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Did you know John Roberts is also chief justice of the NSA’s surveillance state?

washingtonpost.com

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Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#51

Post by tptacek »

coldtea wrote: post #50
tptacek wrote: post #27

Earlier quoted context omitted.

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.

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).

Nobody is arguing that Congress doesn't have powers here.

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#52

Post by coldtea »

lisper wrote: post #12
tptacek wrote: post #10

Earlier quoted context omitted.

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…

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."

Yes, but why argue for the beef of the matter, when you can argue about metaphors and rhetorical misuses?

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#53

Post by tptacek »

cpleppert wrote: post #45
sigzero wrote: post #35

Earlier quoted context omitted.

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.

The courts have ruled IT IS an article III court. See United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987)

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.

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#54

Post by tptacek »

coldtea wrote: post #52
lisper wrote: post #12

Earlier quoted context omitted.

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."

Yes, but why argue for the beef of the matter, when you can argue about metaphors and rhetorical misuses?

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.

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#55

Post by lambda »

tptacek wrote: post #27
kevinalexbrown wrote: post #25

Earlier quoted context omitted.

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, unaccounta…

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.

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#57

Post by speeder »

smsm42 wrote: post #34
speeder wrote: post #3

Stuff in the US is worse than I thought then... The point of a republic with several powers and so on, wasn't to not allow someone have so much power? Noone doubt the already cliche phrase that absolute power corrupts absolutely.

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?

the "who" must not be a single person.

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).

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#58

Post by cpleppert »

tptacek wrote: post #47
cpleppert wrote: post #31

Earlier quoted context omitted.

>>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 happen…

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 wa…

>>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.

Thanks!

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#59

Post by lisper »

tptacek wrote: post #13
lisper wrote: post #12

Earlier quoted context omitted.

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.

Re: Did you know John Roberts is also chief justice of the NSA’s surveillance state?

#60

Post by tptacek »

lisper wrote: post #59
tptacek wrote: post #13

Earlier quoted context omitted.

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 i…

Congress cannot make murder legal. Congress can strip Roberts of his FISC powers. The situations are not analogous.
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