. >> i thought jeef jeffrey toobi point was interesting. not saying i agree with it.act -- correct me if i'm wrong -- the american public by dint of their representatives have created this institution and given it the permission to do as toobin seems to be arguing, all of the things that it did. >> i would say two things. one is, right, that's sort of true although it is not ultimately true for this reason. the question here is does this data collection violate the constitution, the fourth amendment. that's never actually been finally litigated by the supreme court. >> in large part because they haven't been able to. >> because they haven't been able to because the government invokes state secrets. so we have a process for dealing with ultimate questions of constitutionality in our system and that's the supreme court ultimate rules on it, as they did with obama care. the entire national security state constructed post 9/11 has been tlosloweded behind secrecy people's opinions are divide as to whether you trust authority. >> one thing we're not paying attention to is t