I have an *autographed get-out-of-jail-free card*[...]You don't have one of these, do you Jack?
September 19, 2006 10:17 AM Subscribe
"We simply can't reward illegal behavior." Seems that the previously declared legal program domestic spying bill and the previously declared lawful interogation techniques interrogation clarification bill that the Bush Administration has so adamantly asked for has run into a little roadblock, namely one goddamned piece of paper known as the Constitution, namely Article 1, Section 9, and Article 1, Section 10, which prohibits legislation changing the legality of an action after the fact (aka Ex Post Facto).
This post was deleted for the following reason: axe grind filter - did you really just FPP the constitution?
Boom.
(Of course ... it's just a piece of paper.)
posted by grabbingsand at 10:22 AM on September 19, 2006
(Of course ... it's just a piece of paper.)
posted by grabbingsand at 10:22 AM on September 19, 2006
Insert fark style HA HA guy here.
posted by Dillenger69 at 10:24 AM on September 19, 2006
posted by Dillenger69 at 10:24 AM on September 19, 2006
Yeaaaa constitution!! I'm afraid it doesn't matter too much right now though. Neither the legislative bodies nor Justice is likely to attempt legal action against Bush and other admin. officials any time soon. The Republicans own the apparatus and processes of government, without which little can be accomplished. When/if republican lawmakers (lol) decide to cannibalize Bush, then we may see some action.
posted by Mister_A at 10:26 AM on September 19, 2006
posted by Mister_A at 10:26 AM on September 19, 2006
No. The blog post wholly misunderstands the application of the Ex Post Facto Clause. As the Supreme Court has repeatedly held, two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.
posted by monju_bosatsu at 10:28 AM on September 19, 2006
posted by monju_bosatsu at 10:28 AM on September 19, 2006
This is not the roadblock you are looking for.
posted by eddydamascene at 10:29 AM on September 19, 2006
posted by eddydamascene at 10:29 AM on September 19, 2006
Ah, the semantic life preserver, monju. No politician or pundit left behind.
posted by rzklkng at 10:31 AM on September 19, 2006
posted by rzklkng at 10:31 AM on September 19, 2006
'Ex post facto' usually refers to laws that criminalize behavior previously legal, or increase the punishment for, or reduce the evidence needed to prove, existing crimes. It would be interesting to see a case where it was interpreted to go the other way, as you're suggesting.
In any case, it doesn't matter what you call it or how you dice it up. If the legislature won't check the executive like it's supposed to, and the executive won't respect the judiciary's view of the Constitutionality of the laws, there's nothing you can do about it, sadly. If we're going to have a Constitutional crisis, we're going to have one, and it'll come down to pure power politics. Personally, I think we're having one right now.
IANAL.
posted by facetious at 10:32 AM on September 19, 2006
In any case, it doesn't matter what you call it or how you dice it up. If the legislature won't check the executive like it's supposed to, and the executive won't respect the judiciary's view of the Constitutionality of the laws, there's nothing you can do about it, sadly. If we're going to have a Constitutional crisis, we're going to have one, and it'll come down to pure power politics. Personally, I think we're having one right now.
IANAL.
posted by facetious at 10:32 AM on September 19, 2006
Where is the actionable portion of this post?
Pending the election of a Congress with a spine this FPP is a waste of calories, energy and effort.
posted by vhsiv at 10:32 AM on September 19, 2006
Pending the election of a Congress with a spine this FPP is a waste of calories, energy and effort.
posted by vhsiv at 10:32 AM on September 19, 2006
Ah, the semantic life preserver, monju.
How is the substantive requirement that an ex post facto law be one that disadvantages those affected "sematic"?
posted by monju_bosatsu at 10:33 AM on September 19, 2006
How is the substantive requirement that an ex post facto law be one that disadvantages those affected "sematic"?
posted by monju_bosatsu at 10:33 AM on September 19, 2006
Letter of the law, intent of the law, and all that. But like everyone mentioned, an indifferent and legislature and justice department will insure that nothing positive will happen...
posted by rzklkng at 10:36 AM on September 19, 2006
posted by rzklkng at 10:36 AM on September 19, 2006
And I'm sure that with a little research, the US government has argued against ex post facto legalization on similar grounds.
posted by rzklkng at 10:42 AM on September 19, 2006
posted by rzklkng at 10:42 AM on September 19, 2006
Letter of the law, intent of the law, and all that.
Well, the intent of the Ex Post Facto Clause was to prevent the government from retroactively criminalizing previously legal behavior and clapping dissidents in prison, as George III was wont to do. It was never intended as a bulwark against retroactive legalization of previously criminal activity. Otherwise a pardon would be treated the same way a bill of attainder is.
And I'm sure that with a little research, the US government has argued against ex post facto legalization on similar grounds.
That's a pretty bold assertion. Care to back it up?
posted by monju_bosatsu at 10:43 AM on September 19, 2006
Well, the intent of the Ex Post Facto Clause was to prevent the government from retroactively criminalizing previously legal behavior and clapping dissidents in prison, as George III was wont to do. It was never intended as a bulwark against retroactive legalization of previously criminal activity. Otherwise a pardon would be treated the same way a bill of attainder is.
And I'm sure that with a little research, the US government has argued against ex post facto legalization on similar grounds.
That's a pretty bold assertion. Care to back it up?
posted by monju_bosatsu at 10:43 AM on September 19, 2006
monju_bosatsu's right.
But such laws may be proper or necessary, as the case may be. 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.
posted by EarBucket at 10:44 AM on September 19, 2006
But such laws may be proper or necessary, as the case may be. 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.
posted by EarBucket at 10:44 AM on September 19, 2006
This is a stupid FPP. Even if the linked blog post were correct (which it isn't), the FPP would still be kinda stupid.
posted by rxrfrx at 10:44 AM on September 19, 2006
posted by rxrfrx at 10:44 AM on September 19, 2006
monju_bosatsu is right both in his criticism of the blogger and in insisting that this is not mere semantics. The language he's citing is straight from court opinions, which you can read in Weaver v. Graham (full opinion) and Lindsey v. State of Washington (full opinion):
For a criminal or penal law to be ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.
posted by Pontius Pilate at 10:45 AM on September 19, 2006
For a criminal or penal law to be ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.
posted by Pontius Pilate at 10:45 AM on September 19, 2006
(That said, this is a pretty shitty end-run around the law, in my opinion. But that doesn't make it unconstitutional.)
posted by EarBucket at 10:45 AM on September 19, 2006
posted by EarBucket at 10:45 AM on September 19, 2006
rzklkng writes "Letter of the law, intent of the law, and all that."
You appear to not know what this "law" thing actually is. Just because you want something to be so 1) does not mean it is so; 2) does not make it a good FPP; 3) does not make your specious arguments from sentiment any more convincing.
posted by OmieWise at 10:49 AM on September 19, 2006
You appear to not know what this "law" thing actually is. Just because you want something to be so 1) does not mean it is so; 2) does not make it a good FPP; 3) does not make your specious arguments from sentiment any more convincing.
posted by OmieWise at 10:49 AM on September 19, 2006
The Constitution? Isn't that the old warship in Boston? Why does a boat hate our troops so much?
posted by StarForce5 at 10:59 AM on September 19, 2006
posted by StarForce5 at 10:59 AM on September 19, 2006
What about violating the Presidential Oath? I.E. the primary job of the President is to protect the Constitution?
posted by enamon at 11:15 AM on September 19, 2006
posted by enamon at 11:15 AM on September 19, 2006
This is all kinds of wrong as monju_bosatsu and others have pointed out and this post should be axed. It's yet another example of politically-charged posters trying to make some legal point without knowing anything actually about the law.
I'm proposing a new law of the internets:
Dios' law: As any online discussion of politics grows longer, the probability that a non-legally trained and politically-charged poster will misstate, misinterpret, or misapply the law, the Constitution, or a piece of legislation approaches one.
Maybe I'll be famous like the Godwin guy.
posted by dios at 11:17 AM on September 19, 2006
I'm proposing a new law of the internets:
Dios' law: As any online discussion of politics grows longer, the probability that a non-legally trained and politically-charged poster will misstate, misinterpret, or misapply the law, the Constitution, or a piece of legislation approaches one.
Maybe I'll be famous like the Godwin guy.
posted by dios at 11:17 AM on September 19, 2006
I think Godwin was shot in the end. Something about being a know-it-all who never knew when to shut up.
Hopefully you'll have better luck, dios.
posted by SeizeTheDay at 11:20 AM on September 19, 2006
Hopefully you'll have better luck, dios.
posted by SeizeTheDay at 11:20 AM on September 19, 2006
enamon:
If such legislation was to be passed by Congress, then executing a duly-enacted and constitutionally permissible law is precisely what the President is supposed to do in order to "preserve, protect and defend the Constitution of the United States." In accordance with Article II, Section 3 of the U.S. Constitution "[the President] shall take care that the laws be faithfully executed." No violation of the Presidential Oath (at least not according to its letter - its spirit is another question altogether).
posted by Pontius Pilate at 11:22 AM on September 19, 2006
If such legislation was to be passed by Congress, then executing a duly-enacted and constitutionally permissible law is precisely what the President is supposed to do in order to "preserve, protect and defend the Constitution of the United States." In accordance with Article II, Section 3 of the U.S. Constitution "[the President] shall take care that the laws be faithfully executed." No violation of the Presidential Oath (at least not according to its letter - its spirit is another question altogether).
posted by Pontius Pilate at 11:22 AM on September 19, 2006
Dios' law: As any online discussion of politics grows longer, the probability that a non-legally trained and politically-charged poster will misstate, misinterpret, or misapply the law, the Constitution, or a piece of legislation approaches one.
Fixed that for you. Not that you and m_b aren't correct in this instance, of course.
posted by Faint of Butt at 11:26 AM on September 19, 2006
Fixed that for you. Not that you and m_b aren't correct in this instance, of course.
posted by Faint of Butt at 11:26 AM on September 19, 2006
Can someone explain how the line "and it must disadvantage the offender affected by it" applies in this case? I can't seem to wrap my head around what that exactly means. Who would be the offender?
posted by drstupid at 11:27 AM on September 19, 2006
posted by drstupid at 11:27 AM on September 19, 2006
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