The warrantless wiretap decision

A judge's decision to declare the Bush administration's warrantless wiretapping illegal poses a huge challenge for Eric Holder and Barack Obama.

There are some reasons that the administration might appeal, legal specialists said. Among them, it may not want Judge Walker’s narrow interpretation of the state secrets privilege to stand because it might influence other cases, and appealing on those narrow grounds would allow the administration to still avoid engaging on whether the program was legal.

In addition, the administration may fear political attacks from the right if it agrees to pay damages to the plaintiffs, which include an Islamic charity in Oregon, Al Haramain, which the government has said had links to Al Qaeda. (The charity is defunct and its assets are frozen, however.)

But several legal specialists said that the administration may instead want to let the ruling stand. That would terminate a case that has been a political headache for the administration since the month after Mr. Obama took office, when the Justice Department’s decision to keep pressing forward with the Bush administration’s assertion of the state secrets privilege in the matter created an uproar among liberals.

A decision not to appeal would also ensure that the ruling against the government went no higher than a district court judge’s decision, which — unlike one by an appeals court — would not set a binding precedent.

“This is a very hard decision for them,” said John P. Elwood, a Justice Department lawyer in the Bush administration. “The thing that makes it hard to appeal is that they apparently are of two minds about it and don’t want to be pinned down on what they think of it now, but also the fact that they might end up with just as bad a precedent from the court one rung up.”

Still, if the administration lets the judgment stand, Mr. Holder — who in 2008 said Mr. Bush had authorized the National Security Agency’s wiretapping program in “direct defiance of federal law” — would be left with a ruling from a federal judge that such warrantless wiretapping by government officials was illegal. That could prompt calls to begin a criminal investigation. It is a felony to violate the surveillance law requiring warrants.

On the campaign trail, Obama declared that the Bush's surveillance of U.S. citizens without a warrant was "unconstitutional and illegal." Holder, before becoming the AG, said more or less the same thing. Now they have to decide if they still want to hold those positions.

There is no easy answer here now. Another fetid mess left over from the Bush administration. All we can do is stay tuned. But I will point out something that I hope is painfully obvious to the administration already, they will face "political attacks from the right" regardless of what they decide to do.