That's incredible. It's always fascinating to see power centralization in government as it always tends to be abused in favor of expanding government power.
Stuff in the US is worse than you thought because Chief Justice of Supreme Court has power to appoint judges on a security review panel? Who should appoint them so that you'd thing the things are better - the President (which is a politician)? The Congress - that created FISC and set the rules of appointment?
For example someone (maybe the chief justice anyway) appoint, but the congress has to approve it.
Sometimes this is done even to make valid a vote by the population, and it works well (in Commonwealth countries, the Queen can not approve a election results if she wish so... fortunately this was never needed it seems).
Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state.
No, he doesn't. This is a directly, overtly inaccurate claim.
John Roberts real exclusive, unaccountable, lifetime powers come from Article III of the US Constitution, which within 50 years of the ratification of the Constitution came to give the Supreme Court the power to review and overturn the laws of Congress and to issue injunctions against presidential administrations.
Ezra Klein in this article isn't referring to Article III courts. He's referring to the FISC, the FISA courts, which aren't Article III courts. Judges on the FISA courts, unlike Article III judges, don't have lifetime tenure, can't hear adversarial cases, and have jurisdiction over a single class of controversies: foreign surveillance requiring cooperation from US entities or which could collect information about US citizens.
The key distinction between FISC and the Article III courts is that FISC is a creation of Congress. The Constitution is silent on the issue of foreign surveillance. Contrary to popular opinion, the Fourth Amendment does not enjoin the US from spying on foreign powers; no industrialized nation in the world (that I can find; correction welcome!) enjoins itself from spying.
Without specific guidance from the Constitution, the rules for spying are simple: Congress passes laws, the President enforces them, and the Supreme Court overturns them if those laws conflict with the Constitution. That is the exclusive power to shape the surveillance state.
What Congress did with FISA was insert an administrative check on the NSA. They chose extremely confusing terminology and a confusing structure to do this with; they created a "court", appointed by the Chief Justice, to conduct internal hearings on the legitimacy of individual surveillance efforts. But that "court" functions unlike any other court in the US, because it isn't a court; it's a review board that happens to be staffed by judges.
John Roberts only authority with that court is to appoint justices, who must come from the federal court system. So far as I can tell, he has no other authority; he cannot, for instance, recall FISC judges.
But, more importantly, if enough Senators or Congresspeople decided to alter the way that FISC worked, John Roberts would have little ability to stop them. Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive). They could certainly pass laws that would punt cases to Article III courts. They simply choose not to.
There is nothing Congress can do to eliminate judicial review. John Roberts has a lifetime power to persuade SCOTUS judges to overturn the laws of Congress. That power is unaccountable; if anyone in the US Government decides that SCOTUS is abusing judicial review (and many people frequently do decide that, which is what they mean when they say the courts are "legislating from the bench"), there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views. And SCOTUS's judicial review powers are exclusive; the President can veto a bill, but Congress can override that veto. Only SCOTUS has the power to take a law that has passed and strike it down. Roberts FISC authority, and the authority of the FISC judges themselves, are nothing like this.
If citizens want to challenge the surveillance state (and they should), they have all the same means to do so as they do in civil rights cases. They can lobby to have laws passed. They can bring suit, and, if they can show that their Fourth Amendment rights are being abused (or, in Google's case, their First Amendment rights), they can have the government enjoined from abusing them. The immediate response to this will be to point out how hard that is to do, but it's as hard as it is with any other civil liberties controversy, and none of the difficulty comes from John Roberts ability to point FISC judges.
I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating.
Your central claim seems to be that our man JR only has authority to appoint federal judges to FISC for 7 year tenures, but cannot alter how FISC itself works, and in any case he can't stop citizens from challenging the surveillance state through all the well-known avenues. Therefore he doesn't have "exclusive, unaccountable, lifetime" power.
I agree that this characterization precludes JR from "exclusive, unaccountable, lifetime" power but I don't think it stops him from exercising a surprising amount of it. I particularly enjoyed this synopsis from Klein:
The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don’t hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings.
The power to pick and choose who gets to interpret the laws Congress might set is quite substantial in its own right. It's true that if Congress banned all surveillance the judges would have limited power, and so too would JR's power be limited.
But on the other hand, if Congress chose some other slightly more complicated law to limit surveillance, his power would increase. For any moderately complex legal document, there is substantial latitude in how intelligent people reasonably interpret it. This allows, for example, smart SCOTUS judges to disagree quite substantially in their interpretation of the Bill of Rights. More pertinently, it allows one of the authors of the Patriot Act to ask in confusion how it enabled the current surveillance.
The power to pick and choose those who consistently swing one way or another on the question of surveillance, for whatever benign, intelligent reasons, might not be an "exclusive, unaccountable, lifetime" one, but it's substantial enough to give me pause.
You know I enjoy your comments, and my long disagreement here is a sign of respect, not antipathy.
> I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating
It's not just hyperbole it's non-sensical. E.g. the whole thing about not hearing opposing testimony makes for great reading, but it doesn't make any sense. FISC doesn't hear opposing testimony because the only power it has is granting FISA warrants. Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas.
Why does that make the statement "non-senscial"? Is it not factually accurate that the FISC doesn't hear opposing arguments?
>Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas.
The distinguishing factor is that normal court decisions and the outcome of grand jury proceedings are generally published for review by the public. If the court is too consistently siding with the government as a result of inherent bias in the process then people can get upset about it and try to change the law to modify the circumstances under which that can happen. A secret one-sided proceeding is legitimately different in character because it has yet one fewer safeguard against abuses of power, which makes the lack of opposing arguments more significant than it is when the outcomes are public.
It's non-sensical in the way it would be non-sensical of me to complain that the new Macbook Air doesn't have any 3.5" drive bays. Factually true, but how do you think people would react if they saw that in the Ars Technica review?
What I'm saying is that your analogy is off. The fact that the FISC only hears from one side is distinguishable from other courts because it's all kept secret. If a district court judge issues a bad warrant, that fact eventually comes out when marshals show up at the defendant's property to execute it or the evidence gained through it is presented in court. Then the defendant can challenge it in a public proceeding or, in sufficiently outrageous cases, the public can demand changes to the law or impeachment of the issuing judge.
There is none of that with the FISC. If the court makes a bad ruling, nobody is ever officially supposed to know, the government just starts hoovering up the data of American citizens under cover of darkness and anybody who brings this to the attention of the voting public will be accused of treason and then have their passport revoked and be stranded in a Russian airport.
Thanks! Consider this: Congress could next week pass a law requiring Roberts to appoint an equal number of judges appointed by Democratic administrations as by Republican administrations. Roberts could do nothing to stop them.
Sure. But I'm pretty sure Ezra Klein means "under current law"; of course the law could change such that this is not the case any more.
I think you're reading a stronger argument into the original article than is present. He's not arguing that Roberts is constitutionally guaranteed this power, or anything of the sort. Just that under current law, he has this power, and under current law, it's a lifetime appointment since the position that grants such power, Chief Justice of the Supreme Court, is also a lifetime appointment.
Maybe he does, but since Congress can't restrain the Supreme Court in other ways (eg by taking away the power of judicial review), omitting the caveat in this case is a serious oversight that is going to result in many, if not most, readers getting entirely the wrong impression.
Journalists who write on legal topics have an ethical obligation to provide proper context to their readers, few of whom have any legal training. Frankly, I think that journalists ought to have a JD themselves before covering these topics, in much the same way tht science journalists ought to have a BS.
Or an asteroid could hit the earth, destroying all of us, including Robers' Constitutional powers.
If your argument is that Klein is wrong because the very rules of the game could be changed by congress, then we have to consider the likelihood of such an event, probably based upon history.
Has Congress intervened since the court was set up? Are they likely to?
Could we just agree within the current rules of the game specified by Congress, Klein is correct?
I don't understand this comment. Congress set up the FISC to begin with, the last time signals intelligence was a national issue. What prevents it from revisiting that now?
No, we cannot agree that Klein is correct. The gist of what he's saying is as wrong as the lede of his article.
1. They have a great deal of trouble doing anything right now. This will blow over before that changes.
2. This is pretty much a solved problem as far as they're concerned. Congress tends to tack "solutions" on top of "solutions". They rarely refactor.
gist of what he's saying is as wrong
Unless Congress changes things, what he said is exactly correct. Within that context, he's right. Maybe you're arguing that he has the wrong context, but I'd argue that we should probably assume that congress isn't going to change those particular rules of the game at this point.
>2. This is pretty much a solved problem as far as they're concerned. Congress tends to tack "solutions" on top of "solutions". They rarely refactor.
Lack of simplicity in law is a serious problem, but not the main one, at least in this case. The problem is that laws increase the arbitrary powers of government, and rarely if every restrict them.
In most cases, such as the patriot act, they will simply find that vaguest provision and interpret it in the broadest way possible, And, in this case, that interpretation is also secret. The rest of the text is basically filler.
Except if the work he does benefits both Democratic and Republicans (whose interests at the top level coincide, anyway -- the same way wealthy private interests fund both parties campaigns, hedge their bets, so to speak).
In which case Congress would not pass anything he wouldn't really like (except at the level of personal politics).
He can and does appoint judges from his own party and ideology, almost exclusively. He does have the power to re-appoint or not re-appoint said judges at the conclusion of these terms.
So, he has been given a lot of power. It's reasonable to point out that congress can get rid of FISA, but it doesn't address the argument being made here in totality.
Klein didn't say Roberts had a lot of power (clearly he does; he's the Chief Justice of the US Supreme Court). He said he had exclusive, unaccountable, lifetime power to shape the surveillance state. He has none of those three kinds of power over the shape of the surveillance state. Not one of those words was correct. I'm not nitpicking; Klein is directly, overtly wrong. The quote I chose there? It's the lede of the article.
No, Klein is absolutely correct, and you are absolutely wrong. Roberts has the power to appoint FISA judges. That power is clearly the power to "shape the surveillance state." There is no mechanism to review his appointments, hence the power is unaccountable. Roberts alone has this power, hence "exclusive." And until the law is changed, he has this power for as long as he is chief justice, hence "lifetime."
There absolutely is a mechanism to review his appointments. Not only could Congress pass a law recalling any FISC judge, but it could also pass a law revoking Roberts authority over FISC, or abolish the FISC court entirely. There would be fuck-all Roberts could do about it.
> There absolutely is a mechanism to review his appointments.
Not at the present time there isn't.
> Congress [could] pass a law
Saying that Roberts's appointments are reviewable because Congress could change the law is exactly analogous to saying that murder is legal because Congress could change the law. It is true that Congress could change the law. But unless and until it actually does change the law, murder is in fact illegal, and Roberts's appointments are in fact not reviewable.
I chose a bad example because murder is generally illegal under state law, not federal law (though there are exceptions). But there are things that are illegal under federal law that Congress has the power to change. Those things are in fact illegal (now) notwithstanding that Congress could change the law and make them legal. Likewise, Robert's appointments are not reviewable (now) notwithstanding that Congress could change the law and make his appointments reviewable.
It has nothing to do with state versus federal and everything to do with the core issue here. Congress can't make murder legal because to do so would be unconstitutional.
That is ridiculous. Congress could make murder legal (at least at the federal level) by simply repealing 18 USC 1111. There is nothing in the Constitution that would prevent them from doing that. Murder would, of course, still be illegal at the state level, but focusing on that would be missing the point rather badly. Murder is a red herring. The fact of the matter is that there are things that are not legal by virtue of the existence of federal laws. Congress could make those things legal by repealing those laws, but until and unless it does so those things are illegal. Likewise, the fact of the matter is that Roberts's appointments to the FISA court are not reviewable. Congress could make them reviewable, but until and unless it does so, they are not reviewable. That Congress could make them reviewable in the future does not make them reviewable in the present and more than the fact that Congress could make something legal in the future makes it legal in the present. It takes an extraordinary level of obtuseness not to grasp this elementary linguistic point.
I think this is an interesting but (apparently) subtle argument, so lets take it a step further for illustration purposes.
The US could repeal the first amendment, and explicitly make being a buddhist illegal, if enough congressmen got on board. There is a clear well known process for this, and in fact even precedent as previous amendments have been repealed. This does not make it incorrect to say 'freedom of religion is a inalienable right in the USA', because it is such today, as the law stands, the fact that congress has the power to change this doesn't make it a false statement...
> The US could repeal the first amendment, and explicitly make being a buddhist illegal, if enough congressmen got on board.
This actually ties into the anti-federalist argument against the Constitution and Bill of Rights. Where in the Constitution is Congress authorized to make laws regarding the practice of religion?
> Where in the Constitution is Congress authorized to make laws regarding the practice of religion?
The Commerce Clause, of course! I imagine they would argue that money donated to churches would otherwise be used to purchase goods and services. Or that time spent worshipping would otherwise be used in production.
If you think the parent is incorrect, I invite everyone to look up Gonzales v. Raich, and Wickard v. Filburn. Everything is commerce, and therefore regulated under Congress via the commerce clause.
I don't think it's incorrect, which is why I brought up the commerce clause in the first place (with Filburn in mind). I agree, to congress everything is commerce. It's just such a farce that it would strain credulity if it wasn't so clearly evidenced. We truly live in a mockery of a rational world.
That's kind of the point. You can't argue that a specific right is not inalienable just because a process exists by which it could be denied, unless your point is to argue that no rights can ever be inalienable, or that no power can ever be unaccountable, etc.
We say that someone is unaccountable when the process required to lead to their accountability subsequent to misbehavior is in practice not likely to occur, not when the absolute lack of accountability can be proven with mathematical rigor.
This is the same pedantry that leads engineers to come up with crazy legal arguments. The fact that velocity is relativistic and relative to an external observer not subject to the rotation of the Earth your vehicle was not exceeding the speed limit is not going to get you out of a speeding ticket, no matter how many times you argue that it's technically correct. Because when people say things they do so within an accepted context that doesn't include the sort of pedantic absolutism that would cause arbitrary good faith statements made in the course of normal conversation to become technically inaccurate when weighed against impossible standards.
Are you talking affirmatively authorizing murder rather then simply not penalizing it? Because I can't think of any constitutional provision that even hints at a requirement for Congress to promulgate a penal code at all.
Congress can and has made murder legal: people executed under the death penalty have "Homicide" listed on their death certificate as the cause of death.
The whole point is that Congress CAN change everything about the FISC courts and Roberts CANNOT do anything about that. So the article is wrong on that aspect.
So, the right thing to do would be to protest that fact loudly to their constituents--something which I do not believe they've done. As it is, they simple look derelict in their duty.
Good point! I checked, and it turns out that it is not written in any law passed by congress that the NSA is explicitly empowered to extort congressmen for its own ends. So, yeah, that guy is just crazy for suggesting such a thing.
>>Not only could Congress pass a law recalling any FISC judge
I'm not sure this would be constitutional. Courts have rules that the term limits on FISA judges don't impact their standing as regular article III judges. Arbitrary removal almost certainly would.
Because the subtext of the article is that Roberts himself is an intractable obstacle to reforming FISC, when in fact all the responsibility for doing so is properly on Congress, at whose pleasure Roberts serves in his capacity as FISC judge appointer. The article is inadvertently letting Congress off the hook.
What part of the article suggests that Roberts is an obstacle to reform? The article only states that in its current formulation, FISC does not have a lot of accountability because the judges are all chosen by Roberts with no input from any other part of government.
I don't think that is the most reasonable interpretation. I think the article argues that we do need reform, because in its current state, the system does exhibit the properties described.
It's not letting congress off the hook, it's painting a bullseye and applying pressure for them to pull the trigger. Until they do so, John Roberts has exclusive, unaccountable, lifetime power to shape the surveillance state.
While I too prefer code that compiles with -pedantic, I'm willing to forgive this author, and I don't see anything to suggest that the author believes that he is an intractable obstacle. I even think it's extraordinarily unlikely that any journalist sincerely believes that any single person is a permanently intractable obstacle in the government, so it makes the most sense to assume that was not the motivation.
As long as you say that understanding what FISC actually is, compared to a bona fide Article III court, I'm happy to agree to disagree. Incidentally: I like Ezra Klein a lot; Ezra Klein, Felix Salmon, and Matthew Yglesias are my daily reads.
> The article is inadvertently letting Congress off the hook.
Perhaps Klein could have briefly reminded readers that the "A" in "FISA" stands for "Act" -- that is, of Congress -- but this is a blog post in the Washington Post. I can't fault Klein too much for overlooking that not all readers might share that bit of context.
You (and Klein) are wrong. Congress could shut down the FISC apparatus tomorrow and Roberts could do nothing about it (in fact, he'd probably give a sigh of relief, as he doesn't seem to particularly enjoy the administrative aspects of his job). Congress does not have that power with regard to any of CJ Roberts' Article III privileges.
This is a fundamentally important point. Talking about the probability that Congress will do this or that is irrelevant.
> Congress could shut down the FISC apparatus tomorrow
Actually, they couldn't. To shut down FISC they would have to pass a new law, which they could not do tomorrow because they are not in session tomorrow. And then the president would have to sign the law, or Congress would have to override his veto. Yes, it is possible to change the law, but it's not easy. Likewise, the Constitution could be amended to rescind Roberts's Article III privileges. So the situation is exactly analogous. But as you yourself point out, the probabilities that these things will happen are irrelevant. What matters is that until the changes are actually made (by whatever process is needed to make them) the situation is what it is. And the situation at the moment is that Roberts's appointments to the FISA court are not reviewable by anyone. So Klein is right and you are wrong. Deal with it.
The reason it's unlikely isn't that it's hard for Congress to change it; it's that Congress' constituents don't want them to. And that should give you pause about the prospect of some judge doing it for them, because nobody elects federal judges. We are not a nation ruled by philosopher kings.
That is far from clear. But either way, it's irrelevant to the matter at hand. The fact is that you are wrong about Klein. Until you acknowledge that and retract your top-level claim, there's no point in discussing anything else. Life is too short.
To shut down FISC they would have to pass a new law, which they could not do tomorrow because they are not in session tomorrow.
/eyeroll
If we're going down that road, the President has the authority to convene either or both chambers of Congress at any time. This has happened 27 times.
Likewise, the Constitution could be amended to rescind Roberts's Article III privileges. So the situation is exactly analogous.
Of course they are not, because constitutional amendments have to be ratified by 2/3 of the states, while Acts of Congress don't.
What matters is that until the changes are actually made (by whatever process is needed to make them) the situation is what it is.
The situation is that Congress can take away Roberts' FISA powers any time it likes, unlike his Article III powers which could only be revoked by amendment. This is a fundamental difference that Klein completely ignored, and that's why he's wrong.
As I said, reasonable to point out the inaccuracy of the statement, but then there's a lot of substance to discuss after that.
I think this article adds to the thesis that the NSA apparatus is not a product of democracy. While you can trace its origin to a law the people approved, it's no longer controlled by democracy. At least it wouldn't be if our leaders had their way, and people like Snowden and Ellsberg were silenced.
The FISC apparatus is a product of Congress. Democracy produced an outcome we (myself included) don't like. The majority of US citizens are more concerned about {the Soviets,Terrorism} than they are about NSA "accidentally" reading their emails.
Appeals to "democracy" in discussions like these tend to have a whiff of "No True Scotsman" to them, where "democracy" is defined as the form of government which is subject to the will of the majority but that cannot be captured by any interest we disapprove of. In reality, democracies do insane things all the time.
>The majority of US citizens are more concerned about {the Soviets,Terrorism} than they are about NSA "accidentally" reading their emails.
As somebody that's been on the ground passing out fliers for my town's restore the 4th rally that I helped organize yesterday, I've seen this apathy manifest itself not only in terms of disinterest, but also in outright anger that I would be so reckless and dangerous as to try and put pressure on our leaders to abide by the rule of law. I've been cussed out, called a communist by a military veteran, told to "get a job" (I actually have a great job), etc.
It seems that if an issue does not directly affect the lives of the masses negatively, such as the food shortage and economic instability that catalyzed the popular military coup in Egypt, the docile public will support whatever it is the powers that be tell them to. Here's to hoping some of the remaining leaked documents provide evidence of just that...
I actually don't blame them. I believe we need better checks and more carefully written rules for NSA surveillance, but I feel like I'm pretty well educated on these issues and I don't believe NSA is deliberately abusing their power right now. Rather, I think the potential for abuse in the future has become too great.
Large groups of people aren't great at at dealing with issues way out in the future like this.
"It seems that if an issue does not directly affect the lives of the masses negatively"
While that certainly could be the case, I think you are ignoring the fact that there are many citizens who perhaps have been around long than you have that have decided that it really isn't a problem from their perspective and that it's a necessary evil. Things can't be perfect. And that they have given it some thought and are willing to put a certain amount of trust in the system to produce the right outcome.
Yeah if that's the case then they should really just find a different country to live in that doesn't explicitly provide constitutional protection against this kind of stuff instead of supporting the illegal violation of ours. Too many people have died for these protections to let fear-based mindsets water down those accomplishments. I'm not even joking. If you aren't brave enough to live in a free society then you are free to leave and live in any number of nanny states.
First, when you have to structure an argument around "they should just find a different country to live in", you know you're in the weeds.
Second, when you're talking about the majority of Americans finding a new country to live in, you're not just in the weeds, but also howling at the moon from them.
Third, it is fallacious to presume that people who don't have a problem with what NSA is doing now don't respect the 4th Amendment. It's right there in the text of the Constitution: searches must be reasonable. The Constitution punts on what "reasonable" means; that's why they used that word. There's no absolute for you to fall back on here.
I happen to agree with you that omnibus metadata collection is dangerous and should be further checked by the law, but I can also see both sides of the issue, and you can't, and I think you should try.
Like you, I'd like to consider myself decently well-versed on the issues and able to sympathize with both sides. However, I'm also coming from the position of hearing Greenwald describe an imminent set of leaks that describe the wholesale collection of phone conversation contents [1] (not just metadata) which IMO changes things drastically. You have to be reading from a dictionary of antonyms to find that under the definition of reasonable.
I would personally be fine with just having more transparency and using warrants issued by real (not secret) courts, even if we keep some of the technologies themselves, since I'm sure they are powerful tools to protect against the real threat of terrorism. But yes, when I consider the millions of lives that have been given to accomplish and defend the set of protections we have as Americans, I do mean it when I say that those who prefer security to freedom should consider finding a different country in which to live, even if it's not logistically feasible to do so. That's just because I'm personally an idealistic, rather than pragmatic, person.
I also apologize for getting overly political in this thread. I'm just coming off the tails of the rally yesterday.
Do you know what scares me (as they say "with all due respect") statements like this:
"I'm just coming off the tails of the rally yesterday."
(Emotion involved in your thinking process? We're not talking about a brutal attack that you yourself witnessed. We are talking about being at a rally and hearing what someone is saying. A great thing about HN is the discourse on both sides and even then there can be a echo chamber and crowd effect.)
"I'm also coming from the position of hearing Greenwald describe an imminent set of leaks"
(Accuracy of this information - have you decided he is correct?)
If I had to label myself (and I don't like to label myself) I would say I am the opposite of this:
"I'm personally an idealistic, rather than pragmatic, person"
Why does that scare you? The commenter made an honest disclosure of a relevant activity, indicating that they have strong feelings about the subject. Discouraging such disclosures doesn't prevent parties from having strong feelings, but rather may encourage them to conceal their motivations. People can have feelings, and still maintain honesty in their arguments. Expecting everyone to have a detached objectiveness might be ideal (or might not), but is an unrealistic expectation; entirely impractical in a public debate.
I think it's great that it was disclosed my intention was not to give someone a reason not to disclose although I guess I see how that might be the result of a comment like mine. (As a side note that's not an entirely infrequent occurrence on HN "shoot first" (downvote) based upon agreement or disagreement not wanting to hear opposing views.
>>> He can and does appoint judges from his own party and ideology
As opposed to the president who never appoints Supreme Court judges from his own party and ideology, right? And unlike FISA judges, those judges have vast powers. If you're worried about politics in court, you're very late to the game - SC judges were appointed politically for a long time.
>>> So, he has been given a lot of power.
Yes, Supreme Court Chief Justice has a lot of power. Is it really news to anybody? He's the head of the one of the independent branches of the government, of course he has a lot of power.
It's nowhere near "merely". The Congress traditionally has a lot of deference to Presidential nomination and cases where nominated judge is not confirmed are very rare and are considered exceptional.
Seems perfectly accurate to me. You seem to be quibbling over "lifetime" and "power to shape" while at the same time getting bogged down with legal issues. I find this strange since you have a reputation for being good at security, so it seems odd that you are missing what is effectively a social engineering attack on our legal code base. Everything you said makes sense from a legal point of view, and yet, this shit is clearly 100% unconstitutional. How can that happen? Because one pro-police-state judge and his hegemony have everyone buying into the narrative.
"Hello sir, this is the IT dept, can you confirm your password please?" .. "Oh sure, I believe you..."
"Hello senator, this is the FISC, can you keep this secret please because its all legal?" ... "Oh sure, I believe you..."
The icing on the cake is we don't have standing to sue because we can't prove we've been directly affected, but we can't prove it because we can't sue. As soon as a judge held this to be a lawful argument, we got rooted. The People are no longer in control.
Yes, I'm quibbling over "lifetime" when the power he has isn't lifetime, "exclusive" when it's a power delegated to him by the discretion of Congress, and "unaccountable" when his role is as an instrument of Congress. Congress cannot effectively recall Roberts from the Supreme Court, but the same majority of Congress that could pass a national fuel standard law could remove Roberts from the FISC.
"Lifetime" because his position is a lifetime position. Congress may in future change the law, but for now, his role in "shaping" the security state is Lifetime. Right now, this statement is accurate. The fact that you can imagine a possible future where this is no longer correct is irrelevant. Its about as useful as saying that copyright expires.
"Exclusive" does not mean "omnipotent". We negotiate "exclusive" agreements all the time. The fact that someone else agreed to give you that exclusivity doesn't make the "exclusive" part go away.
If not "Unaccountable", accountable to whom? Sure, there may be other individuals in the hegemony who can raise a flag, but its not you or I. The NSA can lie to the senate and it takes a brave senator to break ranks but even then all they can say is "I think the NSA lied on one of these points" but can't even say which one. There is real coercion going on here.
It's not a lifetime position. Roberts position on the Supreme Court is a lifetime position. Absent a fundamental change to the US Constitution, Roberts is Chief Justice for life. But his position vis a vis the FISC is no more secure than that of the majority leader of the US Senate.
It's not exclusive. Exclusivity dictates that the power Roberts has is available only to him. But it's not; it's available to Congress as well. Not only that, but Congress' power over the FISC dwarfs that of Roberts. Congress could pass a law requiring FISC judges to decide while swinging upside down from a rope made of cheese curds. All Roberts can do is appoint FISC judges. Congress can un-appoint them.
It's not unaccountable. Unaccountable means that Roberts can exercise his power unchecked by any authority. Roberts power is checked the same way as the Secretary of Labor's power is: Congress can require him to testify before a committee and, if it wishes, strip him of his FISC power.
Congress MUST change how FISC is done, and this article unintentionally lets them off the hook by framing FISC as if it had any of the same authority as an Article III court, where Congress has far less authority.
- Congress may revoke the power over the FISC, so it isn't irrevocable.
But the FISC Chief is a lifetime appointment, by definition, since the Chief Justice is a lifetime appointment. It is exclusive, because he has executive authority, he does not have to take advice from anyone before making a decision. Whether it is unaccountable is a matter for debate since the operation of the court, and its activities are carried out in secret. It is certainly unaccountable in the normal sense of the word.
FISC can not call senators and ask them for anything. NSA has to call FISC and ask them if it is legal, if they confirm, NSA can proceed. FISC has no power over senators - if any senator decides something is wrong with surveillance, he can initiate a bill that says you need more approval than FISC or you can't do certain things at all - FISC only confirms that NSA is acting withing the limits that the senators (and the House of course) set the last time. FISC can not create rules - unlike SC, btw, that to a large measure can interfere with the rules, even though Roberts seem to be rather restrained from doing this in many cases where he had a possibility to do so (see Obamacare decision, for example). FISC can only say if NSA follows the rules - and it is the senator that makes the rules.
Hey, I'm as much a hair-on-fire, crazy ranting privacy and anonymity freak as anybody else, but this, pandering to this issue is getting insane. I'd suggest eliminating most HN articles that mention a politician or political figure. This is just the same old political columnists we had before (and I like reading all of them), tacking on the current issue to whatever other agendas they already have.
So enough with the criticisms of Obama, or saying Roberts has unlimited power, and so on. Many of these folks already knew how they felt about those political folks. Ezra Klein leading with security state, then several graphs in goes to "...Roberts’s nominations to the FISA court are almost exclusively Republican..." Good grief. This is a serious issue, not the usual political commentary bullshit.
For many writers though, either the issues do not matter to them or it's impossible to see things in terms other than the political rut they live in. These articles are just PR hacks. Take issue A, add in public personality B, throw in some invective -> pageviews.
It is way to easy to overshoot on stuff like this. These problems as they exist are policy problems, not personality or partisan problems. Yes, I know, personalities and personal stories sell newspapers and get eyeballs, but we hackers should be smarter than this. As you point out, the article even gets the facts wrong. Roberts appoints justices to an administrative court, not a criminal court. I know you can argue that this article is not specifically about Roberts, but about the Chief Justice. But still, the title and the big picture of Roberts is just too much. This is crap. It's political, ass-covering crap designed to make one party look better and the other worse. This is like re-arranging the deck chairs on the sinking Titanic.
I will try to be a little more clear: If you care about which party is to blame or which party will get ahead, or if you're spinning issues to make one person better or criticize another, you're part of the problem and not the solution.
One additional nit: every judicial member appointed for life may also be removed by the Senate by impeachment -- although the power has only been used a handful of times.
The problem I have with your post is that I think Klein is pointing up a real problem with the current structure, and you're quibbling that he didn't prefix his claim with "Unless and until Congress changes this, ...". Given that the ultimate point of writing the essay was surely to get Congress to change it, I find your objection puzzlingly off target, to the point of derailing the discussion.
If there is to be a FISA court at all that we citizens can have any confidence in, the way that that court is constituted needs to be changed. That's my takeaway from Klein's column, and I think that's what we ought to be discussing.
To that end, here's a proposal. Instead of the Chief Justice handling all the FISC appointments, set up a rotating schedule whereby each Supreme Court Justice gets one pick, in turn, as the existing terms expire. That would bring at least a bit of ideological diversity.
Other possibilities can certainly be imagined. Congress could have a more direct role, for example, but given the current gridlock around judicial appointments, I don't know if that's a good idea.
Of course, the question of whether there should be a FISA court at all can also be debated. I'm not sure yet what I think about that.
“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single-handedly choosing the people who get to decide how much surveillance we’re subject to.”
Senator Wyden, briefed by the NSA, said that the NSA has a secret interpretation of the law:
I am certain that federal agencies have all sorts of whacked out "secret" interpretations of the laws of Congress. They get to do that because Congress passes janky laws that deliberately delegate authority to the agencies to come up with the specific line item regulations that animate the laws.
Congress needs to stop doing that, across the board. This is also the basis of the "3 Felonies A Week" problem (that, and the fact that that the US has a perverse default of strict liability in criminal law).
But Wyden has exactly as much power to curtail the surveillance state as he does over drilling in the Arctic National Wildlife Refugee, or over national seatbelt laws.
FISC is an instrument of Congress. It was a way of punting on finicky rulemaking for foreign surveillance by appointing an independent review board. No matter what NSA's "interpretations" of the law are, that discretion is enabled --- deliberately --- by Congress, and can be eliminated by Congress.
>>What Congress did with FISA was insert an administrative check on the NSA. They chose extremely confusing terminology and a confusing structure to do this with; they created a "court", appointed by the Chief Justice, to conduct internal hearings on the legitimacy of individual surveillance efforts. But that "court" functions unlike any other court in the US, because it isn't a court; it's a review board that happens to be staffed by judges.
The FISA court is an article III court(United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987)). It is not a 'regular' article III court but it is absolutely not an administrative tribual or article I court. It has all the regular warrant powers of a court.
Specifically, all its members are confirmed judges under article III procedures and the term limits do not impact the legality of the court.
Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC.
Tenure isn't the only difference between FISC and the Article III courts, either. What other court is so limited in the controversies it can hear? FISC judges have warrant powers, but what penalties can they enforce? What are the differences between the powers granted to FISC and the powers Congress already has to compel testimony?
Congress could tomorrow replace all the procedures of FISC with those of the Loyal Order of Water Buffalos and I don't believe the Constitution would have much to say about it --- absent what it says with or without FISA as it pertains to the Fourth Amendment (ie, no matter what rules FISC uses to decide cases, SCOTUS can overrule the law that animates FISC if it decides the process contravenes the Fourth Amendment).
I wish your comment was at the top of this subthread, though.
>>Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC.
I'm not sure I understand the point about Article III courts not being able to be abolished. Several courts established by the judiciary act of 1801 were abolished early in Jefferson's term.
I agree that it doesn't explicitly say that the FISA court is an article III court but some of the holdings are hard to understand if the court isn't. For instance, the court rejected the argument that it was not "properly constituted under article III because the statute does not provide for life tenure on the FISA court." If the court held it wasn't an article III court it would have not considered the argument!
Additionally, from a quoted decision in that section(Megahey, 553):
"As such, with respect to their assignment to FISC for a seven-year term with no additional compensation, FISC judges do not differ from other federal judges who sit from time to time and when the need arises on courts other than that to which they are appointed by temporary designation"
I'm not sure there is any indication that the judges are serving on a non-article III court here. They certainly would 'differ' substantially from the example presented if they did.
Well, the FISA court is really strange in any case. For starters, I'm not sure how FISA warrants are actually warrants in any sense at all. I'm sure congress could screw it up even more.
I think we can disagree on this point without disagreeing on the substance of my point, which is that it's Congress that is ultimately responsible for the shape of the surveillance state until it infringes on the Fourth Amendment, at which point it's the federal court system (and SCOTUS) that becomes responsible; at no point does Roberts authority over FISC play a key role.
Your point is completely valid on a technicality level.
On a pragmatic level however: Congress has already signed off or rather abdicated responsibility (I think for purposes of plausible deniability) of the FISA courts to Justice Roberts. Meanwhile as he is in a nutshell controlling the appointees and as such general direction of the program, while at the same time leading the majority of the one court that technically has the ability to overturn the program on constitutional grounds...
Pretty much congress has abstained and he is in effect the check and balance on himself, which is troubling.
The thing about the NSA scandal isn't really the lack of checks and balances though, every branch has had an oppurtunity to strike down this program, and the people themselves have been given enough information to rise up... its just that the vast majority of executives, judiciary, legislative, and the citizenry just don't have a problem with it, and think its a necessary trade off.
The problem is the executive branch has already under both parties have already signed off on this...
The legislative branch have chosen to willfully turn their eyes away on this...
The judicial branch has already provided tacit approval since the chief justice of the supreme court is to a large degree cosigning the constitutionality of this...
The people have decided that this is acceptable...
so its not really an 'issue', for me its like GWB, I didnt like him as a president but I had to aknowledge he was legitimately the president by the mandate of the people and in line with all required bureaucratic processes... similarly to how some feel about Obama...
and no its not that he is republican or not, i mean i think its become clear Obama has embraced these kind of grey area morally questionable but politically palatable solutions to a greater extent than GWB did. Its not political with me, its just from my perspective clear that sooner or later it will be abused, and it is such a potential seachange i doubt we will ever roll it back.
Hint: I would feel "safer" if former Stasi officials weren't looking at what we're doing and nodding approvingly, like a master who smiles as he raises a favored apprentice to the status of journeyman.
" That power is unaccountable; if anyone in the US Government decides that SCOTUS is abusing judicial review (and many people frequently do decide that, which is what they mean when they say the courts are "legislating from the bench"), there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views"
This is theoretically true, and in practice, completely false.
Congress can control the number of supreme court justices, and thus, it can add (and reduce, though this is more complicated, the easy case being when there is a vacant spot) justices. Because it controls confirmation (though not selection), it can in effect, also control who is there.
I defer to you on this stuff, but my current sense is that Congress packing the Supreme Court is approximately as likely as Congress impeaching a Supreme Court justice.
Other than that, the number has fluctuated from five to ten, and there admittedly hasn't been overt court packing, though congress did drop the number from 10 to 7 in 1866 to avoid andrew johnson from naming any supreme court justices since he was about to be impeached.
Past that, the main reason they haven't is due to the approval rating of the supreme court being so high. Nowadays, there are recent rumblings about packing again, since the supreme court's approval rating has dropped.
Given the politics of today's congress, I wouldn't be shocked to see it happen.
John Roberts real exclusive, unaccountable, lifetime powers come from Article III of the US Constitution, which within 50 years of the ratification of the Constitution came to give the Supreme Court the power to review and overturn the laws of Congress and to issue injunctions against presidential administrations.
Not so.
Not exclusive because 8 other justices have equivalent authority on that ground.
Not unaccountable because he cannot exercise it without convincing 4 other justices to go along with him, through reasoning that is published for the world to see and analyze. (Which many do. In great detail.)
By contrast the appointment authority is a lifetime, exclusive power that he does not have to justify to anybody. No matter the legal underpinnings, there is no question that decisions made by his appointees shape the actual surveillance that takes place. The ability to reappoint every 7 years gives him real ability to, if he chooses, order judges to decide a particular way on threat of needing a new career. (It is doubtful that he operates in this way, but he can.)
There are limits on this power. It is granted by Congress. And so on. But it is the only power that he, by himself, can exercise with no oversight from anyone else.
Not exclusive because 8 other justices have equivalent authority on that ground.
No they don't. The Chief Justice has additional powers, such as assigning the task of writing the opinion and administering the Court system. His rule includes more than simply deciding cases.
By contrast the appointment authority is a lifetime, exclusive power that he does not have to justify to anybody.
Ben, this is simply not true. He holds those powers at the pleasure of Congress, in contrast to his powers as a Supreme Court justice.
His additional responsibilities/powers do not alter the fact that when it comes to actually deciding cases, his is one vote among 9 equal ones.
As for "lifetime, exclusive power", I think that an implicit qualifier of "under the normal course of affairs" is understood. Of course there are possibilities such as impeachment (yes, the members of the Supreme Court CAN be impeached), voluntary retirement, and change of laws. However there is no particular reason to expect it not to be for his lifetime.
> through reasoning that is published for the world to see and analyze. (Which many do. In great detail.)
And why is that relevant or useful in any way, since "the world" has no legal authority to influence the justices in any way (except for Congress passing new legislation after the fact)?
Unless that reasoning is sufficiently good that the justices will not be embarrassed to sign on, Roberts won't be able to convince them to agree. That social factor is, in fact, a useful limit on the amount of unilateral power that Roberts has as a judge. (On the power of the court as a whole, well, that's a different story...)
Furthermore the ability to write that reasoning is in itself the most important power of the Supreme Court. Because common law says that the reasoning in those cases can then be cited by any lawyer in any federal court in the country as binding precedent. And said precedent will be influential only to the extent that it makes sense, and the lawyer in question can supply an airtight argument that it applies to the case at hand. The more clearly the decision is written, the easier that lawyer's case will become, and the more power that the precedent is likely to have.
Therefore the reasoning that the justices produce for the outcomes that they want matters. A lot.
I'd also say his supreme court position is not necessarily lifetime. A supreme court judge could conceivably be impeached and removed by Congress, with the executive branch providing the muscle to hall them out of their chairs.
there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views.
Which is precisely what Roberts can do when he appoints FISC judges. In the same way that the President/Senate can't control the SCOTUS, but they are definitely picking on ideology first and foremost, with some degree of confidence that decisions will align with that ideology.
>>Congress can recall any FISC judge
I don't think Congress has an ability to withdraw a judge. The only check on an individual judge is the term limits which has been ruled before not to matter in its determination that the FISA court acts like an article III court. Congress simply couldn't remove a judge except though impeachment.
I am pretty sure that Congress could do so a thing. Just because it ACTS like an Article III court doesn't mean it is one and since Congress created the whole thing, they can also change the whole thing.
Appellant invokes the principles of judicial independence and separation of powers that underlie article III, [citations omitted], but those principles are not implicated by appellant's speculation that a judge designated to the FISA court might be influenced by the possibility that his temporary assignment might be revoked. By statute, federal judges may be designated by the Chief Justice to serve temporarily on other courts, 28 U.S.C. §§ 291-296 (1982), and temporary designation within the federal judicial system has never been thought to undermine the judicial independence that article III was intended to secure.
A judge's appointment to the FISA court can be revoked (I emphasized this part above; the revocation, of course, can be enacted by Congress), but the judge still has a job for life - in the District Court.
The fact that FISA judges are article III judges does not make FISA an article III court. It is a court created by Congress, which is staffed by people who are already Article III judges. Cavanagh's attack on the independence of FISA judges is rooted in the fact that the assignment can be revoked.
Are you sure that's what that means? Reading the cases that decision cites in the "unbroken line" of failed separation of powers claims against FISA, nothing I've read unequivocally states that FISC is an Article III court, which makes sense to me because FISC is more unlike a federal court than like one.
> Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive).
That would be an ironic constitutional crisis, since the Constitution makes it clear that the decision to exercise war powers is allocated to the Legislative.
Also to fund the military. But anyway, I think that the declaration of war mentioned in the Constitution is talking about the decision to go to war, not just some formality of whether we call it a war or not.
Wonkblog posts things are incredibly flippant coming from the Washington Post [1] but they're also high quality when it comes to substantive matters so I as long as its unambiguous which things are said in jest I don't really care. Ultimately its not going to effect the quality of work, either Ezra shares a joke with the office or shares it with the world.
Let's try to remember that Roberts is appointing individuals from the existing set of federal judges -- i.e., people who have already been appointed by the President of the United States and confirmed by the United States Senate as judges.
