Bill Kristol and Gary Schmidt are so full of shit.

Bill Kristol and Gary Schmidt believe in the divine right of presidents. Bill Kristol is a notorious neo-con whose policies are leading the country to hell in a handbasket. Gary Schmidt works for the alledgely libertarian American Enterprise Institute. Both show an ignorance of intelligence law, particularly the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12333. EO 12333 is the EO that limits collections on US Persons. It defines a US Person as

"United States person means a United States citizen, an alien known by the intelligence agency concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments."

And the FISA says this about collection on US persons versus non-US persons,

"(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that
(A) the electronic surveillance is solely directed at
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their
becoming effective immediately. "

How do Kristol and Schmidt define a US person?

"'U.S. person' -- a U.S. citizen or a legal alien."

A legal alien can be someone who is in the United States on a visa. Not all legal aliens are US persons, only legal aliens who hold green cards are considered US persons. Who are they talking about being a legal alien? Zacharias Moussaoui? Technically, he is a legal alien but he is not a US Person. Nic bit of spin Kristol and Schmidt have going there. And the spinning continues:

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA."

BULLSHIT!!!!!
ZACHARIAS MOUSSAOUI AND THE SEPTEMBER 11 HIJACKERS WERE NOT US PERSONS!!!
How many times do I have to explain it?? They were here on tourist visas. (Actually, Moussaoui didn't need a visa since he was a French citizen. Europeans can visit the United States for 90 days without a visa. But still Zacharias Moussaoui was not and is not a US person.) The FBI didn't need a fucking warrant, but the FBI is an agency whose first priority is law enforcement, not intelligence. They thought it was a law enforcement and not an intelligence issue and collection of evidence for law enforcement purposes does have a higher standard for probable cause than intelligence collection. Since the Hijackers were not US Persons, the FBI, CIA, NSA. DIA and even the fucking Department of Energy could have collected and retained information on them until they buried themselves in an avalanche of paperwork because there is a lower standard for intelligence collection for non-US persons even when they are in the United States.
In fact, the NSA said so in its report to Congress in 2000.

It is sufficient in the case of a non-U.S. person to show that the information to be acquired is merely related to the national defense or security of the United States of the conduct of foreign affairs; where a U.S. person is involved, the contents of the application must include a showing that the acquisition of such information is necessary to national defense or security or the conduct of foreign affairs.

So Kristol's and Schmidt'argument doesn't fly because Moussaoui was not a US person. But they don't expect you to know that. They think you are stupid. Well, I am sick and tired of having my intelligence and the intelligence community insulted by neo-cons.

The issue is, why the president ordered the NSA to spy on US persons without a warrant. A warrant that can be obtained three days after the surveillance has begun. From a court that has approved every request for a warrant. except for two cases, since 1978. Who was being spied on that the administration was afraid that the requests for a warrant would be turned down?

Larry Johnson has a theory that it might involve information obtained by torture.