Writing on the proposed deal to grant the telecom companies immunity in the lawsuits filed against them for working with the intelligence agencies, lawprof Michael Dorf suggests this analogy:
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?
The answer to Michael’s question is “no,” and I think Michael’s framing reveals a common misunderstanding about the proposed immunity deal. The telephone companies’ liability turns out to be pretty different from the oft-debated question of whether the “Terrorist Surveillance Program” was legal. As a result, I think the immunity agreement is not quite the outrage many people in the blogosphere seem to think it is. To see why, we need to get a bit into the weeds of the surveillance statutes (oh goody!, you’re thinking), but I hope it will be worth it to understand what’s going on.
Let’s start with the lawsuits involving the so-called Terrorist Surveillance Program, the warrantless wiretapping program disclosed by the New York Times in December 2005. These lawsuits have long had a major hurdle, the existence of 18 U.S.C. 2511(2)(a)(ii)(B), a provision exempting the phone companies from liability for warantless monitoring if the Attorney General gives them a certification concluding such monitoring is legal. Here’s what it says:
Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with