Case: In re Various Known and Unknown Agents of [Redacted]

Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain electronic communications. The program was described in the New York Times in December 2005; in response, in 2006, the decision was made to seek FISA Court approval of the surveillance.

In January 2007, FISA Court judge Malcolm Howard had accepted the government's argument that it was authorized to surveil not just a particular phone number or email address but the "gateway or cable head foreign targets used for communications," because terrorists were probably among the millions of people whose communications used that gateway. That matter is discussed here.

On reapplication, the matter was heard by a different FISA Court judge, Judge Roger Vinson. Judge Vinson disagreed with the January ruling, and refused to reauthorize the surveillance unless the government made significant changes to its procedures. Specifically, the judge ruled that the procedural shift to probable cause determinations being made by the Attorney General and the Director of National Intelligence, rather than by the court, was in violation of FISA. According to a 2007 interview of National Intelligence Director Mike McConnell, Judge Vinson said "if it's on a wire and it's foreign in a foreign country, you have to have a warrant."

Rather than flatly denying the government's request for reauthorization, the Judge took into account the difficulty of deciding between terminating all of the previously authorized surveillance and making individual determinations of which surveillance could continue in compliance with FISA , and allowed the government to continue the surveillance until May 31, 2007. If the government had not come forward with procedures acceptable under FISA by that time, he said, the authorization would be denied permanently. Unwilling to comply with Judge Vinson's reading of the requirements of FISA, the government instead pushed for legislative change, and in August 2007 the Protect America Act (PAA) legalized the surveillance in question.

The FISA Court authorized the first surveillance under the PAA in a subsequent application, [Redacted]; FISA Court Authorizing Surveillance Procedures Under Protect America Act.