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

255 points by sethbannon 13y ago

pvnick 13y ago
That's incredible. It's always fascinating to see power centralization in government as it always tends to be abused in favor of expanding government power.
speeder 13y ago
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.
- smsm42 13y ago
  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?
  - speeder 13y ago
    the "who" must not be a single person. For example someone (maybe the chief justice anyway) appoint, but the congress has to approve it. Sometimes this is done even to make valid a vote by the population, and it works well (in Commonwealth countries, the Queen can not approve a election results if she wish so... fortunately this was never needed it seems).
tptacek 13y ago
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 Congress and to issue injunctions against presidential administrations. Ezra Klein in this article isn't referring to Article III courts. He's referring to the FISC, the FISA courts, which aren't Article III courts. Judges on the FISA courts, unlike Article III judges, don't have lifetime tenure, can't hear adversarial cases, and have jurisdiction over a single class of controversies: foreign surveillance requiring cooperation from US entities or which could collect information about US citizens. The key distinction between FISC and the Article III courts is that FISC is a creation of Congress. The Constitution is silent on the issue of foreign surveillance. Contrary to popular opinion, the Fourth Amendment does not enjoin the US from spying on foreign powers; no industrialized nation in the world (that I can find; correction welcome!) enjoins itself from spying. Without specific guidance from the Constitution, the rules for spying are simple: Congress passes laws, the President enforces them, and the Supreme Court overturns them if those laws conflict with the Constitution. That is the exclusive power to shape the surveillance state. 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. John Roberts only authority with that court is to appoint justices, who must come from the federal court system. So far as I can tell, he has no other authority; he cannot, for instance, recall FISC judges. But, more importantly, if enough Senators or Congresspeople decided to alter the way that FISC worked, John Roberts would have little ability to stop them. Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive). They could certainly pass laws that would punt cases to Article III courts. They simply choose not to. There is nothing Congress can do to eliminate judicial review. John Roberts has a lifetime power to persuade SCOTUS judges to overturn the laws of Congress. 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. And SCOTUS's judicial review powers are exclusive; the President can veto a bill, but Congress can override that veto. Only SCOTUS has the power to take a law that has passed and strike it down. Roberts FISC authority, and the authority of the FISC judges themselves, are nothing like this. If citizens want to challenge the surveillance state (and they should), they have all the same means to do so as they do in civil rights cases. They can lobby to have laws passed. They can bring suit, and, if they can show that their Fourth Amendment rights are being abused (or, in Google's case, their First Amendment rights), they can have the government enjoined from abusing them. The immediate response to this will be to point out how hard that is to do, but it's as hard as it is with any other civil liberties controversy, and none of the difficulty comes from John Roberts ability to point FISC judges.
- deleted 13y ago
  [deleted]
- bdcravens 13y ago
  there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views. Which is precisely what Roberts can do when he appoints FISC judges. In the same way that the President/Senate can't control the SCOTUS, but they are definitely picking on ideology first and foremost, with some degree of confidence that decisions will align with that ideology.
  - smalltalk 13y ago
    No. Congress can recall any FISC judge, revoke Roberts authority over FISC at any time or abolish the FISC court entirely.
    - cpleppert 13y ago
      >>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.
      - sigzero 13y ago
        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.
        cpleppert 13y ago
        The courts have ruled IT IS an article III court. See United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987)
Zelphyr 13y ago
Am I the only one who thinks he reduced the efficacy of his argument significantly by quoting Kanye West?
- forgottenpass 13y ago
  Wonkblog posts things are incredibly flippant coming from the Washington Post [1] but they're also high quality when it comes to substantive matters so I as long as its unambiguous which things are said in jest I don't really care. Ultimately its not going to effect the quality of work, either Ezra shares a joke with the office or shares it with the world. [1] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/here-are-some-dogs-recreating-a-miley-cyrus-music-video/?wprss=rss_ezra-klein http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/h...
- Apocryphon 13y ago
  Ezra Klein is a columnist for The Atlantic. They're all about mixing progressive intelligentsia commentary with sly pop culture hipster references.
  - tptacek 13y ago
    Ezra Klein isn't a columnist for The Atlantic.
smalltalk 13y ago
Let's try to remember that Roberts is appointing individuals from the existing set of federal judges -- i.e., people who have already been appointed by the President of the United States and confirmed by the United States Senate as judges.
Buzaga 13y ago
Well, that's fucked up. Not much else to say.
brisance 13y ago
Can someone please give a reasonable explanation as to why a secret court needs to exist in the first place?

255 points by sethbannon 13y ago

That's incredible. It's always fascinating to see power centralization in government as it always tends to be abused in favor of expanding government power.

speeder 13y ago

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.

smsm42 13y ago
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?
- speeder 13y ago
  the "who" must not be a single person. For example someone (maybe the chief justice anyway) appoint, but the congress has to approve it. Sometimes this is done even to make valid a vote by the population, and it works well (in Commonwealth countries, the Queen can not approve a election results if she wish so... fortunately this was never needed it seems).

tptacek 13y ago

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 Congress and to issue injunctions against presidential administrations. Ezra Klein in this article isn't referring to Article III courts. He's referring to the FISC, the FISA courts, which aren't Article III courts. Judges on the FISA courts, unlike Article III judges, don't have lifetime tenure, can't hear adversarial cases, and have jurisdiction over a single class of controversies: foreign surveillance requiring cooperation from US entities or which could collect information about US citizens. The key distinction between FISC and the Article III courts is that FISC is a creation of Congress. The Constitution is silent on the issue of foreign surveillance. Contrary to popular opinion, the Fourth Amendment does not enjoin the US from spying on foreign powers; no industrialized nation in the world (that I can find; correction welcome!) enjoins itself from spying. Without specific guidance from the Constitution, the rules for spying are simple: Congress passes laws, the President enforces them, and the Supreme Court overturns them if those laws conflict with the Constitution. That is the exclusive power to shape the surveillance state. 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. John Roberts only authority with that court is to appoint justices, who must come from the federal court system. So far as I can tell, he has no other authority; he cannot, for instance, recall FISC judges. But, more importantly, if enough Senators or Congresspeople decided to alter the way that FISC worked, John Roberts would have little ability to stop them. Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive). They could certainly pass laws that would punt cases to Article III courts. They simply choose not to. There is nothing Congress can do to eliminate judicial review. John Roberts has a lifetime power to persuade SCOTUS judges to overturn the laws of Congress. 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. And SCOTUS's judicial review powers are exclusive; the President can veto a bill, but Congress can override that veto. Only SCOTUS has the power to take a law that has passed and strike it down. Roberts FISC authority, and the authority of the FISC judges themselves, are nothing like this. If citizens want to challenge the surveillance state (and they should), they have all the same means to do so as they do in civil rights cases. They can lobby to have laws passed. They can bring suit, and, if they can show that their Fourth Amendment rights are being abused (or, in Google's case, their First Amendment rights), they can have the government enjoined from abusing them. The immediate response to this will be to point out how hard that is to do, but it's as hard as it is with any other civil liberties controversy, and none of the difficulty comes from John Roberts ability to point FISC judges.

deleted 13y ago
[deleted]
bdcravens 13y ago
there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views. Which is precisely what Roberts can do when he appoints FISC judges. In the same way that the President/Senate can't control the SCOTUS, but they are definitely picking on ideology first and foremost, with some degree of confidence that decisions will align with that ideology.
- smalltalk 13y ago
  No. Congress can recall any FISC judge, revoke Roberts authority over FISC at any time or abolish the FISC court entirely.
  - cpleppert 13y ago
    >>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.
    - sigzero 13y ago
      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.
      - cpleppert 13y ago
        The courts have ruled IT IS an article III court. See United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987)

Zelphyr 13y ago

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

forgottenpass 13y ago
Wonkblog posts things are incredibly flippant coming from the Washington Post [1] but they're also high quality when it comes to substantive matters so I as long as its unambiguous which things are said in jest I don't really care. Ultimately its not going to effect the quality of work, either Ezra shares a joke with the office or shares it with the world. [1] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/here-are-some-dogs-recreating-a-miley-cyrus-music-video/?wprss=rss_ezra-klein http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/h...
Apocryphon 13y ago
Ezra Klein is a columnist for The Atlantic. They're all about mixing progressive intelligentsia commentary with sly pop culture hipster references.
- tptacek 13y ago
  Ezra Klein isn't a columnist for The Atlantic.

smalltalk 13y ago

Let's try to remember that Roberts is appointing individuals from the existing set of federal judges -- i.e., people who have already been appointed by the President of the United States and confirmed by the United States Senate as judges.

Buzaga 13y ago

Well, that's fucked up. Not much else to say.

brisance 13y ago

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