Good for Chris Dodd for standing up on this FISA issue. I can't believe "retroactive immunity" is even something the congress is allowed to grant.
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Dodd Against Immunity
19 Oct 2007 09:58 am
Comments (41)
Don't think of it as "retroactive immunity", think of it as "annulment".
it's not just "retroactive immunity."
it's "retroactive immunity for stuff we can't tell congress about."
While I don't see any constitutional reason that Congress can't grant retroactive immunity from criminal prosecution, of course if Bush had the courage of his convictions, he'd simply use his pardon power. It's being handled this way to save Bush embarrassment and implicate the Democrats in his crimes.
Soullite:
"...declare that it means that you can't criminalize an act after that act has been committed."
But is that what is being granted here? Is not the point of this bill to grant them immunity from prosecution for a crime that they have already committed, a pardon if you will? I don't know, which is why I ask.
I think the issue here is one of civil liability. I'm not sure that that president can pardon on such grounds. The point of this is to prevent suits getting to court filedagainst the phone companies by the people whose privacy was violated.
It would be nice if anyone in the media paid some attention to Dodd's hold. Anyone.
Of course, it would be nicer if Reid paid some attention to it, as well.
--WKW
Can they retroactively revoke it too?
I'm also confused as to how an act of Congress can shield someone from civil liability. After all, the whole point is to provide redress for injury. The fact that the behavior is clearly illegal and that the efforts to provide immunity are premised on the acknowlegement that what the telco's did was illegal only provide bonus points.
Spud1 -
Soullite means that you can't take an action that isn't criminal right now, pass a law that says it's a criminal act, and then arrest me for performing that action yesterday. That's different from this, where they're saying that this was a criminal act yesterday but we're going to say that it's not a criminal act anymore and we're not going to prosecute you for doing it yesterday either.
In the abstract, I think that's something that's okay for Congress to do. If Congress were to decriminalize marijuana tomorrow, I'd want the cops and prosecutors to stop worrying about prosecuting folks who were caught yesterday. In this specific instance it's bad because this is something that shouldn't be decriminalized in the first place.
I think the issue here is one of civil liability. I'm not sure that that president can pardon on such grounds.
In fact, he cannot. Hence the arm-twisting for Congress to do it for him. With permanent gutting of some the FISA court's oversight thrown in for good measure.
Can they retroactively revoke it too?
That would certainly provoke the cries of ex post facto that are largely absent right now.
Congress generally can't make ex post facto laws. That being said, it's been done before (e.g., Sex Offender Registration).
What is shocking to me is that Democrats on the Intelligence are getting on board with this. They need to get out on the talk shows and C-SPAN and explain to the American people why they believe this is extraordinary measure is necessary. Or be prepared to be voted out of office in the next election cycle.
Folks, this immunity is all about civil liability, not criminal. Ex post facto laws only have to do with retroactively criminalizing conduct. (And, I'm sorry, but that interpretation has nothing to do with "2 centuries of corrupt judges." Christ.) As far as civil liability, first, it's Congress that creates private rights of action under federal law, and Congress can take them away. It's well settled that Congress may legislate retroactively, although there's a strong presumption against it and they have declare that intent clearly. The Contracts Clause can come into play sometimes too, but I don't think that's an issue here.
As ill-advised as this is, it's clearly within Congress' power.
I can't believe "retroactive immunity" is even something the congress is allowed to grant.
Presumably, Congress could specify that money appropriate to DOJ could not be used to prosecute certain crimes, or it could limit the jurisdiction of federal courts to hear such cases.
Looks like Dodd is turning out to be the real "liberal" among the Dem candidates.
http://www.political-buzz.com/
So basically this law says you aren't liable for civil damages if you help the executive branch violate the Constitution. Putting aside the Constitutionality of Congress passing such a law, why on earth would any Congressman want to?
Wouldn't retroactive immunity be the same thing as granting pardons. An except of Ford's pardon of Nixon:
Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"....or may have committed..."
Does Congress now, or did it always, have an equivilant power of pardon to that wielded by a President?
I called Reid’s office (202-224-3542), and had more or less the following conversation:
LAMBERT: Is it true that Senator Reid is going to bring the FISA reform bill that gives the telecommunications companies retroactive immunity to the floor despite the hold Senator Dodd has placed on it?
STAFFER: Senator Reid plans to bring the bill to the floor, yes.
LAMBERT: Despite the hold?
STAFFER: Senator Dodd has not yet actually placed the hold. I’ll put you down as opposed.
LAMBERT: Let me just say—I’ve supported Senator Reid for a long time, because I remember how he deked the Republicans but good and saved Social Security. But this bill is unconscionable. And just a heads-up: This is not the Senator Reid I know. Now, you’re probably too young to remember, but under Nixon, Watergate was all about blackmailing political opponents. And some are speculating that Reid is being blackmailed using information from this program, and that’s why he’s changed from the Reid we know. If that idea took root, I think it would be very bad.
STAFFER: Thank you.
So….
Congress can pass any damn retroactive law it pleases with a few exceptions -- probably can't upset the results of prior court judgments and surely can't violate the ex post facto clause.
But there's an ex post facto violation only when the legislature criminalizes, or increases the punishment for, conduct committed before the law went into effect. If the law doesn't impose new or increased punishment, it doesn't violate the ex post facto clause.
This is not all bad. For example, there are efforts afoot now to get Congress to lower the extreme penalties for distrubution of crack cocaine offenses and to make its decision retroactive. Congress could do this and it would be a good thing.
It's the OJ Simpson clause. Telecoms want to do the crime without having to do the time. And, like OJ the telecoms are rich and are represented by good lawyers like Harry Reid.
"I'm also confused as to how an act of Congress can shield someone from civil liability. After all, the whole point is to provide redress for injury."
They can and they have. Isn't there a shield now for pharmaceutical companies that produce vaccines? Think it was passed a little while ago. To induce drug companies to produce useful drugs that they might otherwise avoid producing.
DC has become Pawns City where Congress and the administration have abandoned the good of the people and the country. They are nothing more than pawns for the forces of greed and corruption.
The Democrats gained control of Congress because people wanted them to rein in the administration and the lobbyist wing of Congress. They have failed thus far.
As far as civil liability, first, it's Congress that creates private rights of action under federal law, and Congress can take them away
Have the private causes of action not already "vested," in the sense that the harm has already been done, litigation has already commenced, and the plaintiffs to have made a prima facie case? If so, isn't the retroactive immunity an unconstitutional taking of a private property right? Would it not be prudent to inform the Congresscritters about to vote for telecom immunity/amnesty that the US Government could be stuck with having to pay the billions in the very compensation claims from which the telecoms are being excused?
"Have the private causes of action not already "vested," in the sense that the harm has already been done, litigation has already commenced, and the plaintiffs to have made a prima facie case?"
I'm pretty sure that, under Supreme Court law as it stands now, only the actual judgment of a court cannot be overturned by Congress. Although it isn't the terminology, it's as if the right only "vests" at the point of judgment. It's been a long time since I looked at the cases, however, so I might be wrong.
To clarify, I'm saying that the founders clearly intended to prevent retro-active immunity AS WELL AS modifications that allow charges to be brought on people who committed acts that were not illegal at the time of their committal. These were both well known methods for the british empire to immunize it's allies and punish it's enemies. There is a reason the constitution explicitly grants only the President the power of pardon and commutation.
What I'm saying is that much like corporate personhood, corrupt judges decided that the constitution said something that it didn't really say in order to pay back people who had bribed them into their positions. The provisions regarding the power of pardon coupled with an explicit denial of the power of congress to modify criminal law, make this very hard to deny unless you really, really want to enter fantasy land.
Folks, this immunity is all about civil liability, not criminal. Ex post facto laws only have to do with retroactively criminalizing conduct. (And, I'm sorry, but that interpretation has nothing to do with "2 centuries of corrupt judges." Christ.)
Well, the case that says the ex post facto prohibition only applies in the criminal context is Calder v. Bull, a 1798 decision. So I mean, it is a judge-made interpretation, but in about the same sense that judicial review is.
The good news is that one Justice of the Supreme Court has expressed the view that maybe Calder v. Bull should be overruled and the ex post facto prohibition should be applied to civil causes of action as well. If you guessed that the one Justice would be Clarence Thomas, you're very sharp.
So if you think Clarence Thomas generally has the right view of the law, then you should probably pursue this line of thought. Otherwise, it might be worth considering that extending the ex post facto prohibition would work to the detriment of liberal initiatives more often than not.
mimir wrote, "If so, isn't the retroactive immunity an unconstitutional taking of a private property right?"
_Please_ don't adopt the language of "takings", even if in this case it's in a good cause.
"Takings" is just a way for the rich and powerful to enslave the rest of us by charging us economic rents.
This is an interesting question indeed. I do not believe the ex post factor provision prohibits Congress from enacting changes that favor the wrongdoer. But if a case already has commenced in the judicial branch of government, the judicial branch already has jurisdiction. In my opinion, any an attempt by Congress to legiuslate immunity in a pending lawsuit would violate the principle of separation of powers, because determining the outcome ofpending cases and controversies is a judicial, and not a legislative functiont
.
"I'm saying that the founders clearly intended to prevent retro-active immunity AS WELL AS modifications that allow charges to be brought on people who committed acts that were not illegal at the time of their committal."
You can say it. Got any evidence for it? I mean, specifically?
And would you forbid Congress the right to reduce the penalties for crack cocaine offenses?
I think Steve is right. More often than you might think, the retroactive application of a law is a liberal position, not a conservative one. Watch out, you might get what you wish for. (By the way, merely because the President can grant a pardon doesn't mean that the Congress and the President together, by passing and signing a law, can't do the same thing.)
Also, I agee with Mimir that once a plaintiff obtains service on a defendant, the plaintiff's claim has "vested" and becomes a "property interest" within the meaning of the due process clause of the Fifth Amendment. Th term "due process," since time immemorial or the Magna Carta,whichever came first, has meant a proceeding in the judicialbranchof goverment,and not the legislative branch.
Look, I know what you all think the law should be, but so far as I'm aware, that's not what the law is, or is likely to be (barring another four Justice Thomas's on the Court). I welcome any evidence that I am wrong about what the law says.
Well, one should also keep in mind there is already a pending case in SF that the government is losing, so it looks as well as though the congress is trying to interfere with an ongoing judicial proceeding (albeit with a very big cannon). I suppose the effective result isn't much different than the effect of legalizing xyz tomorrow (I think of booze and prohibition, since we do a lot more illegalizing than legalizing), but technically it seems a judge would have the discretion to pursue a case to its conclusion, even if punishment would be moot. Not a small consideration given what could be discovered in this case.
[congressional-interference remark cribbed from Greenwald].
Well, one should also keep in mind there is already a pending case in SF that the government is losing, so it looks as well as though the congress is trying to interfere with an ongoing judicial proceeding (albeit with a very big cannon). I suppose the effective result isn't much different than the effect of legalizing xyz tomorrow (I think of booze and prohibition, since we do a lot more illegalizing than legalizing), but technically it seems a judge would have the discretion to pursue a case to its conclusion, even if punishment would be moot. Not a small consideration given what could be discovered in this case.
[congressional-interference remark cribbed from Greenwald].
One amendment to what I've said. There has been doubt expressed in Supreme Court opinions whether Congress could extinguish the right to sue for violation of one's constitutional rights. On the other hand, Congress got away with something similar to this in Ex parte McCardle, I think. The question of the effect of a statute explicitly abolishing the right to sue for the violation of one's Fourth Amendment rights is uncharted territory.
The pernicious little detail here that makes this something other (and much worse) than merely changing a law, or getting rid of certain causes of action, is that Congress is not revoking FISA or the penalties it imposes at all, and they certainly are not passing a Constitutional Amendment revoking or modifying the 4th. They are simply making a retroactive grant of immunity to a discrete category of civil defendants in pending lawsuits. The laws and Constitutional provisions that give rise to the claims at issue would remain in full effect-- or at least they would in the abstract, presumably subject to some future bullshit grant of retroactive immunity. At bottom, this is Congress directly intervening in pending litigation for the benefit of one set of parties and the detriment of another set of parties. And they are doing it for money. The framers wanted to avoid this, obviously. Of course, "a collection of bad things that the framers of the Constitution and Declaration of Independence specifically hoped to avoid" is pretty much the definition of our current government.
What is shocking to me is that Democrats on the Intelligence are getting on board with this. They need to get out on the talk shows and C-SPAN and explain to the American people why they believe this is extraordinary measure is necessary. Or be prepared to be voted out of office in the next election cycle.
Posted by Keith
It's pretty simple, the burden is actually on the Left in Congress to explain why they would prefer companies NOT to cooperate with the government in national security matters when American lives are at stake being corporate good citizens and helping defeat the enemy, as tens of thousands of companies did in WWII.
Dodd is doing this because he is a blatant whore of the trial lawyers. They see gold in this, and are willing to give Dodd a portion of that gold if he helps them.
All the Left has to do is explain why, if the FBI HAD acted on reports of "high numbers of Arabs" attending US flight schools uninterested in taking off or landing the plane, they would be strongly against the flight schools "violating the privacy of Arab 757 flight school students". That if they had cooperated with the FBI in giving records with no "probable cause warrant" possible, they should be sued and driven out of business for helping prevent the 9/11 plot.
After the attack, the 9/11 Commission concluded that failure to get the Arab pilots records to learn who they were and query them was a great failure, and future prevention of attacks required more aggressive FBI inquiries and full cooperation from companies and individuals.
The phone companies cooperated, not just with the "Eviiiil Bush-Hitler", but also with leadership of both Parties, who were aware we were trying to get SIGINT on Islamists and endorsed that program.
No, the burden is on the Left in Congress to explain why they endorse being deaf to the enemy's plans, why they endorse, based on the opinion of one lawyer dressed in robes on FISA - that two terrorists talking on cell phones in Pakistan that are routed through US company telecomm assets - are entitled to 4th Amendment protections.
Explain that to the public. Explain why they endorse Dodd's whoring to the trial lawyers. Explain why they wish for American deaths if that is what it takes to protect terrorist "privacy rights" abroad.
....being corporate good citizens and helping defeat the enemy, as tens of thousands of companies did in WWII.
Hey Chris Ford-
Which companies, exactly, engaged in domestic spying on behalf of the US government during World War II? Be specific.
I gotta say it, Dodd's name is on some other great legis. action out there - the Gulf Coast Housing Recovery Act (S. 166. Tell him you support not only his FISA boldness, but his effort to bring promised fed'l housing resources to the GC NOW!!!
Here's some more info from the National Organizatio for Women's website:
http://capwiz.com/now/issues/ ale...lertid=10235371
(I've also written extensively on housing struggles in the GC, so check me out if you want detailed, bloggy context.)
Chris Ford -- just because I believe it's a good idea to let the police patrol my town's streets doesn't mean they're welcome to come inside my house at their whim. While I have no window into Dodd's soul, I suspect he'd rather the telcoms obey the spirit and letter of the law. The alternative is not "not cooperating," it's "cooperating lawfully."
Hey Chris Ford-
Which companies, exactly, engaged in domestic spying on behalf of the US government during World War II? Be specific.
Posted by James Gary
Explain why SIGINT on terrorist, radical Muslim.Chicom/Russian/etc. communications overseas or coming into the USA is "domestic spying". Specifically.
Your concern for the rights of our enemy is touching.
No criminal prosecution, BTW, is possible of a US citizen if they are "flagged" as traitorously working for a foreign entity by SIGINT. The criminal case must be based on evidence gathered by search warrant - (with the usual exceptions that have always existed in the US criminal court system of "reasonable search exceptions to warrants" cops and judges and prosecutors have always gone by).
Chris Ford -- just because I believe it's a good idea to let the police patrol my town's streets doesn't mean they're welcome to come inside my house at their whim. While I have no window into Dodd's soul, I suspect he'd rather the telcoms obey the spirit and letter of the law. The alternative is not "not cooperating," it's "cooperating lawfully."
You are not talking about comms from American to American inside the USA. You are talking about stuff crossing our Borders. Your person, your belongings, your mail packages may be searched at the Border by Customs/Postal officials at their discretion, no warrant necessary, as a "reasonable search". International Wires and HAM radio has always been intercepted and screened.
The Lefty effort to conflate looking for international terrorist comms to protect the American public - with Nixonian/LBJ/FDR warrantless domestic surveillance - is amusing, in part. Because Lefties are crawling way out on a limb to protect America's enemies, and the next large loss of American lives - that limb gets sawed off.
Comments closed November 02, 2007.
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Heads in the Sand
I think the founders meant to cover this when they prohibited any sort of ex post facto modification to criminal law. Unfortunately, two centuries of corrupt judges have decided to interpret that as narrowly as possible, and simply declare that it means that you can't criminalize an act after that act has been committed. Strangely enough, this only seems to exempt corrupt businessmen and politicians from prosecution.
Posted by Soullite | October 19, 2007 10:17 AM