Mercury Rising 鳯女

Politics, life, and other things that matter

[E]x-post facto laws…are contrary to the first principles of the social compact

Posted by Charles II on December 2, 2008

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.

4 Responses to “[E]x-post facto laws…are contrary to the first principles of the social compact”

  1. ShortWoman said

    The point of “no ex-post facto laws” is to prevent someone from being tried for a crime that was legal at the time. For example, you can’t be tried and punished under a law passed in 2007 for something you did in 2006. If a heinous but legal act is committed, Congress can’t just pass a law to make it retroactively criminal.

    Retroactive immunity sucks, because it admits that people did things they knew (or should have known) were against the law. However, I don’t honestly think the ex post facto principle applies here.

  2. Charles II said

    I’m not a lawyer, much less a constitutional scholar, Short Woman. And, from the standpoint of the limited litigation that exists about ex post facto laws, you may be right (However: the ‘Lectric Law Library goes beyond Calder v. Bull to say that an ex post facto law “changes” the legal consequences).

    But certainly the NSA immunity falls in the general category of what Madison is describing as destructive to the social contract. It is changing the rules after the game has been played to produce a particular outcome. In the case of the EFF case, plaintiffs put up a significant amount of money to obtain legal redress from actual harm done. There is reason to think that people not only had their privacy invaded, they were placed on terror watch lists, arrested, and even perhaps rendered for torture based on this eavesdropping. Without discovery, we’ll never know.

    Therefore, whatever one chooses to call this amnesty, it is one of the gravest breaches of the spirit of the Constitution. This immunity is an offense against us all, against all humanity, and against the rule of law.

  3. Stormcrow said

    Now this is the most pointless sort of trolling I have yet witnessed.

  4. Charles said

    I think it’s intended to statistically bias Akismet, Stormcrow. That’s why I remove them manually as needed. There have been at least three attempts to insert a post of this kind in the last 24 hours.

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