The Appeal of Not Appealing

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.)

So what Eisenberg gets is a period on the end of a long sentence, a win, money for clients, and the final word, for now, on one aspect of executive power. "What I don't get is Judge Walker addressing Bush's theories of why he can disregard an act of Congress."

Don't blame Walker for this. Blame the Obama Justice Department. They did not argue, as Bush's lawyers did, that the ability to warrantlessly wiretap was within the president's authority. The Obama administration only wanted to preserve the State Secrets Doctrine. That's a big "only"  because the doctrine implies an expansive theory of executive power that isn't subject to checks.  And yet, in this case, if the government does not appeal, they will have acknowledged that there are times when their power is limited in these areas.  Another benefit of not appealing: if they lost the appeal, it would have the force of precedent. But Walker is not an appeals court judge, and therefore he doesn't set precedent.

There is another reason why the Obama Justice Department might not want to appeal the Walker ruling. If they do, they'll be embracing not only the Bush version of the State Secrets Doctrine -- a doctrine that allows the government to prevent cases from being heard, and one that was already modified by Attorney General Eric Holder -- but they'll embrace by proxy the Bush version of executive power and everything else that implies, including torture, detention, black sites, renditions and who know swhat else.

And then they'll have to defend it before the Supreme Court.  And Obama will own it. My strong sense is that Obama does not want to own something he didn't buy. And that's why, in the end, I think his Justice Department will take its chips and slowly back away from this case.