
Did you know John Roberts is also chief justice of the NSA’s surveillance state? - sethbannon
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/05/did-you-know-john-roberts-is-also-chief-justice-of-the-nsas-surveillance-state/
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pvnick
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.

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speeder
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.

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smsm42
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?

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speeder
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).

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tptacek
_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.

~~~
btilly
_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._

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.

~~~
anigbrowl
_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.

~~~
btilly
His additional responsibilities/powers do not alter the fact that when it
comes to actually deciding cases, his is one vote among 9 equal ones.

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.

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

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

~~~
tptacek
Ezra Klein isn't a columnist for The Atlantic.

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

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smalltalk
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.

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

