4 ms·

>>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 wit

>>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. The FISA court is an article III court(United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987)). It is not a 'regular' article III court but it is absolutely not an administrative tribual or article I court. It has all the regular warrant powers of a court. Specifically, all its members are confirmed judges under article III procedures and the term limits do not impact the legality of the court.

tptacek 13y ago
Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC. Tenure isn't the only difference between FISC and the Article III courts, either. What other court is so limited in the controversies it can hear? FISC judges have warrant powers, but what penalties can they enforce? What are the differences between the powers granted to FISC and the powers Congress already has to compel testimony? Congress could tomorrow replace all the procedures of FISC with those of the Loyal Order of Water Buffalos and I don't believe the Constitution would have much to say about it --- absent what it says with or without FISA as it pertains to the Fourth Amendment (ie, no matter what rules FISC uses to decide cases, SCOTUS can overrule the law that animates FISC if it decides the process contravenes the Fourth Amendment). I wish your comment was at the top of this subthread, though.
- cpleppert 13y ago
  >>Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC. I'm not sure I understand the point about Article III courts not being able to be abolished. Several courts established by the judiciary act of 1801 were abolished early in Jefferson's term. I agree that it doesn't explicitly say that the FISA court is an article III court but some of the holdings are hard to understand if the court isn't. For instance, the court rejected the argument that it was not "properly constituted under article III because the statute does not provide for life tenure on the FISA court." If the court held it wasn't an article III court it would have not considered the argument! Additionally, from a quoted decision in that section(Megahey, 553): "As such, with respect to their assignment to FISC for a seven-year term with no additional compensation, FISC judges do not differ from other federal judges who sit from time to time and when the need arises on courts other than that to which they are appointed by temporary designation" I'm not sure there is any indication that the judges are serving on a non-article III court here. They certainly would 'differ' substantially from the example presented if they did. Well, the FISA court is really strange in any case. For starters, I'm not sure how FISA warrants are actually warrants in any sense at all. I'm sure congress could screw it up even more. Thanks!
  - tptacek 13y ago
    I think we can disagree on this point without disagreeing on the substance of my point, which is that it's Congress that is ultimately responsible for the shape of the surveillance state until it infringes on the Fourth Amendment, at which point it's the federal court system (and SCOTUS) that becomes responsible; at no point does Roberts authority over FISC play a key role.
    - apalmer 13y ago
      Your point is completely valid on a technicality level. On a pragmatic level however: Congress has already signed off or rather abdicated responsibility (I think for purposes of plausible deniability) of the FISA courts to Justice Roberts. Meanwhile as he is in a nutshell controlling the appointees and as such general direction of the program, while at the same time leading the majority of the one court that technically has the ability to overturn the program on constitutional grounds... Pretty much congress has abstained and he is in effect the check and balance on himself, which is troubling. The thing about the NSA scandal isn't really the lack of checks and balances though, every branch has had an oppurtunity to strike down this program, and the people themselves have been given enough information to rise up... its just that the vast majority of executives, judiciary, legislative, and the citizenry just don't have a problem with it, and think its a necessary trade off.
      - tptacek 13y ago
        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?
        apalmer 13y ago
        The problem is the executive branch has already under both parties have already signed off on this... The legislative branch have chosen to willfully turn their eyes away on this... The judicial branch has already provided tacit approval since the chief justice of the supreme court is to a large degree cosigning the constitutionality of this... The people have decided that this is acceptable... so its not really an 'issue', for me its like GWB, I didnt like him as a president but I had to aknowledge he was legitimately the president by the mandate of the people and in line with all required bureaucratic processes... similarly to how some feel about Obama... and no its not that he is republican or not, i mean i think its become clear Obama has embraced these kind of grey area morally questionable but politically palatable solutions to a greater extent than GWB did. Its not political with me, its just from my perspective clear that sooner or later it will be abused, and it is such a potential seachange i doubt we will ever roll it back.

tptacek 13y ago

Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC. Tenure isn't the only difference between FISC and the Article III courts, either. What other court is so limited in the controversies it can hear? FISC judges have warrant powers, but what penalties can they enforce? What are the differences between the powers granted to FISC and the powers Congress already has to compel testimony? Congress could tomorrow replace all the procedures of FISC with those of the Loyal Order of Water Buffalos and I don't believe the Constitution would have much to say about it --- absent what it says with or without FISA as it pertains to the Fourth Amendment (ie, no matter what rules FISC uses to decide cases, SCOTUS can overrule the law that animates FISC if it decides the process contravenes the Fourth Amendment). I wish your comment was at the top of this subthread, though.

cpleppert 13y ago
>>Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC. I'm not sure I understand the point about Article III courts not being able to be abolished. Several courts established by the judiciary act of 1801 were abolished early in Jefferson's term. I agree that it doesn't explicitly say that the FISA court is an article III court but some of the holdings are hard to understand if the court isn't. For instance, the court rejected the argument that it was not "properly constituted under article III because the statute does not provide for life tenure on the FISA court." If the court held it wasn't an article III court it would have not considered the argument! Additionally, from a quoted decision in that section(Megahey, 553): "As such, with respect to their assignment to FISC for a seven-year term with no additional compensation, FISC judges do not differ from other federal judges who sit from time to time and when the need arises on courts other than that to which they are appointed by temporary designation" I'm not sure there is any indication that the judges are serving on a non-article III court here. They certainly would 'differ' substantially from the example presented if they did. Well, the FISA court is really strange in any case. For starters, I'm not sure how FISA warrants are actually warrants in any sense at all. I'm sure congress could screw it up even more. Thanks!
- tptacek 13y ago
  I think we can disagree on this point without disagreeing on the substance of my point, which is that it's Congress that is ultimately responsible for the shape of the surveillance state until it infringes on the Fourth Amendment, at which point it's the federal court system (and SCOTUS) that becomes responsible; at no point does Roberts authority over FISC play a key role.
  - apalmer 13y ago
    Your point is completely valid on a technicality level. On a pragmatic level however: Congress has already signed off or rather abdicated responsibility (I think for purposes of plausible deniability) of the FISA courts to Justice Roberts. Meanwhile as he is in a nutshell controlling the appointees and as such general direction of the program, while at the same time leading the majority of the one court that technically has the ability to overturn the program on constitutional grounds... Pretty much congress has abstained and he is in effect the check and balance on himself, which is troubling. The thing about the NSA scandal isn't really the lack of checks and balances though, every branch has had an oppurtunity to strike down this program, and the people themselves have been given enough information to rise up... its just that the vast majority of executives, judiciary, legislative, and the citizenry just don't have a problem with it, and think its a necessary trade off.
    - tptacek 13y ago
      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?
      - apalmer 13y ago
        The problem is the executive branch has already under both parties have already signed off on this... The legislative branch have chosen to willfully turn their eyes away on this... The judicial branch has already provided tacit approval since the chief justice of the supreme court is to a large degree cosigning the constitutionality of this... The people have decided that this is acceptable... so its not really an 'issue', for me its like GWB, I didnt like him as a president but I had to aknowledge he was legitimately the president by the mandate of the people and in line with all required bureaucratic processes... similarly to how some feel about Obama... and no its not that he is republican or not, i mean i think its become clear Obama has embraced these kind of grey area morally questionable but politically palatable solutions to a greater extent than GWB did. Its not political with me, its just from my perspective clear that sooner or later it will be abused, and it is such a potential seachange i doubt we will ever roll it back.