The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.Here's an interesting point made in the news account: "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."
U.S. District Judge Anna Diggs Taylor in Detroit ruled Aug. 17 that the program was unconstitutional because it violates the rights to free speech and privacy and the separation of powers in the Constitution.
The Justice Department had urged the appeals court to allow it to keep the program in place while it argues its appeal, claiming that the nation faced "potential irreparable harm." The appeal is likely to take months.
"The country will be more vulnerable to a terrorist attack," the government motion said.
As many understand Foreign Intelligence Surveillance Act of 1978 the government has the ability to initiate electronic surveillance without a court order and still have 15 days to go before the secret court to get the proper warrant.
However, this only applies when Congress has formally declared war.
The problem is that the current administration claims they have the authority to conduct warrantless searches without any court oversight at all, with which many legal and constitutional scholars (and at least one federal judge) disagee.
Could they avoid all this legal wrangling by having Congress issue a formal declaration of war on terror? Who is terror? What is terror? How do you declare war on terror?
It makes our brain hurt.