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I disagree, though I admit I'm doing so from a position of ignorance. Which means, I'm probably about to say something incorrect or misinformed. If you can clar

I disagree, though I admit I'm doing so from a position of ignorance. Which means, I'm probably about to say something incorrect or misinformed. If you can clarify where I've gone off the rails I'd greatly appreciate it. > The key thing to understand is that the FISC court is not making law. It is interpreting the government's powers under existing law. By my understanding, the same could be said about any court in the country. Rulings from the judicial branch are almost always matters of public record. Why aren't the rulings on the law from this court matters of public record? > This is a process the executive regularly engages in: it asks itself, is this activity legal? This is where I think I fundamentally misunderstand you. Is the FISC a part of the executive branch? I understand it to be a part of the judicial branch. If it's part of the judicial branch it seems the executive isn't asking itself whether the activity is legal. If the FISC is a body of the executive branch then this makes much more sense to me.

tptacek 13y ago
I'll take a stab: No court in the US is meant to make law. All legislative powers under the Constitution are vested in a Congress of the United States. What Rayiner is referring to is the inability of the FISA court to create precedent that binds on any other court in the country. The FISC can't overturn any law of Congress or rule it unconstitutional. Moreover, as an instrument of Congress operating outside of Article III, Congress can settle any dispute with FISC by abolishing the court. It cannot do that with other federal courts except in extreme circumstances.
- DannyBee 13y ago
  FWIW: FISC itself asserts it is an article 3 court. http://www.fas.org/irp/agency/doj/fisa/fisc121107.pdf http://www.fas.org/irp/agency/doj/fisa/fisc121107.pdf Notwithstanding the esoteric nature of its caseload, the FISC is an inferior federal court established by Congress under Article III[4] [4] See In re Sealed Case, 310 F.3d at 731-32 (applying to the FISC "the constitutional bounds that restrict an Article III court"); In Re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (district court judges retain "Article III status" when acting as members of the FISC), aff'd, 788 F.2d 566 (9th Cir. 1986).
  - tptacek 13y ago
    Is it possible that they're just wrong? Congress also established the bankruptcy court as an inferior federal court, and the bankruptcy court isn't an Article III court. Neither is the court of federal claims, right? If they were right, how could FISA be constitutional? Article III is pretty short and clear. Is it possible that this incredibly confusing situation is deliberate? Of the bizarro federal courts, the FISC is the only one in which regular Article III judges are appointed, which blurs the distinction (also also short-circuits the need for Senate confirmation --- which, again, back to: not an Article III court). Thank you for showing this to me. Here's another: https://www.fas.org/irp/agency/doj/fisa/fisc-032713.pdf https://www.fas.org/irp/agency/doj/fisa/fisc-032713.pdf
    - DannyBee 13y ago
      Yes, it is in fact, possible they are just wrong. It took at least two supreme court decisions to sort out the court of claims and the bankruptcy court :) Court of claims is a article 3 court, per Glidden Co. v. Zdanok. Congress can certainly create new article 3 courts, since it has the power to create 'inferior courts'. It's just not clear what happened here. The statute does not make clear, and even if it claimed one or the other article, at least Ex Parte Bakelite would imply it doesn't matter. The only circuits to consider it have found FISC an article 3 court, based on the idea that congress assigned article 3 judges to it, and the 9th circuit holding that the judges are still article 3 judges while sitting on FISC (this is different than say, an Administrative law judge, who is an article 1 judge, even if working for an article 3 federal court). The cases you want to read are Glidden, Ex parte Bakelite Corp, and Northern Pipeline Co. v. Marathon Pipe Line Co. Ex parte Bakelite says: "he argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred." It's also from 1929. I'm a bit too busy to go shepardize it to see what else pops up other than the major decisions i listed. This is not my area of law, obviously. Everything I know here is from random con law study.
      - tptacek 13y ago
DannyBee 13y ago
FISC is an article 3 court created by congress with very specific jurisdiction (there is actually question what kind of article court it is, and wikipedia used to claim article 1, but the scholarly views i can find are that it's an article 3 court). Like all article 3 courts that are not SCOTUS, this means it can only consider what congress has said it can. Congress can and apparently did create a court whose entire job is to sit around and rule on a special type of search warrant (what used to be known as 501(f) petitions, they have some other name now, but are commonly known as "FISA warrants") The court rules, as promulgated, do not allow the release of opinions by the clerk, unless a judge/etc has ordered it. This is in sharp contrast to most article 3 courts, where opinions may not be "precedential" (though that distinction was mostly abolished), but you can still get them However, it's not clear whether it is improper or not. It's certainly not a clear cut issue. The real problem here is that the court was really created as a check on the executive branch, and it was expected, that any constitutional injury would get redressed through the normal process. That is, gov takes you to normal federal court for a crime, in that court, they include the evidence obtained through FISA warrant, as well as basis for that warrant, and you challenge any constitutional injury there (through exclusion of evidence or whatever).

tptacek 13y ago

I'll take a stab: No court in the US is meant to make law. All legislative powers under the Constitution are vested in a Congress of the United States. What Rayiner is referring to is the inability of the FISA court to create precedent that binds on any other court in the country. The FISC can't overturn any law of Congress or rule it unconstitutional. Moreover, as an instrument of Congress operating outside of Article III, Congress can settle any dispute with FISC by abolishing the court. It cannot do that with other federal courts except in extreme circumstances.

DannyBee 13y ago
FWIW: FISC itself asserts it is an article 3 court. http://www.fas.org/irp/agency/doj/fisa/fisc121107.pdf http://www.fas.org/irp/agency/doj/fisa/fisc121107.pdf Notwithstanding the esoteric nature of its caseload, the FISC is an inferior federal court established by Congress under Article III[4] [4] See In re Sealed Case, 310 F.3d at 731-32 (applying to the FISC "the constitutional bounds that restrict an Article III court"); In Re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (district court judges retain "Article III status" when acting as members of the FISC), aff'd, 788 F.2d 566 (9th Cir. 1986).
- tptacek 13y ago
  Is it possible that they're just wrong? Congress also established the bankruptcy court as an inferior federal court, and the bankruptcy court isn't an Article III court. Neither is the court of federal claims, right? If they were right, how could FISA be constitutional? Article III is pretty short and clear. Is it possible that this incredibly confusing situation is deliberate? Of the bizarro federal courts, the FISC is the only one in which regular Article III judges are appointed, which blurs the distinction (also also short-circuits the need for Senate confirmation --- which, again, back to: not an Article III court). Thank you for showing this to me. Here's another: https://www.fas.org/irp/agency/doj/fisa/fisc-032713.pdf https://www.fas.org/irp/agency/doj/fisa/fisc-032713.pdf
  - DannyBee 13y ago
    Yes, it is in fact, possible they are just wrong. It took at least two supreme court decisions to sort out the court of claims and the bankruptcy court :) Court of claims is a article 3 court, per Glidden Co. v. Zdanok. Congress can certainly create new article 3 courts, since it has the power to create 'inferior courts'. It's just not clear what happened here. The statute does not make clear, and even if it claimed one or the other article, at least Ex Parte Bakelite would imply it doesn't matter. The only circuits to consider it have found FISC an article 3 court, based on the idea that congress assigned article 3 judges to it, and the 9th circuit holding that the judges are still article 3 judges while sitting on FISC (this is different than say, an Administrative law judge, who is an article 1 judge, even if working for an article 3 federal court). The cases you want to read are Glidden, Ex parte Bakelite Corp, and Northern Pipeline Co. v. Marathon Pipe Line Co. Ex parte Bakelite says: "he argument is fallacious. It mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred." It's also from 1929. I'm a bit too busy to go shepardize it to see what else pops up other than the major decisions i listed. This is not my area of law, obviously. Everything I know here is from random con law study.
    - tptacek 13y ago

DannyBee 13y ago

FISC is an article 3 court created by congress with very specific jurisdiction (there is actually question what kind of article court it is, and wikipedia used to claim article 1, but the scholarly views i can find are that it's an article 3 court). Like all article 3 courts that are not SCOTUS, this means it can only consider what congress has said it can. Congress can and apparently did create a court whose entire job is to sit around and rule on a special type of search warrant (what used to be known as 501(f) petitions, they have some other name now, but are commonly known as "FISA warrants") The court rules, as promulgated, do not allow the release of opinions by the clerk, unless a judge/etc has ordered it. This is in sharp contrast to most article 3 courts, where opinions may not be "precedential" (though that distinction was mostly abolished), but you can still get them However, it's not clear whether it is improper or not. It's certainly not a clear cut issue. The real problem here is that the court was really created as a check on the executive branch, and it was expected, that any constitutional injury would get redressed through the normal process. That is, gov takes you to normal federal court for a crime, in that court, they include the evidence obtained through FISA warrant, as well as basis for that warrant, and you challenge any constitutional injury there (through exclusion of evidence or whatever).