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FISA Amendment In Light of Calder v. Bull, 3 Dall. 386 1798

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By Rick Lucke

As one peruses the Internet, various testaments to the “constitutionality” of the new FISA amendment can be found,
all of which cite one single court ruling that supposedly upholds the
amendment’s constitutional legality in response to the argument that
the amendment violates the Constitution’s prohibition against congressional
passage of ex post facto laws.

It could, and should, be argued that,
in addition to violating other elements of the Constitution, the retroactive
immunity clause in this bill is unconstitutional, via the “ex post
facto law” restrictions in the U.S. Constitution’s Article 1, section
9.  The court ruling (Calder v. Bull,
3 Dall. 386 1798) that established general consensus regarding the ex
post facto provisions in Article 1, appears erroneous, not on point,
and must be revisited.  “The Calder majority's argument is easily refuted with the reasoning that there is nothing inconsistent
with interpreting the ex post facto prohibition as applying to all laws,
including civil laws.”  That ruling enumerated examples of ex
post facto laws:

    “…a law that destroys, or impairs,
    the lawful private contracts of citizens…”

      “…a law that takes property from
      A. and gives it to B.” [Contradicting his own ruling]

        “But I do not consider any law
        ex post facto, within the prohibition, that mollifies the rigor of the
        criminal law […]  There is a great and apparent difference between
        making an UNLAWFUL act LAWFUL; and the making an innocent action criminal,
        and punishing it as a CRIME.”

          There are a number of problems with
          Chase’s opinion.

          Chase’s opinion engages self-denial. 
          The Calder case dealt with a “law that takes property from A. and
          gives it to B”, retrospectively, ex post facto, retroactively
          The issue in the case,
          which arose from the Supreme Court of Connecticut, was whether the act
          of the Connecticut legislature to set aside a decree of a probate court
          (which had the effect of divesting the appellants of certain property)
          was an ex post facto law.”  Chase specified exactly this situation
          as being an ex post facto law (see above), yet did not support that
          finding in the Calder case.

          Another problem with Chase’s opinion
          is that it does not appear to distinguish between section 9, which deals
          with congressional legislative restrictions, and section 10, which deals
          with state legislatures:

            “It is thus problematic to base
            an argument against the application of the ex post facto clause to civil
            law [or all laws] on the existence of the contract and legal tender
            clauses (as the Calder Court does), because those clauses do not
            even appear in the section of the Constitution restricting laws that
            Congress can make.”

            Chase’s opinion is imprecise, and appears
            based upon section 10, not section 9, which leaves open the possibility
            of applying the ex post facto prohibition to the current FISA debate.

            Ex post facto restrictions exist as a
            check against tyrannical oppression and manipulation of laws to governmental
            self-benefit.  Justice Chase’s distinction between oppressive
            “retrospective” laws and “ex post facto” laws appears shortsighted
            at best.  Construing the prohibition on ex post facto laws so narrowly
            that it allows for excusing governmental infringement on constitutionally
            protected rights defeats the purpose of the prohibition.  The “great
            and apparent difference” Justice Chase saw between the two actions
            to which he alluded would appear not to have such a “great and apparent
            difference” in their end results.

            As granting telecoms immunity for past
            law-breaking deprives individual citizens of their legally sanctioned
            rights to redress wrongs committed against them, this bill clearly violates
            the spirit – the intent – of the ex post facto restrictions put
            forth in the U.S. Constitution.  As James Madison said in Federalist Number 44,

              “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." 
              (Emphases added)

              Telecom immunity in this case fits the
              definition of “fluctuating policy” directing “the public councils”,
              and violates the Constitutional restriction, upheld in Lochner v. New York,
              198 U.S. 45 (1905), from passing any “law impairing the obligation
              of contracts
              ” (Article 1, section 10), as private citizens entered
              into contracts with these telecoms, and disclosure of their personal
              information to other parties without legal warrants was legally
              prohibited, making that prohibition against warrantless disclosure an
              element of those contracts (“rights vested, agreeably to existing
              laws”).  As part of the crime committed by this president and
              these telecoms, citizens’ legally upheld
              and protected right to privacy was violated.  Granting immunity
              for this violation interferes with individual citizens’ legal recourse
              for having that right violated, in effect becoming a “law impairing
              the obligation of contracts

              It seems reasonable that the Founders
              understood, and sought to prevent, the possibility of governments
              previous criminality, either of their own or of
              their accomplices, in order to protect themselves from investigation
              and prosecution, which would seemingly explain the omission of any exceptions
              to the ex post facto prohibition clause in section 9 of the Constitution. 
              President Bush’s unequivocal vow to veto any FISA bill not
              granting telecom immunity leaves one hard pressed to conclude his motives
              are any other than to insulate himself from investigation.  With
              the passage of this bill, one can only hope that there will be litigation
              of the constitutionality of this bill, seeking to have it repealed. 

              Given the lawlessness of the George W.
              Bush administration, it is reasonable to conclude it is time for the
              courts to revisit Justice Chase’s opinion, and expand the meaning
              and usage of the ex post facto provisions.  A nation ruled by laws
              cannot survive if Congress passes retroactive legislation that forgoes
              the judicial process, also a violation of the Fourteenth Amendment’s
              “due process” guarantees and other protections, in order to excuse
              illegalities committed by those in power; such legislation violates
              the separation of powers and undermines the intent of the ex post facto
              prohibition.  Obama has stated
              one clear fact in his position on the FISA bill: “This potentially
              weakens the deterrent effect of the law and removes an important tool
              for the American people to demand accountability for past abuses.” 
              Surely this reveals the contradiction between this bill and the intent
              of the Founding Fathers’ ex post facto prohibition.  This bill
              clearly, retroactively, favors the interests of one group over the rights
              of private citizens, amounting to a judicial action, for which congress
              has no authority.

              The Bush Administration and the telecoms,
              AT&T, Sprint and Verizon, knowingly conspired and engaged in an
              illegal act.  In excusing them via the passage of this bill, an
              act from which Congress is expressly restricted by the Constitution,
              despite Justice Chase’s mystifying opinion, Congress is conspiring
              to commit further crimes against the Constitution and our nation. 
              A “nation of laws” cannot tolerate such blatant lawbreaking from
              all levels of its government.  Terrorists present no threat to
              core American values, but Bush and this congress are undermining the
              principles Americans cherish by ignoring the rule of law that the Founding
              Fathers knew to be the only foundation for a democratic and free society.