• In Secret, [ FISA ] Court Vastly Broadens Powers of N.S.A. - NYTimes.com

    La « Foreign Intelligence Surveillance Court » est pratiquement devenue une « Cour Suprême parallèle »,

    The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

    une cour qui a décidé que dans de nombreux cas le quatrième amendement ne peut s’appliquer,

    Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

    “We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

    In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

    The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

    une cour qui a une interprétation très étendue de ses prérogatives...

    That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

    ... notamment une interprétation très étendue de ce qui relève de l’étranger,

    “The definition of ‘foreign intelligence’ is very broad,” another former intelligence official said in an interview. “An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that.”

    une cour qui n’auditionne que l’accusation (ce qui ressemble fortement aux frappes de drones basées sur le comportement- « signature strike »-, la victime pouvant être innocentée à titre posthume)

    Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

    une cour qui a été créée a l’origine pour surveiller les abus du gouvernement en matière d’écoute...

    Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington.

    ... mais qui ne refuse jamais rien à la NSA,

    None of the requests from the intelligence agencies was denied, according to the court.

    une cour qui s’insurge qu’on dise d’elle qu’elle n’est pas une cour mais une simple couverture...

    The FISA judges have bristled at criticism that they are a rubber stamp for the government, occasionally speaking out to say they apply rigor in their scrutiny of government requests.

    • US must fix secret Fisa courts, says top judge who granted surveillance orders | Law | guardian.co.uk

      James Robertson, who retired from the District of Columbia circuit in 2010, was one of a select group of judges who presided over the so-called Fisa courts, set up under the Foreign Intelligence Surveillance Act, which are intended to provide legal oversight and protect against unnecessary privacy intrusions.

      But he says he was shocked to hear of recent changes to allow more sweeping authorisations of programmes such as the gathering of US phone records, and called for a reform of the system to allow counter-arguments to be heard.

      Speaking as a witness during the first public hearings into the Snowden revelations, Judge Robertson said that without an adversarial debate the courts should not be expected to create a secret body of law that authorised such broad surveillance programmes.

      A judge has to hear both sides of a case before deciding ,” he told members of a Privacy and Civil Liberties Oversight Board (PCLOB) recently appointed by President Obama.

      “What Fisa does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the Fisa court into administrative agency making rules for others to follow.”

      “It is not the bailiwick of judges to make policy,” he added.

      The comments, during the morning session of a PCLOB public workshop held in a Washington hotel, are the most serious criticism yet from a recently serving Fisa judge.

      Until now, Fisa judges have mainly spoken anonymously to defend the court process.

    • The Laws You Can’t See - NYTimes.com

      In the month since a national security contractor leaked classified documents revealing a vast sweep of Americans’ phone records by the federal government, people across the country have disagreed about the extent to which our expectation of personal privacy must yield to the demands of national security.

      Under normal circumstances, this could be a healthy, informed debate on a matter of overwhelming importance — the debate President Obama said he welcomed in the days after the revelations of the surveillance programs.

      But this is a debate in which almost none of us know what we’re talking about.


      When judicial secrecy is coupled with a one-sided presentation of the issues, the result is a court whose reach is expanding far beyond its original mandate and without any substantive check. This is a perversion of the American justice system, (...).


      This court has morphed into an odd hybrid that seems to exist outside the justice system, even as its power grows in ways that we can’t see.