This is interesting. Not only is this alleging that the memo was filed three hours earlier than the Guardian reported (perhaps their are different/separate documents, perhaps there was a clerical error in one of the two reports) but it seems to imply the document was more of a command than a request.

Even more troubling is this line, "The agency told the secret court that 2nd US Circuit Court of Appeals' decisions 'do not constitute controlling precedent for this Court.'" (Paragraph 5).

If the FISA Court accepts this claim (which they have no reason not to, it basically says "FISA, you still have the power," why would they reject that?), there is not a mechanism for enforcement of the appeals court's decision over the executive branch, wherever it disagrees with the decision of FISA, which could be anything as it is entirely confidential. In that case, the only judicial body left to have the power to apply oversight over the White House and the intelligence agencies would be the Supreme Court. Which would require a litigator to have a writ of certiorari from a federal appeals court in order to be accepted as a case seen by the Supreme Court. To get a writ of certiorari for the case to continue beyond the appeals court, they would need to appeal to the Supreme Court for losing their case in the appeals court.

Except the case against the data collection was ruled in favor of ending the program. But you can't appeal a case to a higher court if that case was ruled in your favor. So the usual means of arriving before the Supreme Court are inapplicable, and the more esoteric methods would be the only one's possible.

So the federal courts don't gave a reasonable and meaningful way of applying judicial review to this case.

Of course, with FISA Court being proclaimed a higher legal authority than the federal appeals circuits, one could always try to appeal the FISA Court's ruling to the Supreme Court. Oh wait, all relevant information for such a case is in fact classified information, preventing civilians from accessing the necessary information and materials to construct a legal case to present to the Supreme Court.