FISCR embraced three reasons to carve out a foreign intelligence exception: when (a) the purpose of surveillance went beyond "garden-variety" law enforcement; (b) the government's interest was "particularly intense"; and (c) there was a "high degree of probability that requiring a warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake.
593) Applied to the PAA, FISCR found in In re Directives that the procedures incorporated via Executive Order 12,333, Section 2.
FISCR was the first court to hold in the intervening years that a foreign intelligence exception exists overseas.
In In re Directives, FISCR looked back at its decision in In re Sealed Case to confirm "the existence of a foreign intelligence exception to the warrant requirement.
292) Similarly, in a 2002 per curiam opinion, FISCR suggested the case raised "important questions of statutory interpretation, and constitutionality" and concluded "that FISA, as amended by the Patriot Act, supports the government's position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution.
295) FISCR, in turn, is comprised of judges selected by the Chief Justice.
Over the past decade, of the twenty judges appointed to FISC and FISCR, only three have been Democratic nominees.
According to the public record, FISCR, for instance, has only met twice: once in 2002 and once in 2008.
The FISCR panel that appears to have created a foreign intelligence exception to the Fourth Amendment warrant requirement lacked a diverse political base.