In a fascinating interview with WaPo, Edward Snowden walks through his thought process to leak the documents. His discussion about his oath to the Constitution is relevant:
In his interview with The Post, Snowden noted matter-of-factly that Standard Form 312, the classified-information nondisclosure agreement, is a civil contract. He signed it, but he pledged his fealty elsewhere.
“The oath of allegiance is not an oath of secrecy,” he said. “That is an oath to the Constitution. That is the oath that I kept that Keith Alexander and James Clapper did not.”
In other words, Snowden suggests that his oath to the Constitution–and for the NSA to act constitutionally–trumps any contractual promise he made of secrecy.
During my orientation (onboarding in govspeak) when I started working for the DoD in 2005, I signed Standard Form 312, the “Classified Information Nondisclosure Act.” The relevant provision states:
. I hereby agree that I will never divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted.
The form says nothing about the Constitution.
But, during the same session that I signed Form 312, I also gave an oath to the Constitution, codified at 5 U.S.C. s. 3331:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that 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.” This section does not affect other oaths required by law.
I suppose Snowden could see the oath to the Constitution to trump any contractual promises he made to maintain confidentiality. Though, the last sentence says, clearly “This section does not affect other oaths required by law.” (I don’t recall that part being in the oath card I read).
But the last bit is interesting. It says that if your oath to the Constitution conflicts with some other promise you made, the Constitution must fall to the side. Imagine that. The Code of Federal Regulations has supremacy over the Constitution!
So, in this sense, Snowden is wrong. His fealty to the NSA must be subordinate to the United States Constitution.
I could not find any other commentary on the meaning of the last line, so I’ll take it at its face.
What a sad provision for all civil servants with clearances to have to swear to.