Not really though. Once the executive branch makes the proper application, the court must take it at its word as far as I can tell. The AG says there's probable cause, then that's the end of it as far as the court's concerned. The link you gave is good reading, but I think it deals with different FISA sections, not 1861/215.
It's not clear to me either whether the judge investigates the determination of "probable cause" or must accept the AG's written word.
If the AG's determination of probable cause is provided to the judge he certainly would review it, but it is not required that the reasons be given to him.
So a judge may not be determining the "probable cause" ( but still it is required by the EO, even if it's up to the AG).
The opinion I linked to is not about this specific section.
But it is about FISA and shows the reasoning behind the much-misunderstood "probable cause" standard in FISA cases.
It is clear from that opinion that FISA evidence that was gathered without probable cause that the subject was an agent of a foreign power would not be constitutional.
I assume that is why the requirement is in the E.O.- so it could be used at trial.
I would like the Act to be clear that the judge reviews the "probable cause" determination- or to be given good reasons why not.
BTW: The DOJ letter to the House was ambivalent, or worse, on this:
"B. Before such an order can be sought, do the guidelines require that the FBI have already established probable cause that a person under investigation is an agent of a foreign power? What is the Department’s definition of “probable cause” and how has it changed since September 11, 2001?
Answer: The Department does not have the authority to define “probable cause”; it is a statutory and constitutional term. Except where a statute has been amended, the term has not changed meaning since September 11, 2001. Section 215 of the USA PATRIOT Act (Act) added the current version of 50 U.S.C. § 1861 to the Foreign Intelligence Surveillance Act (FISA). In order to obtain business records, section 1861(b)(2) requires the Department to demonstrate to the Foreign Intelligence Surveillance Court (FISC) that the records are sought “for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
The [Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations] do not impose a probable cause requirement over and above the requirements Congress set forth in the statute..."
The first part is reassuring, but the second is certainly not.
And the rest is even less reassuring to me, at least about the "probable cause" standard.
"Congress did not authorize a new innovation with section 215. Grand juries investigating ordinary crimes traditionally have had the power to issue subpoenas to all manner of businesses, including libraries and bookstores. For example, in the so-called Unabomber investigation of the mid-1990s, federal grand juries subpoenaed library records at Brigham Young University, the University of Utah, Northwestern University, the University of California, the University of Montana, and the Missoula County Library in order to determine who had checked out the four books cited in the “Unabomber Manifesto.” Section 215 simply provided that this investigative tool is also available for foreign intelligence and terrorism investigations.
Importantly, section 215 of the USA PATRIOT Act imposes more restrictions on its use than a federal grand jury subpoena for the same records. First, a court must explicitly authorize the use of section 215 to obtain business records. By contrast, a grand jury subpoena is issued on the authority of the district court and clerk of the court but without any prior judicial review or approval. Second, section 215 contains explicit safeguards for activities protected by the First Amendment, unlike federal grand jury subpoenas. And, third, as noted above, section 215 requires, for an investigation relating to a U.S. person, that the information be sought in an investigation to protect against international terrorism or clandestine intelligence activities. By contrast, a federal grand jury can obtain business records whenever such records are relevant to a grand jury investigation of any federal crime. See generally United States v. R. Enterprises., Inc., 498 U.S. 492 (1991)."