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> As I understand it, the warrant process used in domestic criminal law is also not adversarial Not entirely true. The issuance of the warrant is not adversari

by jarrett 13y ago

> As I understand it, the warrant process used in domestic criminal law is also not adversarial Not entirely true. The issuance of the warrant is not adversarial. However, due to the exclusionary rule, a warrant can be overturned after the fact. Not only does this exclude evidence obtained from the warranted search, it also provides an incentive for police and judges to maintain high standards for warrants. Thus, there is a strong adversarial component in the process, and it's an essential one. > Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench. But Congress has not had a chance to downvote their appointment to the FISC. How can we assume that every judge whom Congress deems fit for the federal bench would also be approved to join the FISC, were the question put to Congress?

tptacek 13y ago
If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. FISC is some sense an instrument of Congress. To the extent that it's an Article III court (I still contend it might not be), FISC even avoids the issue of judge tenure because its judges are part-timers who already sit on the federal bench. Unlike the federal court system, Congress has near total authority over FISC.
- dragonwriter 13y ago
  > If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. Well, not the same vote, since confirmation is by the Senate, and rewriting FISA takes both houses.
  - tptacek 13y ago
    Good point.
- jarrett 13y ago
  It's a higher bar to reconstitute the court than to block a judicial nomination, though. The former would require both houses to pass the bill, and either the President's signature or a veto-proof majority. For the latter, all you need is 40 senators to filibuster. A much, much easier thing to do. But your larger point is well-taken: FISC exists because Congress at one time willed it so. Still, it's not unreasonable to criticize Congress for willingly divesting itself of power to the advantage of other branches of government. In any case, the main issue isn't Congressional authority. It's the one-sided nature and absence of a workable appeals process. Speaking of which: > To the extent that it's an Article III court (I still contend it might not be) I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts? This deserves a very hard look. I'm not casting doubt on the integrity of the FISC judges. But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts, to develop a bias over time. No matter how much faith you have in the integrity of judges, it seems unwise to arrange things such that only one party has their ear. One might object that regular judges issue warrants on a daily basis without hearing from any opposing party. However, those warrants are subject to challenges after the fact, and judges are aware of this. The ever-present threat of a warrant being ruled improper serves as a silent counterbalance when the warrant is requested.
  - dragonwriter 13y ago
    > I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts? It doesn't effectively operate outside of the system of review by higher courts, its just that, since the proceedings are non-adversarial, the only review likely is of decisions that are adverse to the government, which are made unlikely, since there is no constraint on the government's ability to -- even assuming no deliberate misrepresentation -- present information selectively in the initial application. > But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts FISC has a higher court (the Foreign Intelligence Surveillance Court of Review) which exists solely to provide oversight for it; FISCR is itself overseen by the Supreme Court. What the FISA process is missing isn't oversight by higher courts, which it incorporates already, but an advocatus diaboli.

by jarrett 13y ago

tptacek 13y ago

If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. FISC is some sense an instrument of Congress. To the extent that it's an Article III court (I still contend it might not be), FISC even avoids the issue of judge tenure because its judges are part-timers who already sit on the federal bench. Unlike the federal court system, Congress has near total authority over FISC.

dragonwriter 13y ago
> If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. Well, not the same vote, since confirmation is by the Senate, and rewriting FISA takes both houses.
- tptacek 13y ago
  Good point.
jarrett 13y ago
It's a higher bar to reconstitute the court than to block a judicial nomination, though. The former would require both houses to pass the bill, and either the President's signature or a veto-proof majority. For the latter, all you need is 40 senators to filibuster. A much, much easier thing to do. But your larger point is well-taken: FISC exists because Congress at one time willed it so. Still, it's not unreasonable to criticize Congress for willingly divesting itself of power to the advantage of other branches of government. In any case, the main issue isn't Congressional authority. It's the one-sided nature and absence of a workable appeals process. Speaking of which: > To the extent that it's an Article III court (I still contend it might not be) I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts? This deserves a very hard look. I'm not casting doubt on the integrity of the FISC judges. But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts, to develop a bias over time. No matter how much faith you have in the integrity of judges, it seems unwise to arrange things such that only one party has their ear. One might object that regular judges issue warrants on a daily basis without hearing from any opposing party. However, those warrants are subject to challenges after the fact, and judges are aware of this. The ever-present threat of a warrant being ruled improper serves as a silent counterbalance when the warrant is requested.
- dragonwriter 13y ago
  > I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts? It doesn't effectively operate outside of the system of review by higher courts, its just that, since the proceedings are non-adversarial, the only review likely is of decisions that are adverse to the government, which are made unlikely, since there is no constraint on the government's ability to -- even assuming no deliberate misrepresentation -- present information selectively in the initial application. > But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts FISC has a higher court (the Foreign Intelligence Surveillance Court of Review) which exists solely to provide oversight for it; FISCR is itself overseen by the Supreme Court. What the FISA process is missing isn't oversight by higher courts, which it incorporates already, but an advocatus diaboli.