Constitutional question: Ex post facto laws

[TechBear_Seattle]

Article I, Section 9 of the United States Constitution says in part, No bill of attainder or ex post facto Law shall be passed. The phrase "ex post facto" is Latin for "after the fact" and in this context refers to a law which retroactively criminalizes behavior that was not criminal when the action took place. For example: Congress can pass a law that makes it illegal to eat corn chips, but cannot pass a law that makes it illegal to have ever eaten corn chips.

Some telecommunications companies have engaged in criminal actions with regards to spying on citizens (I make this assumption because there would not be the extreme push for immunity otherwise.) The current Congress passes the FISA bill and grants retroactive immunity; Bush signs it into law. This is constitutional, as ex post facto laws by definition retroactively criminalizes an act, not decriminalizes it. A latter Congress (after we throw out the current crop of traitors) repeals that part of the FISA and eliminates the retroactive immunity; Obama signs it into law.

Spying conducted while the immunity was in place cannot be criminalized; that would be an example of ex post facto and would be unconstitutional. But what about criminal actions done before the immunity went into effect? Would it be possible to charge AT & T or Verizon with felony counts of illegal wiretapping for each spying incident that took place between Jan. 1, 2001 and July 15, 2008?

In other words, does removing a blanket immunity from prosecution on past criminal actions create a case of ex post facto?

[jaysunb]

1. I hope some group will challenge this law on

those basis.....

[LeftHander]

2. no...expost facto

is only to protect persons from prosecution by newly formed laws for acts that occurred before the law was on the books.

Years past other nations would make laws to justify the imprisonment of political opponents.

One would think it would work in reverse but, no not in this case.

[TechBear_Seattle]

5. That is the meat of my question

1) Some action (wiretapping without a warrant) is criminal, and certain persons commit this criminal act.

2) That action is decriminalized and those who are guilty of prior acts are given statutory immunity from prosecution.

3) That action is latter recriminalized and the retroactive immunity is removed.

4) Can the actions which occured in 1 above be prosecuted?

[aspergris]

6. Correct - EX Post Facto and VAWA

Similarly, administrative acts and other things that seem like punishment also do not fall under ex post facto

Example, after the passage of VAWA, people who had PRIOR DV Assault convictions lost their right to carry.

EX POST FACTO.

However, this was not deemed unconstitutional since losing that constitutional right is not considered "punishment" for the purposes of the interpretation of the statute.

Many police had to resign because they had plead guilty to minor assault prior to the passage of the law and were then prohibited years later when VAWA was passed from possessing a firearm (although certain Brady exceptions can be appealed to allow carry on duty, etc. I digress)

[TahitiNut]

3. Is there no distinction between 'criminal' and 'civil' in either case?

What's being "immunized"? Does the Constitution preclude 'ex post facto' civil liability?

Hmmmm...?

:dunce:

Furthermore, can this (or any) ordinary legislation "immunize" anyone from prosecution for violation of Constitutionally-guaranteed Civil Rights?

[TechBear_Seattle]

7. That is a different question

"Can this (or any) ordinary legislation "immunize" anyone from prosecution for violation of Constitutionally-guaranteed Civil Rights?"

I desperately hope not, but that is not what I am asking. Assume for the moment that the blanket immunity in the current FISA bill stands up to judicial review.

[Tab]

4. This is a reversal of what the original intent was

and so it makes for an interesting question.

The original intent, obviously, would be to avoid getting people in trouble for doing something legal by passing a law after the fact prohibiting that action.

For instance, let's say you flew a kite at the beach every weekend. The following Monday a law is passed making it illegal to fly kites at the beach. Tuesday an officer knocks on your door to arrest you, saying they have witnesses that saw you flying a kite last weekend (before the law was passed and while it was still legal).

You are talking the reverse - retroactive decriminalizing.

I would say maybe technically yes, but this country has plenty of precedence for the opposite. First, few juries are going to convict for something that's not even illegal anymore. Second, it's on the order of amnesty - we've granted amnesty for many things in the past, things that were illegal at the point in time where they were committed. Whether congress can grant amnesty via a law, or the president has to do it, I'm not sure, but basically what you are talking about is amnesty (freedom from prosecution for past actions) for the phone companies.

[TechBear_Seattle]

8. Does the FISA bill give immunity or amnesty?

Immunity means, "You might have committed a criminal act, but the courts are prohibited from prosecuting that act."

Amnesty means, "It doesn't matter if you have committed a criminal act; all is forgiven."

My understanding is that the FISA bill grants immunity from prosecution. The question is whether that immunity is permanent or could prosecutions start once that immunity is withdrawn.

[Tab]

9. Well, they're not REPEALING the law

And amnesty is normally granted if you don't know how large your audience is or what transgressions have specifically taken place.

I think it's legal to grant immunity in this case (not saying I agree with it, just saying I think it would hold up in court). It was ambiguous - the government says "it's illegal to wiretap", but then the go to the phone companies and say "we need you to wiretap".

Just messy all around.

[Crabby Appleton]

10. Your understanding is incorrect - the bill very specifically

provides immunity for "covered civil action" - there is no provision for immunity for any criminal action that may have occurred.

`(5) COVERED CIVIL ACTION- The term `covered civil action' means a civil action filed in a Federal or State court that--

`(A) alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and

`(B) seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.

[Bake]

11. I think this is the key: it was criminal when they committed the acts.

Whether subsequently de-criminalized and re-criminalized, it was criminal when the act was committed. I'd argue it's prosecutable.

Bake, Esq.

[librechik]

12. statute of limitations expires in April 2009

think the new Obama Attorney General will have finished his thorough investigation and be able to bring charges before then?

The hint that he'll prosecute criminally is disingenuous in the extreme.

For awhile I had hope.

Now I don't. Obama should be able to do better than this.

[Bake]

13. If the acts are decriminalized, then recriminalized

I would argue that the statute of limitations is tolled for the period that the acts decriminalized. Whether a court would agree, is anybody's guess.

Bake