No Easy Answers

Wednesday, October 04, 2006

6th Circuit Grants Government Motion for Stay of Order Halting NSA Program

This is related to Judge Anna Diggs Taylor Rules against NSA Terrorist Surveillance. The order here doesn't reverse Judge Anna Diggs Taylor opinion. It's effect is to "stay" Judge Anna Diggs Taylor's order that the US stop the program while the appeal runs its course.

                                       Nos. 06-2095/2140

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL                                 )
UNION OF MICHIGAN; COUNCIL ON AMERICAN- ISLAMIC                                )
OF MICHIGAN; GREENPEACE, INCORPORATED; NATIONAL                                )
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES                                 )
BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS;                                  )
TARA McKELVEY; BARNETT R. RUBIN,                                               )
                               Plaintiffs - Appellees (No. 06-2095)            )
                               Cross - Appellants (No. 06-2140)                )
v.                                                                             )       ORDER
NATIONAL SECURITY AGENCY/CENTRAL SECURITY                                      )
SERVICE; KEITH B. ALEXANDER, General, in his official capacity                 )
as Director of the National Security Agency and Chief of the Central           )
Security Service,                                                              )
                               Defendants - Appellants (No. 06-2095)           )
                               Cross - Appellees (No. 06-2140)                 )

BEFORE:        BATCHELDER, GILMAN, and GIBBONS, Circuit Judges

       The government moves for a stay pending appeal of the district court's order holding the

Terrorist Surveillance Program unconstitutional and permanently enjoining the Government from

utilizing the Program "in any way, including, but not limited to, conducting warrantless wiretaps of

telephone and internet communications, in contravention of [FISA and Title III]."

       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. Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002);

Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.

1991). This court, in Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), noted that

       Michigan Coalition said that the success on the merits which must be
       demonstrated is inversely proportional to the harm. More than a possibility
       of success must be shown, and "even if a movant demonstrates irreparable
       harm that decidedly outweighs any potential harm to the nonmoving party
       if a stay is granted, he is still required to show, at a minimum, `serious
       questions going to the merits.'" (edits and citations omitted).

       After careful review, we conclude that this standard has been met in this case. Accordingly,

the motion for a stay pending appeal is GRANTED.

                                             ENTERED BY ORDER OF THE COURT

                                                     Leonard Green, Clerk

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