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Comment by rayiner | Hacker News Reader

The actual article, without the blogspam and inaccurate title: http://gigaom.com/2013/07/08/justice-dept-defends-secret-rul...

The gist of the DOJ's argument is sound. The key thing to understand is that the FISC court is not making law. It is interpreting the government's powers under existing law. This is a process the executive regularly engages in: it asks itself, is this activity legal? This is the only way it can act, indeed the only way anyone can act, within a federal court system that does not allow courts to issue advisory opinions. You interpret the law to determine whether your course of action is constitutional.

Without secret FISC rulings, you'd have secret NSA legal interpretations. The FISC can't grant the executive any power it didn't otherwise have--it exists instead as a check on the discretion the executive would otherwise have in using that power. Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

EDIT: I should note that I don't think the DOJ's argument is necessarily the "right" one. Or the "best" one. But I think it's sound. It's based on a conservative interpretation of the scope of the executive's powers, but not one that's outside the mainstream.

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> The gist of the DOJ's argument is sound.

That's a matter of opinion. If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense.

If one is more partial to individual rights over the power of government, this law just looks draconian.

This is all beside the fact that the NSA has always considered itself beyond the law anyway:

> "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."

> According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes."

> http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

It is a matter of opinion, but I think you mischaracterize the choices. There is legitimate debate about what kind of balances the Constitution strikes with respect to individual rights versus the executive's authority with regards to foreign affairs and war.

I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else. It was a document preoccupied with outlining a system of republican governments. Representative governance was the first principle, not individual rights. Individual rights are part of the scheme, but they are the exception to the general rule of power exercised by a representative government.

It was also a document that was a direct response to a previous document that was deemed to leave the federal government with insufficient powers in the areas of internal security and foreign relations. The failure of the federal government to put down an internal insurrection was a major motivation reason for the calling of the constitutional convention. That fact cannot be papered over or forgotten in the obscurity of history.

The NSA's interpretations are not inconsistent with its abiding by the law. For better or worse, the Constitution was designed to create an executive with extensive powers in the areas of war and security. It is not inconsistent with the Constitution for the NSA to assert that it does not need enabling Congressional legislation to function. At least, that's one perfectly reasonable interpretation of the Constitution.

Similarly, the 4th amendment has never applied to things that cross the border. One of the very first things that First Congress did was pass legislation creating a customs apparatus with warrantless border searches. It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else.

Ideological clean-up, aisle 7. Ideological clean-up, aisle 7.

The constitution is nothing but libertarian. Individuals surrender soveriegnty to the states, which form the union. Libertarians have never, and will never place individual rights above all else. They simply acknowledge that rights exist firstly with the individual, to be shared with the state as minimally-necessary to ensure social order and progress. That's they way they felt in 1787. That's the way the feel now. (For the most part) E-gads, man, the document begins "We the people"

It is difficult to pin down the definition of "libertarian" but to me, a libertarian government is one that is created as the minimally necessary instrument to protect peoples' rights. The raison d'être of libertarian government is the protection of individual rights. Governance is the necessary evil by which the protection of individual rights is accomplished.

The Constitution, in contrast, is an exercise in creating a representative government. Not one whose animating purpose is to protect the rights of the people, but one that has a general mandate to govern, within specific domains, and derives its legitimacy from the consent of the people.

It is illustrative to read Federalists Nos. 9-10. http://thomas.loc.gov/home/histdox/fed_09.html, http://thomas.loc.gov/home/histdox/fed_10.html. It's a defense by Madison and Hamilton of republican government, intended to counter critics who asserted that republican government must inevitably lead to anarchy. In Federalist No. 10, Madison addresses the question of how a republican government deals with factions that want to trample the rights of others:

"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."

Madison's answer to the latter question is not an appeal to rights enforced by courts, but to republicanism--the idea that elected officials will insulate public policy from the ephemeral whims of the majority:

"A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking."

The posture of Federalist Nos. 9-10 are clear: Hamilton and Madison are making the case for representative, republican government. They do consider the issue of individual rights, but in the context of explaining how rights can be nonetheless protected in a representative government. A libertarian government, at least as I understand it, approaches the question from the opposite direction: the protection of individual rights is the first and foremost concern, and sole purpose, of government.

Yeah I wouldn't get wrapped up in the term "libertarian" for the same reason I wouldn't get wrapped up in "Democrat", "Republican" or "Whig". These are highly flexible monikers.

I think if you understand Locke, natural law, some Hobbes, and the writings of Jefferson you get the picture well enough. No need to make this into a ink-blot test.

"...The posture of Federalist Nos. 9-10 are clear: Hamilton and Madison are making the case for representative, republican government...A libertarian government, at least as I understand it, approaches the question from the opposite direction: the protection of individual rights is the first and foremost concern, and sole purpose, of government..."

I think you're creating a false dichotomy here when there's only a natural tension. A representative, republican government is the most efficient and longest lasting chance the nation had of preserving individual rights. More to the point, though, Madison and Hamilton were describing and promoting their proposed structure, not political theory. The entire discussion was around whether their structure would work or not. (I note that the anti-federalists, like many libertarians throughout history, were labeled as having farcical and far-fetched ideas of dangers that never would actually occur. Those guys turned out to be more right than wrong.)

It was up to the ratifying bodies to align the constitution with what everybody already knew -- the ideals expressed in the DOI by Jefferson and penned by half a dozen philosophers during the Enlightenment. Hence the BOR.

I don't want to get into a long discussion of ratification. HN isn't the place for it. But little-l libertarians trace their lineage back to both sides of the constitutional debates, and back farther than that. I don't think you'll find anybody wearing a hat that says "libertarian" on it in 1787, but if we sat down and described these things that libertarians believe, I'd bet 95% of the founders would be on-board. There is no argument to be had here. There's no direct opposition, but there's always tension between personal freedom and structure. That's what the constitution was: one of the best and most effective compromises man has come up with so far. Libertarians believe in that compromise, and because so many of the founders were libertarians, we got a good one.

>with regards to foreign affairs and war.

And if the NSA could confine themselves to foreign affairs and war, I expect a lot more people would be willing to give them a pass. But instead, what we're seeing instead is that information obtained under the auspices of "foreign affairs and war" is being shared and used both domestically, and internationally; and in cases that are clearly beyond the scope of "foreign affairs and war"

>It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

Maybe not, but it is definitely illegal for CBP to search electronic devices without reasonable suspicion; so as long as were here, we may have a good look at that as well.

"There is legitimate debate about what kind of balances the Constitution strikes with respect to individual rights versus the executive's authority with regards to foreign affairs and war."

My telephone, physical mail and electronic communications are not foreign affairs, and I have not been formally notified that the United States is at war with me. Nor have I been served with a warrant. And yet, it seems, they have a record of all of that.

> I think it is pure folly to look at the Constitution with libertarian-colored glasses.

On the contrary. It's pure folly to exercise authoritarian powers while claiming it's all for our own good:

"The means of defense against foreign danger historically have become the instruments of tyranny at home."

-James Madison, author of the Constitution.

The Constitution was created to clearly delineate powers of government while preserving the liberty of citizens. It's obviously failed in that regard.

As said earlier, the entire point is moot anyway as the NSA doesn't consider itself beholden to the law or the Constitution.

You're having a different discussion than Rayiner is having, which makes this comment a little unhelpful. Your comment would make more sense as its own top-level root comment, rather than as a nonresponsive reply to Rayiner.

We're having the same discussion but from different perspectives.

Your comment placement suggestions aren't helpful. It added nothing to the exchange of opinions.

Sure. But your perspective rejects the premises of Rayiner's initial comment, so repeating it more emphatically as you did upthread is problematic.

Rather than worry about me, perhaps it might profit you more to worry about government encroachment on your rights.

I understand that constitutional arguments often carry great legal and practical weight, but politically the fact that an action is constitutional matters only sometimes, whereas morally it hardly ever matters at all.

Politically, there are many constitutional actions that our government quite rightly chooses not to take. (Though certainly, the constitutional aspects are extremely relevant in this particular case.)

Morally, it's easy to produce historical examples of morally repugnant but legal institutions. You can similarly argue that if the Constitution allows for secret law which permits the sort of mass surveillance the NSA has been revealed to undertake, then all this shows is that the Constitution is defective, not that these actions are in any way acceptable.

Especially if you tend to find yourself making arguments like this last one, it might sometimes be advantageous to try to achieve political goals by means outside of the court-focused means used by, for example, the ACLU. Leaks are one such method.

> That's a matter of opinion

Well, whether or not an argument is sound (is never|shouldn't be) a matter of opinion. Soundness has nothing to do with whether the premises are true or not, it just means that if the premises are true, the conclusions necessarily follow. Whether the argument is _valid_ or not is a different matter.

I'm not commenting on the article or anything, I just thought I'd point that out.

All legal rulings are merely the opinions of fallible people. Some of those fallible people are more authoritarian, some are more libertarian.

"The real division is not between conservatives and revolutionaries but between authoritarians and libertarians." -George Orwell, 1948

I'm not saying anything about the ruling, just the general properties of arguments. An argument such as "The moon is made of cheddar cheese, and cheddar cheese is yellow, therefore the moon is yellow" is perfectly sound, invalid though it may be.

You had mentioned "If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense". That has to do with whether the argument is valid, not whether it is sound. That was the object of my comment.

In this case, it's definitely a matter of opinion. rayiner's comment assumes that there's a fundamental difference between "making law" and "interpreting the government's powers under existing law", and that because the FISA court's decision fall under the latter category there's no public interest in knowing how they've interpreted the law - even if those interpretations would shock someone who only knows the letter of the law.

I'll see your point but raise you: the absolute soundness of an argument is distinct from our ability to determine that soundness.

This isn't just a technical incompleteness argument; the law is not written using a propositional calculus, but rather an imprecise semantic encoding (which we might refer to as "Legal English") that is subject to multiple interpretations.

So in the case of law it is possible/likely/inevitable that the argument is, by the use of natural language, itself ambiguous, so the soundness thereof is a vector state.

Or to put it in simpler terms: it is all a matter of opinion.

We can say that reality is a matter of opinion but we can't have that much useful discourse that way :) And in my comment I meant to refer to his statement "if you are in favor of..." which, even if soundness is subjective, doesn't have to do with soundness at all.

Thanks for the clarification. It had rather sounded like you were trying to apply the rules of logic to human law, which is of course like trying to urinate in a hurricane.

> Without secret FISC rulings, you'd have secret NSA legal interpretations. The FISC can't grant the executive any power it didn't otherwise have--it exists instead as a check on the discretion the executive would otherwise have in using that power.

Okay, wait just one second. Are you fucking serious? For a start, both the executive and the FISA court are operating under the pretense that said court is actually an independent part of the judiciary and not merely the equivalent of the NSA's legal department, as you're arguing. This pretense allows them to issue blanket warrants like the leaked one for all Verizon call records and hold companies in contempt if they fail to comply. It also allows them to provide warrants for all kinds of activities that'd be outright unconstitutional by themselves. These are powers the executive doesn't legally have on its own.

Is it so unreasonable to call their bluff and demand that, if they're acting like a court and being treated like a court, we should get the same level of transparency we'd expect from any other court?

> It also allows them to provide warrants for all kinds of activities that'd be outright unconstitutional by themselves.

The FISA court grants warrants for things that would otherwise be Constitutional without a warrant. Surveillance of foreign agents does not require a warrant. Collection of meta-data does not require a warrant. Collection of records from third parties probably does not require a warrant, under existing precedent.

The Verizon call records example is a good one. See Smith v. Maryland: http://en.wikipedia.org/wiki/Smith_v._Maryland (1979). That case decided that the government did not need a warrant to find what numbers were dialed by someone. "In the Majority opinion, Justice Blackmun rejected the idea that the installation and use of a pen registry constitutes a violation of the 'legitimate expectation of privacy' since the numbers would be available to and recorded by the phone company anyway."

Verizon's call records are not only not private to you personally, since Verizon can see them, but not even your information to begin with, since they were generated by Verizon and not you. It's a totally reasonable application of the existing precedent to say that the NSA can collect Verizon's call records without a warrant.

For better or worse, we have a 4th amendment that: 1) does not apply to foreigners; and 2) does not apply to information you voluntarily expose to a third party (like bank records or phone records). This gives the government a wide latitude to collect information without running afoul of the 4th amendment. The purpose of FISA was to insert the FISC as a check on this discretion. The FISC does not seem to be a very effective check, but it's not designed to let the executive do things that it could not otherwise do.

> The FISC can't grant the executive any power it didn't otherwise have

The problem Americans are having is that we feel our inherent rights as human beings have been taken away, but having been done so in secret, we have no way to assert the government has acted inappropriately.

How hard would it have been to fight slavery if it had been conducted under top secret designation? How would Rosa Parks' actions been so influential if no one could know what she did and what the bus drivers/passengers were doing?

Edit:

Examples could go on and on. I think we should 'send a message' that it's not ok to cover up crime by stamping it Top Secret. Every person who classified something Top Secret should be investigated. If they're found to have classified a crime by the government, they should be imprisoned for life. Every top director in intelligence since '03 should be tried for crimes, along with Bush, Obama, and any other influential people in the administrations (such as Cheney).

I hope the next presidential election revolves solely around this issue. It's important enough to me that I'd vote purely based on it. Hopefully the Democrats and Republicans end up offering us candidates to address the 4th and 1st amendments which I think are clearly threatened here. The Republicans could be motivated to focus on this issue purely because they'd have the upper hand on Democrats, and the Democrats would have to address this to even have a chance at winning (at least, that's my hope).

> Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

One of the key objections raised during this controversy is that perhaps the executive should be forced to reveal its interpretation of the law. What public policy objective is served by keeping this secret? Bear in mind, we're not talking about disclosing detailed information about US military or intelligence operations. It's not something like "John Smith is an undercover agent in Country X," or "The NSA now has a tap on a router at such and such location." Rather, we're only talking about disclosing the executive's opinion as to what the law means. What danger is posed by simply publishing theories as to a law's meaning? Would enemies really derive any advantage from knowing this?

> The gist of the DOJ's argument is sound. The key thing to understand is that the FISC court is not making law.

This is partially true. The court is not writing statutes. However, they are (presumably) creating a body of case law. And case law is law. Yes, it is merely an elaboration on statutes and prior caselaw. But it is new law, nonetheless, in the sense that it decides legal questions which previously were undecided.

Just as one should be concerned with the laws created by SCOTUS, one should be concerned with the laws created by the FISA court.

> However, they are (presumably) creating a body of case law. And case law is law.

Are they? Non-appellate court decisions, except in that they are binding in future disputes between the same parties under the principle or res judicata, aren't binding on future courts (not different courts, nor even the same court.) Appellate court decisions are binding on lower courts subject that court of appeals, but its not clear to me that, even with the review relationship they have, that the relationship between the FISC and the FISCR is one of lower court and appellate court such that the decisions of the latter are precedent binding on the latter. And even if it was, IIRC, only published decisions generally serve as binding precedent.

So I'd be inclined to say that the FISC almost certainly doesn't, and the FISCR probably also doesn't, really create case law in any substantive sense.

> Would enemies really derive any advantage from knowing this?

Probably, yes. All sorts of things leak information, and "we don't do X" seems like it could easily be useful. That said, the question arises how much whatever marginal security against foreign threats actually means to us, as weighed against cost and freedom and good governance (which are partly a matter of security against other classes of threat).

Remember though, that I'm not proposing the government disclose what it does, but rather what it understands the law to mean. So saying "the law would permit X" doesn't mean "we do X." For example, if I asked my local government whether eminent domain could, someday, be used to seize my home, the truthful answer would be yes. But that would not help me guess whether the government actually plans to do so.

You did however imply that it might only bring marginal security. So if you're saying that enemies could derive an infinitesimal advantage from knowing how the government interprets the law, I suppose I can't disagree with you on that.

Saying "we don't think law permits X" should damned well mean "we don't do X", though. Knowing, reliably, "they don't do X" is potentially useful information. It would certainly change my strategy in a game of chess if I knew my opponent was forbidden a particular move.

I meant "marginal" in the sense of change, not the sense of unimportant. I don't have a good way of quantifying just how important it's likely to be. I certainly wouldn't make a claim myself that it is "infinitesimal" - it might very well be, but I don't think that's obvious without any data and we're somewhat limited in the data we have available.

> Saying "we don't think law permits X" should damned well mean "we don't do X", though.

I understand that it can eliminate possibilities. But my argument is that it won't confirm that the US engages in certain activities. The latter would probably be much more harmful. And it's not as if enemies can intuit what we are doing by process of elimination. The only things they can eliminate by studying the law are those things that are illegal. That still leaves open the truly vast number of lawful strategic possibilities. Thus, enemies are not likely to be able to guess our moves just because a handful of things are precluded by law.

With respect to your chess analogy, the set of possible and reasonable moves is much smaller. So yes, knowing that an artificial limitation is imposed on your opponent's moves would be very helpful in a chess game, where players generally only have a handful of reasonable moves per turn. But that's why it's not a proper analogy for something like counterterrorism strategy.

And thus, I do think the harm to US interests would be negligible. We probably face a much greater risk by, for example, publishing the layouts of our streets and the names of our elected representatives than by publishing legal opinions. Street layouts can be used to plan terrorist attacks and invasions; the names of elected officials are a key ingredient to assassination attempts. Yet nobody has any qualms about publishing these things, and rightly so.

> The gist of the DOJ's argument is sound

"Collect everything" doesn't pass the giggle test.

They're very definitely making law. They're very definitely grabbing things (metadata, probably content, arguably power) that Congress didn't want them to have, or it would have clearly said so.

That this is all secret makes it even more evil, to the extent that if we the public have lost trust in these people, they should simply be shut down because we can otherwise not be sure. Dismantle a bunch of data centers, shred many, many drives and tapes, and say "never again."

If the prophylactic solution is too draconian, then they need to provably come clean about what they have been up to.

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.

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.

FWIW: FISC itself asserts it is an article 3 court.

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).

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

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.

Thrilled to have more reading material. Thanks!

>>It's just not clear what happened here

Do you mean that the statue or intention of congress was unclear or that it doesn't matter whether it is an article III court or not?

There is a tremendous amount of evidence that congress intended the FISC to be an article III court. Objections were raised specifically on the basis that it would extend the judiciary into policy making or not be a constitutional valid subject for an article III court.

Several courts since the 1980s have considered the claim that it is not an article III court and have rejected the argument every time it has been raised. (see United States V. Megahey or the second circuit appeal)

I think it is an important question for a couple reasons:

1) the minimization procedures that the court must approve are an extension of the warrant power that the court is granted to satisfy the fourth amendment.

2) the warrant power itself is generally understood to require a judge where a warrant is required in the first place(see keith 1972). Of course, there are cases where it is possible that an independent officer(not a judge) can satisfy this requirement but it is difficult to see how judicial oversight can be excluded in this case.

3) congress intended (by the committee reports) that judicial oversight was the only valid means by which the executive could be checked. Simply requiring documents wasn't enough for congress.

EDIT: reply to below

I understand the requirement that the constitution sets out for judges to apply to them specifically and not to any individual court. Thus temporary courts or tribunals(composed of judges that were appointed to other courts) can act as a proper article III court.

In terms of the subject matter of article III courts the constitution says that: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;" I don't think it requires that every court necessarily can consider all cases that the judicial power is entitled to hear; it only acts as to set out what the maximum subject matter that a federal court can consider. There are other courts like the FISC/FISCR that also have limited subject matter jurisdiction under statute such as the United States Court of International Trade that only hears customs cases yet it also an article III court.

Help me understand how Congress can create an inferior federal court that isn't subject to the rules of Article III? Doesn't an Article III court require appointment by the President, confirmation by the Senate, lifetime tenure, and power over all cases arising under the Constitution?

Thanks for Megahey! Reading now.

To your later reply: it sure seems like you're right about the notion of specialized Article III courts. And the fact that FISC judges are part-timers drawn from the federal bench somewhat mitigates the tenure concern. But how do you get around the non-Presidential appointment, and the lack of Senate confirmation? FISC can't possibly set a president that a party with a veto-proof majority can create speciality courts to isolate specific controversies appointed by random people without Senate confirmation, can it?

There is no Constitutional requirement that inferior court judges be Presidentially appointed or confirmed by the Senate; of judges, that is only Constitutionally mandated for those of the Supreme Court, beyond that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Art. II, Sec. 2)

> FISC can't possibly set a president that a party with a veto-proof majority can create speciality courts to isolate specific controversies appointed by random people without Senate confirmation, can it?

I think you mean "precedent" rather than "president"; in any case, the authority to do that (assuming "random people" means the President, executive department heads, or the courts) is expressly in the Constitution and doesn't need the precedent of the FISC.

I didn't think judges qualified as "inferior officers", which is a term in the appointments clause with some meaning. Am I wrong? What other judge is appointed as an "inferior officer" outside of advise and consent process?

See Rehnquist in Edmund v US, in which the standard for "inferior officer" is (paraphrased) "reports to or is directed by a principal officer", which is something you can't say about an Article III judge.

> I didn't think judges qualified as "inferior officers", which is a term in the appointments clause with some meaning. Am I wrong?

I think the construction of Article II Sec. 2 and Article III Sec. 1 admit of no other non-strained reading than that Supreme Court justices must be appointed through advise and consent and other Article III judges are appointed through advise and consent in the absence of specific alternate provision, but may be appointed by other means provided that the mechanism is consistent with the Article II Sec. 2 provision regarding inferior officers and the Article III Sec. 1 provision that Article III judges have tenure in the judiciary in good behavior.

> What other judge is appointed as an "inferior officer" outside of advise and consent process?

Historically, both the Emergency Court of Appeals (1942-1961) and the Temporary Emergency Court of Appeals (1971-1993) were Article III courts whose members were drawn from the among the active members of the federal bench and were appointed to the specific court in addition to their prior appointment outside the advice and consent process (the Article III status of the former is explicitly called out by the Supreme Court in Lockerty v. Phillips.) This is the same model used for the FISC and FISCR.

Here's what Edmund says, in holding (ironically given my argument) that a military court appeals judge is an inferior officer:

Generally speaking, the term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: whether one is an "inferior" officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a clause designed to preserve political accountability relative to important government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.

The reason Rehnquist gave for seeing military court judges as inferior was that the military reports directly to the Secretary of Defense:

Congress used similar language in establishing the Department of War, repeatedly referring to the Secretary of that department as a "principal officer," and the chief clerk, who would be "employed" within the Department as the Secretary "shall deem proper," as an "inferior officer." 1 Stat. 49, ch. VII.

To whom would a FISC judge report? Article III judges aren't directed by the Supreme Court or (obviously) the Attorney General or even the President.

Several points.

First: The case you seem to be referring to (which took verifying the quotes to be certain of, because of a few errors you made) is Edmond v. United States, 520 US 651 (1997), addressing the appointment of judges to the Coast Guard Court of Criminal Appeals, and the decision of the court was written by Scalia, J., not Rehnquist, C.J.

Second: Given the fact that the judges of the FISC (and the FISCR) are already judges appointed to other Article III courts by advice and consent (just as was the case with the Emergecy Court of Appeals and the Temporary Emergency Court of Appeals), Edmond, by reference to Weiss, illustrates why it may be unnecessary to inquire as to which appointment procedure under the Appointments Clause is necessary (whether they are "principal" or "inferior" officers), since the members of the court are already appointed under the Appointments Clause before being assigned to the FISC or FISCR:

(Edmond, at 654): In Weiss v. United States, 510 U. S. 163 (1994), we considered whether the assignment of commissioned military officers to serve as military judges without reappointment under the Appointments Clause was constitutional. We held that military trial and appellate judges are officers of the United States and must be appointed pursuant to the Appointments Clause. Id., at 170. We upheld the judicial assignments at issue in Weiss because each of the military judges had been previously appointed by the President as a commissioned military officer, and was serving on active duty under that commission at the time he was assigned to a military court. We noted, however, that "allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a quite different question." Id., at 170, n. 4.

Third: The factors Scalia identified in finding that the members of the Coast Guard Court of Criminal Appeals were inferior officers was not that "the military reports directly to the Secretary of Defense" (as, in any case, the Coast Guard, at the time, reported to the Secretary of Transportation), but rather that oversight of the Coast Guard Court of Criminal Appeals was found in the Judge Advocate General of the Coast Guard, who had certain rulemaking and other administrative authority, and the Court of Appeals for the Armed Forces, which exercises limited review of the decisions of the Coast Guard Court of Criminal Appeals; for the FISC, there is certain (though different than that exervised by the Coast Guard JAG over the Coast Guard court in Edmond) administrative authority vested in the Chief Justice (in part to be exercised in consultation with the Attorney-General and the Director of National Intelligence), and review authority in the FISCR (and, for the FISCR, the same administrative authority, with review authority in the Supreme Court.) However, Scalia also noted that it was important (though not expressly necessary) that this supervision was exercised within the Executive Branch, so application of Edmond to the FISC and FISCR in terms of inferiority seems somewhat murky.

This is great stuff. Thank you for taking the time. Sorry about the Scalia thing; I wrote that comment at 5am and was looking at (and misreading) the Oyez interface, which is wretched.

The two questions it looks like your comment broaches are:

* Is an appointment to the FISC by an appointed Article III judge so different as to approach the difference between a civilian and military appointment? If not, appointment without Senate consent likely passes muster with SCOTUS.

* Are FISC judges in any way supervised in a manner similar to the way that Coast Guard Court of Criminal Appeals judges are supervised by the Judge Advocate General of the Coast Guard? If so, they'd qualify as "inferior officers" regardless of the distinction between Federal circuit courts and the FISC.

I don't know the answer to either question, but my guess is that regarding the former the answer is "yes, the duties of a FISC judge are substantially similar to (in fact a small subset of) the duties of a general Article III judge", and my guess to the latter is "no, the supervisory role Roberts has over the FISC judges isn't meaningful enough to qualify them as inferior officers under Article II".

My guess is that a yes on either question makes it more likely than not that the USG would prevail in arguing that the FISC is an Article III court, though I still think the issue is murky.

The last couple of days have been quite an education on this. Thanks again!

Maybe i'm missing it (i just skimmed it), but where did Megahey's appeal consider whether it was an article III court?

I'm looking at 743 F.2d 59

While not a court case deciding the matter, as of 2008 the Harvard Law Review considered the FISC to be an article III court as well: http://harvardlawreview.org/media/pdf/shifting_the_FISA_para... (page 2).

Is this Lawrence Baum, an OSU professor of judicial politics, saying the opposite?

http://courtslaw.jotwell.com/judicial-specialization-and-the...

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).

> Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court.

Okay, that's a solid legal perspective, but what about a normative perspective here? Is it a good thing that judgements of interpretation are inaccessible to the public?

I think it would be impractical to force every federal agency to put make every legal interpretation public, simply because people wouldn't do it. They'd just avoid putting things down in writing instead. Ultimately, any internal interpretations have to be solidified and put down in writing in any court proceeding. I think that is the backstop against internal interpretations run amok. And it does function as an effective backstop in other areas of government, where every agency action is met by dozens of legal challenges that play out in public courts. The problem with the NSA situation is that the NSA's actions are not subject to regular court challenges, and that's by design. Congress made it that way.

Go back a second here. Of course they are constantly evaluating if they are within the law; so is every other person when filing their goddamn taxes. But legal questions of the magnitude of "do we have the right to collect this data under the constitution" are obviously not decided on the spur of the moment. When the CIA wanted to torture, they asked the DOJ and John Yoo to come up with a piece of paper telling them in lots of legalese that they were allowed to do so.

Obviously these legal interpretations exist, today.

A thread from earlier today that went into some diagnostic depth on this point:

https://news.ycombinator.com/item?id=6008976

This is a process the executive regularly engages in: it asks itself, is this activity legal?

Here the disconnect lies: This activity is a proxy for looking back at the people and asking "is this what you wanted?". The proxy is no longer connected to the people, so the answer is invalid either way.

The FISC court has repeatedly made the wrong decisions. When their decisions have been brought to light, there's been massive public outrage, and an effort on their part to to arrest the "leaker". These are all signs of a corrupt court, that needs to be dissolved.

Public outrage is not prima facie evidence of a wrong decision being made. If public outrage were all that was required then Sunil Tripathi would actually have been guilty of the Boston marathon bombings.

> Public outrage is not prima facie evidence of a wrong decision being made.

For sufficiently large definitions of massive it is indeed prima facie evidence for the simple reason that the government exists to serve the people. If the people disagree with the government's actions then the government is, by definition, wrong.

> If public outrage were all that was required then Sunil Tripathi would actually have been guilty of the Boston marathon bombings.

Since his guilt or innocence is a matter of fact not opinion the analogy is deceptively unhelpful.

> For sufficiently large definitions of massive it is indeed prima facie evidence for the simple reason that the government exists to serve the people. If the people disagree with the government's actions then the government is, by definition, wrong.

What about when a sufficiently large proportion of the population want to hold a minority in concentration camps? Or hold a minority to slavery? Or prevent them from being legally wed to the one they love?

Many bad and wrong things have passed because of mob justice.

> Since his guilt or innocence is a matter of fact not opinion the analogy is deceptively unhelpful.

Since when has public opinion been based on facts alone? All history is one long string of examples of seemingly all sides misleading the public, if not lying outright.

> What about when a sufficiently large proportion of the population want to hold a minority in concentration camps? Or hold a minority to slavery? Or prevent them from being legally wed to the one they love?

Given a sufficiently large proportion of the population there is no amount of structure that can prevent those things. Ultimately all government is mob rule, structure can only withstand certain types and sizes of mobs for so long.

I get that you are now using the word "wrong" as a moral judgment, but even morality is defined by the people themselves.

> Since when has public opinion been based on facts alone?

That's nonsensical. I said opinion does not define fact, your response -- facts alone don't define opinion. At best that's orthogonal to your original erroneous analogy.

> but even morality is defined by the people themselves

Absolutely not, and that mentality is a repeat of one of the most dangerous ideas to have ever been put into practice across history.

Much of our 'progress' has human beings has been advancing past the idea that might (of the mob, or of the authority, or otherwise) alone makes right.

It may be that the people shield you from punishment if you do something wrong, but it is still wrong and will always be wrong, though one can usually be rehabilitated.

>> but even morality is defined by the people themselves

> Absolutely not, and that mentality is a repeat of one of the most dangerous ideas to have ever been put into practice across history.

If not people, then who?

You'll need to ask your favorite philosopher for that. If you end up getting a good answer for it you could acquire fame throughout the world, I would imagine.

For something you consider to be so fundamentally true that's the mother of all cop-outs. Really, really unhelpful.

I'm sorry I couldn't be the one to tell you what you're supposed to think creates morality. Maybe you can go find someone else's philosophy to unthinkingly latch onto?

You emphatically denied that morality is defined by people, but have provided exactly zero support for that idea. Backed into the corner of your own illogic you are now accusing me of being unthinking. Which is odd since all I've done is expect you to support your argument.

This isn't even a case of you and I disagreeing about the importance of certain facts, you made a bald-faced denial without even a shred of an explanation. I was waiting for something like claims about received wisdom, but nada, nothing, zilch.

There was massive public outrage over the civil rights cases of the 50's and 60's, too.

What "massive public outrage?" A pitiful 400 people showed up to the San Francisco "Restore the 4th" protests.

>What "massive public outrage?" A pitiful 400 people showed up to the San Francisco "Restore the 4th" protests.

As far as I could tell, a total of `1' in Seattle. You know in Poker there's a `sucker' in every hand? Out on Westlake Center, Seattle, at noon on the 4th of July, that would be me. At least I left the pitchfork at home.

The only other time I came over to participate in one of these group-hugs, was the Turkish/Egypt-O'clock WTO protest in 1999. That one was different.

`Save the 4th' showed their cards, and NSA took the pot. The people have spoken: "meh".

I disagree that it is that simple. I found out exactly an hour before the Utah NSA Datacenter event was scheduled to happen; not exactly easy to deal with on a national holiday. I also think the Occupy protests (and subsequent police actions) have had a very chilling effect on protests in the US.

Just because people didn't give up their hotdogs to risk getting their heads smashed in doesn't mean there's not outrage.

Agreed. National holidays might not be the best day to hold protests.

Yeah, "protests" seem to largely be an excuse for (... well ...for lack of less insulting terminology with any descriptive power..) "hippie minded" people to get together, bang some drums, and do some homeless camping. Expecting every issue of concern to the public to manifest itself in that way is patently absurd.

Chris, you are exactly right. This court should be dissolved.

Secret legal interpretations become part of the law itself and are tantamount to secret laws. How can we have secret laws? What does that even mean?

Further -- can someone tell me if this is a new thing? Is there any legal precedent to the law itself being secret?

Sure. An analogous application of secret policy working within the framework of a law that delegates huge amounts of authority to the executive would be military strategy. Another would be FBI investigation priorities.

If you remove the "secret" constraint, but keep unilateral authority to do rulemaking without line-item approval by Congress, you can come up with zillions of examples.

I think you're implying that the FISA court's keeping the basis for its legal authority secret is analogous to any independent federal agency making statutes in accordance with its congressionally granted authority. I think the critical difference is that in the run of the mill federal agency case, the source of authority to make rules is clear and a citizen's legal recourse if he or she disagrees is also clear. In this case, one can't sue the federal government for violating the constitution because one doesn't know what's its stated basis for constitutionality is.

It's hard not to conclude that the FISA legal reasoning is secret because it sucks -- it's weak and at best unorthodox. In other words, most people qualified to have an opinion would think its not sound -- i.e., not really legal -- i.e., it's an unlawful power grab. That's one way a democracy might turn into to something entirely different. Really!

Is there the rule of law in the U.S. or not? Are FISA judges subject to the rule of law or do they perhaps garner their authority from a divine source like the Kings of England? Or maybe the chief justice's left testicle? Or is it righty? We can't really tell. And we can't really tell whether we live in a lawful state or not -- because, in this case, it's a secret. Severe coughing fit followed by a mournful sigh.

It seems like if one's answer to the question "what is your legal authority?" is "it's a secret" then you really don't have any legal authority and are deriving your authority from some other source, whether you'd like to admit it or not.

When you interpret law in an expansive manner, allowing the government to spy on people, you create law. It ought to be public. All of it.

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