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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?

#31

Post by cpleppert »

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…

>>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.

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

#32

Post by sigzero »

tptacek wrote: post #26
jamieb wrote: post #23

Earlier quoted context omitted.

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…

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.

Congress could even change how the whole FISC is done and Robert cannot do anything about that either. Clearly much of the article is hyperbole.

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

#33

Post by sigzero »

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.)

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.

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

#34

Post by smsm42 »

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?

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

#35

Post by sigzero »

cpleppert wrote: post #29
smalltalk wrote: post #18

Earlier quoted context omitted.

No. Congress can recall any FISC judge, revoke Roberts authority over FISC at any time or abolish the FISC court entirely.

>>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.

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

#36

Post by wavefunction »

smsm42 wrote: post #28
andrewljohnson wrote: post #7

Earlier quoted context omitted.

Attacking the rhetoric is weak. 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.

>>> 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 C…

The President merely nominates, it's Congress that appoints via confirmation.

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

#37

Post by tptacek »

sigzero wrote: post #32
tptacek wrote: post #26

Earlier quoted context omitted.

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.

Congress could even change how the whole FISC is done and Robert cannot do anything about that either. Clearly much of the article is hyperbole.

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.

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

#38

Post by tptacek »

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…

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.

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

#39

Post by cpleppert »

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.

>>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.

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

#40

Post by jamieb »

tptacek wrote: post #26
jamieb wrote: post #23

Earlier quoted context omitted.

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…

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.

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