06/18/2013 05:51 pm ET Updated Aug 18, 2013

The Most Dangerous Terrorists Don't Have Verizon Accounts

Edward Snowden -- hero or traitor? The 29-year-old Snowden has aroused as sharp a divide in opinion as any in recent memory. But focusing on Snowden is an unfortunate distraction. The real issue is the National Security Agency (NSA) data gathering programs he disclosed.

As to Snowden, running with the distraction for just a moment, he needn't be hero or traitor. It is inarguably true that he violated his secrecy oath and broke the law. He did so with, apparently, sincere moral intentions. The way out of this dilemma has ample precedent. Don't throw the book at him -- just whack him with a few pages from the table of contents and move on to the real issue -- massive data gathering of questionable constitutionality and even more questionable utility.

I am so very tired of hearing 9/11 trotted out as the justification for steady erosion of civil rights. I can't refrain from pointing out the breathtaking hypocrisy demonstrated by so many who blithely ignore this grotesque government intrusion while fighting tooth and nail against any efforts to regulate guns. Fewer than 3,000 people perished on that horrible day. An average of 11,000 Americans have died every year since 2001 from gun violence in America.

Among the defenders of the NSA program -- and there are many on both sides of the national aisle -- the arguments are consistent, but utterly unpersuasive. The primary claim is that the loss of privacy is modest and the gain in national security is massive. The loss of privacy is hardly modest, if early reports of the extent of data collection are accurate. The assembled haystack includes sortable records of communications made by most Americans -- to whom, when, from where, how often, etc., etc. Those who pooh-pooh civil liberties concerns seem to be unified around "If you haven't done anything wrong, you have nothing to worry about." By that goofy standard, the government might constitutionally place a camera directly in all our homes. (if they haven't already). The Fourth Amendment was specifically intended to inhibit the government from casting wide nets in hope of catching a few bad fish.

These same folks trot out the "privacy is already dead" theorem. Big corporations already know everything about you, they point out. Perhaps, but to further torture the animal metaphor, this is like saying the chickens got out of the barn so we might as well open the barn door and let the horses run free. Wal-Mart, Google and Facebook only have the power to endlessly annoy. The government has the capacity (and has exercised that capacity here and elsewhere) to deprive one of life and liberty, to chill or punish expression, to deport and to harass with its institutional agents. Ask any young black man in America about that last claim. Google has not (yet) stopped and frisked innocent teenagers.

Others proudly declare that they trust the President. Well, I twice trusted Barack Obama with my vote, but I don't trust him with my privacy. His civil liberties record is nearly as dismal as that of George W. Bush and Dick Cheney. I wouldn't trust those guys with my car keys. But even if the president is sincere in his attempts to balance privacy with security, his tenure is limited and some fairly scary folks are reaching for the reins of power from the Tea aisle. The most despicable fascists in world history arose from a platform of "trust me." Experience suggests that too often we notice the loss of liberty only when it is irretrievable.

As to efficacy, I think of my upcoming air travel, where I will limit the size of my toothpaste tube, take my shoes off and go through a radioactive scanner. Here is the "closing the barn door after the horse is out" phenomenon. It is not mere speculation to observe that the most dangerous terrorists are not quite stupid enough to wander into a trap with a large neon sign overhead. Here too the data gathering seems too much too late. This week a security expert on MSNBC pointed out that tech-savvy citizens who don't want their communications added to the haystack are already designing ways to avoid this ham-fisted scrutiny. Are we really naïve enough to believe that so-called "evil-doers" are conducting business on Verizon's airways, using their own accounts, in their own names, from GPS-enabled iPhones?

I get it. There are bad people in the world who would do us harm. But the malcontents clumsily planning on smartphones to use a pipe bomb to disrupt a public event are not prey worthy of setting a trap in which our most precious rights are ensnared. In this case our overreaction is the real danger to liberty. As Pogo so eloquently observed, "We have met the enemy and he is us."

This column first appeared in the Valley News.