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> I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surve
by glesica 13y ago
> I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
You're wrong. How can the SCOTUS review a FISC decision if those decisions are never made public and if, upon challenge, the government can invoke the state secrets privilege. This is exactly what has happened in the past.
The supreme court doesn't hear cases unless there are two parties. It does not issue "advisory" rulings. But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?
Further, judges don't generally do a lot of constitutional interpretation when issuing warrants. They rely on precedent. If a judge were to step a bit outside of whatever precedent existed on a given topic (for whatever reason), the person against whom the warrant was to be served would later have the opportunity to challenge the warrant, and the constitutional interpretation that resulted in its issue. None of this is the case with the FISC. They are free to interpret the constitution however they see fit without any real possibility of their opinions being challenged or reviewed.
> 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.
Nice try, but nope. Just about every Supreme Court justice has been a federal judge previously. Did that mean that there was no confirmation process? Not a chance.
Congress vetted these people to be federal judges, not members of a secret tribunal that makes secret constitutional interpretations that have the force of law and are effectively immune from further scrutiny.
- tptacek 13y agoI actually agree with you about the appointment issue --- in the sense that my guess is that FISC court appointment procedures mean it isn't an Article III court. But a couple problems with that for this line of argument: * There are Article I courts; Congress is empowered to create tribunals for which the Article III appointment rules don't apply. Since the FISC is adjudicating policies that Congress is already empowered to legislate (the Constitution being as silent on foreign surveillance as it is on the makeup of the Air Force), not adhering to Article III doesn't automatically make the FISC unconstitutional. * In trying to pursue my leg of this argument over the past couple days, I've been pretty well slapped down on the idea that appointment issues damage the Article III standing of the FISC: https://news.ycombinator.com/item?id=6010406 https://news.ycombinator.com/item?id=6010406
- glesica 13y agoI'm not really interested in whether the FISC is constitutional or not. My objection is that you appeared to discount the popular outrage over the FISC. This is actually one of the reasons I didn't go to law school, I'm much more concerned with whether something is good, sound policy than whether it is technically constitutional or not. Just as "legal" and "moral" or "right" are different beasts, so too are "constitutional" and "smart" or "justified". edit: didn't realize you were the GP :)
- Uchikoma 13y ago"not adhering to Article III doesn't automatically make the FISC unconstitutional." nice try with a straw man attack.
- dragonwriter 13y ago> Nice try, but nope. Just about every Supreme Court justice has been a federal judge previously. Did that mean that there was no confirmation process? Not a chance. If you read the Appointments Clause, you'll find that the only judges explicitly called out that must go through the advice and consent process are Justices of the Supreme Court. So, while that's true, it doesn't really support any kind of broader argument by analogy.
- DannyBee 13y ago"You're wrong. How can the SCOTUS review a FISC decision if those decisions are never made public and if, upon challenge, the government can invoke the state secrets privilege. This is exactly what has happened in the past." This is not correct. 50 USC 1803(b) specifically provides that the record will be transmitted to SCOTUS upon write of certiorari. There have been non-parties that have attempted to get access to the rulings, and those have been denied. " But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?" The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for.
- dragonwriter 13y ago> 50 USC 1803(b) specifically provides that the record will be transmitted to SCOTUS upon write of certiorari. 1803(b) provides that the Foreign Intelligence Surveillance Court of Review will do that if the government appeals the denial of a surveillance warrant by that court (which would itself be on the government's appeal of a denial by the FISC) to the Supreme Court. > The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for. Not in the provision you point to, which is exclusively for government appeals of denials of warrants in non-adversarial proceedings, they don't provide any "injured party" any appeal path (and the process they apply to is one that an "injured party" would never be aware of in the first place.)