photo credit: Propaganda Remix Project

The Constitution, in two distinct clauses, prevents the government—both federal and state—from passing retroactive law. Called “ex post facto law”, the term is Latin for “from something done afterward”, or more simply, law dealing with something “after the fact”.

In Article 1 Section 9, the Constitution states that “No Bill of Attainder or ex post facto Law shall be passed”. Likewise, Section 10 says that “No State shall … pass any … ex post facto Law…”. These clauses prevent the government from passing a retroactive law which would change or remove a previous punishment (or lack thereof) for any given action.

In light of this fact, one would think that the discussion for any retroactive laws would be non-existent in Congress. As one might presume given the lack of Constitutional obedience among most politicians, however, this is not the case.

The latest hot topic, and one that President Bush has been fervently advocating, is retroactive immunity for certain telecom companies that illegally divulged information regarding their networks and customers to intelligence agencies. While the House met secretly (for the first time in 25 years) and narrowly rejected the immunity, President Bush has threatened to veto the bill and continue to push for immunity.

Absent from the debate, as usual, was the declaration of Constitutional authority to even discuss this matter.

Retroactive immunity would not be necessary if the actions of these companies were legal to begin with. Despite how “patently unfair” President Bush thinks it is, the fact that these companies circumvented established laws and policies to give the government whatever they wanted is patently illegal.
As one commentator (warning: minor foul language) notes, any person in Congress voting in favor of immunity is breaking their oath of office, and therefore worthy of arrest:

The moment that Congress passes an ex post facto law, every Member and Senator voting AYE has committed a felony. Felony forfeits legislative immunity, as in the Constitutional provision, “… They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest. …”

No better case for crimes against the Constitution can be given than this. Congress, seemingly ignorant of the document they have sworn to support and defend, goes about discussing and passing whatever law they choose. In this manner, the Constitution hangs by a thread; the way to save it is to abide by its principles and implement its mandates.

It appears, in light of such disregard for the rule of law, that most of Congress should be impeached, tried for crimes against the Constitution, and left exposed to the consequences of their actions—with no ex post facto law to save them.