In the 20 years preceding the attack of 9/11, the FISA court did not modify -- much less reject -- one single warrant request. But starting in 2001, the judges "modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration." In the years 2003 and 2004, the court issued 173 "substantive modifications" to warrant requests and rejected or "deferred" six warrant requests outright.
The history of applications modified has an interesting pattern that hasn't been explained, but I suspect is related to the "In re: Sealed Case" ruling by the FISA review court, and not to 9/11/2001 as the article leads the reader.
FISA Court reports pursuant to 50 USC 1807
Year Applied Granted Denied Modified
1997 749 748 1* 0
1998 796 796 0 0
1999 886 880 0 0
2000 1,005 1,012 0 2
2001 932 934 0 2
2002 1,228 1,228 0 2
2003 1,727 1,724 4 79
2004 1,758 1,754 0 94
* 1997: In one case, although satisfied as to the probable cause to believe the target to be an agent of a foreign power, the court declined to approve the application as plead for other reasons, and gave the government leave to amend the application. The government has filed a motion to withdraw that case as it has become moot.
The reports give little hint relating to the nature of the modifications, but obviously (based on the number of rejections), whatever modifications the Court demanded were taken by the investigator/requester.
As for why to avoid going to the FISA court for warrants, I can think of a few reasons. The investigators may find that the modification requests are unreasonable; the time delay to obtain a warrant, especially a "negotiated/modified" one, does not admit timely investigation; the manpower of the investigatory arm is insufficient to pursue both, correct paperwork and investigations; the number of targets is increased radically beyond the 1,700 or so reflected in the reports, and the investigator does not want to tip off the terrorists (or the public) by showing a radical increase in the numbers reported to Congress.
FISA Court reports pursuant to 50 USC 1807
Year Applied Granted Denied Modified
1979 199 207 0 0
1980 319 322 0 1*
1981 431 433 0 0
1982 473 475 0 0
1983 549 549 0 0
1984 635 635 0 0
1985 587 587 0 0
1986 573 573 0 0
1987 512 512 0 0
1988 534 534 0 0
1989 546 546 0 0
1990 595 595 0 0
1991 593 593 0 0
1992 484 484 0 0
1993 509 509 0 0
1994 576 576 0 0
1995 697 697 0 0
1996 839 839 0 0
1997 749 748 1* 0
1998 796 796 0 0
1999 886 880 0 0
2000 1,005 1,012 0 1
2001 932 934 0 2
2002 1,228 1,228 0 2
2003 1,727 1,724 4* 79
2004 1,758 1,754 0 94
* 1980: No orders were entered which modified or denied the requested authority, except one case in which the Court modified an order and authorized an activity for which court authority had not been requested.http://www.fas.org/irp/agency/doj/fisa/1980rept.html
* 1997: In one case, although satisfied as to the probable cause to believe the target to be an agent of a foreign power, the court declined to approve the application as plead for other reasons, and gave the government leave to amend the application. The government has filed a motion to withdraw that case as it has become moot.
http://www.fas.org/irp/agency/doj/fisa/1997rept.html
* 2003: Of the four applications thatteh Court denied, two merit additional discussion:
(1) In one case, the Court issued supplemental orders with respect to its denial, and the Government filed with the Court a motion for reconsideration of its rulings. The Court subsequently vacated its earlier orders and granted in part and denied in part the Government's motion for reconsideration. The Government has not yet appealed that ruling. In 2004, the Court approved a revised application regarding this target that incorporated modifications consistent with the Court's prior order with respect to the motion for reconsideration.(2) In another case, the Court initially denied the application without prejudice. The Government presented amended orders to the Court later the same day, which the Court approved. Because the court eventually approved this application, it is in the 1724 total referenced above.
I wish Ann or some other high profile conservative writer would do a detailed story about what it really takes to get a FISA warrant. A guy who is now retired, used to do it and was on Rush's show last week and it blew my mind when he explained how difficult and time consuming the entire process is. Seventy-two hours, my @ss! That's just more false democrat talking points when it comes to the reality.