Being a life long resident of Washington, D.C., I’m used to seeing Members of Congress engage in all types of election year high jinks. You’ve got to go and sell it to the good people back in Omaha or Sacramento that you’ve getting it done for them. Similarly, you don’t want your opponent to be able to represent that you’ve failed.
I would argue however, that demonstrating success to the citizenry would require you to show some basic knowledge of how government worked. Like the Constitution maybe? Article I, Section 9 would be a good place to start, as it specifically enumerates the things that Congress is prohibited from doing. This would include
No bill of attainder or ex post facto Law shall be passed.
Fascinating. Perhaps the 4th Amendment, which states
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I have not taken Con. Law. But it seems to me that if you perform an act which is prohibited under the 4th Amendment, you’ve committed a crime. Like say, you were a telecom company who engaged in telephonic surveillance over citizens of the United States without a warrant because the Executive Branch told you to. And if you had been a naughty boy and violated a bunch of civil liberties, Article I, Section 9 would prohibit Congress from passing a law that retroactively indemnified you from prosecution. They would never include such a thing in the FISA reauthorization bill.
But what do I know? The good people in Congress must know better than I do. And before this devolves into a finger point contest about which party did what to whom, let me note that my disgust with all of them is utter and complete. I’ll leave the liberal outrage to other parts of the Blogosphere, and simply note that when the members of Congress are so dull that they go passing laws that directly contravene the Constitution, it blows my mind. Even in an election year.
No related posts.
Is this a law that can be challenged to the Supreme Court? The law itself might be fine, but it can be classified as ex-post facto.
I’d find a way to challenge it.
My understanding is that challenges are already being prepared.
I think the theory is that national security trumps individual rights.
This community good vs. individual rights situation is seen at a smaller level in eminent domain cases, where the government in theory, seizes your house and pays you for it.
In both situations I think the Congress is going to argue that if it’s going to be for the public good then it’s not unreasonable, and therefore legal.
NPR reported this morning that a challenge has been filed.
The conservative justices will have to wrestle with individual liberty vs. national seceurity concerns.
The liberals will have to wrestle with big government concerns vs. sticking a thumb in the eye of the Bush administration.
I think it’s going to come down to the conservatives playing the national security card, toe the republican national security line, and submarine individual rights (and somehow still be lauded as not activist) and the liberals abandoning all legal analysis and trying to strike it down to spite Bush and promote the liberal agenda.
It’s exactly the kind of case that has the potential to show blatant activism on both sides. However, I would love to see Scalia and Thomas show some backbone and strike the law down.
The ex post facto clause is inapplicable to this case. Legislatures cannot criminalize a behavior or aggravate an offense after the fact, but they can soften or de-criminalize a behavior after the fact.
Calder v. Bull, 3 U.S. 386, 391 (1798).
I think amnesty for a crime qualifies.
This has nothing to do with crime. The immunity provided in the FISA bill was towards civil liability, as I understand it. The President could pardon all of the telecoms if he wanted to and there goes any criminal prosecutions.
What Congress didn’t want to have happen was the telecoms get bogged down in costly litigation, which would run up costs for no reason. None of these lawsuits are going to make it past a 12(b)(6) because there’s no way for them to get enough information to even justify their standing. If the plaintiffs suing the telecoms don’t know for sure that they’ve had their conversations monitored, they don’t have a claim. And that’s going to be next to impossible to get. Frankly, at this point, I can’t imagine that anyone expects privacy on an overseas call to the Middle East.
Anyway, I don’t think the bill comes close to hitting any constitutional issues of first impression.
I understand the point about crime having nothing to do with it, but having a presidential pardon as the way to make the crime irrelevant is absurd. Taken to its logical conclusion, even if Congress made a law specifically outlawing an action, the president could just simply pardon every offender of the law if it forwards his own policy.
Having the pardon be a weapon in the president’s arsenal on matters like this would totally circumvent the legislature.
Further in articles like http://writ.news.findlaw.com/sebok/20080129.html
It is stated that retroactive immunity has been deemed invalid before, the most notable example being the 9/11 Victims Fund.
And the obvious constitutional issue, which I won’t weigh in on, is the Right of Privacy.
Since when are you concerned about circumventing the legislature? And what article and section of the constitution are you referring to regarding the right to privacy?
It is entirely within the President’s pardon power to do exactly that. There have been blanket pardons before, like when Reagan pardoned everyone who had anything to do with Iran/Contra, and Carter pardoned all of the draft-dodgers living in Canada. Anytime a President issues a pardon, he’s “totally circumventing the legislature.”
Unlike the 9/11 and asbestos cases, the damages that individuals will have to prove are highly speculative. I honestly can’t see how anyone can put a dollar figure on something like that. And if you can’t prove your damages (or even prove harm – meaning the invasion of a protected interest, and it will be hard to prove this given that no one really knows who was surveilled) you can’t make your prima facie case.
This is the whole Twombley paradox. You don’t know what damages (if any) were there until you get to look through the records. You don’t get to look through the records unless you can prove the damage. “But I am the bombardier!”
The point that I was making is that it is just plain nuts to let corporations off the hook for committing of a criminal act just because it would be “costly” for them to engage in litigation to defend themselves. We don’t pass laws immunizing the Mafia for violations of RICO, do we? And I’m not talking about crimes like murder. I’m talking about things like mobbed up carting, where people might not know they are being harmed by fixed pricing. To use your analogy, a civil claim against a criminal organization shouldn’t survive a 12(b)(6) motion because it would be costly for the Gambino’s to litigate.
Mojo,
The right to privacy is in the penumbras of the bill of rights according to the Supreme Court. For instance, the right to not have soldiers boarded in your house is an implicit affirmation of your right to privately enjoy your home.
And since when do you think it is OK to circumvent the legislature?
It doesnt matter what I think. The presidential pardon is an enumerated power granted to the executive in the Constitution…and you don’t even need a penumbra to find it!
Dr. B,
You’re still missing the point – I don’t believe that the immunity has anything to do with criminal acts. It has to do with civil liability. The cost of the litigation aside, there’s an issue of promissory estoppel here, more than anything else. The telecoms reasonably relied on the statements made by the Feds that what they were asking for was legal. Why should the telecoms be held accountable when it was the Feds themselves that caused the problem? They should be the ones you all are pissed at.
Show,
I understand that this is protection from civil liability. It is indemnification for civil liability that arises from criminal acts. And where in the heck is the Promissory Estoppel claim here? Was I asleep in both Torts and Contracts long enough to miss the part of the law were the reasonable reliance of a third party on the statements of another prevented me from recovering from the 3rd party if they damaged me?
Not since Nixon has extralegal nonsense like that trickled out of the Oval Office.
Its been a while since I took Con Law, but I am pretty sure that a private actor committing acts that violate the Fourth Amendment is not a crime. It may violate some other criminal statute, but the Bill of Rights impose criminal liability on private actors? Have you confirmed that as legally accurate, good doctor?
Dr. B,
I’m not claiming an actual promissory estoppel claim, I’m using the idea beyond the doctrine to point out the issue here. The telecoms relied on what the Feds told them. You guys seem to think that the telecoms should have known better, or had an affirmative duty to tell the government to go pound sand. I don’t think that’s fair, especially given the environment back then.
And we still don’t have any proof of anyone actually being damaged here, either. This whole issue, at least to me, is much ado about nothing.
Your criticism is with the government, not the telecoms.