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.

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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.