"This means that
about 99.7 percent of warrant requests have been approved in the 36 years since FISAs inception. The last time a warrant was rejected was in 2009, when two requests were rejected and 1,320 were approved."
FISA Surveillance Requests Are Almost Never Rejected
"A few words in response to the many people who have pointed out to me the government's win-loss rate in the FISA Court.
The government's rate of success in getting normal Title III criminal wiretaps and normal old search warrants is also very high. When there's a known standard and a great deal of experience meeting it, a litigant knows what it needs to do and when it's there.
The win-loss rate in the FISA context is, in addition, a little deceptive, because FISC practice is, when an application is deficient to identify the defects and allow the application to be revised and resubmitted. This is an informal but long-standing practice.
This happens both with the FISA judges and also with the court's staff attorneys who help the judges. So the finished FISA application should really be understoodat least sometimesas an iterative back and forth not just between the FBI and the DOJ NSD, but also between NSD and the court. This isn't necessary in the simple cases, but it is relatively routine. And it warps the win-loss ratio making it seem like the court is far more of a rubber stamp than it really is.
FISA applications do not generally become public but there are two bodies of evidenceother than the descriptions of the process by participantsthat give a window into its rigor.
One is the declassified litigations that took place before the court over errors on the government's part in both the 215 and 702 programs. Only someone with real ideological blinders can read those documents and fail to see a serious judicial oversight process. The second, and more directly relevant, case is the many instances of specific FISA surveillances that have faced federal court challenge when their fruits have ended up in criminal proceedings.
This doesn't
happen all that often, but it does happen, and the cases have added up over the nearly 40 years of FISA's life. Many cases have been reviewed by both federal district courts and federal courts of appeals. There is not a single case in which a subsequent reviewing court has found a FISA wiretap or physical search application defective. That should tell you a lot about the integrity of the underlying processes. Yes, I know that publications like "the intercept" have written stories alleging that lots of FISA surveillance is unjustified. That's as easy for a journalist to write as it is for Paul Manafort to declare his (apparent) monitoring political.
There simply is no history of FISA warrants being subsequently found illegal. Finally, the Administrative Office of the US Courts now reports the number of FISA warrants "modified"as opposed to granted or rejected. As you can see, the number is not trivial" - Benjamin Wittes