The administration's attempt to stop the litigation based on the secrecy argument failed before the U.S. District Court, and the administration's appeal is pending before the 9th Circuit Court of Appeals. Unnamed sources have informed reporters that the government and the telecommunications carriers are deeply concerned that the 9th Circuit will allow the case to proceed, and now an army of telecom lobbyists and administration officials is trying to stop the litigation by persuading Congress to grant full immunity to the carriers.Link (Thanks, Kurt!)
The Hepting case, along with companion cases pending in District Court, represent the country's best hope to test the administration's extreme view of executive power in the crucible of judicial scrutiny, and to allow the courts to determine whether we are truly a nation governed by law or by people.
It is imperative that our society gets answers to crucial questions raised by the warrantless surveillance program on the separation of powers and the scope of executive authority. The courts must not be pulled from the fight, whether by the state secret privilege or immunity legislation. It would be a travesty to deny the opportunity for justice to those whose privacy has perished under a presidential program, and to prevent the courts from determining whether the Constitution supports the president's claim of unbridled executive power.