Judge Vaughn Walker yesterday ruled that the Bush administration program of wiretapping Americans without warrant required by FISA was, in fact, illegal. The Obama administration had fought to protect the same powers of the executive branch used by the Bush administration in this program and had attempted to block the case by using arguments on state secrets would be revealed if the case moved forward. Walker rightly rejected this Bush/Obama argument:

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.”

The Department of Justice can appeal Walker’s ruling, but Marcy Wheeler doesn’t think they will.

The state secrets defense and the broader use of arguments about the supremacy of the executive branch were key to the Bush administration’s construction of the war on terror. The continued defense of these arguments poses the risk of further excesses by the executive branch that fly in the face of the rule of law. In effect, what makes “unfettered executive-branch discretion” so scary is that it is the antithesis of the republic envisioned by the Founders, who knew the perils of monarchy and executive tyranny. Why we would suddenly forget the founding principles of our nation is beyond me. But at least there is a federal judge who is standing in the way of what has already been done as a bastion for the rule of law.