The White House has said nothing about Leon's decision. (A Justice Department spokesman said, “We believe the program is constitutional as previous judges have found,” though it's not clear what judges he's referring to.) After the advisory report, the White House would say only that the president “will work with his national security team to study the Review Group’s report, and to determine which recommendations we should implement.”

In the months since Edward Snowden’s revelations began emerging, Obama has insisted that, as he said in June, that "Congress is continually briefed on how [NSA surveillance is] conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout." Top intelligence officials and Senators like Senator Dianne Feinstein and Representative Mike Rogers repeat the soothing mantra daily. It’s all legal. The courts know all about it. Don’t worry your pretty little heads about it. Let us take care of you.

The administration’s stance has by now become a kind of fetal crouch, distasteful even to witness. I’m not sure that anyone anywhere outside Washington believes a word of this—or ever has. Even the members of Congress know that we know they’re lying, and know that we know they haven’t been doing their jobs. Obama can may still have a chance to get ahead of the moment by changing his own approach.

Obama, a former constitutional-law professor, was elected as a civil libertarian who would tame the post-9/11 security state. In the first year, he tried gamely to close Guantanamo. Over the past year, he took a tentative stand in favor of an eventual repeal the 2001 Authorization for the Use of Military Force, putting an end at some point to our state of endless war against nameless enemies. But he seems also to have learned that more surveillance, more secrecy, and broader unreviewable power are the ways to please official Washington. His administration has embraced over-classification of information, wholesale attacks on press freedom, and use of the criminal law to intimidate whistleblowers. He sounds more and more like Leonid Brezhnev defending the invasion of Afghanistan. And now this gifted communicator has now lost the initiative to the likes of Larry Klayman.

To paraphrase Talleyrand, this unseemly spectacle is worse than a crime—it is a mistake. This is Obama’s second term. He is in a position to switch from soothing nonsense to serious discussion of security, freedom, and danger. It is not enough to say that these questions involved unseen tradeoffs that cannot be discussed; a free people can be trusted to make public choices.

Many Americans apparently believe that Obama is a Hitler-style tyrant. Viewed objectively, this administration has been remarkably timid overall—hesitant to try strong economic or social medicine. But the idea of tyranny is powerful, I think, because of the hangover of 9/11 and the Bush years. American conservatives, against their better judgment, embraced detention camps, secret prisons, torture, classified courts, mass eavesdropping, suspension of habeas corpus, and the Patriot Act when their leader was in control. They lost faith in Bush, and then they lost control of government. Progressives criticized Bush, but held their fire when Obama did not renounce the security state.