The arguments over FISA, electronic surveillance, and retroactive immunity have primarily focused on who information was acquired on and what type of information was acquired.
This is by design. The proponents of illegal electronic surveillance and retroactive immunity have worked hard to characterize themselves as motivated by national security and patriotism. They know that most americans do not see it as an invasion of privacy if their emails are scanned for a phrase like "I am planning to blow up XXXX."
Opponents have worked hard to point out the problems with the "I have nothing to hide" mentality and other factors like the Constitution and laws forbidding this sort of activity, social network analysis, etc.
A far larger issue exists, "Who received the information?".
More important than who was monitored and what information was acquired is who was the information given to absent the proper controls. I think this is a bigger problem for the administration and one they are desparate to avoid.
Proper controls is a key phrase here. FISA does not seek to limit the ability of the US to acquire information, quite the opposite, FISA seeks to enable our ability to gather information while establishing the oversight needed to prevent a greater threat, the misuse of the information collected. It protects the people doing the surveillance as well as American people
The powers it gives to the president and attorney general for authorizing surveillance without a court order are quite broad. It is hard to imagine a scenario that could not be handled legally under FISA.
For the president to authorize surveillance without a court order the attorney general must certify the specifics of the surveillance, i.e. the monitoring is reasonably believed to be foreign intelligence, that it has a high probability of not including americans, the period, type, etc of monitoring, and minimization procedures.
Minimization procedures are intended to prevent personally identifiable information on US Citizens and other legal residents from be given to activities that do not have a valid government purpose for the information and law enforcement agencies absent evidence that a crime has or will be committed or absent a valid court order.
FISA lays out the requirements here.
FISA or a court order prevents information acquired on Americans from being given to just anyone, and I believe this is a bigger problem for the adminstration than the information acquired.
It is not unreasonable to suppose that the administration has given information acquired on Americans to non-law enforcement agencies like the IRS and the DoD.
It is also not unreasonable to suppose that information on Americans may have been given to non-governmental activities like Halliburton, KBR, Blackwater, etc. Considering this administrations usual level of competence, it may even be likely.
This is more than just a potential embarrassment in the long string of embarrassments that will be the legacy of this administration. This is a known impeachable offense. Misuse of illegal electronic surveillance and government agencies were the basis of the Second Article of Impeachment for Richard Nixon.
Article 2
Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.
This conduct has included one or more of the following:
He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be intitiated or conducted in a discriminatory manner.
He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.
He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.
So, as the House Democrats appear to be working hard to cede to the administration that which could not be taken from them, one question we should be asking is, "Are we willing to give up the right to know who received information about us.