> You are correct in the first instance, however, the law does direct FISC to transmit records to SCOTUS upon writ of certiorari.
Unless I'm missing something, it directs FISC to transmit records under seal to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals, and FISCR to do so to SCOTUS.
> So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b)
1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to SCOTUS, only provides for appeal by the government against denial of a warrant.
No, because of the other sections (50 USC 1881(a), 50 USC 1861(f)) that allow for party review to FISCR, then they also allow you to get to SCOTUS from there.
So it depends on what FISC did :)
I agree that it appears that in the case FISA has authorized something that requires no outside help (IE the government is using government resources), you theoretically have no recourse until they use it against you and you challenge it.
However, the question was about Yahoo/et all, which don't fall under this provision.
They fall under others, where they are ordering production or interception by someone else.
For example, 50 USC 1861(f) says "on petition by the Government or any person receiving such order for writ of certiorari"
In general, Congress can't keep a federal question in an article III court from eventually being appealed to SCOTUS.
To the degree they have, it would likely be held unconstitutional.
While Congress is certainly welcome to add to the supreme court's appellate jurisdiction, it's pretty well established that even though the constitution's literal text technically allows congress to remove appellate jurisdiction from the supreme court, doing such a thing is often unconstitutional if it leaves no remedy anywhere.
The literal text being:
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States ...
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Congress could, theoretically, remove the supreme court's appellate jurisdiction for everything. In practice, the supreme court has held this unconstitutional, under things like Justice Story's theory doing so would violate the Constitution's mandatory grant of jurisdiction over such claims to the judiciary as a whole.
IE the part that says "the judicial power shall extend to all cases"
> No, because of the other sections (50 USC 1881(a), 50 USC 1861(f)) that allow for party review to FISCR, then you can get to SCOTUS from there.
To the extent that's true, the appeal provisions from FISCR to SCOTUS are also in those sections (or closer to them), not in 1803(b), which is a nonsequitur in any situation other than the government appeal of a denial of a warrant.
> In general, Congress can't keep a federal question in an article III court from eventually being appealed to SCOTUS.
Not true; Congress can -- and has -- removed questions within the Article III domain of the judiciary from the appellate jurisdiction of the Supreme Court, it only cannot do so for those questions expressly within the Constitutionally-defined original jursidiction of the Supreme Court. It has even done so with regard to specific cases already being heard in the court.
"To the extent that's true, the appeal provisions from FISCR to SCOTUS are also in those sections (or closer to them), not in 1803(b), which is a nonsequitur in any situation other than the government appeal of a denial of a warrant."
The original question was not about denial of warrants, but about FISC rulings and their appealability.
As I pointed out, there are plenty of cases where you can appeal FISC rulings to SCOTUS.
You had said it was not possible.
I agree the statute does not provide a path to appeal certain types of warrants to SCOTUS, I was skimming 1803(b) and not carefully enough.
However, FISC does rule on more than that, and in the cases most folks have cared about (Verizon, Yahoo, etc), they were rulings that could have been appealed to SCOTUS under the sections I provided
Unless I'm missing something, it directs FISC to transmit records under seal to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals, and FISCR to do so to SCOTUS.
> So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b)
1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to SCOTUS, only provides for appeal by the government against denial of a warrant.