The debate about Edward Snowden continues to play out among legal scholars, national security officials, citizens, and the media. The focus on Snowden is understandable given his role as catalyst, but his behavior is the product of broader social forces. Rapid technological change and our war-time justice system created the situation that led him and others in the intelligence community to do questionable things. This contentious episode is an opportunity to repair our justice system together as a nation through a truth and reconciliation process. We must be intellectually and emotionally honest with each other and ourselves, using this disruptive moment to make our country stronger. 

We still bear the emotional scars of 9/11. Those who conspired to commit those heinous crimes are nearly all dead or captured, yet new violent criminals voice the same hatreds and threats against our society, so we remain wary. Our fear and anger over the last thirteen years have led us to do many things that are illegal under our own laws and Constitution, both in letter and spirit. Of course, the American justice system has never operated as well in practice as in theory. But a clear pattern of erosion has been occurring, as always does in times of war: President Lincoln suspended the writ of Habeas Corpus during the Civil War, President Roosevelt authorized the internment of Japanese Americans during WWII, and the FBI conducted illegal surveillance on American citizens during the Vietnam War. 


Modern communications technologies have changed human society, altering the security landscape and bringing new opportunities and threats. The NSA began using these networked digital tools to track, monitor, and disrupt violent criminals around the world. It also turned them inward on the American people and cast a broad net across the planet in an effort to find information relevant to preventing terrorist attacks. Privacy was not highly valued. The programs’ effectiveness remain unclear to the unclassified public. 

In this context, Snowden revealed the scope of data mining to the American people. To do so, he had to unveil many U.S. capabilities to the global public. In March 2013, Sen. Ron WydenRonald (Ron) Lee WydenBiden's picks face peril in 50-50 Senate Yellen deputy Adeyemo on track for quick confirmation Hillicon Valley: Google lifting ban on political ads | DHS taking steps on cybersecurity | Controversy over TV 'misinformation rumor mills' MORE (D-Ore.) asked Director of National Intelligence James Clapper in sworn testimony if the NSA collected any type of data at all on millions or hundreds of millions of Americans. “No, sir,” Clapper said. Asked by Wyden, “It does not?”, Clapper replied, “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.” Snowden’s leaks soon revealed that this was a false statement. Clapper has served his country with distinction, but there is irrefutable evidence that he made a material misrepresentation to a competent tribunal under oath. Whether or not it was willful is an open question that should be investigated. 

Both Clapper and Snowden allegedly committed crimes, yet their motives and intent have not been aired through the proper channels of the American justice system. One has been indicted under the Espionage Act, whereas the other remains in power. The moral judgment is for each of us to make, but the legal judgment should be made through our civilian system of justice. 

A double standard of law has always existed, but it must be guarded against. The more selectively we enforce our law, the more that domestic confidence in our system will erode, as will our ability to credibly speak about the importance of rule of law in the world. Moreover, if the deterrent effect of law is to remain strong, it must be enforced. And though we face threats which are more efficiently countered from behind a veil of secrecy, excessive classification subverts the democratic process and deprives the innocent of the right to challenge government wrongdoing. 

The decisions we now make will affect our national character. This painful episode is an opportunity to undertake a broader truth and reconciliation process in which Congress openly, calmly, and responsibly airs our contentious responses to terrorism. Citizens, experts, and officials of varied perspectives should be permitted to testify and engage in honest dialogue about where thirteen years of war have brought us and where we should be going as a nation.                                                         

Threats to our security remain—but they always will. Terrorism will continue to exist alongside gun violence, car accidents, and drowning, although these are all significantly greater threats to Americans than terrorism. Life is full of danger. If we continue to chase an illusion of absolute security, we risk suffocating the human spirit that brings vitality and richness to life. 

We must continue to protect public safety, but the way we do so must be brought into compliance with the law. Continuing to live under a war-time justice system will slowly but surely eat away at the liberties that make our country great. Where complex new situations challenge our existing legal framework, Congress must publicly write laws to guide and restrain the exercise of power. Our information tools need to be publicly debated and their use subjected to legal constraints that confer rights and responsibilities on citizens, corporations, and government. 

The psychological trauma of 9/11 cannot define us as a people. Our system of government and our sacred principles of justice for which so many have fought and died must be our defining characteristics. We cannot let fear dictate our behavior. We must move boldly into the 21st Century with the courage of our convictions and the determination to ensure a more just, transparent order. 

Ridout is a fellow at the German Marshall Fund of the United States. The views expressed are those of the author alone.