Interesting People mailing list archives
retroactive laws
From: David Farber <dave () farber net>
Date: Mon, 18 Feb 2008 15:49:53 -0800
________________________________________ From: Robert Atkinson [rca53 () columbia edu] Sent: Monday, February 18, 2008 6:05 PM To: David Farber Subject: Re: [IP] An EFF point of view on Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws What was disturbing in the the post that started this thread is the notion that supporting or seeking legislation that is found to be unconstitutional is somehow an impeachable offense. That idea is anti-constitution and would suppress the vigorous debate sought by the Constitution. What about "free speech"? Bob On 2/18/08 3:35 PM, "David Farber" <dave () farber net> wrote:
________________________________________ From: Cindy Cohn [cindy () eff org] Sent: Monday, February 18, 2008 2:02 PM To: David Farber Cc: ip; Peter Swire Subject: Re: [IP] Re: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws Hi Peter (and Dave), Sorry to sound like a litigator, but there are indeed several "plausible" arguments that the retroactive immunity provisions are unconstitutional, contrary to Peter's assertion. There are also several arguments that the prospective immunity in the bill is unconstitutional too -- people seem to forget that the bill has both immunities and in my opinion the second is ultimately more frightening. EFF certainly will be making those plausible arguments should the bill pass. There are serious due process and separation of powers problems with the bill, which effectively grants the Executive the power to demand that pending court cases come out a particular way that favors the Executive. This is an extraordinary thing to do, especially when the constitutional claims of millions of Americans are at issue. While it's not really appropriate for me to lay all of the arguments out here in this public forum (the government and telcos aren't showing us their arguments yet either), I think you'll be interested to see our briefing on the issue, should we have to present it. I urge you to keep an open mind until then. While it would certainly be better for the courts to be allowed to do their job with Congressional interference at this point, I don't want Dave's readers to think that if the bill passes, the cases, along with their privacy and constitutional rights, will simply evaporate. Also, for those interested in responses to most of the specious arguments being raised in the immunity fight in DC (I can't say "all" because it's hard to keep up with all of the misleading things being thrown around), EFF has a document where we've gathered most of them together in a little chart: http://www.eff.org/files/nsa/3keys.pdf Also, on this page: http://www.eff.org/nsa you'll find a series of documents about the immunity fight, including a listing of the laws that the telcos violated and statements from the whistleblower Mark Klein and expert Brian Reid about what the suits are exactly about, which has often been missing from the debate in DC. For instance, one thing that you wouldn't know from the pro- immunity forces is that the suits aren't about targeted surveillance of individuals talking to Al Qaeda. The suits against the carriers, now largely AT&T, Verizon/MCI and Sprint, are about untargeted, blanket surveillance of ordinary Americans in their domestic communications and the wholesale handing over of communications records by the telcos. Cindy On Feb 18, 2008, at 4:10 AM, David Farber wrote:________________________________________ From: Peter Swire [peter () peterswire net] Sent: Sunday, February 17, 2008 4:06 PM To: David Farber Subject: RE: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws Dave: Sorry to sound like a law professor, but this post was incorrect. I think it is bad policy to have retroactive immunity, but I haven't seen any plausible argument that such immunity is unconstitutional. 1. The Constitution does prohibit ex post facto laws. That means that Congress cannot make something *criminal* that was not criminal at the time of the action. So it would be unconstitutional if Congress now tried to make it a crime for wiretaps that happened earlier. 2. Another provision in the Constitution about retroactive laws is the Contracts Clause. That prohibits states from canceling contracts that they earlier entered into. (The Supreme Court has held that the Due Process Clause similarly prevent Congress from canceling statutes). So it would be unconstitutional if a state or federal government previously promised to pay the telcos, but now tried to pass a law that said the payment wasn't due. 3. By contrast, Congress and the states have at various times changed the liability rules for cases that had not yet gone to final judgment. This has come up, for instance, in the various tort reform statutes. The legislature gets to state what the liability (or no liability) rule is, and can change that rule with respect to acts that have not been adjudicated yet in the courts. Peter Prof. Peter P. Swire C. William O'Neil Professor of Law Moritz College of Law The Ohio State University Senior Fellow, Center for American Progress (240) 994-4142, www.peterswire.net -----Original Message----- From: David Farber [mailto:dave () farber net] Sent: Sunday, February 17, 2008 3:09 PM To: ip Subject: [IP] Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws ________________________________________ From: Gordon Peterson [gep2 () terabites com] Sent: Sunday, February 17, 2008 2:34 PM To: David Farber Subject: Re: [IP] Re: BEST LAW MONAY CAN BUY -- Senate votes Telecom immunity A recent post I read on the subject pointed out that the US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws... which means that for the pResident to press for, or for Congress to pass, such legislation would be a dereliction of their duty and their sworn oath of office... and thus, in fact, itself (another!) impeachable offense. -- Gordon Peterson II http://personal.terabites.com 1977-2007: Thirty year anniversary of local area networking ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com******************************************************** Cindy Cohn ---- Cindy () eff org Legal Director ---- www.eff.org Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333 x108 (415) 436-9993 (fax) ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com
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- retroactive laws David Farber (Feb 18)