Howlin, that article refers to In Re: Sealed Case, which is a very important chapter in this overall story.
As of the date of the opinion, one of the primary proponents in DOJ of "The Wall" had moved to the FISA Court to become its legal advisor.
The government took the position in that case that the Wall was an erroneous reading of FISA even before the Patriot Act, and the Court agreed. Moreover, a specific purpose of the Patriot Act was to eliminate the Wall as a barrier between foreign intelligence and criminal law enforcement.
Nevertheless, *after* we had been attacked, and *after* the Patriot Act had been passed, the FISA Court, on its own, adopted a set of regulations that effetively rebuilt the wall.
The FISA Court of Review administered a severe smack down in this opinion, holding that the lower court's rules rebuilding the wall were dead wrong.
Now we come to find out that they have again imposed a unilateral requirement that none of the NSA Surveillance take can be used to support a FISA warrant application. This is another misread of the law.
As for our pals at the ABA, they are taking the position that under the AUMF we can kill al Qaeda, we just can't listen to their phone calls.
I don't see that as the same degree of incursion into the executive, as "the wall" (a creation of the executive to begin with, adopted by the court) was.
The court is attempting to protect its independence by not bootstrapping a search of unknown "pedigree" and "constitutionality" into a FISA warrant. If that sort of process is adopted, the government could conduct any search it wanted, without a warrant (not saying it is, BTW), then when it learns of any criminal intent thereby, could get a court to issue a warrant. From whence came the probable cause? Never mind that.
Given the small number of likely cases, I think the administration can afford to have the NSA terrorist surveillance cases handled one-by-one as they come up in court. There is a risk however, that the courts would post-facto invalidate the evidence or share it with the accused. I believe that that risk is what motivates Congress, the Courts and the administration to work together NOW, to insure that use of the information in the future is effective against the threat.