But Eisenberg told us, "Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department."
"I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. If Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other "must pass" legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told us, "Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote."
The Obama administration insists that it is being more cautious than its predecessor in asserting the state secrets privilege, invoking it only when it's "absolutely necessary to protect national security."
But, as the Los Angeles Times points out in an editorial, "There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling."