In an interview that will air on ABC's "Nightline" tonight, Dick Cheney defends the Bush administration's program of spying on Americans by wrapping it up in 9/11.
It's not the least bit unexpected: Even as it becomes clearer and clearer and clearer that there never was any operational link between Saddam Hussein and al-Qaida, Cheney continues to justify the war in Iraq by recalling the attacks of Sept. 11. In his speech at the Al-Asad Air Base Sunday, Cheney turned to 9/11 repeatedly, invoking it both as a reason for invading Iraq in 2002 and as a reason for staying there now.
So it's no surprise that Cheney will use 9/11 -- and the specter of another 9/11 -- to justify the administration's decision to spy on American citizens. It's just dishonest.
In his interview with ABC's Terry Moran, Cheney says the president's secret spying program represents "the kind of capability" that "might have led us to be able to prevent 9/11" if the administration had had that sort of capability before 9/11. But the thing is, it did. As we have already noted, the Foreign Intelligence Surveillance Act allows the executive branch to monitor electronic communications in exactly the way it has been doing for the past three years -- so long as it gets a warrant from the Foreign Intelligence Surveillance Court along the way. It doesn't even have to get the warrant first: As we explained earlier, the National Security Agency can begin eavesdropping the second it wants to do so, as long as it goes to the intelligence court within 72 hours to get approval after the fact.
Cheney laments that the administration "didn't know" before 9/11 that there were "two 9/11 terrorists in San Diego prior to the attack in contact with al-Qaida sources outside the United States." Maybe that's right. But what Cheney doesn't explain -- what he can't explain -- is how FISA's none-too-onerous warrant requirement stood in the way of the administration's obtaining such knowledge. To defend what appears to be a violation of both federal law and the U.S. Constitution -- and even this wouldn't be so much of a defense as a justification -- the administration needs to say, "We needed to be able to engage in spying without a warrant because ..." If Cheney has a way to finish that sentence, we sure haven't heard it yet.
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