Lawyers won't try to predict conservative court handling appeal of surveillance program

Sunday, August 20, 2006

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, Greenwood said, it's easy to guess the last stop for the case: the U.S. Supreme Court.

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