Did you know John Roberts is also chief justice of the NSA’s surveillance state?

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/05/did-you-know-john-roberts-is-also-chief-justice-of-the-nsas-surveillance-state/

by sethbannon • 13 years ago

255 132 13 years ago

washingtonpost.com

pvnick4• 13 years ago

That's incredible. It's always fascinating to see power centralization in government as it always tends to be abused in favor of expanding government power.

speeder2• 13 years ago

Stuff in the US is worse than I thought then...

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.

smsm424• 13 years ago

Stuff in the US is worse than you thought because Chief Justice of Supreme Court has power to appoint judges on a security review panel? Who should appoint them so that you'd thing the things are better - the President (which is a politician)? The Congress - that created FISC and set the rules of appointment?

speeder2• 13 years ago

the "who" must not be a single person.

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).

tptacek31• 13 years ago

Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state.

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.

bdcravens• 13 years ago

there's nothing they can do except to ensure that the next judges appointed to the courts are more congenial to their views.

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.

smalltalk2• 13 years ago

No. Congress can recall any FISC judge, revoke Roberts authority over FISC at any time or abolish the FISC court entirely.

andrewljohnson2• 13 years ago

Attacking the rhetoric is weak.

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.

tptacek31• 13 years ago

Klein didn't say Roberts had a lot of power (clearly he does; he's the Chief Justice of the US Supreme Court). He said he had exclusive, unaccountable, lifetime power to shape the surveillance state. He has none of those three kinds of power over the shape of the surveillance state. Not one of those words was correct. I'm not nitpicking; Klein is directly, overtly wrong. The quote I chose there? It's the lede of the article.

smsm424• 13 years ago

>> He can and does appoint judges from his own party and ideology

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.

DanielBMarkham• 13 years ago

Yes, absolutely correct.

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]

gasull2• 13 years ago

The key of the article:

“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:

http://www.wired.com/dangerroom/2011/05/secret-patriot-act/

tptacek31• 13 years ago

I am certain that federal agencies have all sorts of whacked out "secret" interpretations of the laws of Congress. They get to do that because Congress passes janky laws that deliberately delegate authority to the agencies to come up with the specific line item regulations that animate the laws.

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.

jamieb2• 13 years ago

Seems perfectly accurate to me. You seem to be quibbling over "lifetime" and "power to shape" while at the same time getting bogged down with legal issues. I find this strange since you have a reputation for being good at security, so it seems odd that you are missing what is effectively a social engineering attack on our legal code base. Everything you said makes sense from a legal point of view, and yet, this shit is clearly 100% unconstitutional. How can that happen? Because one pro-police-state judge and his hegemony have everyone buying into the narrative.

"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.

tptacek31• 13 years ago

Yes, I'm quibbling over "lifetime" when the power he has isn't lifetime, "exclusive" when it's a power delegated to him by the discretion of Congress, and "unaccountable" when his role is as an instrument of Congress. Congress cannot effectively recall Roberts from the Supreme Court, but the same majority of Congress that could pass a national fuel standard law could remove Roberts from the FISC.

smsm424• 13 years ago

FISC can not call senators and ask them for anything. NSA has to call FISC and ask them if it is legal, if they confirm, NSA can proceed. FISC has no power over senators - if any senator decides something is wrong with surveillance, he can initiate a bill that says you need more approval than FISC or you can't do certain things at all - FISC only confirms that NSA is acting withing the limits that the senators (and the House of course) set the last time. FISC can not create rules - unlike SC, btw, that to a large measure can interfere with the rules, even though Roberts seem to be rather restrained from doing this in many cases where he had a possibility to do so (see Obamacare decision, for example). FISC can only say if NSA follows the rules - and it is the senator that makes the rules.

kevinalexbrown• 13 years ago

I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating.

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.

tptacek31• 13 years ago

Thanks! Consider this: Congress could next week pass a law requiring Roberts to appoint an equal number of judges appointed by Democratic administrations as by Republican administrations. Roberts could do nothing to stop them.

rayiner3• 13 years ago

I'm willing to forgive Ezra his hyperbole here; the rest of the article was fairly illuminating

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.

cpleppert5• 13 years ago

>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.

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.

tptacek31• 13 years ago

Article III courts can't be abolished by Congress. US v Cavanagh doesn't unequivocally say that FISC is an Article III court, but rather only that federal judges don't contravene Article III (and thus separation of powers) merely by sitting on the FISC.

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.

btilly3• 13 years ago

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.

baddox3• 13 years ago

through reasoning that is published for the world to see and analyze. (Which many do. In great detail.)

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)?

Jach• 13 years ago

I'd also say his supreme court position is not necessarily lifetime. A supreme court judge could conceivably be impeached and removed by Congress, with the executive branch providing the muscle to hall them out of their chairs.

anigbrowl7• 13 years ago

Not exclusive because 8 other justices have equivalent authority on that ground.

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.

baddox3• 13 years ago

Congress could probably ban all foreign surveillance (that might create a Constitutional crisis, since foreign spying is a war power allocated to the Executive).

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.

tptacek31• 13 years ago

No, Congress has the exclusive power to declare war. That's it.

ScottBurson2• 13 years ago

The problem I have with your post is that I think Klein is pointing up a real problem with the current structure, and you're quibbling that he didn't prefix his claim with "Unless and until Congress changes this, ...". Given that the ultimate point of writing the essay was surely to get Congress to change it, I find your objection puzzlingly off target, to the point of derailing the discussion.

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.

DannyBee2• 13 years ago

" 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"

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.

http://www.law.cornell.edu/uscode/text/28/1

tptacek31• 13 years ago

I defer to you on this stuff, but my current sense is that Congress packing the Supreme Court is approximately as likely as Congress impeaching a Supreme Court justice.

Zelphyr• 13 years ago

Am I the only one who thinks he reduced the efficacy of his argument significantly by quoting Kanye West?

forgottenpass• 13 years ago

Wonkblog posts things are incredibly flippant coming from the Washington Post [1] but they're also high quality when it comes to substantive matters so I as long as its unambiguous which things are said in jest I don't really care. Ultimately its not going to effect the quality of work, either Ezra shares a joke with the office or shares it with the world.

[1] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/02/h...

Apocryphon• 13 years ago

Ezra Klein is a columnist for The Atlantic. They're all about mixing progressive intelligentsia commentary with sly pop culture hipster references.

tptacek31• 13 years ago

Ezra Klein isn't a columnist for The Atlantic.

smalltalk2• 13 years ago

Let's try to remember that Roberts is appointing individuals from the existing set of federal judges -- i.e., people who have already been appointed by the President of the United States and confirmed by the United States Senate as judges.

Buzaga• 13 years ago

Well, that's fucked up. Not much else to say.

brisance• 13 years ago

Can someone please give a reasonable explanation as to why a secret court needs to exist in the first place?

Did you know John Roberts is also chief justice of the NSA’s surveillance state?

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