The Bush Administration has played a trump card in one of the wiretapping cases.
According to this article in Wired News, the administration has claimed the state secrets privilege in the Electronic Frontier Foundation case against AT&T — which is trying to force AT&T to stop assisting the NSA's wiretapping.
According to the article
That privilege allows the government to tell a judge that a civil case may expose information detrimental to national security, and to ask that testimony or documents be hidden or a lawsuit dismissed. That extraordinary executive power was established in English common law and upheld in a 1953 Supreme Court case involving the fatal crash of a secret bomber.
The state secrets privilege cannot be found in the U.S. Code, the code of federal regulations or the Constitution. Instead, it is a part of common law, the body of laws and precedents created over centuries of legal decisions. When the government believes that a civil suit might reveal secrets injurious to the country, the head of the appropriate government agency must review the matter and submit a signed affidavit attesting to the danger of the lawsuit or documents that might be disclosed.
Judges almost invariably agree to such requests, according to William Weaver, a law professor and senior adviser to the National Security Whistleblowers Coalition. Emphasis mine
I'm not sure this is such a big deal. I'm dubious of this roundabout way of approaching this case. I do not believe it is AT&T's responsibility to weigh in on the legality of this program. The legal issues involved are technical enough that, even though I believe the program is illegal, I also believe that it is not AT&T's place to make that determination.
If this strategy is used in the cases directed against he federal government directly, then I will be upset, since I do believe the wiretapping program is illegal, and I believe that those direct lawsuits are the correct way to address the program's legality in court.