Hard to predict 6th Circuit's NSA ruling (AP does it again)

By DAN SEWELL, Associated Press Writer Sat Aug 19, 3:50 AM ET

CINCINNATI - Even though the administration's warrantless surveillance program is heading toward an appellate court loaded with Bush appointees, the court's mixed record makes it difficult to predict how it will view the surveillance, lawyers said.

"It is not a foregone conclusion that a conservative-dominated court is going to say, ' President Bush did this and we're going to uphold what he wants,'" said Robert A. Sedler, a law professor at Wayne State University. "There are many issues in this case. Conservative judges often have a very strongly libertarian streak."

On Thursday, U.S. District Judge Anna Diggs Taylor in Detroit ruled that the National Security Agency's warrantless surveillance program is unconstitutional. Within hours, the Justice Department filed notice of appeal with the 6th U.S. Circuit Court of Appeals, which hears federal appeals from Kentucky, Michigan, Ohio and Tennessee.

Taylor ordered an immediate halt to the program, but the American Civil Liberties Union, which brought the lawsuit, agreed to the government's request to delay enforcement of the injunction. The judge is set to hear the government's request for a stay on Sept. 7.

Bush decried the ruling Friday, saying the program is a legal and vital tool for fighting terrorism.

"I strongly disagree with that decision, strongly disagree," he said. "That's why I instructed the Justice Department to appeal immediately, and I believe our appeals will be upheld."

The program monitors international phone calls and e-mails to or from the United States involving people the government suspects have terrorist links. A secret court has been set up to grant warrants for such surveillance, but the government says it can't always wait for a court to take action.

The government unsuccessfully argued before Taylor, an appointee of President Carter, that the NSA program is well within the president's authority but proving that would require revealing state secrets.

Bush has appointed six judges to the Cincinnati-based 6th Circuit, including two Michigan judges last summer that gave Republican appointees an 8-6 majority. The chief judge was appointed by Ronald Reagan.

The three-judge panels that hear appeals sometimes include a district court judge or a senior judge who is not a full-time member of the court. The full court could hear the case if a panel's decision is appealed.

"There's a whole range of judges in terms of experience, age and background," said John Pirich, a Lansing, Mich., attorney who has argued cases here over three decades. "I really can't quantify any of their rulings based upon who appointed them or what year they've been appointed."

Pirich, who has been mentioned as a potential Bush appointee to a federal bench, noted that the judges have lifetime appointments and that judicial philosophies sometimes change over time.

Cincinnati attorney Scott Greenwood, a former ACLU general counsel who has had some 40 cases before the 6th Circuit, said regardless of the court's makeup, judges are likely to take a hard look at the separation of powers issues in the wiretapping case.

"Civil liberties are not liberal and they're not conservative," he said.

Recent rulings from the court do not fall neatly into any political category.

This week, a panel upheld a ruling that Michigan's prep sports schedule discriminates against girls in some sports. Earlier this year, a panel overturned a lower-court ruling and allowed Tennessee to offer anti-abortion license plates with the message "Choose Life."

In April, a 2-1 ruling overturned a lower court and found that punch-card ballots had violated Ohio voters' rights because counties could not ensure that the ballots were counted. The full court has agreed to review that case.

Greenwood successfully argued against display of the Ten Commandments in front of public schools in Adams County, Ohio. However, the 6th Circuit later ruled that a display at the Mercer County, Ky., courthouse was constitutional because it was part of a historical display that included replicas of the Bill of Rights and Declaration of Independence.

Though it's impossible to predict how the court will rule on the NSA program,

"It is not a foregone conclusion that a conservative-dominated court is going to say, ' President Bush did this and we're going to uphold what he wants,'" said Robert A. Sedler, a law professor at Wayne State University.
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Well, not only is this asinine statement revealing but typical of the left, especially from academia. Continuing to politicize the legal system, the libs always try to make FOLLOWING THE WRITTEN LAW a type of political crime, as if the legal system is a political body...of course, that has been their goal since the massive attempt by the left at absolute power via the judiciary by Billy Boy and his accomplices.

So the left continues to deride those WHO OBEY, FOLLOW AND UPHOLD THE WRITTEN LAW as being a "conservative thing". But of course, as we know from hard experience, it really has come down to that. Libs have no reserve when it comes to breaking the law, while conservatives still care about our system of laws, and what they stand for, including our beloved Constitution.

Several of the legal analysis seem to think this judge's ruling was very poorly done no matter which side they are on.

News yes Activism/Chapters NO

Liberals hope the Sixth Circuit will hand Al Qaeda a victory. Dummkopfs.

(No more Olmert! No more Kadima! No more Oslo!)

wow... pounced right on this one didn't ya...

The Michigan group buys 1000 cell phones. If Osama called each cell phone once, then they throw them out and move on to the next phone how will we track them? We need to listen to EVERY CALL from that part of the world.

There is an important principle at stake here. Do you know what will become of this world if we let category violations go unenforced? Do you? Next thing you know the hobbit hole will be breaking news. Then where will we be?

not only is this asinine statement revealing but typical of the left, especially from academia. Continuing to politicize the legal system, the libs always try to make FOLLOWING THE WRITTEN LAW a type of political crime.

It is amazing that the left views that outcome of a court decision as a random and unpredictable act by a bunch of random actors, sort of sometimes they will do what we want and sometimes they will do what the law says. The whole point of the rule of law is that outcomes should be predictable, except in those very small minority of cases where the law really is ambiguous.

lol...

I just get a kick out of the self appointed around here at times. When I make a "post violation", AM is on it in a nanosecond.

Oh well... I reckon when there is nothing happening to unite the people, boredom sets in...

I look at the Activism for people who get off their butts and do something. I don't need it cluttered with news.

What a lame analysis that is. The Appeals Court will reverse the decision, and if they don't, the Supreme Court will.

Personally, I don't think it will get much beyond the establishment that both Carter and Clinton did this;

E.O. 12139 - Jimmy Carter's Executive order to provide as set forth in FISA for the authorization of electronic surveillance for foreign intelligence purposes

E.O. 12949 - Bill Clinton's Executive order to provide for the authorization of physical searches for foreign intelligence purposes

Or the fact that FISA was amended in 2004 just to make sure that the wire taps looking for terrorists was totally legal and above board;

Lone wolf amendment
In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. §1801(b)(1)(C). A "lone wolf" is a non-US person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group.[15]

And if all that doesn't force the reversal of this pathetic decision by Anna Diggs Taylor, liberal et-al, then the fact that FIVE other Judges in five seperate courts have already ruled that the NSA wire tapping program is legal and constitutional. That kind of Precedent would make it impossible beyond reason to say that it's a good decision. It WILL be overturned.

But really, this is a great thing for conservatives! It proves further that Democrats only care about power and are liberals first and Americans second and real national security takes a back seat to Democrats lust for power and control. This decision will highlight the reality that Republicans MUST remain in the majority of both houses of Congress, so that radical activist liberal Judges like this pathetic old woman, are NOT the only ones that can get a majority vote in the Senate. THAT will drive even more conservatives to go vote. It will happen.

If that is indeed the case, then le'me buy you a beer...