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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?

#41

Post by censored »

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 if NSA has enough dirt on each congress-person (or their family)

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

#42

Post by tptacek »

cpleppert wrote: post #39
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.

>>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.

They can't remove federal judges from the federal bench.

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

#43

Post by tptacek »

jamieb wrote: post #40
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.

"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" agree…

It's not a lifetime position. Roberts position on the Supreme Court is a lifetime position. Absent a fundamental change to the US Constitution, Roberts is Chief Justice for life. But his position vis a vis the FISC is no more secure than that of the majority leader of the US Senate.

It's not exclusive. Exclusivity dictates that the power Roberts has is available only to him. But it's not; it's available to Congress as well. Not only that, but Congress' power over the FISC dwarfs that of Roberts. Congress could pass a law requiring FISC judges to decide while swinging upside down from a rope made of cheese curds. All Roberts can do is appoint FISC judges. Congress can un-appoint them.

It's not unaccountable. Unaccountable means that Roberts can exercise his power unchecked by any authority. Roberts power is checked the same way as the Secretary of Labor's power is: Congress can require him to testify before a committee and, if it wishes, strip him of his FISC power.

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

#44

Post by tptacek »

censored wrote: post #41
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.

Not if NSA has enough dirt on each congress-person (or their family)

Or if they use their secret NSA drones to drone strike them.

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

#45

Post by cpleppert »

sigzero wrote: post #35
cpleppert wrote: post #29

Earlier quoted context omitted.

>>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.

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

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

#46

Post by smsm42 »

wavefunction wrote: post #36
smsm42 wrote: post #28

Earlier quoted context omitted.

>>> 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.

It's nowhere near "merely". The Congress traditionally has a lot of deference to Presidential nomination and cases where nominated judge is not confirmed are very rare and are considered exceptional.

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

#47

Post by tptacek »

cpleppert wrote: post #31
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 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 warrant powers, but what penalties can they enforce? What are the differences between the powers granted to FISC and the powers Congress already has to compel testimony?

Congress could tomorrow replace all the procedures of FISC with those of the Loyal Order of Water Buffalos and I don't believe the Constitution would have much to say about it --- absent what it says with or without FISA as it pertains to the Fourth Amendment (ie, no matter what rules FISC uses to decide cases, SCOTUS can overrule the law that animates FISC if it decides the process contravenes the Fourth Amendment).

I wish your comment was at the top of this subthread, though.

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

#48

Post by censored »

tptacek wrote: post #44
censored wrote: post #41

Earlier quoted context omitted.

Not if NSA has enough dirt on each congress-person (or their family)

Or if they use their secret NSA drones to drone strike them.

They don't need to, when the surveillance ensures compliance with the implied threat. Or are you just trolling?

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

#49

Post by jlgreco »

censored wrote: post #48
tptacek wrote: post #44

Earlier quoted context omitted.

Or if they use their secret NSA drones to drone strike them.

They don't need to, when the surveillance ensures compliance with the implied threat. Or are you just trolling?

Yes, he is mocking you by suggesting something outlandish to imply what you are suggesting is also outlandish.

Nevermind that politicians being blackmailed is hardly unheard of...

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

#50

Post by coldtea »

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.

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).

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