7 ms·

I question your assertion it is not an Article III [1] court. In fact, I think you are either wildly misinformed or being intentionally misleading. The FISA co

by spligak 13y ago

I question your assertion it is not an Article III [1] court. In fact, I think you are either wildly misinformed or being intentionally misleading. The FISA court of 11 judges is appointed by the Chief Justice of the United States. [2] It absolutely is an Article III court. The ACLU has even acquired its rules [3]. The fact this is the top comment without citation is troubling. Please don't encourage these sort of claims without at least a cursory glance at the documents governing these institutions. [1] http://www.law.cornell.edu/constitution/articleiii http://www.law.cornell.edu/constitution/articleiii [2] http://www.law.cornell.edu/uscode/text/50/1803 http://www.law.cornell.edu/uscode/text/50/1803 [3] http://www.aclu.org/patriot_foia/2003/court_rules.pdf http://www.aclu.org/patriot_foia/2003/court_rules.pdf

tptacek 13y ago
If FISC was an Article III court, wouldn't its judges have lifetime tenure? Wouldn't it's judges be appointed by the President and confirmed by the Senate? I don't think membership consisting of judges who would otherwise preside over Article III courts necessarily makes FISC an Article III court, and judges appointed by the Chief Justice actually suggest the opposite. There's an article at the Yale Law Review that criticizes FISC for not being a regular Article III court.
- deleted 13y ago
  [deleted]
- spligak 13y ago
  You would think they'd have lifetime appointments as other federal courts do, but it's important to note FISC (and its review process) isn't the final stop on some Orwellian and diabolical train. It is very easy to get caught up in examining the mechanism itself as a way of stamping out the abuse of the mechanism. As much as I dislike what the court represents, I can't fully qualify its dissolution. In 50 USC § 1803 (b) it specifically states the Supreme Court has jurisdiction over the decisions. The Title itself is designed for expediency and proximity - something its "parent" court isn't designed for.
  - tptacek 13y ago
    I agree with all of this. Also: I don't think it's settled as to whether FISC is an Article III court or bound by the same rules as an Article III court; for instance, Orrin Kerr doesn't seem to know. I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though.
    - spligak 13y ago
      > I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though. Perhaps not. However, my original challenge to rayiner's comment has produced far more meaningful and mostly-cited comments. Could it have been less inflammatory? Absolutely. Would it have produced this discussion if it had been? Uncertain. The original comment did not add any value to the post. I have never read Orrin Kerr's writings and both of you citing him caused me to do so. Perhaps citing Kerr in the original comment, as he has well regarded opinions on the subject, would have been additive as I assume rayiner intended to be. After all, if we don't challenge for citation and additional information, what are we doing here?
      - tptacek 13y ago
        I agree with all of this, but it would be nice if the decorum rules on HN included begging pardon or even apologizing in a case like this. At the very least, when you make an inflammatory claim about someone else in a thread, notice and acknowledge when it's refuted.
rayiner 13y ago
See my correction above. I wouldn't say I'm "wildly misinformed" (the definition of "Article III court" isn't bright and clear, and Orin Kerr couches his opinion that the FISA court is an article III court in a "I would think") but it's probably most accurate to describe the FISA court as an article III court, albeit one that can't exercise any of the powers that would make a secret article III court scary.
- tptacek 13y ago
  Why would you describe FISC as an Article III court at all? It looks to me like there's more evidence that the opposite is true.
  - rayiner 13y ago
    I think most people would call the FISC an Article III court just based on the fact that historically the focus of "Article III-ness" has been on the independence of the judges, as a result of the Article III guarantees of lifetime tenure and non-diminishment of pay during service. At least one court of appeals has rejected the argument that the FISC judges are not article III judges because they serve limited appointments, because they are nonetheless U.S. district judges: https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85-5133.html https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85.... That said, I don't think Glidden v. Zdanok unarguably supports the idea that FISC is an Article III court (though Kerr doesn't claim it does), just because it is composed of article III judges. Glidden is actually about the opposite question: whether the judges were article III judges based on whether the Court of Claims and the Court of Customs and Patent Appeals were article III courts. And most of the analysis of Glidden focuses on things like the courts' ability to hear justiciable cases and controversies and to exercise the Article III judicial power. Under these criteria, you cannot call the FISC an Article III court because it can't even hear any cases and controversies, nor can it exercise the essence of article III judicial power (the power to render binding, final judgments with regards to matters affecting life, liberty, and property). So I would personally call the FISC an Article I court staffed by Article III judges sitting by designation. But I worry it would be an idiosyncratic use of the term. In any case, whatever you call it, it is clearly not empowered to exercise even a substantial amount of the Article III power, which is the substance of my point. It can't put you in jail or take your property.

by spligak 13y ago

tptacek 13y ago

If FISC was an Article III court, wouldn't its judges have lifetime tenure? Wouldn't it's judges be appointed by the President and confirmed by the Senate? I don't think membership consisting of judges who would otherwise preside over Article III courts necessarily makes FISC an Article III court, and judges appointed by the Chief Justice actually suggest the opposite. There's an article at the Yale Law Review that criticizes FISC for not being a regular Article III court.

deleted 13y ago
[deleted]
spligak 13y ago
You would think they'd have lifetime appointments as other federal courts do, but it's important to note FISC (and its review process) isn't the final stop on some Orwellian and diabolical train. It is very easy to get caught up in examining the mechanism itself as a way of stamping out the abuse of the mechanism. As much as I dislike what the court represents, I can't fully qualify its dissolution. In 50 USC § 1803 (b) it specifically states the Supreme Court has jurisdiction over the decisions. The Title itself is designed for expediency and proximity - something its "parent" court isn't designed for.
- tptacek 13y ago
  I agree with all of this. Also: I don't think it's settled as to whether FISC is an Article III court or bound by the same rules as an Article III court; for instance, Orrin Kerr doesn't seem to know. I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though.
  - spligak 13y ago
    > I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though. Perhaps not. However, my original challenge to rayiner's comment has produced far more meaningful and mostly-cited comments. Could it have been less inflammatory? Absolutely. Would it have produced this discussion if it had been? Uncertain. The original comment did not add any value to the post. I have never read Orrin Kerr's writings and both of you citing him caused me to do so. Perhaps citing Kerr in the original comment, as he has well regarded opinions on the subject, would have been additive as I assume rayiner intended to be. After all, if we don't challenge for citation and additional information, what are we doing here?
    - tptacek 13y ago
      I agree with all of this, but it would be nice if the decorum rules on HN included begging pardon or even apologizing in a case like this. At the very least, when you make an inflammatory claim about someone else in a thread, notice and acknowledge when it's refuted.

rayiner 13y ago

See my correction above. I wouldn't say I'm "wildly misinformed" (the definition of "Article III court" isn't bright and clear, and Orin Kerr couches his opinion that the FISA court is an article III court in a "I would think") but it's probably most accurate to describe the FISA court as an article III court, albeit one that can't exercise any of the powers that would make a secret article III court scary.

tptacek 13y ago
Why would you describe FISC as an Article III court at all? It looks to me like there's more evidence that the opposite is true.
- rayiner 13y ago
  I think most people would call the FISC an Article III court just based on the fact that historically the focus of "Article III-ness" has been on the independence of the judges, as a result of the Article III guarantees of lifetime tenure and non-diminishment of pay during service. At least one court of appeals has rejected the argument that the FISC judges are not article III judges because they serve limited appointments, because they are nonetheless U.S. district judges: https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85-5133.html https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85.... That said, I don't think Glidden v. Zdanok unarguably supports the idea that FISC is an Article III court (though Kerr doesn't claim it does), just because it is composed of article III judges. Glidden is actually about the opposite question: whether the judges were article III judges based on whether the Court of Claims and the Court of Customs and Patent Appeals were article III courts. And most of the analysis of Glidden focuses on things like the courts' ability to hear justiciable cases and controversies and to exercise the Article III judicial power. Under these criteria, you cannot call the FISC an Article III court because it can't even hear any cases and controversies, nor can it exercise the essence of article III judicial power (the power to render binding, final judgments with regards to matters affecting life, liberty, and property). So I would personally call the FISC an Article I court staffed by Article III judges sitting by designation. But I worry it would be an idiosyncratic use of the term. In any case, whatever you call it, it is clearly not empowered to exercise even a substantial amount of the Article III power, which is the substance of my point. It can't put you in jail or take your property.