See my correction above. I wouldn't say I'm "wildly misinformed" (the definition of "Article III court" isn't bright and clear, and Orin Kerr couches his opinion that the FISA court is an article III court in a "I would think") but it's probably most accurate to describe the FISA court as an article III court, albeit one that can't exercise any of the powers that would make a secret article III court scary.
I think most people would call the FISC an Article III court just based on the fact that historically the focus of "Article III-ness" has been on the independence of the judges, as a result of the Article III guarantees of lifetime tenure and non-diminishment of pay during service. At least one court of appeals has rejected the argument that the FISC judges are not article III judges because they serve limited appointments, because they are nonetheless U.S. district judges: https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85....
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.
It's also not adversarial; the government has substantial advantages at FISC that Google doesn't have. Which supports the notion that FISC wasn't conceived of as a regular Article III court, but rather as a different kind of check; more of a review board than a court.
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.
...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.
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?
I think reasonable people can debate whether foreign terrorist cells are a real enemy. In the context of NSA surveillance I tend to think "yes", but in the context of airport security I tend to think "no", so it's fair to say I'm ambivalent about terrorism.
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.
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.
Yes; the FAA 702 extensions that were passed a few years ago specifically mentioned terrorism, proliferation, and espionage.
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.
Right, that's precisely my greatest concern. It's one thing to have a limited secret court overseeing executive authority. It's another to imply that it's an independent federal court (note: he said it was a federal court with independent judges, not an independent court).
How instructive is it that the EFF was able to file a brief with the FISC and be granted a motion on a federal lawsuit? That seems pretty similar to the powers of a typical federal court. Note: I'm no lawyer and did not stay at a holiday inn last night.
The EFF's actual FOIA lawsuit is filed in the U.S. District Court for District of Columbia. You can read the FISC court's opinion to get an idea of what powers it things it has with respect to that ongoing litigation (http://www.uscourts.gov/uscourts/courts/fisc/misc-13-01-opin...). The relevant part is at the end:
"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."
