By Madison Powers, CQ Guest Columnist

This week President-Elect Obama rolled out his new national security and foreign policy team. There was much fanfare, even more speculation about the interpersonal dynamics between Obama and Sen. Hillary Rodham Clinton , D-N.Y., (and former President Bill Clinton), but only modest probing of the policy implications of this much-hyped “team of rivals.”

While some pronounce this new team as one made up of members who have “embraced a sweeping shift of priorities and resources in the national security arena,” others have expressed doubts about whether the new team is likely either to embrace anything new or if they’re even sufficiently different from one another in world views to merit the “team of rivals” label.

Policy speculation has naturally centered on the impact of Obama’s choices of Clinton, James L. Jones and Robert Gates in particular on pressing matters such as the timetable for withdrawal from Iraq, how the shift in attention toward Pakistan and Afghanistan will play out and how the festering problem of the detention facility at Guantanamo Bay, Cuba and the standards for interrogation practices will get resolved.

But yesterday’s hearing in the 9th U.S. Circuit Court of Appeals in San Francisco is a reminder that the balance between national security and privacy and other civil liberties concerns is another issue that the new administration must face.

The Electronic Frontier Foundation is arguing against the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) that gives telecommunications companies retroactive civil immunity for their illegal participation in the National Security Agency’s (NSA) massive warrantless wiretapping and electronic surveillance scheme. The suit alleges that FISA Amendments Act “violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

Various attempts to amend the existing — but routinely circumvented — FISA warrant requirements cropped up throughout 2007 and 2008, but until July of 2008, all failed to garner enough support for two reasons. First, the bills contained the retroactive immunity provisions that many Democrats and Republicans alike opposed. Second, the proposed changes in the laws in many respects removed privacy protections and concentrated more power in the executive branch with little accountability to either courts or the Congress.

Attempts to amend FISA were hot campaign issues, at least in some quarters. In February of 2008, Obama promised to vote against and to filibuster any amendments that provided civil lawsuit immunities to telecommunications corporations that cooperated with the Bush administration’s warrantless surveillance program. However, in July he disappointed his civil libertarian supporters by backing away from his commitment to oppose the immunity provision.

Sen. Russ Feingold , D-Wis., declared the bill a capitulation rather than a compromise, and other senators including Senate Judiciary Committee chairman Patrick J. Leahy , D-Vt., and Sen. Arlen Specter , R-Pa., remained vigorous opponents.

Obama’s statement in support of the compromise, by contrast, declared his intention to work to strip the offending immunity language so that full accountability for past offenses can be available to the plaintiffs in pending court cases.

Even worse from the perspective of some critics, the new proposal gave the executive branch more surveillance powers and less accountability in practice than currently existed. The American Civil Liberties Union called the amendments Act “an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance.“

Obama’s response to this criticism was the suggestion that, unlike President Bush, he could be trusted not to abuse the law and that he would examine what executive order limitations might be needed should he become president in January.

Critics remained unsatisfied with Obama’s argument for the quite obvious reason that few presidents voluntarily surrender powers of any kind. Only the firm restraints of the rule of law are adequate protection of the public from overly zealous members of any future administration who might be tempted to expand the scope of domestic spying under a legal structure in which such activities are largely invisible, even to members of Congress.

Clinton, by contrast, has been a vocal critic of the NSA surveillance of U.S. citizens for many years, and she even voted against confirming Michael V. Hayden as CIA director in part because of concerns about his policy positions on domestic spying.