Wednesday morning, President Bush wisely told the House of Representatives that there would be no further delays: There must be action on an overhaul of the 1978 Foreign Intelligence Surveillance Act (FISA) within the next 48 hours or the current stopgap measure, the Protect America Act, will expire.

If that happens, the current statutory authority for the intelligence community to monitor foreign terrorists overseas will end. The CIA and NSA, under a secret FISA court ruling Americans have not been permitted to review, would be required to seek probable-cause judicial warrants to surveil terrorists in Iraq, Afghanistan, and elsewhere around the globe. That impossible burden — bringing tens of thousands of enemy communications under FISA’s arduous legal procedures, all for the benefit of alien enemies who have no right to privacy protection under American law — would shut down intelligence collection.

Nevertheless, the president also lavishly praised legislation passed by the Senate Tuesday. Compared with the atrocious alternatives proposed in the House and by senators of the hard Left, the Senate bill is indeed sensible. It is nevertheless deeply flawed. Here between Scylla and Charybdis, there is no choice: We need to get the Senate bill passed because the alternative is intolerable. But don’t be fooled. Despite the president’s flinty insistence that “the Senate bill is a good bill,” it is hardly that.

BIPARTISAN DOES NOT MEAN GOOD
The White House seems pleased with the Senate proposal for two reasons. The first is its grant of retroactive immunity from suit to the telecommunications companies that assisted the government after 9/11 in the warrantless-surveillance program. This is both fair and essential. It makes no sense to punish companies which cooperated with the government in a time of crisis under circumstances where they were assured their compliance was legal. More importantly, we need the industry’s cooperation to maintain our technology advantage over jihadists who exploit modern communication methods to spread their ideology, raise funds, recruit new terrorists, and target Americans. (Note: I am a longtime FISA critic, but as I’ve mentioned before in the interest of full disclosure, my wife works for Verizon.)

Still, the president’s second rationale for the bill makes far less sense. He brags that the senate bill passed by “a wide bipartisan margin.” It is a mantra repeated by administration operatives and Republicans on the Hill. But let’s be blunt. The Senate is controlled by Democrats who have fought the administration tooth and nail for years on vital national-security improvements — not just FISA but the Patriot Act. Naturally, wide bipartisan support means many of these Democrats are happy. What makes them happy, though, should make you worried. What we have here is a deeply, deeply flawed proposal.

To repeat, there is no choice. It’s a bad bill we badly need.

Now ordinarily, if a president is given a bad bill to sign, he can veto it and insist on a better one. And in theory, the president should have some leverage on FISA. Every federal appellate court to rule on the issue — including the highest, most specialized court created by Congress strictly to rule on surveillance matters, the Foreign Intelligence Court of Review — has concluded that the president has inherent constitutional authority to order surveillance on foreign threats to national security. In a perfect world, President Bush would be able to tell recalcitrant Democrats in the House, “Don’t want to pass the Senate bill? Fine. I’ll order surveillance to continue under my Article II power.”

But in this most imperfect world, theory crashes into harsh reality. The government, thankfully, does not run the telecommunications industry. The telecoms do. For nearly three years, Democrats and their Bush-bashing allies have politicized national security, inveighing — despite the aforementioned court precedent — that it was a violation of law for the telecoms to comply with the administration’s post-9/11 requests for assistance (requests made when intelligence indicated additional waves of attack were likely; requests about which top Democrats in Congress were fully briefed). Democrats have encouraged the lawsuits as useful tools for portraying the administration as lawless. Not content to leave the telecoms holding the bag, they have taken every opportunity to signal their determination to make the telecoms pay for the Bush administration’s purported sins.

So, if you’re a telecom, why on earth would you cooperate if the Bush administration yet again decided to resort to its constitutional power to protect the country? You might be totally sympathetic — and the telecoms’ prior patriotic service demonstrates that they are. But you’d be opening yourself up to yet another round of multibillion-dollar class-action suits. You’d have no choice but to say, “Mr. President, sorry, but you need a court order.” And, indeed, if Democrats continue their recklessness, someone is eventually going to say, “Y’know, we can’t even trust your court orders — how do we know you’re not going to let someone sue us for complying with them?