Snowdens presence in Russia, of all places, is seen as a dirty affront. We might, then, want to get him out of there, which is what he appears to want, too. (Joe Nocera has a good column on the case for Brazil.)

Kaplan says that some of what Snowden revealed isnt useful for Americans to know; the extent to which that is so (and is harmful) is debatable. But Kaplan oddly includes on his list things like the worldwide collection of cell-location data, which has entangled and violated the rights of Americans. (He also errs in writing that the revelations dont involve any documents detailing the cyber-operations of any other countries, something Britains GCHQ would be surprised to hear.) Nevertheless, there is no question at this point that the usefulness has been great, as even the President would concede.

That brings us back to a slight mystery: the dispositive quality of oathiness. Why is the idea that Snowden took a particular oath so often brought up as an argument against some deal that would allow him to come back to America and stay out of prison? Its not really about his legal jeopardy. Of course Snowden broke lawsthats why were even having a conversation about amnesty. If he hadnt, he wouldnt need it. Saying that its ridiculous to talk about amnesty when hes committed serious crimes is like saying theres no point in talking about divorce because someone is married.

Bringing up the oath point is really meant as a commentary on Snowdens character. It is itself an oath, in another sensean interjection, an outburst of anger. There are a lot of people in the government, and public, who are simply dismayed by Snowdens actions, and by everything about him, down to his glasses and haircut. The oath he swore was supposed to be humbling, and he is presumptuous. The discussions about him become choked with rageeven as the conversation he alone started and made possible becomes ever louder and clearer.

Photograph by AP.

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Did Edward Snowden Break His Oath? | The New Yorker