Ever since the New York Times revealed the horrifying news that President Bush authorized the National Security Agency to monitor both sides of conversations that involve known al Qaeda operatives, the usual chorus of carping critics has whined incessantly 'Why didn't they just go to the FISA court?' They proceed to robotically recite a meaningless statistic, purporting to demonstrate that this super—secret court, authorized by the Foreign Intelligence Surveillance Act of 1978, is a 'rubber stamp.'

For example, on NBC's Meet the Press on Sunday, January 1, 2006, the venerable William Safire said

'and I think what's happening now is that the——as a result of that scandal back in the '70s, we got this electronic eavesdropping act stopping it, or requiring the president to go before this court. Now, this court's a rubber—stamp court, let's face it. They give five noes and 20,000 yeses.'

Ah, but there are 'no's,' and there are 'no's,' as I discovered while researching the post—9/11 history of the FISA court, and even more interesting, the media's reporting of it.

Consider the piece 'What Went Wrong,' by Michael Hirsh and Michael Isikoff, Newsweek, May 27, 2002.   Amid the predictable gratuitous jabs at John Ashcroft and attempts to rehabilitate the failures of the Clinton administration, we learn some reasons we may have failed to connect the dots, including the sickening revelation that the FBI ignored the now—famous Phoenix memorandum due to concerns about racial profiling. Then there's this very disturbing, and suddenly newly relevant, paragraph:

'NEWSWEEK has learned there was one other major complication as America headed into that threat—spiked summer. In Washington, Royce Lamberth, chief judge of the special federal court that reviews national—security wiretaps, erupted in anger when he found that an FBI official was misrepresenting petitions for taps on terror suspects. Lamberth prodded Ashcroft to launch an investigation, which reverberated throughout the bureau. From the summer of 2000 on into the following year, sources said, the FBI was forced to shut down wiretaps of Qaeda—related suspects connected to the 1998 African embassy bombing investigation. 'It was a major problem,' said one source familiar with the case, who estimated that 10 to 20 Qaeda wiretaps had to be shut down, as well as wiretaps into a separate New York investigation of Hamas. The effect was to stymie terror surveillance at exactly the moment it was needed most: requests from both Phoenix and Minneapolis for wiretaps were turned down.'

Just in case you missed that last sentence, please read it again. Better yet, memorize it and recite it to anyone who has the audacity in the days to come to ask 'Why didn't President Bush just go to the FISA court?'

Teri O'Brien   1 03 05