A lefty friend of mine writes:

Very sad and disappointed to read your “Snoop Scoops.” Liberal commentators are canary birds for me; they tell me about the health of trailing edge of resistance to the encroaching police state. You’re not worried about this, though. And you’re certainly not angry. I say “trailing edge” because as you’ve developed as a pundit you’ve fallen farther and farther behind in the search for justice. Alas. I was hoping that as you aged you’d get better at telling truth to power. Here is an article from the New York Times that you should read. It mentions you; but it discusses much, much more. I’ll pray for your redemption, but I don’t put much faith in it. I think you’ve chosen your lot and perspective now. While I wish you well, I despair for us all when I see liberals drifting right.

Yes, I did say that the N.S.A.’s data-collection-and-mining program appears to have been conducted lawfully, i.e., within the letter of the law. Whether I’m right or wrong on that point, I probably should have mentioned Kinsley’s Law of Scandals: “The scandal isn’t what’s illegal. The scandal is what’s legal.”

But I truly don’t think we’re living under an encroaching police state. 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. You would have to have a Nixon or a J. Edgar Hoover. But when you have a government or a powerful government official bent on repression and willing to flout the law, there are always plenty of tools at hand. Nixon and Hoover didn’t need data mining to do their mischief—and, again, I haven’t seen an explanation of how data mining would have helped them do worse than they did.

For me, the big unanswered questions are along these lines: Has the N.S.A. program actually worked to uncover and thwart terrorist plots? If so, are there or could there have been alternate means that could have worked about as well or better at less cost—less cost in money and resources, less cost to civic trust and confidence? In what concrete ways does the program invade people’s privacy? Exactly how, if at all, does the program increase the government’s power to do bad things to good people? And how much does it add to the powers the government already has via information-gathering and police-like agencies such as the I.R.S., the F.B.I., and the Homeland Security apparatus? Is the marginal increase in government power that the N.S.A. program represents justified by the marginal increase in safety that it provides, if it does provide such an increase?

The authors of the Times piece my friend points to are Jennifer Stisa Granick, the director of civil liberties at the Stanford Center for Internet and Society, and Christopher Jon Sprigman, a University of Virginia law professor. Quoting James Sensenbrenner, a Republican Congressman who helped write the Patriot Act, Granick and Sprigman write:

“How can every call that every American makes or receives be relevant to a specific investigation?” Mr. Sensenbrenner has asked. The answer is simple: It’s not.

It’s not obvious to me that the answer is simple. Or that the answer is “It’s not.”

To be more precise: obviously, every call that every American makes cannot be relevant to a specific investigation. But that’s not the question, or questions, at issue. One question at issue is whether a comprehensive trove of data (or “metadata”) about the times and telephone numbers of all calls (not their content) can yield information relevant to specific (and legitimate) investigations. Another is whether that information not only is truly important but also cannot be gleaned in some other, less indiscriminate way. To answer those questions, and many others, I think we need an independent commission armed with subpoena power. Such a commission, as I wrote in the Comment that so distressed my friend, should be part of a wholesale reëvaluation of the national-security state—a logical extension of President Obama’s proclaimed reëvaluation of the “war on terror.”

More alarming than the reach of the N.S.A. program is the composition of the Foreign Intelligence Surveillance Court, the panel of federal judges that is supposed to oversee that program and which, the Times reported last week, “has quietly become almost a parallel Supreme Court.” All eleven of the FISA court’s members were chosen by John Roberts, the Chief Justice of the actual Supreme Court. Like Roberts himself, ten of the eleven are Republican, and conservative, appointees. The composition of both Supreme Courts, the actual and the parallel, is a direct consequence of the 5-4 decision in Bush v. Gore, the judicial coup d’état that installed George W. Bush as President thirteen years ago.

The real danger to civic trust (and ultimately, perhaps, to our freedoms) is the calcification and unresponsiveness of our political and governmental machinery. The post-2000 Supreme Court is part of that long, sad story. So is the filibuster, which 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. 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.

These structural horrors don’t make us a police state, encroaching or otherwise. But they do enable minorities—usually conservative, mostly monied minorities—to systematically thwart the will of the majority. They don’t necessarily require anybody to act in bad faith in order to do their damage. And they damage not just people’s faith in democracy but democracy itself.

Above: Keith Alexander, the director of the National Security Agency and chief of the Central Security Service, speaks at the Armed Forces Communications and Electronics Association’s International Cyber Symposium, June 27, 2013. Photograph by Win McNamee/Getty.