This Wednesday, the Senate followed the House in caving to White House fear-mongering by passing an unconstitutional overhaul of the Foreign Intelligence Surveillance Act. The FISA Amendments Act (FAA) dangerously expands the president’s warrantless wiretapping powers far beyond what the Constitution allows. Perhaps even more controversially, the FAA also contains provisions intended by the Administration to grant retroactive immunity from civil suits to the telecommunications companies that colluded in the president’s illegal warrantless wiretapping program.

Despite the steadfast opposition to an immediate grant of telecom immunity by more than 40 Senators including the Majority Leader—and the passion and eloquence in opposition of Senators Dodd, Feingold, Kennedy and Leahy in particular—EFF’s mission to hold the phone companies accountable for violating the privacy of millions of Americans received an admittedly serious set-back with the FAA’s passage.

The Administration certainly hopes that the immunity provisions in the FAA will aid in the cover-up of its illegal behavior, by definitively putting an end to lawsuits such as EFF’s case against AT&T and avoiding a clear legal ruling that the president’s warrantless surveillance program—and the telecoms’ participation in it—violated FISA and the Fourth Amendment.

The president thinks he has won. But he has another thing coming.

Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts—starting with a constitutional challenge to the immunity provisions.

As Senator Whitehouse put it on the Senate floor this Tuesday when discussing the immunity provisions:

If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today….. Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses [as well]…. If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.

Senator Whitehouse is absolutely correct: the FAA’s immunity provisions represent an unprecedented violation of the Constitution’s separation of powers, and we are confidant that the courts will agree when we challenge the Attorney General’s attempt to dismiss our case using the statute. Based on initial discussions with the government’s lawyers, we believe that a hearing in the District Court on the statute’s constitutionality is unlikely to occur until late this year; then the court must take time to issue an opinion; then, there will be appeals by the losing party. Put simply, the telecom cases are far from over, and will likely continue well into the next congressional session.

While duking it out over immunity in the courts, EFF will also continue its fight in Washington, working in the next session of Congress—a Congress likely to be much different in its composition than today’s, and working with a different president—to wipe the stain of the FAA’s immunity provisions off the books. And that’s not just talk: careful review of the evolving votes on Senate amendments to the FAA related to immunity, and many statements by both House and Senate leaders about their dim view of immunity, set the stage for a very different debate and outcome when – not if – the 111th Congress takes up the issue of balancing American’s security and privacy in connection with renewal of the USA PATRIOT Act next year. In particular:

• Majority Leader Reid said earlier this week on the floor of the Senate that he intends to revisit the FAA as part of the PATRIOT renewal debate;

• The FAA’s immunity provisions were and are opposed by Senate Majority Leader Reid, House Speaker Pelosi, Judiciary Committee Chairmen Leahy and Conyers and by many other members of the Democratic leadership in both Chambers;

• Based on Wednesday’s and last February’s Senate votes on amendments to strip or alter the immunity title of the FAA, at least 44 Senators share a deep discomfort with the FAA”s immunity provisions, and that number is likely to grow after the fall election;

• That group of 44 Senators who supported at least one anti FAA immunity-related amendment ultimately included fully ¾ of the Democrats on the Senate Select Committee on Intelligence. Put another way, only two other Democrats on that panel opposed elimination or modification of the FAA’s immunity provisions; and, finally,

• Despite voting for the FAA, Senator Obama supported every amendment to the FAA’s immunity provisions in Wednesday’s’s votes – including the one by Senators Dodd and Feingold to completely strip Title II from the bill. It may well be that, next year, Congress will no longer face the incessant veto threats of an imperial president who considers immunity for his telecom buddies to be more important than protecting the national security.

Put simply, there is still strong opposition to immunity on the Hill, opposition that reflects widespread popular disgust with Congress’ cave-in and that is likely to grow stronger in the next session of Congress. And EFF will be here, on the Hill, working with those who oppose immunity to strike this unconstitutional law from the books as soon as possible.

Now, some might recall that EFF left Washington over a decade ago, tired of compromise and ready to focus on its litigation. But then the president sought Congress’ aid in usurping the court’s role in judging our case against AT&T, and we had no choice but to return. We did return, in full force, and came closer than anyone ever expected to stopping immunity dead in its tracks.

We lost that battle this week. But every member of Congress responsible for this shameful capitulation to the White House should know: EFF is back. And we’re not going anywhere until Congress fixes the mess it has made.

(EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel for all 47 of the outstanding lawsuits concerning the government’s warrantless surveillance program.)