[Feinstein's] "exclusivity" amendment was good - it almost passed, and it probably would have been a poison pill for the White House.

Was it really good? I thought FISA already contained an "exclusivity" provision, what was the need for a second one?

It struck me as cowardly for congress to feel it necessary to re-iterate that FISA is the only vehicle for domestic eavesdropping after Bush previously ignored it. It's the old joke about British cops (who don't carry guns) "Stop! Or I'll yell 'stop' again!"

Worse, since it failed, the US Senate is now on record as rejecting the idea that FISA is the only legal mechanism for wiretapping and this fact will no doubt get cited in some future OLC memo justifying using Article II inherent powers to spy without warrants.

The only hope now is that the conference bill has the provision re-added (since the can of worms is already open), but that can only happen if the original House bill already had such a provision (don't know if it did) because otherwise any Senator can object and have the provision stripped by the Chair.

Yeah, true - but as you point out, the President has already violated FISA notwithstanding "exclusive means" language and Congress did nothing, so what's the harm from endorsing, yet again, that they won't enforce their own laws?

Your points 1 and 2 are good.

Also, in answer to the question I raised, yes the House version did include exlusivity, so at least one chamber of Congress is on record saying FISA is the only way to spy legally. From the House's RESTORE act:

SEC. 9. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN INTELLIGENCE INFORMATION.

(a) Exclusive Means- Notwithstanding any other provision of law, the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance may be conducted for the purpose of gathering foreign intelligence information.

(b) Specific Authorization Required for Exception- Subsection (a) shall apply until specific statutory authorization for electronic surveillance, other than as an amendment to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is enacted. Such specific statutory authorization shall be the only exception to subsection (a).

IANAL, but this seems pretty clear to me.

Also, this means that the conference bill can contain an exclusivity provision again and no Senator can have it stripped for being out-of-order since it was part of the House bill and not a "drop-in" to the Conference bill.

This is one of those lesser issues that shouldn't be forgotten. I will be happy enough if the conference bill is the Senate bill only absent immunity, but it would be better if this among other improvements of the House bill also makes it back in.

Since the House has shown some spine, hopefully it will extend beyond just immunity.

I'm not sure what you find so terrible in this:

First, NSA can use its authority under Executive Order 12333 to conduct surveillance abroad of any known or suspected terrorist. [...]

Second, NSA can use its authority under the Protect America Act, enacted last August, to conduct surveillance here in the U.S of any foreign target.[...]

Third, in the remote possibility that a new terrorist organization emerges that we have never previously identified, the NSA could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to monitor those communications.

His first point only relates to purely foreign surveillance which Congress has never attempted to limit.

The Second point is the weakest since the PAA was bad legislation, but it has now sunsetted so at least there's that.

The third relates to the law most of us want enforced and obeyed.

There is some concern over the use of the secret courts to approve all these warrants and their evident extreme reluctance to ever say no, but I do think when you know you have to go in front of a Judge and justify your wiretap, you generally won't come to him for a wiretap on Ted Kennedy or Michael Moore a la the Nixon spying on MLK.

Just having the courts doublecheck things means the types of requests that get brought will be a higher quality.

FISA was still an improvement over the lack of law that existed before which did leave the Administrations of the past a free hand to spy on anyone they wanted to for any reason.