10 ms·

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 author

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, unaccountable, lifetime" power. I agree that this characterization precludes JR from "exclusive, unaccountable, lifetime" power but I don't think it stops him from exercising a surprising amount of it. I particularly enjoyed this synopsis from Klein: The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don’t hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings. The power to pick and choose who gets to interpret the laws Congress might set is quite substantial in its own right. It's true that if Congress banned all surveillance the judges would have limited power, and so too would JR's power be limited. But on the other hand, if Congress chose some other slightly more complicated law to limit surveillance, his power would increase. For any moderately complex legal document, there is substantial latitude in how intelligent people reasonably interpret it. This allows, for example, smart SCOTUS judges to disagree quite substantially in their interpretation of the Bill of Rights. More pertinently, it allows one of the authors of the Patriot Act to ask in confusion how it enabled the current surveillance. The power to pick and choose those who consistently swing one way or another on the question of surveillance, for whatever benign, intelligent reasons, might not be an "exclusive, unaccountable, lifetime" one, but it's substantial enough to give me pause. You know I enjoy your comments, and my long disagreement here is a sign of respect, not antipathy.

tptacek 13y ago
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.
- coldtea 13y ago
  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).
  - tptacek 13y ago
    Nobody is arguing that Congress doesn't have powers here.
- lambda 13y ago
  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 since the position that grants such power, Chief Justice of the Supreme Court, is also a lifetime appointment.
  - anigbrowl 13y ago
    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.
- crusso 13y ago
  Or an asteroid could hit the earth, destroying all of us, including Robers' Constitutional powers. If your argument is that Klein is wrong because the very rules of the game could be changed by congress, then we have to consider the likelihood of such an event, probably based upon history. Has Congress intervened since the court was set up? Are they likely to? Could we just agree within the current rules of the game specified by Congress, Klein is correct?
rayiner 13y ago
> I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating It's not just hyperbole it's non-sensical. E.g. the whole thing about not hearing opposing testimony makes for great reading, but it doesn't make any sense. FISC doesn't hear opposing testimony because the only power it has is granting FISA warrants. Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas.
- AnthonyMouse 13y ago
  Why does that make the statement "non-senscial"? Is it not factually accurate that the FISC doesn't hear opposing arguments? >Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas. The distinguishing factor is that normal court decisions and the outcome of grand jury proceedings are generally published for review by the public. If the court is too consistently siding with the government as a result of inherent bias in the process then people can get upset about it and try to change the law to modify the circumstances under which that can happen. A secret one-sided proceeding is legitimately different in character because it has yet one fewer safeguard against abuses of power, which makes the lack of opposing arguments more significant than it is when the outcomes are public.
  - rayiner 13y ago
    It's non-sensical in the way it would be non-sensical of me to complain that the new Macbook Air doesn't have any 3.5" drive bays. Factually true, but how do you think people would react if they saw that in the Ars Technica review?
    - AnthonyMouse 13y ago
      What I'm saying is that your analogy is off. The fact that the FISC only hears from one side is distinguishable from other courts because it's all kept secret. If a district court judge issues a bad warrant, that fact eventually comes out when marshals show up at the defendant's property to execute it or the evidence gained through it is presented in court. Then the defendant can challenge it in a public proceeding or, in sufficiently outrageous cases, the public can demand changes to the law or impeachment of the issuing judge. There is none of that with the FISC. If the court makes a bad ruling, nobody is ever officially supposed to know, the government just starts hoovering up the data of American citizens under cover of darkness and anybody who brings this to the attention of the voting public will be accused of treason and then have their passport revoked and be stranded in a Russian airport.

tptacek 13y ago

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.

coldtea 13y ago
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).
- tptacek 13y ago
  Nobody is arguing that Congress doesn't have powers here.
lambda 13y ago
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 since the position that grants such power, Chief Justice of the Supreme Court, is also a lifetime appointment.
- anigbrowl 13y ago
  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.
crusso 13y ago
Or an asteroid could hit the earth, destroying all of us, including Robers' Constitutional powers. If your argument is that Klein is wrong because the very rules of the game could be changed by congress, then we have to consider the likelihood of such an event, probably based upon history. Has Congress intervened since the court was set up? Are they likely to? Could we just agree within the current rules of the game specified by Congress, Klein is correct?

rayiner 13y ago

> I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating It's not just hyperbole it's non-sensical. E.g. the whole thing about not hearing opposing testimony makes for great reading, but it doesn't make any sense. FISC doesn't hear opposing testimony because the only power it has is granting FISA warrants. Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas.

AnthonyMouse 13y ago
Why does that make the statement "non-senscial"? Is it not factually accurate that the FISC doesn't hear opposing arguments? >Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas. The distinguishing factor is that normal court decisions and the outcome of grand jury proceedings are generally published for review by the public. If the court is too consistently siding with the government as a result of inherent bias in the process then people can get upset about it and try to change the law to modify the circumstances under which that can happen. A secret one-sided proceeding is legitimately different in character because it has yet one fewer safeguard against abuses of power, which makes the lack of opposing arguments more significant than it is when the outcomes are public.
- rayiner 13y ago
  It's non-sensical in the way it would be non-sensical of me to complain that the new Macbook Air doesn't have any 3.5" drive bays. Factually true, but how do you think people would react if they saw that in the Ars Technica review?
  - AnthonyMouse 13y ago
    What I'm saying is that your analogy is off. The fact that the FISC only hears from one side is distinguishable from other courts because it's all kept secret. If a district court judge issues a bad warrant, that fact eventually comes out when marshals show up at the defendant's property to execute it or the evidence gained through it is presented in court. Then the defendant can challenge it in a public proceeding or, in sufficiently outrageous cases, the public can demand changes to the law or impeachment of the issuing judge. There is none of that with the FISC. If the court makes a bad ruling, nobody is ever officially supposed to know, the government just starts hoovering up the data of American citizens under cover of darkness and anybody who brings this to the attention of the voting public will be accused of treason and then have their passport revoked and be stranded in a Russian airport.