After Judge Anna Diggs Taylor's relentlessly mediocre ruling that ordered an end to the NSA's warrantless surveillance of terrorist communications, many experts believed that the ruling would not survive an appeal. Taylor herself appeared to forestall a reversal by refusing to stay her ruling pending the appeal. The Sixth Circuit resolved it themselves yesterday in a unanimous ruling granting the stay pending their review of the case, dropping a broad hint as to their inclinations:

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 president has said the program is needed in the war on terrorism; opponents argue it oversteps constitutional boundaries on free speech, privacy and executive powers.

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.

USA Today may consider the brevity of the opinion lacking as an explanation, but their thrust appears rather obvious. The panel explained that a stay requires that a court find the following:

1 - the applicant has demonstrated a substantial likelihood of success on the merits (ie, appeal will succeed in overturning the decision)

2 - the applicant will suffer a substantial and irreparable injury if denied the stay

3 - whether the other parties will suffer substantial harm if the stay is granted

4 - the public interest will be served with a stay

In granting the stay with almost no further explanation, the court has clearly implied that the Bush administration has met all of the conditions. In other words, all three judges agreed that the public interest is served in continuing the surveillance, that the plaintiffs will not suffer substantial harm if it continues, and that Taylor's original order will harm national security. For these reasons, the judges feel that the Bush administration will likely win its appeal.

The brevity of the opinion masks the message that it sends, or at least it masks the meaning for those who cannot read a plain statement such as, "After careful review, we conclude that this standard has been met in this case." The panel has made it plain that the plaintiffs will face a steep uphill climb to convince the judges to uphold Taylor's immature and unreasoned ruling.

Bear in mind that the real test will be at the Supreme Court, which is where this case was always going to find resolution. This will make a good interim victory for the Bush administration, but it's just prologue to the real battle.

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Tracked on October 5, 2006 5:23 AM