Way back in December of 2005, when we first learned of the illegal NSA domestic spying program, I sent an email to an old professor of mine from my undergrad days, asking some questions regarding the inherent conflict between the national security claims Bush Administration officials had been making and the Fourth Amendment and the FISA law itself which expressly required particularized warrants from the FISC.

In my opinion, the Bush/Cheney Administration giving the rule of law a choice finger did not cut it. Especially if they were using the resources of the NSA to surveil American citizens in a wide-reaching fishing expedition without warrants or third-party oversight.

But I wanted to get a second opinion from a national security professional whose judgment I trusted. I got a response back echoing those same concerns that I had shared.

Now this would just be a lot of inside baseball, but for two facts: (1) my old prof was Tony Lake, former Clinton National Security Adviser and currently Barack Obama’s chief foreign policy and national security adviser; and (2) I published a bit of the e-mail, with his permission, way back when and it said:

Will be diving into the FISA issues and others this weekend when I have time to do it in more depth, but I wanted to share with you a concern I received from a former National Security Advisor, Anthony Lake. He told me that "this pushes to or beyond the limits for the NSA’s mandate and it raises serious Fourth Amendment concerns." To say that the intelligence community and thoughtful members of Congress have concerns is understating it. And it hasn’t just been Democrats that have voiced these concerns, either.

It is one thing to push the envelope on a specific threat and later seek appropriate oversight. It is another thing entirely to attempt to bypass oversight so that you can do as you please, when you please. Which is exactly why our system was set up with checks and balances in the first place….(emphasis mine)

I see that Sen. Obama clarified his stance, vowing to fight to strip the telecom immunity provision from the proposed bill when it hits the Senate. That’s, of course, presuming that amendments are allowed from the floor, which isn’t a given in the Senate but is at least procedurally more likely.

It would be great if he or any other Senator succeeds…because if they do not, and immunity is granted, there is no going back once that occurs. Immunity is pretty much impossible to rescind once it’s granted, and that will forever shut that avenue of ascertaining what, exactly, the Bush Administration had been using the powerful apparatus of the NSA to do in terms of spying on American e-mails, phone calls, text messages, wire transfers, you name it they have had unfettered, unencumbered, unmonitored access to it.

The question for US Senators is: do you trust the Bush Administration and any subsequent president – regardless of party — with that much unfettered power, to hold the key to that much personal information in their hands, and not use it for any inappropriate purpose? Because by voting for this bill, you are setting the precedent that breaking the law, even knowingly, does not matter if the President mouths the words "national security."

In my book, that’s just not good enough. We CAN have national security and protect American civil liberties, but it takes work to balance the tensions between the two.

And, frankly, it seems to me that the American public is bearing both the full cost and the full load of the work. It’s time a whole lot more members of Congress stood up and led on the rule of law — because the Founders didn’t set up this government for a bunch of elected sheeple to cower in fear and genuflect at the President’s petulant ass-covering demands. What I want is some leadership on these issues, and judging by the comments here and elsewhere, and even the calls on C-Span after the House vote on Friday, I’m not the only one who feels that way on either side of the aisle.

If you thought this issue was done, you can think again…and you can donate here to help us keep fighting.

(YouTube of Jonathon Turley explaining Fourth Amendment and collusion basics — would that I were certain Senators understood this.)

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com