Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
This could be a huge development for the rule of law. A federal judge has ruled against the Bush administration's attempts to have a case challenging possible warrantless wiretapping dismissed. This may be an important case that could put a nail in the coffin of the state secrets privilege as a means of avoiding all judicial scrutiny of the NSA's wiretapping program.
A federal judge on Monday cleared the way for a groundbreaking suit that would let lawyers peek behind the curtain of the Bush administration's warrantless electronic surveillance program.Northern District of California Chief Judge Vaughn Walker ruled that lawyers for Al-Haramain Islamic Foundation can access material long held secret by the government. But he also wrote that the press and the public must now be kept largely in the dark.
The Bush administration has taken the catch-22 position in every case filed on this issue that the plaintiffs have no standing if they can't prove that their communications were tapped and that they don't have to reveal whose communications were tapped because of the state secrets privilege. The judge didn't buy that argument:
"While the court is presented with a legal problem almost totally without directly relevant precedents, to find plaintiffs' showing inadequate would effectively render those provisions of FISA [that allow penalties for illegal surveillance] without effect," Walker wrote.
It should be noted that Judge Vaughn Walker was appointed by the first President Bush and is considered a conservative. And he is doing this exactly right. Yes, there is a potential problem with revealing classified information and therefore the evidence in the case should be handled in camera and/or ex parte. The attorneys in the case should have to get a security clearance, as they will in this case, and they should be forbidden from revealing anything classified to anyone who doesn't have such a clearance. But to hold that the state secrets privilege prevents any case from being brought at all, Walker correctly ruled, destroys any possibility of the FISA provisions forbidding illegal surveillance actually meaning anything. You cannot interpret a statute in a manner that voids its own effect.
This is one issue where the incoming Obama administration could immediately change the situation and stop using the state secrets privilege to avoid judicial scrutiny. He absolutely must do so. Even better, legislation must be passed to restrict the use of the state secrets privilege to prevent future presidents from invoking it in such a manner.
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Bill O'Reilly is hyperventilating this week via the following:
1) The Obama Administration will order the CIA to stop torturing whomever and also require that America honor people's* habeas corpus rights.
*Those that the U.S. detains that are not charged in a criminal court or meet the criteria to be POWs.
2) The Obama Administration will stop warrantless spying in cases where the law requires a warrant prior to or retroactive from the instigation of such spying.
These two actions by Obama will immediately embolden the terrorists, which will be able to increase in number. Therefore, it is very likely we will be attacked this year and we can already assign responsibility to President Obama.
Got that?
Posted by: Michael Heath | January 7, 2009 11:46 AM
Well then, that will make Pat Robertson's prediction true, won't it? God really is great!
Posted by: Valhar2000 | January 7, 2009 11:57 AM
Yeah, like that would've stopped Bush or Cheney... *rolleyes*
-Rusty
Posted by: minusRusty | January 7, 2009 1:04 PM
Very good development. If these unconstitutional programs had not been struck down, future administrations would have gotten the wrong message, namely that there are no legal controls on the executive branch (and goodness knows, the congress would not have stood in their way.) This will help to ensure that the excesses of the Bush regime represent an aberration, not a troubling new trend in presidential over-reach.
Posted by: Raymond Minton | January 7, 2009 2:26 PM
Now if we could only get Dirty Dick and his sock puppet George tried for war crimes we could all have our faith in America restored.
Posted by: Nebularry | January 7, 2009 3:43 PM
I suggest perhaps keeping such legislation simple. Have Congress allow a claim of State Secrets privilege by the Federal Government... but require invocation of such privilege by the State to only mean that the case immediately becomes one where the Supreme Court has original jurisdiction.
Posted by: abb3w | January 7, 2009 5:07 PM
I know I disagree with many of you on many things, but I am glad to see this as well. The police state stuff really bugs me. It's far worse in Britain and I don't want to see this country go down the same path.
Posted by: mroberts | January 7, 2009 10:12 PM