The FISA court of 11 judges is appointed by the Chief Justice of the United States. [2] It absolutely is an Article III court. The ACLU has even acquired its rules [3].

The fact this is the top comment without citation is troubling. Please don't encourage these sort of claims without at least a cursory glance at the documents governing these institutions.

[1] http://www.law.cornell.edu/constitution/articleiii [2] http://www.law.cornell.edu/uscode/text/50/1803 [3] http://www.aclu.org/patriot_foia/2003/court_rules.pdf

I don't think membership consisting of judges who would otherwise preside over Article III courts necessarily makes FISC an Article III court, and judges appointed by the Chief Justice actually suggest the opposite.

There's an article at the Yale Law Review that criticizes FISC for not being a regular Article III court.

It is very easy to get caught up in examining the mechanism itself as a way of stamping out the abuse of the mechanism. As much as I dislike what the court represents, I can't fully qualify its dissolution.

In 50 USC § 1803 (b) it specifically states the Supreme Court has jurisdiction over the decisions. The Title itself is designed for expediency and proximity - something its "parent" court isn't designed for.

I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though.

Perhaps not. However, my original challenge to rayiner's comment has produced far more meaningful and mostly-cited comments. Could it have been less inflammatory? Absolutely. Would it have produced this discussion if it had been? Uncertain.

The original comment did not add any value to the post. I have never read Orrin Kerr's writings and both of you citing him caused me to do so.

Perhaps citing Kerr in the original comment, as he has well regarded opinions on the subject, would have been additive as I assume rayiner intended to be.

After all, if we don't challenge for citation and additional information, what are we doing here?

That said, I don't think Glidden v. Zdanok unarguably supports the idea that FISC is an Article III court (though Kerr doesn't claim it does), just because it is composed of article III judges. Glidden is actually about the opposite question: whether the judges were article III judges based on whether the Court of Claims and the Court of Customs and Patent Appeals were article III courts. And most of the analysis of Glidden focuses on things like the courts' ability to hear justiciable cases and controversies and to exercise the Article III judicial power. Under these criteria, you cannot call the FISC an Article III court because it can't even hear any cases and controversies, nor can it exercise the essence of article III judicial power (the power to render binding, final judgments with regards to matters affecting life, liberty, and property).

So I would personally call the FISC an Article I court staffed by Article III judges sitting by designation. But I worry it would be an idiosyncratic use of the term. In any case, whatever you call it, it is clearly not empowered to exercise even a substantial amount of the Article III power, which is the substance of my point. It can't put you in jail or take your property.

Obama said yesterday,

"On this telephone program, you've got a federal court with independent federal judges overseeing the entire program," the president continued. "And you've got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee, but all of Congress had available to it before the last reauthorization exactly how this program works."

This is slippery and brings to light a problem with FISC. Its judges are independent, but the process is not. The FISA process (necessarily!) begins with the premise that NSA has a Constitutionally unchecked authority to conduct foreign surveillance.

I think this would be fine, were it not for the fact that NSA seems to be transitioning from a role that was principally involved in nation-state intelligence to a role that is inextricably bound up with law enforcement. You can see the problem when Mueller starts talking about what it would take for FBI people to dig deeper into NSA work product. The FBI shouldn't have access to NSA product to begin with.

Any organization will act to grow its responsibilities and thus its resources. The USA has no real enemies anymore, and yet these agencies keep growing. Organizations will grow until they encounter some sort of limit.

Is the problem that those who would previously have overseen these agencies and curbed the over-extension you cite no longer want that oversight role, or that they are no longer capable of that oversight role? Barrack Obama talked on the phone all his life just like all other Americans do. His predecessors were the same. What kind of President would be able to cut the NSA budget?

But we do have an unmistakable and terrifically serious security problem: proliferation. We spent decades in an arms race with a foreign power that built an arsenal that could end the world several times over. When we won, they disintegrated. Meanwhile, the technology to duplicate atomic weapons technology that we had in the 1950s is improving.

There isn't a lot of foreign surveillance I can imagine having a problem with allocating to the problem of nuclear proliferation.

This would be an excellent priority for our intelligence agencies. Do any of the practices revealed recently seem designed to address that priority? An adversary capable of obtaining, maintaining, and deploying nuclear weapons would probably be capable of secure communications even in the face of PRISM, whether here or overseas. The most likely vector would be something like a submarine or a well-shielded shipping container, but if the plan did require agents in this country I doubt those would be discussing their plans on Facebook or over the phone.

The set of skills required to carry out an atomic attack and the set of skills required to evade surveillance by NSA are disjoint and seem unlikely to get more correlated. But that's just speculation on my part.

My only point here was that "terrorism" isn't the only threat that NSA is tasked with dealing with.

https://www.eff.org/deeplinks/2013/06/public-first-secret-co...

"For the foregoing reasons, EFF's motion is granted in part. The Court holds that FISC Rule 62 does not have the effect of sealing copies of the Opinion in the Government's possession and that the Court has not otherwise prohibited the Government's disclosure of such copies in response to the EFF's FOIA request. This Court expresses no opinion on the other issues presented in the FOIA litigation, including whether the Opinion is ultimately subject to disclosure under FOIA. Such questions are appropriately addressed by the District Court in the FOIA litigation."

Under the FISA law, a FISA warrant may be issued against US citizens if they are believed to be engaged in or preparing for acts of international terrorism or sabotage. Those warrants are beyond the power of the President.

Furthermore anyone at all, US citizen or not, under suspicion or not, may receive a FISA subpoena if the government claims that it furthers an investigation. That goes WAY beyond any authority that the executive is supposed to have.

http://hotair.com/archives/2013/06/18/is-there-a-leak-at-the...

"Remember, in a FISA court, there is no equivalent of a defense attorney speaking on behalf of the person being investigated. It is not an adversarial court. Nobody speaks for you, Joe Citizen. The government makes its case, and the judge either says, “okay,” or “no, I’m not convinced.”"

- Since the start of the War on Terror more than 11 years ago, the court has denied just 10 applications, and modified several dozen, while approving more than 15,000.

I'm unsure whether they have the ability to remotely search my hard drive, but when you pair the existence of exploits with what appears to be widespread surveillance, I believe that the government feels that it MAY, should it ever have the capability to do it.

edit: Yes, I think they CAN remotely search your hard drive. Whether it's by installing malware over the network or by a team of experts who physically breach your security doesn't matter quite as much, other than in terms of scale.

More importantly, if the government CAN do it, you have little redress as a citizen. You can't sue them unless you can prove it happened, and even then they will argue with the power of infinite lawyers and money that it's legal anyway when the government does it.

Aren't all warrants beyond the power of the President? Isn't that the point of warrants in the first place?

However, when someone says "article III court" they are usually referring to: the Supreme Court, the U.S. Courts of Appeal, and the U.S. District Courts, as these are the only courts that can exercise the full judicial power of the United States. In that sense the FISA court is not a regular Article III court, because it has a circumscribed set of powers.

In any case, my point is that a "secret court" sounds scary, and a secret court with full Article III powers would be very scary. But the FISA court is not such a court.