Edward Snowden: Thirteen Years On, the Constitutional Questions America Still Fears
Kanako Mita, Sawako Utsumi, and Lee Jay Walker
Modern Tokyo Times
Edward Snowden remains a deeply divisive figure in American political life. To some, he is a hero who exposed the excessive reach of the National Security Agency (NSA) and defended fundamental civil liberties. To others, he is a threat to national security who betrayed his country and should have faced the consequences through the American legal system rather than seeking refuge abroad. Yet, more than thirteen years after the revelations that shook the intelligence establishment in 2013, one fundamental question remains unanswered: why has so much attention been directed towards the whistleblower, while the political and institutional accountability surrounding the abuses he exposed remains an equally pressing concern?
During his time working within the intelligence apparatus, Snowden came to believe that the American Constitution was being undermined by individuals entrusted with protecting national security. His disclosures raised profound questions about the collection of private communications, the limits of government surveillance, and the relationship between the state and its citizens. At the time, President Barack Obama appeared far more concerned with the consequences of Snowden’s disclosures and bringing him to justice than with establishing a genuinely transparent examination of the intelligence practices that had generated the crisis.
This was a significant political failure. Obama could have embraced the democratic argument by allowing an independent and comprehensive examination of the NSA, its senior officials, and the constitutional implications of its activities. Instead, the international controversy increasingly became a story about Snowden himself. The individual who exposed the machinery of surveillance became the principal target of the political and legal response. That imbalance remains difficult to reconcile with the democratic principles America claims to defend.
Snowden articulated the distinction between legitimate intelligence gathering and indiscriminate surveillance when he stated: “There is a far cry between legal programs, legitimate spying, legitimate law enforcement – where it is targeted, it’s based on reasonable suspicion, individualized suspicion and warranted action – and the sort of dragnet mass surveillance that puts entire populations under a sort of an eye and sees everything, even when it is not needed. This is a trend in the relationship between the governing and the governed in America.”
Of course, all significant nation states collect intelligence in pursuit of national security. The methods, legal frameworks, and degrees of political accountability differ according to their respective systems. However, the concentration of power, manipulation of information, and expansion of surveillance capabilities are worrying developments, including within countries that describe themselves as democratic. The United Kingdom, for example, is hardly immune from legitimate questions about the relationship between government authority, intelligence gathering, and individual freedoms.
America’s political structure also deserves scrutiny. Its entrenched two-party system has created a political environment in which the same two parties dominate national government and shape the boundaries of political debate. Although elections, institutional checks, and competing political factions remain important, the concentration of influence within an established political duopoly raises questions about whether the full diversity of American society is adequately represented. A country of such geographical, cultural, ethnic, and economic complexity should continually question whether its political institutions are sufficiently responsive to the people they govern.
Snowden exposed the dangers of excessive power concentration and the possibility that constitutional protections could be weakened through intelligence practices conducted largely beyond public scrutiny. The central issue is not whether Obama personally knew every operational detail of the NSA’s activities. Rather, it is whether the political leadership and the institutions responsible for oversight fulfilled their obligations to protect constitutional freedoms. National security cannot become an all-purpose justification for avoiding democratic accountability.
Naturally, the American people understand that national security must be protected. Yet the Constitution was designed to prevent the concentration and abuse of governmental power, not to provide political elites with an instrument for expanding their authority. If Snowden must answer for his actions, why should senior officials and intelligence agencies not face equally serious scrutiny for theirs? Who, in constitutional terms, represents the greater danger: an individual who exposes questionable government practices, or institutions that potentially undermine the freedoms they were established to protect?
Republican Senator Rand Paul, himself a prominent critic of excessive government surveillance, expressed this concern when he stated: “I would say that there are times when we are going beyond what we should be doing when we’re exceeding the restraints of the Constitution, that there is a form of tyranny, and we need to be aware of that.”
Paul’s intervention was particularly significant because opposition to excessive surveillance was not confined to one political party. His father, former Congressman Ron Paul, had also spent much of his political career challenging the expansion of federal authority, interventionist foreign policy, and the relationship between government and individual liberty. These arguments demonstrated that constitutional concerns could transcend the usual divisions between Republicans and Democrats.
Snowden also revealed the international implications of America’s intelligence activities. The NSA’s operations were not simply a domestic question concerning the privacy of American citizens. They raised wider concerns about industrial espionage, economic competition, international sovereignty, and the relationship between intelligence gathering and commercial interests.
Discussing alleged industrial espionage involving German companies, Snowden stated: “If there is information at Siemens that they [the NSA] think would be beneficial to the national interests, not the national security, of the United States, they will go after that information and they’ll take it.”
This distinction between national interests and national security is particularly important. Intelligence gathering ostensibly designed to protect a country from external threats becomes considerably more controversial when its reach extends into commercial competition and the economic interests of private corporations. Such activities raise questions about whether intelligence agencies are operating within the legitimate boundaries of national security or serving wider political and economic objectives.
Brazil responded particularly forcefully to the revelations. Ex-President Dilma Rousseff (leader of Brazil during the height of the crisis) openly condemned American electronic espionage, including surveillance involving Brazilian political leadership and commercial interests. Addressing the United Nations General Assembly during the Snowden crisis, Rousseff stated: “We face, Mr President, a situation of a grave violation of human rights and civil liberties; of invasion and capture of confidential information concerning corporate activities, and especially of disrespect to national sovereignty.”
Her intervention demonstrated that the Snowden revelations had consequences extending well beyond Washington. They became an international dispute concerning sovereignty, diplomatic trust, economic security, and the responsibilities of powerful states. America’s intelligence activities had created a crisis of confidence among allies and other governments, raising the uncomfortable question of whether national security was sometimes being used to justify activities that had little connection to protecting ordinary citizens.
Naturally, America was not alone in possessing extensive intelligence capabilities. The United Kingdom, Canada, and other Western governments also participate in complex intelligence-sharing arrangements. Nevertheless, the scale of the American intelligence apparatus and its technological reach made the Snowden revelations particularly consequential. The international implications could not simply be dismissed as an internal American disagreement.
Snowden also explained that his decision to become a whistleblower was influenced by the conduct of senior intelligence officials. In an interview with German broadcaster ARD, he identified the testimony of Director of National Intelligence James Clapper before Congress as a decisive moment.
Snowden stated: “I would say sort of the breaking point was seeing how Director of National Intelligence James Clapper directly lied to Congress when under oath.”
He continued: “There’s no saving an intelligence agency that believes it can lie to the public, and to legislators, who need to be able to trust it and regulate its actions.”
This was an especially serious accusation because intelligence agencies operate within democratic systems that depend upon institutional oversight. Congress cannot adequately fulfil its responsibilities if those appearing before it withhold essential information or provide misleading testimony. Likewise, the public cannot meaningfully assess government policy if the institutions exercising considerable power are insulated from effective scrutiny.
The controversy surrounding Clapper’s March 2013 congressional testimony became particularly damaging following the Snowden disclosures. Asked whether the NSA collected any type of data on millions or hundreds of millions of Americans, Clapper answered, “No, sir,” before adding, “not wittingly.” The subsequent revelations concerning bulk telephone metadata collection intensified criticism of his testimony and the credibility of the intelligence establishment.
Rand Paul also challenged the severity of the proposed punishment for Snowden. Speaking to ABC, he stated: “I don’t think Edward Snowden deserves a death penalty or life in prison; I think that’s inappropriate, and I think that’s why he fled, because that’s what he faced.”
He continued: “I think, really, in the end…history’s going to judge that he revealed great abuses of our government and great abuses of our intelligence community.”
The New York Times also reported Paul’s criticism of Clapper, suggesting that the former intelligence chief might himself have faced serious consequences for his misleading congressional testimony. This raised an uncomfortable question about the unequal standards sometimes applied to individuals who expose government wrongdoing and those who occupy senior positions within the institutions concerned.
Naturally, intelligence agencies require protection, and legitimate secrecy is sometimes indispensable. The people working within these institutions also operate in complicated and potentially dangerous environments. However, secrecy must not become synonymous with impunity. When intelligence practices threaten constitutional freedoms, undermine international sovereignty, or potentially distort legitimate commercial competition, the democratic responsibility to investigate becomes even greater.
Snowden’s wider warning remains relevant. More than a decade ago, he stated: “Today, the government is granting itself the power to police every citizen’s private life. Every man, woman, child, boy, girl. It doesn’t matter who you are, how innocent or not innocent you are, they are watching everything you’re doing. They’re intercepting it, analyzing it and storing it for increasing periods of time.”
He also offered a particularly penetrating observation about the relationship between privacy and political power: “Privacy is for the powerless. Transparency is for the powerful. You don’t need to say why you want to be left alone by the state. It is the natural state of being that we are allowed in a free society to be free. If they want to restrict and monitor our activities it really changes the nature of human society.”
More pointedly, Snowden warned: “When you see the rise of authoritarianism – even in Western, open societies – and you see how closely it dovetails with the development of technology that create stable states rather than free states, I think that should alarm us, and that drove me quite strongly in my work.”
These concerns have become particularly important as technological capabilities continue to expand. The intelligence and surveillance environment of today is considerably more sophisticated than the one Snowden encountered while working for the NSA. Artificial intelligence, increasingly powerful data-processing systems, facial recognition, and the growing integration of digital services create additional challenges for democratic oversight. The fundamental question is no longer simply what governments can collect, but what limits should prevent them from collecting, analysing, retaining, and exploiting information about individuals.
Thirteen years have passed since Snowden’s revelations transformed the international debate about surveillance and constitutional freedoms. Yet the central political dilemma remains: how can democratic governments demand accountability from their citizens while resisting equivalent accountability for the institutions that exercise power in their name?
Perhaps the greatest demonstration of confidence in the American Constitution would be to allow Edward Snowden to return home, not as an individual whose actions must automatically be celebrated, nor as somebody whose concerns should be dismissed, but as a person whose disclosures generated questions that remain important to democratic society. America need not agree with every decision Snowden made to recognise the significance of the constitutional debate he helped bring into the open. Indeed, a nation confident in its founding principles should be capable of examining uncomfortable truths without fearing those who raise them.
There is also an opportunity to consider whether Snowden’s experience could contribute constructively to America’s future. Following an appropriate legal resolution, his knowledge of the intelligence establishment and his experience of the constitutional controversy could provide valuable perspectives in discussions concerning civil liberties, technological surveillance, and democratic oversight. An independent advisory capacity, rather than necessarily returning to the intelligence apparatus itself, could allow him to contribute as an honest broker in a debate that remains unresolved.
It is high time for Washington to reconsider its approach to Snowden and the constitutional questions he raised. A negotiated legal arrangement, potentially including immunity, could provide a route towards his return to America while recognising the legitimate responsibilities of the state concerning classified information. Such a process would not require the American government to endorse every decision Snowden made, nor would it remove legitimate questions about the handling and disclosure of classified information. Rather, it would demonstrate that a mature democracy can distinguish between legitimate national security requirements and the exposure of abuses of governmental authority.
Ultimately, the issue is considerably bigger than Edward Snowden. The American Constitution cannot be treated as an inconvenience whenever intelligence agencies or political leaders encounter restrictions on their authority. Nor can national security become a permanent justification for expanding surveillance without meaningful accountability.
If Snowden must answer to America, then America’s political and intelligence establishment must also answer to its people. Constitutional freedoms cannot depend on the goodwill of those entrusted with power. They exist precisely because power must never be trusted without limits.
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