Granted .. I'm not a lawyer .. but my take is they knew their case was weak and wanted the Court use other judement then just the law
Justice Department on the Wiretapping Ruling [Kathryn Jean Lopez]
The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties. Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror, the Department of Justice has appealed the District Court's order. The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal.
http://corner.nationalreview.com/