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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?

#61

Post by tptacek »

cpleppert wrote: post #58
tptacek wrote: post #47

Earlier quoted context omitted.

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…

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.

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

#62

Post by lisper »

tptacek wrote: post #60
lisper wrote: post #59

Earlier quoted context omitted.

> 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.

> Congress cannot make murder legal.

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.

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

#63

Post by apalmer »

tptacek wrote: post #61
cpleppert wrote: post #58

Earlier quoted context omitted.

>>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…

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.

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

#64

Post by crusso »

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.

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?

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

#65

Post by rayiner »

kevinalexbrown wrote: post #25
tptacek wrote: post #4

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 Congres…

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…

> 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.

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

#66

Post by tptacek »

lisper wrote: post #62
tptacek wrote: post #60

Earlier quoted context omitted.

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

> Congress cannot make murder legal. 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…

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.

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

#67

Post by tptacek »

apalmer wrote: post #63
tptacek wrote: post #61

Earlier quoted context omitted.

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 technica…

Is the problem that John Roberts controls appointees?

Or is the problem that the only check on NSA's surveillance is a glorified review board, instead of comprehensive system of laws?

How much safer would you feel if the Chief Justice was a Democratic appointee, and selected only Democratic appointees to the FISC?

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

#68

Post by tptacek »

crusso wrote: post #64
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.

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…

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.

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

#69

Post by bradleyjg »

tptacek wrote: post #66
lisper wrote: post #62

Earlier quoted context omitted.

> Congress cannot make murder legal. 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…

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.

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.

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

#70

Post by forgottenpass »

Zelphyr wrote: post #16

Am I the only one who thinks he reduced the efficacy of his argument significantly by quoting Kanye West?

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.

[1] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/h...

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