A federal judge has ruled against the Bush administration’s attempts to have a case challenging possible warrantless wiretapping dismissed. This may be an important case that could put a nail in the coffin of the state secrets privilege as a means of avoiding all judicial scrutiny of the NSA’s wiretapping program.

A federal judge on Monday cleared the way for a groundbreaking suit that would let lawyers peek behind the curtain of the Bush administration’s warrantless electronic surveillance program.

Northern District of California Chief Judge Vaughn Walker ruled that lawyers for Al-Haramain Islamic Foundation can access material long held secret by the government. But he also wrote that the press and the public must now be kept largely in the dark.

The Bush administration has taken the catch-22 position in every case filed on this issue that the plaintiffs have no standing if they can’t prove that their communications were tapped and that they don’t have to reveal whose communications were tapped because of the state secrets privilege. The judge didn’t buy that argument:

“While the court is presented with a legal problem almost totally without directly relevant precedents, to find plaintiffs’ showing inadequate would effectively render those provisions of FISA [that allow penalties for illegal surveillance] without effect,” Walker wrote.

It should be noted that Judge Vaughn Walker was appointed by the first President Bush and is considered a conservative. And he is doing this exactly right. Yes, there is a potential problem with revealing classified information and therefore the evidence in the case should be handled in camera and/or ex parte. The attorneys in the case should have to get a security clearance, as they will in this case, and they should be forbidden from revealing anything classified to anyone who doesn’t have such a clearance. But to hold that the state secrets privilege prevents any case from being brought at all, Walker correctly ruled, destroys any possibility of the FISA provisions forbidding illegal surveillance actually meaning anything. You cannot interpret a statute in a manner that voids its own effect.

This is one issue where the incoming Obama administration could immediately change the situation and stop using the state secrets privilege to avoid judicial scrutiny. He absolutely must do so. Even better, legislation must be passed to restrict the use of the state secrets privilege to prevent future presidents from invoking it in such a manner.