HENDRIK HERTZBERG of the New Yorkeris untroubled by the NSA's promiscuous data-gathering operations. In response to a left-leaning friend's despairing note about the complacency of a press corps faced with the spectre of "the encroaching police state", Mr Hertzberg shrugs:

I still don’t know of a single instance where the N.S.A. data program has encroached on or repressed any particular person’s or group’s freedom of expression or association in a tangible way. Nor have I come across a clear explanation of exactly how the program could be put to such a purpose. But even if the program could be misused in that way, for it to happen you would have to have a malevolent government—or, at least, a government with a malevolent, out-of-control component or powerful official or officials.

This is quite strange. The main charge against the NSA's indiscriminate dragnet is that it violates the constitution's fourth amendment, not the first. If the Federal Intelligence Surveillance Court's secret reinterpretation of the intended meaning of "relevant" in the Patriot Act oversteps the Supreme Court's prevailing interpretation of the fourth amendment, the NSA's data-harvesting programme may be responsible for hundreds of millions of violations of Americans' constitutional rights. That Mr Hertzberg fails to grasp the central concern about the programme—that it violates the American people's (and not just the American people's) fundamental privacy rights at a staggering, unprecendented scale—cannot be comforting to his understandably worried friend.

In any case, Mr Hertzberg's complacency is apparently based on the fact that he doesn't know of any cases in which the programme has stifled free expression or association. But most of us didn't know much about the programme at all, until a few weeks ago. Details about how it works, and how it has actually been used, remain tightly-guarded state secrets. If the programme has been encroaching on the rights Mr Hertzberg happens to care about, why does Mr Hertzberg imagine he would know about it?

And then Mr Hertzberg says that he is waiting for an explanation of how a programme in which the government gathers detailed records about all our communications could be possibly be used to stifle free expression and association. Seriously? Here is a clear explanation. Or, if Mr Hertzberg doesn't like subtitles, how about this, from 2011:

Three days after the White House issued a “WikiLeaks executive order” in an effort to avoid further WikiLeaks-style releases, the Wall Street Journal reports that the U.S. government has obtained a secret court order to acquire the e-mail data of a former WikiLeaks volunteer. The order forces Google and a small Internet provider called Sonic.net to hand over the e-mail addresses of the people that Jacob Appelbaum, 28, corresponded with over the past two years, but not the full e-mails. An independent computer security researcher and hacker, Appelbaum has reportedly been detained five times at the U.S. border in recent years, and had his laptop and several mobile phones seized. He has never been charged with a crime.

Does Mr Hertzberg really need to have it explained how the government aggressively seeking this sort of "metadata" might chill Mr Appelbaum's normal expressive activities? Might it be allowed that being detained repeatedly at airports might make one hesitate to associate with those people to whom one must travel? It seems to me rather plausible that Mr Applebaum has been hassled in this way simply on the basis of information about who he has been talking to. Well, we now know the NSA is gathering this sort of information from many millions of ordinary Americans—practically anyone with a cell-phone or email account.

Perhaps it's not obvious that the first and fourth amendments are complementary, but neither is it hard to see. If we cannot have confidence in the privacy of our communications, we will reasonably hesitate to speak to, or arrange to meet, certain people. Ask anyone affiliated with Wikileaks, or with organised efforts to defend Bradley Manning, or even with organised efforts to defend electronic privacy rights more generally, whether they have felt the chill of the governments' rapid redefinition of the scope of our rights to privacy under the fourth amendment. Isn't even that small chill "tangible" enough?

Furthermore, the idea, advanced by Mr Hertzberg, that the serious, right-violating "misuse" of the NSA's programme would require malevolent intentions is...odd. You know what they say about the road to hell? I think abortion restrictions and bans on gay marriage are seriously rights violating, but I also think those who support them are decent people who want the best for all of us. We differ not in good intentions, but in our ideas about the proper scope of our rights, about what's best. Evil is so insidious in no small part because it doesn't require malevolence at all.

Mr Hertzberg really goes off the rails when he avers, later in his post, that "the filibuster...is a bigger threat to small-d democratic governance than the N.S.A., the C.I.A., and the I.R.S. put together." He goes on to say, "The same goes for the electoral-college status quo; the built-in, and increasing, malapportionment of the Senate; and the malapportionment of the House, both deliberate, via gerrymandering, and demographic, via population patterns." To my mind, this reveals a very serious misunderstanding about the value of democracy.

Why is any of this procedural stuff important in the first place? Because law is coercive. If the coercion of the law is to be legitimate—if government is to be legitimate—the legal rules need to be publicly justified. The rules that govern our lives need to be rules that we can see ourselves as having reason to follow. It would be nice if we could do everything by consensus, if all of us could unanimously agree to each specific rule, but large societies can't work that way. We don't have the time, and we disagree too much. But we can all agree, more or less, that we're better off in a society in which there are rules for delegated rule-making that gives all of our reasons more or less equal weight. In this way we can at least approximate the requirements of public justification and legitimate coercion. Democracy is a family of such systems of rule-making rules. There is literally an infinity of different democratic systems of collective decision-making. Each specific system is defined by institutional details—the definition of jurisdictions, the rules of elections, the procedures of legislative bodies—that have various strengths and weakness relative to the ideals of public justification. It seems to me that Mr Hertzberg has confused a few of these admittedly important procedural details with democracy's deeper ideals.

The Secret police—the NSA, the CIA, et al—are by their very nature antithetical to those ideals, because openness and transparency about rules are essential to democratic public justification, and therefore to the legitimacy of state power. What must be secret cannot be fully democratic. One may well worry whether we can afford such a demanding standard of legitimate government in such a dangerous world. Perhaps we cannot. Perhaps it is foolish to be too good. But in that case we need to be clear-headed about it, and understand that secret police are a straightforwardly anti-democratic concession we make to a dangerous world. And we ought to accept that any strengthening of the powers of the secret police—especially the secret strengthening of the powers of the secret police—is a further blow to democracy and the legitimacy of our laws. The NSA's digital dragnet is a silent coup. The filibuster is rain on election day.