Suppose an FBI agent approached a generally law-abiding citizen that I'll call "Shmerizon," and the following conversation ensued.
FBI Agent: I'd like you to whack Shmarlos the Shmackal. He's a terrorist.
Shmerizon: By whack, you mean . . . .
FBI Agent: You know what I mean.
Shmerizon: Uhm, isn't that illegal?
FBI Agent: I'm with the government. If I tell you to do this in the interest of national security, it's not illegal. Understand?
Shmerizon proceeds to kill Shmarlos, even though another citizen, Shmest, when presented with the same demand, refused to act without a court order. Now suppose that instead of prosecuting Shmerizon for murder, and without denying that what Shmerizon did was clearly illegal at the time notwithstanding the FBI Agent's statements, the government decides that Shermizon should be given retroactive immunity for the murder because he shouldn't be punished for helping out his government in time of need. Even assuming one finds Shmerizon's plight sympathetic, shouldn't the most minimal commitment to notions of government regularity require that any immunity for Shmerizon be coupled with some form of accountability on the part of the FBI Agent or his superiors who asked that Shmerizon commit murder?
Is the only difference between this situation and the actual current proposal for immunity for the phone companies that violated FISA the fact that we think that murder, even of a bad guy like Shmarlos the Shmackal, is properly illegal, while President Bush and many in Congress think that FISA's restrictions were not just unwise but so grossly unwise as to vindicate anyone who ignored them? And why do I hate freedom?
Posted by Mike Dorf