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

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.

              Ben Cohen is the editor and founder of The Daily Banter. He lives in Washington DC where he does podcasts, teaches Martial Arts, and tries to be a good father. He would be extremely disturbed if you took him too seriously.