As legal experts mull over the long-term implications of last week's court decision declaring illegal the program of warrantless surveillance by the George W. Bush administration, attention now focuses on whether the Obama Justice Department will appeal the controversial ruling.
If it does, says the California lawyer who won last week's landmark decision, "it will signal that Obama thinks it's OK for him to permanently inherit Bush's legacy of cowboy governance."
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
Declaring that the plaintiffs had been "subjected to unlawful surveillance," the judge said the government was liable to pay them damages.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department's claim - first asserted by the Bush administration and continued under President Obama - that the charity's lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets privilege as amounting to "unfettered executive-branch discretion" that had "obvious potential for governmental abuse and overreaching."
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it "specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority."
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans' international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
Among legal experts, however, there was little hesitation. Most of those we contacted hailed the decision as the beginning of the end of unfettered use of the state secrets privilege.
Here's what some of them had to say:
Steven Aftergood, head of the government secrecy program of the Federation of American Scientists:
"At least by implication, the ruling means that aspects of President Bush's Terrorist Surveillance Program were illegal. Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight. While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court's ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.
"The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute. 'The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct', government attorneys told the court. But had the Bush and Obama Administrations' use of the privilege prevailed, that is exactly what would have happened-- conduct that has now been found illegal would have been covered up.
"To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act. That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.
"Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration's warrantless surveillance program. A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information. But it was the Times story that set the stage for the Al-Haramain lawsuit.
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