The Supreme Court will ultimately have to resolve the competing rulings, Friday’s from the Southern District of New York and the previous week’s from the D.C. District Court, on the NSA metadata program. Both are well reasoned; this issue is not constitutionally obvious, and bombast from either side will not be helpful in resolving it. But neither will emotional appeals to 9/11 such as the one with which Judge William Pauley opened his ruling upholding the program:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modern life, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
There are multiple reasons this retrospective appeal to 9/11 is unpersuasive. Regardless, the issue policymakers are going to have to confront sooner or later is whether the potential for terrorism is actually sufficiently large and unique to justify the potential cost to liberty imposed by this policy.