I hate to be a killjoy before the dream of a no-immunity party even begins. However, we might succeed in having immunity dropped from the FISA legislation only to find we have overlooked even worse aspects of this legislation. The more I read about this issue, the more it appears the immunity problem may be doing double duty.  It serves as both a significant issue that does warrant attention, and as a distraction from other even more objectionable aspects of the FISA Amendment legislation that will expand government power to spy on U.S. citizens.

For those who haven't already read this, below is a really nice excerpt from a diary post at the Daily Kos. It was written by a former criminal defense attorney called "NCrissieB." Among other things,  NCrissieB specialized in litigating Fourth Amendment rights cases having to do with search and seizure, so his expertise is quite on point. NCrissieB's main argument is that the Patriot Act already did away with our Fourth Amendment rights.

Perhaps he is even right  when he says that the immunity issue " is not the hill to die on," with respect to Obama. However, there is no time like the present for voters to send a message to all members of Congress that we not only expect them to nix immunity and refrain from creating any more unconstitutional laws, but we also expect them to amend any questionable laws that already exist.

The more laws on the books that degrade the same constitutional rights, the less powerful the argument that they are unconstitutional will be in the future. This is especially true with some of the Supreme Court members we've got today.  So better to pay attention to this now.

It is understandable that to we failed to fully safeguard our democracy in the aftermath of 9-11 when the Patriot Act went through. We can still demonstrate to our lawmakers in Congress that now we are paying much closer attention to the laws they propose-- and especially any loopy parts that erode our Constitutional rights.

You can read NCrissieB's whole post here: http://www.dailykos.com/story/2008/6/26/62819/0991/926/542170   
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NCRISSIEB's TAKE ON CURRENT STATE OF Y|OUR FOURTH AMENDMENT RIGHTS:

Thu Jun 26, 2008 at 04:46:30 AM PDT

Your telephone number pops up several times on the call list of someone the FBI believe is involved with Al Qaeda.  The FBI go to the FISC, and ask for a warrant to wiretap your telephone.  The wiretap reveals nothing about terrorism - turns out they were wrong number calls - but the FBI do hear you talking about who will bring the weed to your backyard barbeque.

Based on that, the FBI get a warrant to raid your home on the day of the barbeque, and in they swoop, charging you with possession with intent to distribute.  That's a felony.

"What gives you the right to storm into my back yard?" you ask.  The FBI agent presents you with the warrant, and its affidavit, and you see that they've been wiretapping you.  "What gives you the right to spy on my phone calls?" you demand.

"We have a FISA warrant," the agent answers.  And off you go to trial.

At trial, your attorney moves to exclude the search warrant that let them into your backyard, on grounds that you're not a terrorist, there is no conceivable evidence to suggest otherwise, thus no FISA warrant should have been issued, thus the wiretap is illegal, and all information gained from it is "fruit of the poisoned tree."  But there's a problem:

Not even your trial judge can see the FISA affidavit.  It is classified, "sources and methods" information.  The prosecutor can show the judge that a FISA warrant was indeed issued, but that's as far as it goes.

Because you can't see the factual allegations underlying the FISA warrant - not even the trial judge can see that - you cannot challenge the validity of that warrant.  It's not reviewable.  Not at trial.  Not on appeal.  Not ever.

Which means they could have said anything they wanted.  They could have had only the flimsiest pretext of probable cause.  They could even have lied outright.  You'll never know, so you can't challenge it.

Oh, and the FISC has refused fewer than five of the tens of thousands of warrant requests submitted, in the past 19 years.  The FISC is, quite literally, a rubber-stamp court.

This is the "protection" offered by FISA.  This is the "constitutional safeguard" so many of you are so up in arms to preserve.  It is no safeguard at all.

Your constitutional rights exist only so long as you or your lawyer can challenge their violation in court.  If FISA is the last bastion of the Fourth Amendment, the Fourth Amendment is already a dead letter.

In terms of constitutional safeguards, the current FISA bill is a non-issue.  Yes, it allows telecoms to raise "color of law" immunity as an affirmative, threshhold defense.  And yes, that means the telecoms very likely will never be held to account for violations of FISA.  But the secrecy of FISA warrants themselves voids the Fourth Amendment, if information gained from those warrants can be used in a criminal trial.

I'm convinced that Barack Obama recognizes this.  I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

"The hill to die on" is the USAPA's breaking down the wall of separation between intelligence-gathering and criminal investigation.  And that is not even at issue yet.  We'll need a Democratic president, and at least 60 Democratic senators, to fight that battle.

So please, folks, let's keep this bill in context.  If you're counting on FISA to safeguard your Fourth Amendment rights ... they're already gone.

© Kos Media, LLC
Site content may be used for any purpose without
explicit permission unless otherwise specified.

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(Excuse the lines. The block quotes haven't been working for me.)

I have a few more user-friendly documents about  FISA that I hope to post soon.

Have a great 4th! Don't drink and drive.

Here is a new and creative way for citizens against retroactive immunity to make their voices heard.  Commenter Diverik just brought this to my attention:

Anybody who wants to support Sen. Dodd and Feingold in their opposition to retroactive immunity can become an online citizen co-sponser by going here:

http://advomatic.bm23.com/public/?q=landingpage&fn=Mail_LandingPage_Link&id=1c1sal9lif76e2hlphhjcjllpc0d9&page=subadd&type=p&ssid=9531

I hear so much confusion about FISA and I have plenty of my own. I  found some clear and concise information about the implications of the FISA Amendments Act of 2008 that  passed in the House on June 20.

The FISA Amendments Act of 2008 that the House just passed will hit the Senate in a few days for its final approval process on June 8.

Let's hope the Senate does not pass this before everybody has a chance to understand the potential consequences of this act.

I want to share two, clear documents that I found at  American, nonprofit organizations.

I hope these are useful  for others who also do not have time to become regular experts on FISA, but want to understand the essential points of a law that will govern  how and when the American government may spy its citizens.

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First, here is a letter signed by many trusty nonprofit American organizations, including the League of Women Voters. The following letter can be found at the nonprofit Center for National Security Studies cnss.org/

<blockquote>June 9, 2008

Re: Opposition to the FISA Legislation Proposed by Senator Bond

Dear Member of Congress:

As organizations that are deeply committed to both civil liberties and effective intelligence-gathering, we strongly urge you to oppose legislation recently outlined by Senator Bond to amend the Foreign Intelligence Surveillance Act. This bill unreasonably and unnecessarily authorizes broad surveillance of Americans’ international communications without meaningful Fourth Amendment protections: no individualized warrant issued by a court, no determination of probable cause of wrongdoing, and no specification of the location or means of the surveillance.

Touted as a compromise to end an impasse between House and Senate versions of FISA legislation, the bill proposed by Senator Bond is far from a compromise. Its chief provisions are not significantly different from those contained in the bill passed by the Senate in February of this year (S. 2248). Like that measure, the “compromise” would threaten Americans' privacy by severely curtailing judicial review and failing to include other reasonable civil liberties protections that appear in the House-passed version of the legislation (H.R. 3773). Neither Sen. Bond nor the administration has made a persuasive case that these sweeping new powers are needed or that existing authorities are inadequate to ensure the effectiveness of U.S. intelligence-gathering activities.

In addition, this legislation would use the secret FISA court to rubber stamp a grant of immunity to telecommunications companies that assisted with unlawful warrantless surveillance.

The Bond proposal does incorporate a few improvements, including an audit of illegal warrantless surveillance and a provision reaffirming that FISA is the exclusive means by which foreign intelligence surveillance can lawfully be conducted in the United States. But these modest concessions do not offset the vast new unchecked surveillance powers the bill confers on the government.

Among the most important reasons to oppose this bill are the following:

The bill would authorize massive warrantless surveillance. The bill allows the government to intentionally acquire millions of Americans’ international communications with no individualized warrant or determination of probable cause, so long as one party to a phone call or e-mail is believed to be located abroad and the purpose is to gather foreign intelligence.

The bill would require no individualized warrant even when an American’s communications clearly are of interest to the government. The bill requires an individualized warrant only if and when the government decides to “target” a particular American by using the person’s phone number or e-mail address to select his or her communications for acquisition. While the legislation provides for judicial review of targeting and other guidelines, the court procedures are inadequate to meet Fourth Amendment requirements.

The bill would curtail effective judicial review of surveillance. While the bill contains provisions for FISA court review of targeting and other guidelines, those provisions do not provide a meaningful role for the court in ensuring that the government does not seize and data-mine the private communications of law-abiding Americans. Moreover, the bill contains an exception for “exigent circumstances” that could be misused to circumvent even the limited court review provided by the bill with respect to new surveillance programs.

The bill would grant retroactive immunity for wrongdoing. The bill would give blanket immunity to companies that aided the government in conducting warrantless electronic surveillance of Americans. Like S. 2248, the bill would direct the court to dismiss privacy lawsuits against telecommunications providers if they received written assurances that the President had authorized the surveillance—assurances which in fact they received.
One change which makes the “compromise” worse than the Senate bill is a provision which would require the transfer of all of the lawsuits brought against the telecommunications providers from federal district court to the secret FISA court—a body whose only job for the past thirty years has been to approve FISA surveillance applications, not to try cases. This is not a compromise on immunity; it is the same old immunity dressed up to look like a judicial proceeding.

The bill would not provide a reasonable sunset. The bill would authorize the government to conduct this massive surveillance for six years, just like the original Senate bill.
The proposed bill would grant unnecessary and unconstitutional powers to the Executive Branch. We urge you oppose it, and to vote against any legislation that contains the defects described above.

Thank you for considering our views.

American Civil Liberties Union
American-Arab Anti-Discrimination Committee
American Library Association
Association of Research Libraries
Bill of Rights Defense Committee
Center for American Progress Action Fund
Center for Democracy & Technology
Center for National Security Studies
Congressman Bob Barr, Liberty Strategies
Defending Dissent Foundation
Doug Bandow, Vice President for Policy, Citizen Outreach Project
DownsizeDC.org, Inc.
Electronic Frontier Foundation
Fairfax County Privacy Council
Friends Committee on National Legislation
League of Women Voters of the United States
Liberty Coalition
MAS Freedom
National Lawyers Guild – National Office
OMB Watch
Open Society Policy Center
OpenTheGovernment.org
People For the American Way
Privacy Lives
Republican Liberty Caucus
The Multiracial Activist
United Methodist Church, General Board of Church and Society
U.S. Bill of Rights Foundation</blockquote>

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Okay, second I will post just part of an intelligible summary of recent FISA activity from the Bill of Rights Defense League. There are many links in this document, so if they don't come through as intended, I'll try it again or you can just go to the source.

You can find the rest here::

 http://www.bordc.org/threats/legislation/ 
 (just scroll down to the bolded title "Legislation Addressing Warrantless Wiretapping")

Legislation Addressing Warrantless Wiretapping

RECENT HISTORY AND WHAT IS HAPPENING ON THIS TODAY

FISA Amendments Act
Bill Number: S 2248 S 2248
Status: Introduced on October 26, 2007. Hearings held in Judiciary Committee on October 31. Reported out of committee on November 16. Passed by the Senate on February 12, 2008. 68-29
Sponsor: Senator John D. Rockefeller IV (D-WV)
Co-sponsors

Senate version of a bill which promises to "streamline" and "modernize" the Foreign Intelligance Surveillance Act (FISA). The Senate Intelligence Committee passed the bill out of committee. Its report is available by clicking here. This version of the bill immunizes telecommunication companies that cooperated with the president's illegal warrantless wiretapping program from September 2001 to January 2007.

• Comparison of FISA Amendments Act and RESTORE Act by the Center for Democracy and Technology.
• Text of the FISA Amendments Act, as passed by the Judiciary Committee on November 16.

On December 17, the Senate voted 76-10 to invoke cloture, so that debate on the bill would be limited to 30 hours. The only 2008 presidential candidate in the Senate who voted was Senator Christopher Dodd (D-CT), and he voted with 9 other senators against moving quickly to a vote. Then, Dodd threatened a filibuster in an attempt to strip the provision that immunizes telecommunications companies. After ten hours of debate, Senate Majority Leader Harry Reid decided to remove the bill from consideration until January 2008 when the Senate returned from its recess.

Senators Russ Feingold (D-WI), Jim Webb (D-VA), Jon Tester (D-MT), and Christopher Dodd (D-CT) crafted amendments to the original bill, which would have placed restrictions on government surveillance. The Senate voted on those amendments on February 12, 2008.

• Dodd's amendment, SA 3907, would have stripped telecom immunity from the bill. It failed 31-67.
• Feingold and Dodd's amendment, SA 3912, would have required the government to target individuals, rather than vacuuming up all electronic communications. It failed 37-60.
• Feingold, Webb and Tester's amendment, SA 3979, would have restricted government surveillance when U.S. persons are included in the communication. It failed 35-62.
• Even Senator Dianne Feinstein's amendment, SA 3910, which would have reiterated that FISA is the exclusive tool for government intelligence surveillance, failed 57-41.

The Protect America Act (PAA) expired on February 16, 2008. On March 14, 2008, the House passed a new version of H.R. 3773 that incorporates elements from the RESTORE Act and the FISA Amendments Act. According to the Center for National Security Studies, the new bill "contains strong reporting requirements that will ensure that Congress obtains access to the information needed for public and congressional consideration of what permanent amendments should be made to the FISA." The House and Senate still have not reconciled their different versions of the FISA Amendments Act.

WHAT IS HAPPENING TODAY:

However, in May 2008, Senator Kit Bond (R-MO) issued a proposal that he believes is a compromise on warrantless surveillance. Under Bond's proposal, telecom companies accused of breaking the law by providing the government with personal subscriber information without receiving a warrant would be let off the hook. Cases against them would be sent to a secret FISA court that would not review whether the companies actually broke the law, but would instead ask whether the companies followed what the Bush administration told them was the law. If the President gave them a note saying his request for information was legal, the companies would not be held responsible for violating their customers' privacy rights.

The FISA Amendments Act of 2008, Senator Bond's "compromise" was passed 293-129 by the House on June 20, 2008. The Senate vote is still pending.

What You Can Do:

Call Your Congressional Representative TODAY with this message:

• Do not give in to Senator Bond's proposed "compromise."
• Do not grant immunity to telecommunications companies.
• Do not vote for a bill that allows wiretapping without a warrant. Our Fourth Amendment specifically states a warrant is needed for government searches.

Senator Feingold released this statement on the Senate floor on February 12. Senator Dodd's statement, "The Rule of Law Abandoned, Dark Day in the Senate."

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I have found other useful information I will try to post at a later time.