Last week, the honorable members of the US House of Representatives voted on an unprecedented piece of legislation. Under the weight of a 19% approval rating [pdf, Fox News poll, question 16], our stalwart leaders, elected in 2006 in a much-touted Democratic takeover of Congress — pledged to end the war in Iraq and bring the out-of-control George Bush to heel — took the bold move of thumbing their noses at this illegal administration by caving in completely on the FISA deal.
In case you didn’t know, FISA (Foreign Intelligence Surveillance Act) is a bill passed in the Seventies in order to justify secret government collaboration against “enemies of the state”, and set the stage to side step Fourth Amendment protections in the process [If one assumes that the "inalienable human rights" enshrined in the Constitution (by derivation from the Declaration of Independence) are, in fact, considered universal. I do.]. It allows warrantless surveillance (justified after-the-fact) and searches of “foreign agents” — agents of foreign governments. It has been amended several times to include lone actors and non-governmental entities. This deal is to allow warrant-less surveillance of communications originating within the US, and even has a proviso for compelling Big Telecom to act as the administration’s agent in collecting surveillance (in the form of calls, emails, and other electronic media), despite the “reasonable assurance of privacy” inherent in the use of phone lines and Internet access.
The real kicker in this, as far as I am concerned, is the amnesty offered Big Telecom for their complicity. Should a victim of such blatant violations sue Big Telecom over such collection, the AG can just send a letter to the presiding judge explaining how the information is material evidence gathered for national security purposes, and the judge must dismiss charges. The injured party is prevented from even being told whyhis case has been dismissed. Did I mention that this would apply to the cases currently brought against Telecom? That means the government can amnesty companies that did something illegal before they had the power to grant amnesty. It’s essentially going to become legal for them to do it now, so anyone who did it before it was legal will reap the benefit of it now being legal.
I seem to remember something, somewhere about not having ex post facto laws.
Big Telecom is being amnestied for violations of basic human rights, Constitutionally protected rights. If the government is allowed to trample the Bill of Rights with impunity, and to conscript to this end corporate players, and also exempt any and all — past or future — victims of such tyranny from their protected ability “to petition the government for a redress of grievances,” where does it end?
Paul Craig Roberts recently had some thoughts on this:
The House Democrats, led by “impeachment-is-off-the-table”Nancy Pelosi, added to the Democratic Party’s shame by passing today, June 20, a bill that shields from punishment the criminal Bush regime and the telecommunications corporations that the Bush regime coerced into committing felonies under US law by cooperating in Bush’s illegal spying on American citizens.
The great hope of the Founding Fathers, the people’s house, the House of Representatives, has passed an unconstitutional retroactive law making acts legal which were illegal when they were committed.
If a Democratic House of Representatives will pass a retroactive law in order to legalize the criminal violations of a Republican regime, the same House will pass a retroactive law making illegal what you did legally yesterday. No one is any longer safe in America. By abandoning the US Constitution, Republicans and Democrats have made America as potentially unsafe as Zimbabwe for anyone who takes exception to the government. [Links and emphasis in original]
There has been discussion that the 1798 Calder v. Bull SCOTUS decision applies here. I’m just a sea lawyer, but my read on that is that Justice Samuel Chase applied (along with Blackstone and the long precedence of English common law) the ex post facto prohibition only to laws with incur or increase punishment, not laws which mollify same. Justice James Iredell agreed, in that ex post facto can only be applied to criminal, and not civil, law.
I’ll leave that aspect — the legality of such a proposal — to greater legal minds than mine. There are bigger fish to fry here. I do want to close this discussion with a thought, from Justice William Paterson in the Calder case, which I’d hazard to sum up as, “Whether or not it is legal, it is wrong“:
I had an ardent desire to have extended the provision in the Constitution to retrospective laws in general. There is neither policy nor safety in such laws; and, therefore, I have always had a strong aversion against them. It may, in general, be truly observed of retrospective laws of every description, that they neither accord with sound legislation, nor the fundamental principles of the social compact.
