Will the Justice Department appeal Judge Vaughn Walker's determination that the National Security Agency's warrantless wiretap program was illegal? Your best bet: no. The victory may have been a win for history, and the plaintiffs in the case, two lawyers associated with the El-Hamarain charity, may get their money.
"The way Walker wrote this practically begs them to let it go," said Jon Eisenberg, the plaintiff's chief attorney. Why? "It's not what he did, it's what he didn't do."
You can read about the case here. What Walker did not do was broach the subject of whether the Authorization for the Use of Military Force in Afghanistan permitted the president to illegally wiretap Americans. He didn't pronounce upon the unitary executive theory. What he did do was limit the government's ability to pull out its state secret privilege stamp in cases where the Foreign Intelligence Surveillance Act is invoked -- and where the plaintiffs can establish that they were spied on illegally. That's a small check on executive power, but a check -- and one that, when extrapolated, does indeed call the Bush Administration's legal theories into question. But there will be no other cases like this one -- cases where the privilege is used to protect information about the Terrorist Surveillance Program. The TSP no longer exists. The program that exists now does not rely on warrantless wiretaps and is closely supervised by the FISA court. (The current program's contours have not been subject to legal challenges, and experts outside the government think that parts of it might not be legal. But that question has no bearing on this case.)