"Judge John D. Bates, who categorically refused yesterday to accept the Bush administration's limitless characterization of executive privilege,[snip] Ultimately, Bates did nothing more than reaffirm the role of the courts in adjudicating matters of privilege. He found that "it is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege." This opinion is certainly dramatic, but the underlying legal principle is hardly shocking. The Bush administration, in attempting to insulate itself from judicial scrutiny over the last seven years, made one critical miscalculation: It has consistently attempted to assert legal privileges ranging from the "state secrets" doctrine to an unbounded executive privilege, the contours of which would ultimately be determined by the judicial branch."
MissM's Blog 