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Judge Rules Against Surveillance During Appeal

Bloomberg / Margaret Cronin Fisk | September 28 2006

A U.S. judge rejected a Bush administration request to continue its terrorist surveillance as it appeals her earlier decision that the program is unlawful, while giving the government a week to seek relief from a higher court.

U.S. District Judge Anna Diggs Taylor in Detroit ruled on Aug. 17 that the surveillance, ordered by President George W. Bush after the Sept. 11 attacks, violated the Constitution and federal law. Today the judge rejected the government's bid to put her ruling on hold during its appeal.

Taylor said that to prevent possible harm to the public she wouldn't order the surveillance stopped immediately, instead giving the government a week to get a federal appeals court order allowing continued surveillance. The government filed that request following the hearing. An immediate stop to the program would harm U.S. security, a government lawyer told the judge.

``The terrorism surveillance program was authorized to close a gap in intelligence,'' Justice Department attorney Anthony J. Coppolino told Taylor. ``A chilling effect on a small number of communicators speaking with al-Qaeda or suspected al-Qaeda does not outweigh the harm'' to the public if the program stops, he said.

In ruling against the government, Taylor said she saw ``no likelihood of the government prevailing on the merits on appeal.'' The program was challenged by the American Civil Liberties Union and advocacy groups.

Legislation in Congress

The government filed papers with the 6th U.S. Circuit Court of Appeals in Cincinnati after the hearing, asking for a continued delay of Taylor's order to stop the program.

The ACLU and other plaintiffs ``can present no harm comparable to the drastic harm to the nation if the Terrorist Surveillance Program were halted by court order prior to an opportunity for appellate review,'' government lawyers said.

Congress is considering legislation to authorize the National Security Agency program of wiretapping, without court warrants, international telephone calls between al-Qaeda operatives in the U.S. and overseas. The House plans to vote today on its version, though Republicans said lawmakers weren't likely to reconcile differing proposals before recessing at week's end for the Nov. 7 election campaign.

Coppolino, in asking the judge to allow the surveillance to continue, said that otherwise ``we will immediately incur the risk that some vital intelligence will be lost.''

High Stakes

``When the stakes are so great, we ask the court not to override the security judgment of the president and his security advisers,'' Coppolino said.

ACLU lawyer Ann Beeson urged Taylor not to allow continued surveillance.

``The public interest is served by requiring compliance with the law,'' Beeson told the judge. She told reporters after the hearing that if the government is allowed to continue the surveillance while appealing Taylor's August ruling, ``the program could continue operations until next summer.''

The program was disclosed in December by the New York Times. The ACLU and other advocacy groups sued the NSA the following month, saying the surveillance without court warrants violated their free-speech rights. They said the government should be required to get warrants for the surveillance from a secret court created by the 1978 Foreign Intelligence Surveillance Act.

The government ``can easily obtain FISA warrants for any member of al-Qaeda,'' Beeson told Taylor today. The government also has the right to conduct warrantless wiretaps for up to 72 hours under the 1978 law, she said.

Not Fast Enough

The government said the program was essential to prevent terrorist attacks in the U.S. ``FISA is a very useful and effective tool, but there are circumstances when even an emergency application'' for a wiretap isn't fast enough, Coppolino said at the hearing.

Taylor's Aug. 17 decision rejected the government's argument that the wiretapping was authorized by a congressional resolution empowering Bush to use force following the terrorist attacks. The judge also ruled that the program violated the Constitution's separation of powers among the three branches of government.

After Taylor's ruling in August, both sides agreed the surveillance would continue until today's hearing.

Three days after the wiretapping was disclosed in December, Bush defended the program in a news conference, saying congressional leaders were ``briefed more than two dozen times'' about the program. Bush said he ``absolutely'' had the power to authorize the wiretaps.

The ACLU's lawsuit called the wiretapping ``a secret government program to intercept vast quantities of the international telephone and internet communications of innocent Americans without court approval.'' The program disrupted people's ability to ``talk with sources, locate witnesses, conduct scholarship and engage in advocacy,'' the ACLU said court filings.

The case is American Civil Liberties Union v. National Security Agency, No. 06-10204, U.S. District Court, Eastern District of Michigan (Detroit).

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