A federal appeals court on Wednesday ruled that the president's warrantless terrorist surveillance program may continue while the Bush administration challenges an earlier decision that declared the operation unconstitutional.
A three-judge panel from the U.S. Court of Appeals for the Sixth Circuit said in a two-page order (click for PDF) that after "careful review," it had concluded that forceable cessation off the National Security Agency program was not appropriate.
The medley of factors under consideration included whether the government had demonstrated "more than a possibility of success" in winning the dispute on appeal and "where the public interest lies," the judges wrote.
The order from the Cincinnati court arrived about a month and a half after U.S. District Judge Anna Diggs Taylor in Detroit declared the once-secret program a violation of First Amendment rights to free expression, Fourth Amendment rights to privacy, and the Foreign Intelligence Surveillance Act (FISA), a suddenly controversial 1978 wiretapping law. Taylor demanded an immediate halt to the program, which the government quickly appealed.
In court last week, Taylor declined to grant the administration more than a week's reprieve from the decision. The U.S. Department of Justice immediately lodged another appeal of that ruling to the Sixth Circuit.
The Justice Department applauded Wednesday's order, saying in a statement, "This program is both critical to preventing terrorist attacks and fully consistent with law."
The suit in question was brought by the American Civil Liberties Union on behalf of journalists, attorneys, and academics who regularly communicate with people in countries thought to house terrorists. They have contended that the NSA's program "runs roughshod" over the freedoms of U.S. citizens. A few dozen other suits alleging similar charges against the surveillance regime still await resolution in various federal courts.
An ACLU representative said he expects the Sixth Circuit to rule on the government's appeal of Taylor's formal opinion by the end of the year, as an expedited schedule is in place.