News for hackers. Stuff that matters.

A comment on Secret government: America against democracy. Parent comment

Re:Secret government: America against democracy by tptacek on Tuesday July 09, 2013 @10:25PM (#6017084)
I actually agree with you about the appointment issue --- in the sense that my guess is that FISC court appointment procedures mean it isn't an Article III court. But a couple problems with that for this line of argument:

* There are Article I courts; Congress is empowered to create tribunals for which the Article III appointment rules don't apply. Since the FISC is adjudicating policies that Congress is already empowered to legislate (the Constitution being as silent on foreign surveillance as it is on the makeup of the Air Force), not adhering to Article III doesn't automatically make the FISC unconstitutional.

* In trying to pursue my leg of this argument over the past couple days, I've been pretty well slapped down on the idea that appointment issues damage the Article III standing of the FISC:

https://news.ycombinator.com/item?id=6010406

[ Parent | on HN ]
Re:Secret government: America against democracy by glesica on Tuesday July 09, 2013 @11:38PM (#6017314)
I'm not really interested in whether the FISC is constitutional or not. My objection is that you appeared to discount the popular outrage over the FISC. This is actually one of the reasons I didn't go to law school, I'm much more concerned with whether something is good, sound policy than whether it is technically constitutional or not. Just as "legal" and "moral" or "right" are different beasts, so too are "constitutional" and "smart" or "justified".

edit: didn't realize you were the GP :)

[ Parent | on HN ]
Re:Secret government: America against democracy by Uchikoma on Wednesday July 10, 2013 @12:35AM (#6017466)
"not adhering to Article III doesn't automatically make the FISC unconstitutional." nice try with a straw man attack.
[ Parent | on HN ]
Re:Secret government: America against democracy by tptacek on Wednesday July 10, 2013 @12:43AM (#6017491)
I am not smart enough to understand what this objection means. A stab at a response: perhaps you're not aware that there are Article I courts as well as Article III courts.
[ Parent | on HN ]
Re:Secret government: America against democracy by Uchikoma on Wednesday July 10, 2013 @06:55AM (#6018591)
No one talked about unconstitutional. You raised the argument and then shot it down.
[ Parent | on HN ]