It's no surpise really, FISA has been (and continues to be) the favorite pet issue of the liberal/progressive netroots.  The question now is this:  what are we going to do about it?

As I see it, there are a number of options.

OPTION #1:

We could join Republicans in bashing our nominee as a flip-flopper, as some of our more "feline" community members are wont to do.  We could argue for months about whether or not Obama is a) a closet centrist, or b) too liberal to be elected.  We've seen the naysayers make both arguments, sometimes in the same breath.  I'm inclined to think this option is of little value to anyone outside the McCain campaign.

OPTION #2:

Here's a thought:  DO SOMETHING!

Blue America is launching a call tool today to help you get in touch with Senators regarding the FISA bill.   We're trying to make it as easy as possible for everyone to talk with their Senators about the importance of standing up for the constitution, the rule of law -- and standing against telecom immunity.

We have been working hard to put together some tools to make your voice heard -- and there is more to come today.  

This first tool allows you to directly contact Senators to tell them to stand up for the rule of law and vote in favor of the Dodd-Feingold-Leahy amendment.  (That's S.A.5064 to H.R. 6304 which will come up for a vote on July 8th, 2008.)  Not only will this tool help you phone your Senators -- including connecting your call -- but it also gives us the ability to track positions on FISA given your input on what you ascertain during your conversations.

Nice, eh?  The tool is here.  Put up, or shut up.

Next, let's drop both the right and left framing of this issue, and consider what might happen if Dodd-Feingold-Leahy amendment fails, and the FISA bill passes with retroactive immunity for telecoms intact.

Not a happy scenario, but let's try to temper our collective disappointment with the fact that The FISA amendments DO NOT provide immunity for criminal violations.

It is clear not only from the language of the bill (which must be read in the context of other, related statutes to be clearly understood), but also from the legislative history, that there is absolutely no criminal immunity for anyone in these FISA amendments.

While there's some solace in this, it get's better:

Similarly, when the FISA amendments were being addressed in the House during the June 20, 2008 debate, Attorney General Michael B. Mukasey and Director of National Intelligence J.M. McConnell sent Speaker Pelosi a letter for the record analyzing the provisions. This letter stated, among other things, that: "The framework contained in the bill for obtaining retroactive liability protection is narrowly tailored. ... The liability protection provision does not extend to the Government or to Government officials and it does not immunize any criminal conduct."

Wouldn't it be sweet if we could hammer Bush et. al. and the telecom abusers simultaneously?  John Dean posits:

Because this legislation addresses only civil liability, Senator Obama has a unique opportunity to show that his leadership as President would, in fact, bring a change to Washington. Indeed, he can both support the amendments now pending (for the reasons he stated), and make clear that as President he will request that his attorney general determine if criminal actions should be taken for the blatant violations of the criminal law. Actually, he has already said this, but in a larger context.

Since Obama Has Already Declared that He Will Hold the Bush Administration Officials Responsible for their Crimes, He Can Now Have It Both Ways: Support the FISA Amendments and Hold Miscreants Responsible.

My mouth waters at the possibility.  Should the Dodd-Feingold-Leahy amendment fail, this ought be our new course of action.  Get Obama elected, and use our voices to demand accountability.

Let's also consider the realities telecom immunity from civil litigation.  What happens if we can sue in a civil action?  A Washington Post editorial indicates:

...the fact remains that no one can claim with certainty that his or her communications were monitored. The likelihood of prevailing -- or even getting very far -- with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries. The telecommunications companies complied with a government request after being assured, in writing, that the activities had been authorized by the president and deemed lawful by the attorney general. Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

While I agree with Senator Dodd that we ought not "abandon the rule of law", I also agree that our intelligence agencies need the flexibility to intercept international communications.  

That said, our fundamental concern should be to ensure that adequate protections are in place to prevent infringing on the privacy rights of Americans.  This would necessarily include vigilant court oversight.

On that score, Mr. Obama nailed it the other day when he explained his new position -- "that the issue of the phone companies per se is not one that overrides the security interests of the American people." Mr. Obama said he would be "happy with a system" that "makes sure that we prevent violations of the American people's privacy even if the phone companies are held harmless. The issue was, 'Can we get to the bottom of what's been taking place?' and, most importantly, 'Do we have safeguards in place going into the future so that American's civil liberties are not being violated?' " Those are the right questions, and Mr. Obama gave the right answer.

Look, we may lose the upcoming battle, but take heart:  the War is far from over.