As mcjoan notes, Walker has a comprehensive review of the legislative history of FISA:
Of special relevance to the court’s present inquiry, Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 codified at chapter 119 of Title 18 of the United States Code, 18 USC §§ 2510-22 ("Title III"), were to be the "exclusive means" by which domestic electronic surveillance for national security purposes could be conducted . . .
This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future. . . .
mcjoan notes:
The argument put forth by Democrats--particularly Diane Feinstein and Nancy Pelosi--who are supporting this bill that it is so important because of its exclusivity provisions are only blowing so much smoke. That part of the bill is meaningless, and any slim good it might do is completely superseded by the expansion of executive power it allows.
Frank Church took care of exclusivity 30 years ago, and for good reason. Church and his Congress, unlike this Congress, understood the danger of an unchecked executive and to reestablish the checks and balances supposed to be inherent in the Constitution.
Again, mcjoan cites Judge Walker:
In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner . . .
In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.
H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near- total control over whether the fact of unlawful surveillance could be protected as a secret. . . .
As mcjoan notes:
"[T]he impetus for the enactment of FISA was Congressional concern about warrantless wiretapping of United States citizens conducted under a justification of inherent presidential authority under Article II. Congress squarely challenged and explicitly sought to prohibit warrantless wiretapping by the executive branch by means of FISA [. . .]"
In contrast, the impetus for the enactment of the FISA Amendments Act by this Congress appears to be to enable the Bush administration's efforts to hide its unlawful surveillance by granting amnesty to the telecommunication companies and thus foreclosing perhaps the only avenue open to us to finding out what has been done by this administration in our name--the existing civil cases against the telcos.
The behavior of this Democratic Congress is simply shameful. And the behavior of Barack Obama is especially so. There is no excuse.
By Big Tent Democrat, speaking for me only
