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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

• tptacek 13y ago
  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 article.
  • lisper 13y ago
    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."
    • tptacek 13y ago
      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.
      • angersock 13y ago
        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.)
        • tptacek 13y ago
          I have very little faith in Congress, but I don't need to in order to make the point I'm making.
        • sigzero 13y ago
          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.
        • fnordfnordfnord 13y ago
          >(Consider the turnout for the briefings on this nonsense a couple of weeks ago--most skipped out to catch flights home.) Attending those briefings is a poison pill. Before being briefed, members must swear not to reveal any of the content of the briefing.
          • angersock 13y ago
            So, the right thing to do would be to protest that fact loudly to their constituents--something which I do not believe they've done. As it is, they simple look derelict in their duty.
      • cpleppert 13y ago
        >>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.
        • tptacek 13y ago
          They can't remove federal judges from the federal bench.
      • censored 13y ago
        Not if NSA has enough dirt on each congress-person (or their family)
        • tptacek 13y ago
          Or if they use their secret NSA drones to drone strike them.
          • censored 13y ago
            They don't need to, when the surveillance ensures compliance with the implied threat. Or are you just trolling?
            • jlgreco 13y ago
              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...
          • fnordfnordfnord 13y ago
            Good point! I checked, and it turns out that it is not written in any law passed by congress that the NSA is explicitly empowered to extort congressmen for its own ends. So, yeah, that guy is just crazy for suggesting such a thing.
      • lisper 13y ago
        > There absolutely is a mechanism to review his appointments. Not at the present time there isn't. > Congress [could] pass a law Saying that Roberts's appointments are reviewable because Congress could change the law is exactly analogous to saying that murder is legal because Congress could change the law. It is true that Congress could change the law. But unless and until it actually does change the law, murder is in fact illegal, and Roberts's appointments are in fact not reviewable.
        • tptacek 13y ago
          Congress cannot make murder legal. Congress can strip Roberts of his FISC powers. The situations are not analogous.
          • lisper 13y ago
            > Congress cannot make murder legal. I chose a bad example because murder is generally illegal under state law, not federal law (though there are exceptions). But there are things that are illegal under federal law that Congress has the power to change. Those things are in fact illegal (now) notwithstanding that Congress could change the law and make them legal. Likewise, Robert's appointments are not reviewable (now) notwithstanding that Congress could change the law and make his appointments reviewable.
            • tptacek 13y ago
              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.
              • bradleyjg 13y ago
                Are you talking affirmatively authorizing murder rather then simply not penalizing it? Because I can't think of any constitutional provision that even hints at a requirement for Congress to promulgate a penal code at all.
              • 13y ago
    • coldtea 13y ago
      Yes, but why argue for the beef of the matter, when you can argue about metaphors and rhetorical misuses?
      • tptacek 13y ago
        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.
        • zhemao 13y ago
          What part of the article suggests that Roberts is an obstacle to reform? The article only states that in its current formulation, FISC does not have a lot of accountability because the judges are all chosen by Roberts with no input from any other part of government.
          • tptacek 13y ago
            The only branch of government that doesn't have influence over FISC is the executive, which runs NSA.
        • ScottBurson 13y ago
          > 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.
        • lawnchair_larry 13y ago
          I don't think that is the most reasonable interpretation. I think the article argues that we do need reform, because in its current state, the system does exhibit the properties described. It's not letting congress off the hook, it's painting a bullseye and applying pressure for them to pull the trigger. Until they do so, John Roberts has exclusive, unaccountable, lifetime power to shape the surveillance state. While I too prefer code that compiles with -pedantic, I'm willing to forgive this author, and I don't see anything to suggest that the author believes that he is an intractable obstacle. I even think it's extraordinarily unlikely that any journalist sincerely believes that any single person is a permanently intractable obstacle in the government, so it makes the most sense to assume that was not the motivation.
    • anigbrowl 13y ago
      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.
      • lisper 13y ago
        > Congress could shut down the FISC apparatus tomorrow Actually, they couldn't. To shut down FISC they would have to pass a new law, which they could not do tomorrow because they are not in session tomorrow. And then the president would have to sign the law, or Congress would have to override his veto. Yes, it is possible to change the law, but it's not easy. Likewise, the Constitution could be amended to rescind Roberts's Article III privileges. So the situation is exactly analogous. But as you yourself point out, the probabilities that these things will happen are irrelevant. What matters is that until the changes are actually made (by whatever process is needed to make them) the situation is what it is. And the situation at the moment is that Roberts's appointments to the FISA court are not reviewable by anyone. So Klein is right and you are wrong. Deal with it.
        • tptacek 13y ago
          The reason it's unlikely isn't that it's hard for Congress to change it; it's that Congress' constituents don't want them to. And that should give you pause about the prospect of some judge doing it for them, because nobody elects federal judges. We are not a nation ruled by philosopher kings.
          • lisper 13y ago
            > Congress' constituents don't want them to That is far from clear. But either way, it's irrelevant to the matter at hand. The fact is that you are wrong about Klein. Until you acknowledge that and retract your top-level claim, there's no point in discussing anything else. Life is too short.
  • andrewljohnson 13y ago
    As I said, reasonable to point out the inaccuracy of the statement, but then there's a lot of substance to discuss after that. I think this article adds to the thesis that the NSA apparatus is not a product of democracy. While you can trace its origin to a law the people approved, it's no longer controlled by democracy. At least it wouldn't be if our leaders had their way, and people like Snowden and Ellsberg were silenced.
    • tptacek 13y ago
      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 to the will of the majority but that cannot be captured by any interest we disapprove of. In reality, democracies do insane things all the time.
      • pvnick 13y ago
        >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 put pressure on our leaders to abide by the rule of law. I've been cussed out, called a communist by a military veteran, told to "get a job" (I actually have a great job), etc. It seems that if an issue does not directly affect the lives of the masses negatively, such as the food shortage and economic instability that catalyzed the popular military coup in Egypt, the docile public will support whatever it is the powers that be tell them to. Here's to hoping some of the remaining leaked documents provide evidence of just that...
        • tptacek 13y ago
          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.
• smsm42 13y ago
  >>> 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 Chief Justice has a lot of power. Is it really news to anybody? He's the head of the one of the independent branches of the government, of course he has a lot of power.
  • wavefunction 13y ago
    The President merely nominates, it's Congress that appoints via confirmation.
    • smsm42 13y ago
      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.
    • rayiner 13y ago
      The President appoints, Congress merely confirms or vetos the confirmation.