Then what are we arguing about?

At opinionduel.com, there is a debate going on over--what else--the NSA surveillance program and the legality thereof. David Rifkin is arguing the affirmative position and Richard Epstein argues the negative.

So what of it? These discussions have been going for over a month since the initial publication of the programs existence by the NY Times. Why is todays worthy of comment? Because Epstein, in the course of his initial post, undercuts his own argument as well as that of his fellow travelers:

In addition, 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." The debate over the legality of president's action covers only those last two categories of cases, not everything done by the NSA.

So essentially, Epstein agrees that the topic of the debate (surveillance of al Qaeda originated calls from outside the US) does not require authorizations under FISA, in that he clearly articulates that the targeting of al Qaeda originated calls from outside the country does not fall under the authority of FISA. This is precisely the position articulated by the White House.

So then, what are we all arguing about anyway?