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.
>Granting warrants isn't an adversarial process in any U.S. court, neither are similar things like grand jury subpoenas.
The distinguishing factor is that normal court decisions and the outcome of grand jury proceedings are generally published for review by the public. If the court is too consistently siding with the government as a result of inherent bias in the process then people can get upset about it and try to change the law to modify the circumstances under which that can happen. A secret one-sided proceeding is legitimately different in character because it has yet one fewer safeguard against abuses of power, which makes the lack of opposing arguments more significant than it is when the outcomes are public.
There is none of that with the FISC. If the court makes a bad ruling, nobody is ever officially supposed to know, the government just starts hoovering up the data of American citizens under cover of darkness and anybody who brings this to the attention of the voting public will be accused of treason and then have their passport revoked and be stranded in a Russian airport.
I think you're reading a stronger argument into the original article than is present. He's not arguing that Roberts is constitutionally guaranteed this power, or anything of the sort. Just that under current law, he has this power, and under current law, it's a lifetime appointment since the position that grants such power, Chief Justice of the Supreme Court, is also a lifetime appointment.
Journalists who write on legal topics have an ethical obligation to provide proper context to their readers, few of whom have any legal training. Frankly, I think that journalists ought to have a JD themselves before covering these topics, in much the same way tht science journalists ought to have a BS.
If your argument is that Klein is wrong because the very rules of the game could be changed by congress, then we have to consider the likelihood of such an event, probably based upon history.
Has Congress intervened since the court was set up? Are they likely to?
Could we just agree within the current rules of the game specified by Congress, Klein is correct?
No, we cannot agree that Klein is correct. The gist of what he's saying is as wrong as the lede of his article.
1. They have a great deal of trouble doing anything right now. This will blow over before that changes. 2. This is pretty much a solved problem as far as they're concerned. Congress tends to tack "solutions" on top of "solutions". They rarely refactor.
gist of what he's saying is as wrong
Unless Congress changes things, what he said is exactly correct. Within that context, he's right. Maybe you're arguing that he has the wrong context, but I'd argue that we should probably assume that congress isn't going to change those particular rules of the game at this point.
Lack of simplicity in law is a serious problem, but not the main one, at least in this case. The problem is that laws increase the arbitrary powers of government, and rarely if every restrict them.
In most cases, such as the patriot act, they will simply find that vaguest provision and interpret it in the broadest way possible, And, in this case, that interpretation is also secret. The rest of the text is basically filler.
In which case Congress would not pass anything he wouldn't really like (except at the level of personal politics).
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.