However, even the claim of necessity does not withstand analysis. George Tenet, CIA director under George W. Bush, was at breakfast on the morning of 9-11 when word reached him that terrorists had just flown a plane into the Twin Towers in New York. Tenet's immediate reaction: "I wonder if it has anything to do with this guy taking pilot training," referring to Zacarias Moussaoui, whose instructors at a Minnesota flight school had alerted the local FBI office to a student who only wanted to learn to navigate in the air and had no interest in take-offs or landings. Is he planning to fly a plane into a tall building, the flight instructors speculated?
The local FBI office could not convince FBI headquarters in D.C. to authorize an investigation to determine the answer to that question, which was, plainly, yes. No investigation was needed for CIA Director Tenet to connect the dots; he knew in a nanosecond what had happened. To be sure, he didn't need NSA bugging to obtain the necessary information; a U.S. citizen called it into the local FBI office.
What is worse, if possible, even when individuals are specifically flagged as suspicious by foreign intelligence agencies and interviewed repeatedly by FBI agents, our protectors still can't pin the tail on the donkey -- Boston Marathon.
The concern with the NSA's electronic interception of our communications is not based on a frivolous attachment to historic -- but now anachronistic -- niceties; it is based on concern for tangible consequences just over the horizon. Information obtained outside the Constitution can empower actions outside the law. Trust us, President Obama asks. Trust whom, precisely? If Snowden, an outside contractor can release the information publicly for what he views, rightly or wrongly, as a noble purpose, surely others can take advantage of that information ignobly and, unlike Snowden's case, we will never even know about it.
Justice Douglas' observations about the incremental loss of freedom are instructive:
"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air -- however slight -- lest we become unwitting victims of the darkness."
Benjamin Franklin was more succinct: "Those who would give up liberty for security deserve neither."
DePaulo is an attorney in Charleston.