Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” James Madison, Federalist Number 44, 1788 (Quoted in TechLaw Journal)
The idea is pretty simple. There’s a law. Someone breaks it. Then, at the moment that they are called to account either in criminal court or a civil suit, Congress steps in and changes the rules. It’s a situation with an obvious potential for abuse. Congress could, in effect, pardon cronies– or witnesses against them. And it has the potential for endless meddling in civil disputes. Among the long train of abuses listed by the colonists in the Declaration of Independence was that the King had “…has affected to render the Military
independent of and superior to the Civil Power.” This is at issue in the NSA wiretapping case.
David Kravets, Wired:
The Bush administration on Tuesday will try to convince a federal judge to let stand a law granting retroactive legal immunity to the nation’s telecoms, which are accused of transmitting Americans’ private communications to the National Security Agency without warrants.
At issue in the high-stakes showdown – set to begin at 10:00 a.m. PST – are the nearly four dozen lawsuits filed by civil liberties groups and class action attorneys against AT&T, Verizon, MCI, Sprint and other carriers who allegedly cooperated with the Bush administration’s domestic surveillance program in the years following the Sept. 11 terror attacks. The lawsuits claim the cooperation violated federal wiretapping laws and the Constitution.
In July, as part of a wider domestic spying bill, Congress voted to kill the lawsuits and grant retroactive amnesty to any phone companies that helped with the surveillance; President-elect Barack Obama was among those who voted for the law in the Senate. On Tuesday, lawyers with the Electronic Frontier Foundation are set to urge the federal judge overseeing those lawsuits to reject immunity as unconstitutional. At stake, they say, is the very principle of the rule of law in America.