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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?

#91

Post by ScottBurson »

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…

The problem I have with your post is that I think Klein is pointing up a real problem with the current structure, and you're quibbling that he didn't prefix his claim with "Unless and until Congress changes this, ...". Given that the ultimate point of writing the essay was surely to get Congress to change it, I find your objection puzzlingly off target, to the point of derailing the discussion.

If there is to be a FISA court at all that we citizens can have any confidence in, the way that that court is constituted needs to be changed. That's my takeaway from Klein's column, and I think that's what we ought to be discussing.

To that end, here's a proposal. Instead of the Chief Justice handling all the FISC appointments, set up a rotating schedule whereby each Supreme Court Justice gets one pick, in turn, as the existing terms expire. That would bring at least a bit of ideological diversity.

Other possibilities can certainly be imagined. Congress could have a more direct role, for example, but given the current gridlock around judicial appointments, I don't know if that's a good idea.

Of course, the question of whether there should be a FISA court at all can also be debated. I'm not sure yet what I think about that.

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

#92

Post by tptacek »

baddox wrote: post #85
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…

> Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive). That would be an ironic constitutional crisis, since the Constitution makes it clear that the decision to exercise war powers is allocated to the Legislative.

No, Congress has the exclusive power to declare war. That's it.

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

#93

Post by ScottBurson »

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.

> The article is inadvertently letting Congress off the hook.

Perhaps Klein could have briefly reminded readers that the "A" in "FISA" stands for "Act" -- that is, of Congress -- but this is a blog post in the Washington Post. I can't fault Klein too much for overlooking that not all readers might share that bit of context.

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

#94

Post by btilly »

baddox wrote: post #86
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…

> through reasoning that is published for the world to see and analyze. (Which many do. In great detail.) And why is that relevant or useful in any way, since "the world" has no legal authority to influence the justices in any way (except for Congress passing new legislation after the fact)?

Unless that reasoning is sufficiently good that the justices will not be embarrassed to sign on, Roberts won't be able to convince them to agree. That social factor is, in fact, a useful limit on the amount of unilateral power that Roberts has as a judge. (On the power of the court as a whole, well, that's a different story...)

Furthermore the ability to write that reasoning is in itself the most important power of the Supreme Court. Because common law says that the reasoning in those cases can then be cited by any lawyer in any federal court in the country as binding precedent. And said precedent will be influential only to the extent that it makes sense, and the lawyer in question can supply an airtight argument that it applies to the case at hand. The more clearly the decision is written, the easier that lawyer's case will become, and the more power that the precedent is likely to have.

Therefore the reasoning that the justices produce for the outcomes that they want matters. A lot.

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

#95

Post by anigbrowl »

lambda wrote: post #55
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.

Sure. But I'm pretty sure Ezra Klein means "under current law"; of course the law could change such that this is not the case any more. I think you're reading a stronger argument into the original article than is present. He's not arguing that Roberts is constitutionally guaranteed this power, or anything of the sort. Just that under current law, he has this power, and under current law, it's a lifetime appointment s…

Maybe he does, but since Congress can't restrain the Supreme Court in other ways (eg by taking away the power of judicial review), omitting the caveat in this case is a serious oversight that is going to result in many, if not most, readers getting entirely the wrong impression.

Journalists who write on legal topics have an ethical obligation to provide proper context to their readers, few of whom have any legal training. Frankly, I think that journalists ought to have a JD themselves before covering these topics, in much the same way tht science journalists ought to have a BS.

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

#96

Post by anigbrowl »

lisper wrote: post #12
tptacek wrote: post #10

Earlier quoted context omitted.

Klein didn't say Roberts had a lot of power (clearly he does; he's the Chief Justice of the US Supreme Court). He said he had exclusive, unaccountable, lifetime power to shape the surveillance state. He has none of those three kinds of power over the shape of the surveillance state. Not one of those words was correct. I'm not nitpicking; Klein is directly, overtly wrong. The quote I chose there? It's the lede of the…

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 Congress will do this or that is irrelevant.

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

#97

Post by larrys »

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…

Do you know what scares me (as they say "with all due respect") statements like this:

"I'm just coming off the tails of the rally yesterday."

(Emotion involved in your thinking process? We're not talking about a brutal attack that you yourself witnessed. We are talking about being at a rally and hearing what someone is saying. A great thing about HN is the discourse on both sides and even then there can be a echo chamber and crowd effect.)

"I'm also coming from the position of hearing Greenwald describe an imminent set of leaks"

(Accuracy of this information - have you decided he is correct?)

If I had to label myself (and I don't like to label myself) I would say I am the opposite of this:

"I'm personally an idealistic, rather than pragmatic, person"

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

#98

Post by zowch »

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…

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

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

#99

Post by anigbrowl »

rhizome wrote: post #74
tptacek wrote: post #66

Earlier quoted context omitted.

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.

Congress can and has made murder legal: people executed under the death penalty have "Homicide" listed on their death certificate as the cause of death.

Homicide != murder.

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

#100

Post by tptacek »

CamperBob2 wrote: post #83
tptacek wrote: post #67

Earlier quoted context omitted.

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?

Hint: I would feel "safer" if former Stasi officials weren't looking at what we're doing and nodding approvingly, like a master who smiles as he raises a favored apprentice to the status of journeyman.

Nothing former Stasi officials think affect my judgement much, sorry.
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