Wiretap program allowed during appeal

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President Bush's terrorist surveillance program can continue while the Justice Department appeals a lower-court ruling that deemed the warrantless wiretapping operation unconstitutional, a federal appeals court said yesterday.

Mr. Bush has called the program essential to the global war against terror. Congress adjourned last week for the November elections before approving legislation that would allow the surveillance.

Critics argue that the program violates several constitutional rights, including free speech and privacy, and breaches limits on executive powers.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati yesterday ruled that the program can continue pending an appeal. The three-paragraph ruling said the judges balanced the likelihood that the appeal would succeed, the potential damage to both sides of the dispute, and the public interest.

Established in 2002 and reauthorized more than 30 times, the program targets U.S. phone calls and electronic correspondence that involve known terrorists abroad.

On Aug. 17, U.S. District Judge Anna Diggs Taylor in Detroit ruled the program unconstitutional, setting off a fierce debate on Capitol Hill. Mr. Bush, who is focusing his campaign speeches across the country on national security issues, demanded that lawmakers move swiftly to authorize the program, which he said has proved its value repeatedly.

The Justice Department urged the appeals court to allow the program to continue during the legal process, claiming "potential irreparable harm" to the nation if the surveillance is abandoned.

"The country will be more vulnerable to a terrorist attack," the government motion said, asking the appeals court to overrule the lower court. The U.S. District Court ruling barred the government from using the surveillance program "in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications."

The appeal is likely to take months. The 6th Circuit Court judges said the Justice Department met the standard for continuing the program by arguing that it prevents national harm.

The program, monitored by lawmakers from both parties, has been under scrutiny since the New York Times revealed its existence in December.

Critics say the Bush administration should work through a court set up for such cases, established under the Foreign Intelligence Surveillance Act. The administration says that court cannot always act quickly enough.

After the program was revealed, the American Civil Liberties Union filed a lawsuit seeking to end it.