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 There is a clear well known process for this, and in fact even precedent as previous amendments have been repealed.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.