GG: Now, last question, Ben. There was obviously a major controversy recently over what the Obama administration did in another ACLU case, which was brought under FOIA, where the ACLU was demanding the release of Bush-era memos. Of course the Obama administration agreed to release them as part of that lawsuit, and they were targeted with a lot of criticism, claiming they should have resisted, fought to the end of the lawsuit in order to prevent disclosure. When Obama announced he was disclosing those memos, he went out of his way to ensure the CIA and others that he would continue to, as he had done in the past, defend the secrecy powers of the government in court, and try and keep programs like this one, the rendition program, concealed from judicial review.

What is your expectation about the Obama DOJ will do in terms of seeking further appellate review, and a possible stay?

BW: Well, I'll tell you what my hope is. There are very able and intelligent lawyers in the Justice Department all the way up to the top. I have no doubt that when they read this opinion, they will know in their hearts and their minds that this court got it exactly right, on remand. Now, Obama can fulfill his promise to protect legitimate secrets by doing so in the district court. He can do it on an item-by-item basis as the court explains. He can ensure that whatever proceedings move forward in district court does not reveal genuine secrets.

If his promise to them that he was going to try and block any kind of any accountability of wrong-doing, well, that's a broader promise, and I think it's incumbent upon us to let the administration know how much of a betrayal we would deem it, if the Obama administration were to seek review, say, in the Supreme Court. It's one thing for the Obama administration to go into a federal court and not to renounce the brief that was written by the Bush administration; it would be profoundly different matter if the Obama administration were to send this matter to the Roberts court for resolution.

So I think that the Ninth Circuit did the Obama administration a big favor by pointing the way for legitimate secrets to be protected while allowing victims their day in court, and I think if the Obama administration wants to do something constructive in this area, it should support the legislation sponsored by senators Leahy and Specter, that would chart a more sane course for dealing with state secrets claims in the future.

GG: Legislation that, I might add, his own vice-president and secretary of state in the last session of Congress co-sponsored.

Well, this issue hasn't received as much attention as, say, the torture issues, but the issue of expanded, radical claims of government secrecy are as important to anyone who cares about civil liberties as any other issue, if not more important; the ability to shield conduct from public scrutiny, and especially from judicial review is really the linchpin of how the government abuses its power, and today's victory was truly extraordinary, and significant beyond what words can express. So, the jubilance that is evident in your voice is completely warranted, and congratulations again to the ACLU for this and to the plaintiffs, who will finally have their day in court, and we will certainly speak again, as there are more developments in this case.

BW: Thanks a lot, Glenn.

(Emphasis supplied.) First, I want to note, yet again, how important organizations like the ACLU are to all of us. Without the ACLU and organizations like it, our freedoms would be eroded in ways we can not imagine. So big kudos to the ACLU, and let's all become card carrying members.

Second, the discussion I excerpt I believe is critical to understanding whether there is a sincere change intended by the Obama Administration. This is truly a litmus test. Wizner says it best --

If his promise to them that he was going to try and block any kind of any accountability of wrong-doing, well, that's a broader promise, and I think it's incumbent upon us to let the administration know how much of a betrayal we would deem it, if the Obama administration were to seek review, say, in the Supreme Court. It's one thing for the Obama administration to go into a federal court and not to renounce the brief that was written by the Bush administration; it would be profoundly different matter if the Obama administration were to send this matter to the Roberts court for resolution.

(Emphasis supplied.) We will know a great deal more about the Obama Administration in its response to this decision. And about perhaps the greatest issue of the day - what Obama has trumpeted - the right of the people to know what their government is doing. As Glenn wrote:

[T]he issue of expanded, radical claims of government secrecy are as important to anyone who cares about civil liberties as any other issue, if not more important; the ability to shield conduct from public scrutiny, and especially from judicial review is really the linchpin of how the government abuses its power . . .

It was of course Justice Brandeis who wrote the famous words - "sunshine is the best disinfectant." But too often we forget another famous saying by Justice Brandeis, from his dissent in the Olmstead case:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Important words for our time.

Speaking for me only