The NSA, FISA and You

From Richard Epstein, who in fact does NOT support the administration's policy:

FISA does not deal with any effort to track calls that begin against al Qaeda cells outside the United States, which then lead to the United States. FISA only deals with situations where the target of the surveillance is a U.S. person or where that surveillance is "acquired in the United States."

And more from Richard Posner:

According to the administration, the only communications intercepted outside the framework of FISA are calls to and from the United States in which the overseas party is suspected of terrorist connections, though the suspicion does not rise to the probable-cause level that would be required for obtaining a FISA warrant. It seems to me vital to our national security to be able to intercept such communications--and more. Suppose a phone number in the United States is discovered on a rolodex in an Al Qaeda hideout in Yemen. Wouldn't you want the NSA to intercept all calls, especially international, to or from that U.S. number and scrutinize them for suspicious content? Yet the mere fact that a suspected or even a known terrorist has a U.S. phone number in his possession would not create probable cause to believe the owner of that phone also a terrorist; probably most phone conversations of terrorists are not with other terrorists. The government can't get a FISA warrant just to find out whether someone is a terrorist, though that's what it most needs to know. Nor can it obtain a warrant to intercept communications between two persons both of whom are in the United States, even if they are suspected of being members of a terrorist sleeper cell. These are crippling limitations.

The most amazing thing about this "controversy" is how little anyone really knows, yet how much everyone seems willing to judge. The question is a simple one: does a President have the authority during a time of war to intercept calls, emails, etc. that are transmitted from outside the United States. Yes or no.