Did you know John Roberts is also chief justice of the NSA’s surveillance state?
washingtonpost.com
washingtonpost.com
The point of a republic with several powers and so on, wasn't to not allow someone have so much power?
Noone doubt the already cliche phrase that absolute power corrupts absolutely.
For example someone (maybe the chief justice anyway) appoint, but the congress has to approve it.
Sometimes this is done even to make valid a vote by the population, and it works well (in Commonwealth countries, the Queen can not approve a election results if she wish so... fortunately this was never needed it seems).
No, he doesn't. This is a directly, overtly inaccurate claim.
John Roberts real exclusive, unaccountable, lifetime powers come from Article III of the US Constitution, which within 50 years of the ratification of the Constitution came to give the Supreme Court the power to review and overturn the laws of Congress and to issue injunctions against presidential administrations.
Ezra Klein in this article isn't referring to Article III courts. He's referring to the FISC, the FISA courts, which aren't Article III courts. Judges on the FISA courts, unlike Article III judges, don't have lifetime tenure, can't hear adversarial cases, and have jurisdiction over a single class of controversies: foreign surveillance requiring cooperation from US entities or which could collect information about US citizens.
The key distinction between FISC and the Article III courts is that FISC is a creation of Congress. The Constitution is silent on the issue of foreign surveillance. Contrary to popular opinion, the Fourth Amendment does not enjoin the US from spying on foreign powers; no industrialized nation in the world (that I can find; correction welcome!) enjoins itself from spying.
Without specific guidance from the Constitution, the rules for spying are simple: Congress passes laws, the President enforces them, and the Supreme Court overturns them if those laws conflict with the Constitution. That is the exclusive power to shape the surveillance state.
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.
John Roberts only authority with that court is to appoint justices, who must come from the federal court system. So far as I can tell, he has no other authority; he cannot, for instance, recall FISC judges.
But, more importantly, if enough Senators or Congresspeople decided to alter the way that FISC worked, John Roberts would have little ability to stop them. Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive). They could certainly pass laws that would punt cases to Article III courts. They simply choose not to.
There is nothing Congress can do to eliminate judicial review. John Roberts has a lifetime power to persuade SCOTUS judges to overturn the laws of Congress. That power is unaccountable; if anyone in the US Government decides that SCOTUS is abusing judicial review (and many people frequently do decide that, which is what they mean when they say the courts are "legislating from the bench"), there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views. And SCOTUS's judicial review powers are exclusive; the President can veto a bill, but Congress can override that veto. Only SCOTUS has the power to take a law that has passed and strike it down. Roberts FISC authority, and the authority of the FISC judges themselves, are nothing like this.
If citizens want to challenge the surveillance state (and they should), they have all the same means to do so as they do in civil rights cases. They can lobby to have laws passed. They can bring suit, and, if they can show that their Fourth Amendment rights are being abused (or, in Google's case, their First Amendment rights), they can have the government enjoined from abusing them. The immediate response to this will be to point out how hard that is to do, but it's as hard as it is with any other civil liberties controversy, and none of the difficulty comes from John Roberts ability to point FISC judges.
Which is precisely what Roberts can do when he appoints FISC judges. In the same way that the President/Senate can't control the SCOTUS, but they are definitely picking on ideology first and foremost, with some degree of confidence that decisions will align with that ideology.
Appellant invokes the principles of judicial independence and separation of powers that underlie article III, [citations omitted], but those principles are not implicated by appellant's speculation that a judge designated to the FISA court might be influenced by the possibility that his temporary assignment might be revoked. By statute, federal judges may be designated by the Chief Justice to serve temporarily on other courts, 28 U.S.C. §§ 291-296 (1982), and temporary designation within the federal judicial system has never been thought to undermine the judicial independence that article III was intended to secure.
http://scholar.google.com/scholar_case?case=1545385451311713...
A judge's appointment to the FISA court can be revoked (I emphasized this part above; the revocation, of course, can be enacted by Congress), but the judge still has a job for life - in the District Court.
The fact that FISA judges are article III judges does not make FISA an article III court. It is a court created by Congress, which is staffed by people who are already Article III judges. Cavanagh's attack on the independence of FISA judges is rooted in the fact that the assignment can be revoked.
He can and does appoint judges from his own party and ideology, almost exclusively. He does have the power to re-appoint or not re-appoint said judges at the conclusion of these terms.
So, he has been given a lot of power. It's reasonable to point out that congress can get rid of FISA, but it doesn't address the argument being made here in totality.
(Consider the turnout for the briefings on this nonsense a couple of weeks ago--most skipped out to catch flights home.)
Attending those briefings is a poison pill. Before being briefed, members must swear not to reveal any of the content of the briefing.
I'm not sure this would be constitutional. Courts have rules that the term limits on FISA judges don't impact their standing as regular article III judges. Arbitrary removal almost certainly would.
Nevermind that politicians being blackmailed is hardly unheard of...
Not at the present time there isn't.
> Congress [could] pass a law
Saying that Roberts's appointments are reviewable because Congress could change the law is exactly analogous to saying that murder is legal because Congress could change the law. It is true that Congress could change the law. But unless and until it actually does change the law, murder is in fact illegal, and Roberts's appointments are in fact not reviewable.
I chose a bad example because murder is generally illegal under state law, not federal law (though there are exceptions). But there are things that are illegal under federal law that Congress has the power to change. Those things are in fact illegal (now) notwithstanding that Congress could change the law and make them legal. Likewise, Robert's appointments are not reviewable (now) notwithstanding that Congress could change the law and make his appointments reviewable.
I think this is an interesting but (apparently) subtle argument, so lets take it a step further for illustration purposes.
The US could repeal the first amendment, and explicitly make being a buddhist illegal, if enough congressmen got on board. There is a clear well known process for this, and in fact even precedent as previous amendments have been repealed. This does not make it incorrect to say 'freedom of religion is a inalienable right in the USA', because it is such today, as the law stands, the fact that congress has the power to change this doesn't make it a false statement...
We say that someone is unaccountable when the process required to lead to their accountability subsequent to misbehavior is in practice not likely to occur, not when the absolute lack of accountability can be proven with mathematical rigor.
This is the same pedantry that leads engineers to come up with crazy legal arguments. The fact that velocity is relativistic and relative to an external observer not subject to the rotation of the Earth your vehicle was not exceeding the speed limit is not going to get you out of a speeding ticket, no matter how many times you argue that it's technically correct. Because when people say things they do so within an accepted context that doesn't include the sort of pedantic absolutism that would cause arbitrary good faith statements made in the course of normal conversation to become technically inaccurate when weighed against impossible standards.
This actually ties into the anti-federalist argument against the Constitution and Bill of Rights. Where in the Constitution is Congress authorized to make laws regarding the practice of religion?
The Commerce Clause, of course! I imagine they would argue that money donated to churches would otherwise be used to purchase goods and services. Or that time spent worshipping would otherwise be used in production.
I'm only half joking.
And conveniently enough, who gets to make that call?
How you can argue that this isn't a rigged system is, well, interesting.
Perhaps Klein could have briefly reminded readers that the "A" in "FISA" stands for "Act" -- that is, of Congress -- but this is a blog post in the Washington Post. I can't fault Klein too much for overlooking that not all readers might share that bit of context.
It's not letting congress off the hook, it's painting a bullseye and applying pressure for them to pull the trigger. Until they do so, John Roberts has exclusive, unaccountable, lifetime power to shape the surveillance state.
While I too prefer code that compiles with -pedantic, I'm willing to forgive this author, and I don't see anything to suggest that the author believes that he is an intractable obstacle. I even think it's extraordinarily unlikely that any journalist sincerely believes that any single person is a permanently intractable obstacle in the government, so it makes the most sense to assume that was not the motivation.
This is a fundamentally important point. Talking about the probability that Congress will do this or that is irrelevant.
Actually, they couldn't. To shut down FISC they would have to pass a new law, which they could not do tomorrow because they are not in session tomorrow. And then the president would have to sign the law, or Congress would have to override his veto. Yes, it is possible to change the law, but it's not easy. Likewise, the Constitution could be amended to rescind Roberts's Article III privileges. So the situation is exactly analogous. But as you yourself point out, the probabilities that these things will happen are irrelevant. What matters is that until the changes are actually made (by whatever process is needed to make them) the situation is what it is. And the situation at the moment is that Roberts's appointments to the FISA court are not reviewable by anyone. So Klein is right and you are wrong. Deal with it.
That is far from clear. But either way, it's irrelevant to the matter at hand. The fact is that you are wrong about Klein. Until you acknowledge that and retract your top-level claim, there's no point in discussing anything else. Life is too short.
/eyeroll
If we're going down that road, the President has the authority to convene either or both chambers of Congress at any time. This has happened 27 times.
Likewise, the Constitution could be amended to rescind Roberts's Article III privileges. So the situation is exactly analogous.
Of course they are not, because constitutional amendments have to be ratified by 2/3 of the states, while Acts of Congress don't.
What matters is that until the changes are actually made (by whatever process is needed to make them) the situation is what it is.
The situation is that Congress can take away Roberts' FISA powers any time it likes, unlike his Article III powers which could only be revoked by amendment. This is a fundamental difference that Klein completely ignored, and that's why he's wrong.
I think this article adds to the thesis that the NSA apparatus is not a product of democracy. While you can trace its origin to a law the people approved, it's no longer controlled by democracy. At least it wouldn't be if our leaders had their way, and people like Snowden and Ellsberg were silenced.
Appeals to "democracy" in discussions like these tend to have a whiff of "No True Scotsman" to them, where "democracy" is defined as the form of government which is subject to the will of the majority but that cannot be captured by any interest we disapprove of. In reality, democracies do insane things all the time.
As somebody that's been on the ground passing out fliers for my town's restore the 4th rally that I helped organize yesterday, I've seen this apathy manifest itself not only in terms of disinterest, but also in outright anger that I would be so reckless and dangerous as to try and put pressure on our leaders to abide by the rule of law. I've been cussed out, called a communist by a military veteran, told to "get a job" (I actually have a great job), etc.
It seems that if an issue does not directly affect the lives of the masses negatively, such as the food shortage and economic instability that catalyzed the popular military coup in Egypt, the docile public will support whatever it is the powers that be tell them to. Here's to hoping some of the remaining leaked documents provide evidence of just that...
Large groups of people aren't great at at dealing with issues way out in the future like this.
While that certainly could be the case, I think you are ignoring the fact that there are many citizens who perhaps have been around long than you have that have decided that it really isn't a problem from their perspective and that it's a necessary evil. Things can't be perfect. And that they have given it some thought and are willing to put a certain amount of trust in the system to produce the right outcome.
Second, when you're talking about the majority of Americans finding a new country to live in, you're not just in the weeds, but also howling at the moon from them.
Third, it is fallacious to presume that people who don't have a problem with what NSA is doing now don't respect the 4th Amendment. It's right there in the text of the Constitution: searches must be reasonable. The Constitution punts on what "reasonable" means; that's why they used that word. There's no absolute for you to fall back on here.
I happen to agree with you that omnibus metadata collection is dangerous and should be further checked by the law, but I can also see both sides of the issue, and you can't, and I think you should try.
I would personally be fine with just having more transparency and using warrants issued by real (not secret) courts, even if we keep some of the technologies themselves, since I'm sure they are powerful tools to protect against the real threat of terrorism. But yes, when I consider the millions of lives that have been given to accomplish and defend the set of protections we have as Americans, I do mean it when I say that those who prefer security to freedom should consider finding a different country in which to live, even if it's not logistically feasible to do so. That's just because I'm personally an idealistic, rather than pragmatic, person.
I also apologize for getting overly political in this thread. I'm just coming off the tails of the rally yesterday.
[1] http://www.huffingtonpost.com/2013/06/29/glenn-greenwald-nsa... - Read: "they're storing every call and have the capability to listen to them at any time"
"I'm just coming off the tails of the rally yesterday."
(Emotion involved in your thinking process? We're not talking about a brutal attack that you yourself witnessed. We are talking about being at a rally and hearing what someone is saying. A great thing about HN is the discourse on both sides and even then there can be a echo chamber and crowd effect.)
"I'm also coming from the position of hearing Greenwald describe an imminent set of leaks"
(Accuracy of this information - have you decided he is correct?)
If I had to label myself (and I don't like to label myself) I would say I am the opposite of this:
"I'm personally an idealistic, rather than pragmatic, person"
What scares me is that people get riled up by a rally in that way based upon crowd psychology http://rationalwiki.org/wiki/Crowd_psychology
If he has such important information, shouldn't he simply publish it instead of doing a striptease? That's marketing, not journalism.
As opposed to the president who never appoints Supreme Court judges from his own party and ideology, right? And unlike FISA judges, those judges have vast powers. If you're worried about politics in court, you're very late to the game - SC judges were appointed politically for a long time.
>>> So, he has been given a lot of power.
Yes, Supreme Court Chief Justice has a lot of power. Is it really news to anybody? He's the head of the one of the independent branches of the government, of course he has a lot of power.
Hey, I'm as much a hair-on-fire, crazy ranting privacy and anonymity freak as anybody else, but this, pandering to this issue is getting insane. I'd suggest eliminating most HN articles that mention a politician or political figure. This is just the same old political columnists we had before (and I like reading all of them), tacking on the current issue to whatever other agendas they already have.
So enough with the criticisms of Obama, or saying Roberts has unlimited power, and so on. Many of these folks already knew how they felt about those political folks. Ezra Klein leading with security state, then several graphs in goes to "...Roberts’s nominations to the FISA court are almost exclusively Republican..." Good grief. This is a serious issue, not the usual political commentary bullshit.
For many writers though, either the issues do not matter to them or it's impossible to see things in terms other than the political rut they live in. These articles are just PR hacks. Take issue A, add in public personality B, throw in some invective -> pageviews.
It is way to easy to overshoot on stuff like this. These problems as they exist are policy problems, not personality or partisan problems. Yes, I know, personalities and personal stories sell newspapers and get eyeballs, but we hackers should be smarter than this. As you point out, the article even gets the facts wrong. Roberts appoints justices to an administrative court, not a criminal court. I know you can argue that this article is not specifically about Roberts, but about the Chief Justice. But still, the title and the big picture of Roberts is just too much. This is crap. It's political, ass-covering crap designed to make one party look better and the other worse. This is like re-arranging the deck chairs on the sinking Titanic.
I will try to be a little more clear: If you care about which party is to blame or which party will get ahead, or if you're spinning issues to make one person better or criticize another, you're part of the problem and not the solution.
One additional nit: every judicial member appointed for life may also be removed by the Senate by impeachment -- although the power has only been used a handful of times.
[corrected for clarity]
“It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single-handedly choosing the people who get to decide how much surveillance we’re subject to.”
Senator Wyden, briefed by the NSA, said that the NSA has a secret interpretation of the law:
Congress needs to stop doing that, across the board. This is also the basis of the "3 Felonies A Week" problem (that, and the fact that that the US has a perverse default of strict liability in criminal law).
But Wyden has exactly as much power to curtail the surveillance state as he does over drilling in the Arctic National Wildlife Refugee, or over national seatbelt laws.
And because John Roberts apoints FISC judges, he chooses those who secretly interpret the law.
That's pretty much like deciding how to interpret the law. And in secret. What it's actually deciding the law itself. And, again, secretly.
Your latest comment contradicts your OP "No, he doesn't. This is a directly, overtly inaccurate claim."
"Hello sir, this is the IT dept, can you confirm your password please?" .. "Oh sure, I believe you..."
"Hello senator, this is the FISC, can you keep this secret please because its all legal?" ... "Oh sure, I believe you..."
The icing on the cake is we don't have standing to sue because we can't prove we've been directly affected, but we can't prove it because we can't sue. As soon as a judge held this to be a lawful argument, we got rooted. The People are no longer in control.
"Exclusive" does not mean "omnipotent". We negotiate "exclusive" agreements all the time. The fact that someone else agreed to give you that exclusivity doesn't make the "exclusive" part go away.
If not "Unaccountable", accountable to whom? Sure, there may be other individuals in the hegemony who can raise a flag, but its not you or I. The NSA can lie to the senate and it takes a brave senator to break ranks but even then all they can say is "I think the NSA lied on one of these points" but can't even say which one. There is real coercion going on here.
It's not exclusive. Exclusivity dictates that the power Roberts has is available only to him. But it's not; it's available to Congress as well. Not only that, but Congress' power over the FISC dwarfs that of Roberts. Congress could pass a law requiring FISC judges to decide while swinging upside down from a rope made of cheese curds. All Roberts can do is appoint FISC judges. Congress can un-appoint them.
It's not unaccountable. Unaccountable means that Roberts can exercise his power unchecked by any authority. Roberts power is checked the same way as the Secretary of Labor's power is: Congress can require him to testify before a committee and, if it wishes, strip him of his FISC power.
- Congress may revoke the power over the FISC, so it isn't irrevocable.
But the FISC Chief is a lifetime appointment, by definition, since the Chief Justice is a lifetime appointment. It is exclusive, because he has executive authority, he does not have to take advice from anyone before making a decision. Whether it is unaccountable is a matter for debate since the operation of the court, and its activities are carried out in secret. It is certainly unaccountable in the normal sense of the word.
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.
In which case Congress would not pass anything he wouldn't really like (except at the level of personal politics).
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.
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.
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?
No, we cannot agree that Klein is correct. The gist of what he's saying is as wrong as the lede of his article.
1. They have a great deal of trouble doing anything right now. This will blow over before that changes. 2. This is pretty much a solved problem as far as they're concerned. Congress tends to tack "solutions" on top of "solutions". They rarely refactor.
gist of what he's saying is as wrong
Unless Congress changes things, what he said is exactly correct. Within that context, he's right. Maybe you're arguing that he has the wrong context, but I'd argue that we should probably assume that congress isn't going to change those particular rules of the game at this point.
Lack of simplicity in law is a serious problem, but not the main one, at least in this case. The problem is that laws increase the arbitrary powers of government, and rarely if every restrict them.
In most cases, such as the patriot act, they will simply find that vaguest provision and interpret it in the broadest way possible, And, in this case, that interpretation is also secret. The rest of the text is basically filler.
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.
>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.
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.
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.
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.
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!
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.
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?
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.
Not so.
Not exclusive because 8 other justices have equivalent authority on that ground.
Not unaccountable because he cannot exercise it without convincing 4 other justices to go along with him, through reasoning that is published for the world to see and analyze. (Which many do. In great detail.)
By contrast the appointment authority is a lifetime, exclusive power that he does not have to justify to anybody. No matter the legal underpinnings, there is no question that decisions made by his appointees shape the actual surveillance that takes place. The ability to reappoint every 7 years gives him real ability to, if he chooses, order judges to decide a particular way on threat of needing a new career. (It is doubtful that he operates in this way, but he can.)
There are limits on this power. It is granted by Congress. And so on. But it is the only power that he, by himself, can exercise with no oversight from anyone else.
And why is that relevant or useful in any way, since "the world" has no legal authority to influence the justices in any way (except for Congress passing new legislation after the fact)?
Furthermore the ability to write that reasoning is in itself the most important power of the Supreme Court. Because common law says that the reasoning in those cases can then be cited by any lawyer in any federal court in the country as binding precedent. And said precedent will be influential only to the extent that it makes sense, and the lawyer in question can supply an airtight argument that it applies to the case at hand. The more clearly the decision is written, the easier that lawyer's case will become, and the more power that the precedent is likely to have.
Therefore the reasoning that the justices produce for the outcomes that they want matters. A lot.
No they don't. The Chief Justice has additional powers, such as assigning the task of writing the opinion and administering the Court system. His rule includes more than simply deciding cases.
By contrast the appointment authority is a lifetime, exclusive power that he does not have to justify to anybody.
Ben, this is simply not true. He holds those powers at the pleasure of Congress, in contrast to his powers as a Supreme Court justice.
As for "lifetime, exclusive power", I think that an implicit qualifier of "under the normal course of affairs" is understood. Of course there are possibilities such as impeachment (yes, the members of the Supreme Court CAN be impeached), voluntary retirement, and change of laws. However there is no particular reason to expect it not to be for his lifetime.
That would be an ironic constitutional crisis, since the Constitution makes it clear that the decision to exercise war powers is allocated to the Legislative.
If there is to be a FISA court at all that we citizens can have any confidence in, the way that that court is constituted needs to be changed. That's my takeaway from Klein's column, and I think that's what we ought to be discussing.
To that end, here's a proposal. Instead of the Chief Justice handling all the FISC appointments, set up a rotating schedule whereby each Supreme Court Justice gets one pick, in turn, as the existing terms expire. That would bring at least a bit of ideological diversity.
Other possibilities can certainly be imagined. Congress could have a more direct role, for example, but given the current gridlock around judicial appointments, I don't know if that's a good idea.
Of course, the question of whether there should be a FISA court at all can also be debated. I'm not sure yet what I think about that.
This is theoretically true, and in practice, completely false.
Congress can control the number of supreme court justices, and thus, it can add (and reduce, though this is more complicated, the easy case being when there is a vacant spot) justices. Because it controls confirmation (though not selection), it can in effect, also control who is there.
Other than that, the number has fluctuated from five to ten, and there admittedly hasn't been overt court packing, though congress did drop the number from 10 to 7 in 1866 to avoid andrew johnson from naming any supreme court justices since he was about to be impeached.
Past that, the main reason they haven't is due to the approval rating of the supreme court being so high. Nowadays, there are recent rumblings about packing again, since the supreme court's approval rating has dropped.
Given the politics of today's congress, I wouldn't be shocked to see it happen.
[1] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/h...