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

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

#111

Post by lawnchair_larry » Sat, Jul 06, 2013, 1:12 AM UTC

pvnick wrote: post #22

tptacek wrote: post #15

Earlier quoted context omitted.

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 t…

>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…

Remember, democracy means you only have to fool the dumbest half of the population to get what you want.

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

#112

Post by btilly » Sat, Jul 06, 2013, 1:27 AM UTC

anigbrowl wrote: post #102

btilly wrote: post #81

Earlier quoted context omitted.

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 unaccountab…

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 . H…

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.

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

#113

Post by defen » Sat, Jul 06, 2013, 1:34 AM UTC

apalmer wrote: post #89

lisper wrote: post #71

Earlier quoted context omitted.

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 virtu…

Pretty much ^^^ 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 'fr…

> 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?

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

#114

Post by lisper » Sat, Jul 06, 2013, 1:40 AM UTC

tptacek wrote: post #106

lisper wrote: post #105

Earlier quoted context omitted.

> 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 Rob…

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.

> Congress' constituents don't want them to

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.

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

#115

Post by tptacek » Sat, Jul 06, 2013, 5:04 AM UTC

DannyBee wrote: post #104

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…

" 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 fa…

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.

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

#116

Post by tptacek » Sat, Jul 06, 2013, 5:06 AM UTC

lawnchair_larry wrote: post #110

tptacek wrote: post #54

Earlier quoted context omitted.

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.

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…

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.

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

#117

Post by AnthonyMouse » Sat, Jul 06, 2013, 12:23 PM UTC

rayiner wrote: post #65

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…

> 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, neith…

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.

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

#118

Post by AnthonyMouse » Sat, Jul 06, 2013, 12:45 PM UTC

zowch wrote: post #98

apalmer wrote: post #89

Earlier quoted context omitted.

Pretty much ^^^ 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 'fr…

Pedantic and tangential, but in your example, the statement would still be incorrect, as a revocable right is, by definition...well, alienable.

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.

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

#119

Post by rayiner » Sat, Jul 06, 2013, 12:53 PM UTC

AnthonyMouse wrote: post #117

rayiner wrote: post #65

Earlier quoted context omitted.

> 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, neith…

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 consi…

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?

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

#120

Post by fnordfnordfnord » Sat, Jul 06, 2013, 3:03 PM UTC

angersock wrote: post #17

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.

Congress could do a great many things--and yet, here we are. I think you have too much faith in our legislative branch. (Consider the turnout for the briefings on this nonsense a couple of weeks ago--most skipped out to catch flights home.)

>(Consider the turnout for the briefings on this nonsense a couple of weeks ago--most skipped out to catch flights home.)

Attending those briefings is a poison pill. Before being briefed, members must swear not to reveal any of the content of the briefing.