Re: Anyone have opinions on today's FISA news?

["Jarrod Frates" <jfrates.ml () gmail com>]

On Sat, Jun 21, 2008 at 2:34 PM, Rich Kulawiec <rsk () gsp org> wrote:
> It *should* be overturned immediately on judicial review as it violates
> the ex post facto prohibition in Article 1, Section 9.

Before I start into this, I want to make clear that I believe that
while the Congress has the ability to alter the procedures for
wiretapping in the future, the grant of amnesty for past actions, no
matter the mechanism to make it appear that one side or the other is
putting up a fight, is morally wrong, and I condemn a number of
members of Congress for backing it.  I applaud those who voted against
it, particularly Rep. Tim Johnson (R-IL), the lone Republican in the
House to stand up to his party.

However, I don't think that an ex post facto fight will win.
According to the Supreme Court decision in Calder v. Bull (1798), the
ex post facto prohibition applies only to criminal law, not civil law.
 While Article I, Section 9, states that "No ... ex post facto Law
shall be passed," there is a further contextual clue (according to
Calder) in Section 10, which states in part, "No State shall ... pass
any ... ex post facto Law, or Law impairing the Obligation of
Contracts..."

In Calder, the Supreme Court took this to split criminal law from
civil law, else why mention civil law in the first place?  The Calder
decision, written by Justice Samuel Chase, found four conditions which
made a retrospective law into an ex post facto law.  Quoting from the
opinion with a little formatting added for readability:

"1st. Every law that makes an action done before the passing of the
law and which was innocent when done, criminal and punishes such
action.

"2d. Every law that aggravates a crime, or makes it greater than it
was when committed.

"3rd. Every law that changes the punishment, and inflicts a greater
punishment than the law annexed to the crime, when committed.

"4th. Every law that alters the legal rules of evidence and receives
less or different testimony than the law required at the time of the
commission of the offense in order to convict the offender."

Chase goes on to make clear that "[e]very ex post facto law must
necessarily be retrospective, but every retrospective law is not an ex
post facto law. The former only are prohibited."  This bill does not
meet any of the above four requirements, as it does not criminalize
any past deeds, increase the severity of or punishment for the crime,
or require less evidence to convict.  Indeed, since the lawsuits are
civil in nature, and these requirements are based on criminal law, ex
post facto would not ever apply to them, it would seem.

The bill is a reprehensible run-around, intended to get the Democrats
off the hook while providing Republicans what they want.  Maybe there
will be a brave set who will stand up and filibuster it in the Senate,
either because they think it goes to far or doesn't go far enough, and
derails the whole thing.  But if it passes, it is highly unlikely to
be found to fall within the definition of an ex post facto law, based
on 210 years of precedent.
-- 
Jarrod Frates
GAWN, GCIH
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