This is what Vice President Cheney said this afternoon:
Another vital step the President took in the days following 9/11 was to authorize the National Security Agency to intercept a certain category of terrorist-linked international communications…If we’d been able to do this before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon. They were in the United States, communicating with al-Qaeda associates overseas. But we didn’t know they were here plotting until it was too late.
Cheney’s claim isn’t true. Any surveillence involving known al Qaeda or affiliates could be conducted consistent with the law, the Foreign Intelligence Surveillance Act, which permits domestic surveillence involving any terrorist group. On Sunday, President Bush confirmed his warrantless domestic surveillance program only targets people speaking to known al Qaeda and affliates:
The NSA program is one that listens to a few numbers, called from the outside of the United States and of known al Qaeda or affiliate people.
The problem prior to 9/11 wasn’t the law. It was a breakdown of communication. An FBI agent failed to share critical information about Zacarias Moussaoui with the Justice Department. Here’s an excerpt from the Joint Congressional Investigation into 9/11:
The RFU agent told the Minneapolis agents that they had to connect Moussaoui to al-Qa’ida, which he believed was a “recognized” foreign power. The Minneapolis case agent later testified before the Joint Inquiry that he had had no training in FISA, but that he believed that “we needed to identify a — and the term that was thrown around was ‘recognized foreign power’ and so that was our operational theory.”
As the FBI’s Deputy General Counsel would later testify, the agents were incorrect. The FBI can obtain a search warrant under FISA for an agent of any international terrorist group…
Cheney is out of arguments to defend Bush’s warrantless domestic spying program. So he had decided to prey on Americans’ fears.
UPDATE: The Washington Post agrees:
But Cheney did not mention that the government had compiled significant information on the two suspects before the attacks and that bureaucratic problems — not a lack of information — were primary reasons for the security breakdown, according to congressional investigators and the Sept. 11 commission. Moreover, the administration had the power to eavesdrop on their calls and e-mails, as long as it sought permission from a secret court that oversees clandestine surveillance in the United States.
The bigger problem was that the FBI and other agencies did not know where the two suspects — Cheney’s office confirmed that he was referring to Nawaf Alhazmi and Khalid Almihdhar — were living in the United States and had missed numerous opportunities to track them down in the 20 months before the attacks, according to the Sept. 11 commission and other sources.