Appeals Court Temporarily Reinstates Warrantless Wiretapping

The Associated Press is reporting that the Sixth Circuit Court of Appeals has lifted a lower court stay on the National Security Agency's "warrantless wiretapping program", formally called the Terrorist Surveillance Program. This circuit court ruling allows the program to operate while the appeal of the original stay is being considered...

The Bush administration can continue its warrantless surveillance program while it appeals a judge's ruling that the program is unconstitutional, a federal appeals court ruled Wednesday....

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.

This is one of the easier-to-comprehend issues associated with civil liberties and the War on Terror. It is purely a matter of definition. Should electronic communication crossing the border be treated according to the rules that govern the executive branch's domestic powers or the rules that govern its international powers? Or, as Mark Steyn wrote a few weeks ago...

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, [should that be] entirely unconstitutional?

In lifting the injunction against the program, the Court listed the criteria that must be considered, without any additional explanation...

In considering whether a stay pending appeal should issue, we balance the traditional factors governing injunctive relief: (1) whether the applicant has demonstrated a substantial likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other interested parties; and (4) where the public interest lies.

Also according to the Associated Press, the suit was based on balancing the necessity of preventing terrorist attacks versus journalistic inconvenience...

The American Civil Liberties Union filed a lawsuit seeking to stop the program on behalf of journalists, scholars and lawyers who say it has made it difficult for them to do their jobs because they believe many of their overseas contacts are likely targets. Many said they had been forced to take expensive and time-consuming overseas trips because their contacts wouldn't speak openly on the phone or because they didn't want to violate their contacts' confidentiality.

If you don't like that characterization of the original suit, send your complaints to the AP.