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?

#101

Post by anigbrowl » Fri, Jul 05, 2013, 11:46 PM UTC

pvnick wrote: post #84

tptacek wrote: post #78

Earlier quoted context omitted.

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…

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 d…

hearing Greenwald describe an imminent set of leaks

If he has such important information, shouldn't he simply publish it instead of doing a striptease? That's marketing, not journalism.

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

#102

Post by anigbrowl » Fri, Jul 05, 2013, 11:53 PM UTC

btilly wrote: post #81

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…

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. He holds those powers at the pleasure of Congress, in contrast to his powers as a Supreme Court justice.

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

#103

Post by tptacek » Sat, Jul 06, 2013, 12:01 AM UTC

Apocryphon wrote: post #82

Zelphyr wrote: post #16

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

Ezra Klein is a columnist for The Atlantic. They're all about mixing progressive intelligentsia commentary with sly pop culture hipster references.

Ezra Klein isn't a columnist for The Atlantic.

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

#104

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

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 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.

http://www.law.cornell.edu/uscode/text/28/1

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

#105

Post by lisper » Sat, Jul 06, 2013, 12:13 AM UTC

anigbrowl wrote: post #96

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."

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 Congre…

> 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.

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

#106

Post by tptacek » Sat, Jul 06, 2013, 12:18 AM UTC

lisper wrote: post #105

anigbrowl wrote: post #96

Earlier quoted context omitted.

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 Congre…

> 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.

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

#107

Post by anigbrowl » Sat, Jul 06, 2013, 12:24 AM UTC

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)

No they haven't.

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.

http://scholar.google.com/scholar_case?case=1545385451311713...

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.

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

#108

Post by brisance » Sat, Jul 06, 2013, 12:25 AM UTC

Can someone please give a reasonable explanation as to why a secret court needs to exist in the first place?

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

#109

Post by anigbrowl » Sat, Jul 06, 2013, 12:36 AM UTC

lisper wrote: post #105

anigbrowl wrote: post #96

Earlier quoted context omitted.

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 Congre…

> 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…

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.

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

#110

Post by lawnchair_larry » Sat, Jul 06, 2013, 1:05 AM UTC

tptacek wrote: post #54

coldtea wrote: post #52

Earlier quoted context omitted.

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.

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.