 The U.S. Foreign Intelligence Surveillance Court of Review concluded on August 22, 2008, in the case "In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act", that the "special-needs" doctrine applied by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the U.S.

James Robertson a former judge for the U.S. District Court for the District of Columbia, who, in 2004, ruled against the Bush administration in the "Hamdan v. Rumsfeld" case, and also served on the FISC for three years between 2002 and 2005 said he was "frankly stunned" by the newspaper's report that court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system.He said, "That whole notion is missing in this process".