[andyfox]

"if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases."

I'm not an attorney either, but I can't imagine that this is correct. The president can simply decide a law he doesn't want to follow interferes with what he sees as his "inherent" powers and then violates that law?

On the Lehrer show tonight, one of the discussion partricipants said that section 1811 of FISA is the applilcable section. The attorney general has asserted that the president has the power under the authority to use force granted to him by Congress in the wake of 9/11 to wiretap without a warrant. Section 1811 says, "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 a period not to exceed fifteen calendar days following a declaration of war by the Congress."

But all this still does not answer my question, which is does FISA cover all warrant requirements for wiretapping, or can there be wiretapping outside of the FISA requirements? My guess is, as you suggest, that an appeal to the Supreme Court will be the only way we get a definitive answer to that question.

I note that the attorney general also claims that Congress was approached about amending FISA and that the administration felt it wouldn't be done. That tells me that the administration thought what it was doing did indeed come under the FISA regulations and, since it couldn't get them revised, decided to go ahead anyway.