HoustonChronicle.com - 6th Circuit next to review the legality of surveillance

By Dan Sewell, Associated Press

Read the entire article at:  http://www.chron.com/disp/story.mpl/nation/4128536.html

Summary:

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 Sedler, a law professor at Wayne State University.

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.

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-mail 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.

Bush has appointed six judges to the Cincinnati-based 6th Circuit, including two Michigan judges last summer who gave Republican appointees an 8-6 majority.

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.

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